G W Anderson v J & C Gemmell

 
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[2014] NZEnvC 073

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J A Smith presiding Deputy Environment Commissioner C M Blom

(ENV-2013-AKL-000171)

BETWEEN

In the Matter of an application for enforcement orders under Sections 320 and 316, and of the Resource Management Act 1991 (the Act)

G W Anderson
Applicant
and
J & C Gemmell
First Respondent
Auckland Council
Second Respondent
Apperances:

Mr G W Anderson for himself (Mr Anderson)

Mr J Gemmell for himself & Mrs C Gemmell (Mr Gemmell)

Mr V J Tamatea for the Auckland Council (the Council)

Application to change an enforcement order so it applied to a screen attached to the respondent's deck — parties lived within the Residential 1 Zone (heritage) — second respondent had issued an enforcement order for the removal of the screen as the first respondent had not obtained the necessary resource consent — parties had reached settlement as to earlier screen which was to be removed — first respondent had not erected screen that was agreed to or which he had obtained resource consent for — first respondent had instead erected sheets of corrugated steel screwed to upright wooden supports which were then held at their base by various weights and devices so that it was self-supporting — whether the screen was a “structure” or “building” — whether the screen affected the amenity of the neighbourhood as a whole.

The issue was whether the screen was a building under s8(1) Building Act 2004 (building — means a temporary or permanent movable or immovable structure); and whether it did not comply with the consent given.

Held: For current purposes as a man-made object, the screen was a device or structure. A structure was not defined in the District Plan, but it was clear that not all structures were buildings, but all buildings were structures, or part thereof. The Resource Management Act 1991 did not define building but structure was defined as “any building, equipment, device, or other facility made by people and which was fixed to land”. The screen was clearly “equipment, device, or other facility made by people”, but there was no evidence that it was fixed to land.

The District Plan defined “building” as “any building or construction or part of a building and included “any fence or wall exceeding 2m in height or any part of a deck or terrace which was more than 1m above ground level”. The screen structure did not exceed 2m in height, and therefore could not fit the definition. There no evidence that the screen was a permanent part of the structure of the building or the terrace. At no time did it become part of the deck or terrace, and it did not affect the integrity of the building as to water-tightness, or in any other way. As it was entirely freestanding, it was not covered by the District Plan and was therefore permitted.

If this were wrong, the issue was whether the screen essentially complied with the consent. The materials shown in the application were for plywood and the method was to affix it by aluminium brackets to the existing parapet wall. There was little difference between the use of corrugated iron and plywood.

The conditions for the consent for the screen required that the paint to be used was to match the building. “Match” equated to the same colour as the existing house. That might result in a slightly more recessive outcome. The grey paint used was completely unobtrusive and the eye was not drawn immediately to any strong distinction between the existing building colour and other materials such as the screen.

The Council would need to explicitly consider whether or not the screen met the terms of the resource consent if it was deemed to be a part of the deck structure. Given the preliminary view it was not necessary to reach a final view on this issue. However, A had not established the screen was a violation of the consent.

A resource consent was not required for every form of screen that might be placed on the property. The purpose of the character control within the Residential 1 Zone was to maintain the general and character amenity of the neighbourhood, as viewed from the street. There were many different elements within the current neighbourhood, and a single sheet of corrugated metal on a rear site did not have any significant impact upon the amenity of the neighbourhood at all. The screen was barely visible from the street.

The purpose of the control was clearly to ensure that demolition or change or addition to a building did not have a significant impact upon that existing amenity character. Its application to actions such as the construction of a small structural addition, such as a fence, was somewhat problematic. The chief point was whether the change affected the amenity of the neighbourhood as a whole; given the very limited views from the street, the screen's small size, and limited impact. It was difficult to imagine that this could offend against the rules of the Plan.

The screen was not part of, or attached to, the deck. Therefore the screen was not a structure fixed to a building, and it followed that it was not controlled by the District Plan when looking at the broader issue of effect on amenity. There was no basis to make the changes sought. The original order was complied with, albeit at the last possible moment. The need to act in accordance with the resource consent order was avoided by the redesign of the screen to make it self-supporting.

  • A. The application for change of enforcement order is refused.

  • B. If costs are sought, application is to be filed within 10 working days of date of this decision; replies within 5 working days thereafter.

DECISION OF THE ENVIRONMENT COURT
REASONS FOR DECISION
Background
1

Mr Gemmell and Mr Anderson are neighbours at war. The latest cudgel in their ongoing dispute has been court proceedings surrounding a screen erected on the deck to Mr Gemmell's living room. Being within the Residential 1 Zone, it is argued that the screen requires a resource consent and Mr Gemmell does not hold one.

2

This is the second occasion the parties have been to the Court regarding a screen; Mr Gemmell having previously erected a screen in a similar position. After discussions between the parties, an agreement was reached that the earlier screen was to be removed by 18 April 2013. A copy of that decision and order is annexed here to as A. That in turn annexes a Consent which was granted the working day before the last Court hearing and provided for the installation of a replacement screen.

3

Mr Gemmell removed the previous screen, but did not erect the consented screen. Instead, Mr Gemmell has erected sheets of corrugated colour steel (or similar) screwed to upright wooden supports which are then held at their base by various weights and devices so that the structure is self-supporting. Mr Anderson pursues an enforcement order by seeking a change to the existing enforcement order to include the new device.

Living in the City
4

It is clear that the Environment Court and the Act itself is ill-suited to dealing with internecine disputes between neighbours. The Act and, it appears to us, the Auckland City District — Isthmus Section(the District Plan), on which the Residential 1 Zone is based, assume a level of give and take in the dealings of neighbours to make the Plan, and proximity of living envisaged within it, workable.

5

In the Residential 1 Zone in Auckland, larger properties have been infilled with new buildings. Many properties were already subdivided down to very small sizes. This has resulted in buildings in close proximity with difficult to manoeuvre driveways, often constructed on awkward slopes. The benefits, of course, are that the residents have ready access to the central city and often spectacular views towards the Auckland Harbour and the Harbour Bridge. The Gemmell and Anderson homes are no exception.

6

The two properties are separated by a driveway, servicing three homes. The driveway has a right-hand turn and the corners to reach the rear of the site are particularly tight with little manoeuvring room.

7

In other cities, people recognise that close proximity requires changes to behaviour. What this case proves quite clearly is that it is not possible for a District Plan, or the Act, to legislate for neighbourly behaviour. Neither party showed any willingness to mediate this matter or take any further reasonable approach to find a resolution. Both Statements of Evidence, and evidence given to this Court, were relatively intemperate in regard to the other party. This of course further ingrains attitudes.

The Screen
8

The screen is in relatively low reflectivity grey colours with wooden uprights and a supporting base that includes filled breeze blocks. These features are only seen from the Gemmell side of the structure. The face presented to the Anderson's house is a sheet of corrugated iron.

9

It is certainly somewhat incongruous in the context of these expensive multi-million dollar homes, and viewing it upon entering the property, one would assume either that the Gemmell s had insufficient funds to construct an appropriate screen, or there was some dispute with their neighbour.

10

We don't think that there is any doubt that Mr Gemmell has made the screen in this way so as to aggravate his next-door neighbour and get around the terms of the existing Order.

11

For his part, Mr Anderson's home is some 5.3m away and...

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