Fence wars may bring hill height restrictions
VIEW-BLOCKING ‘FORT’ COULD CHANGE THE RULES FOR HOMEOWNERS
A STOUSH between neighbours over a ‘‘children’s fort’’ in the ritzy suburb of Roseneath could end up restricting how high people can build on the capital’s hills.
Wellington City Council warned yesterday that the court battle over the structure between Peter and Sylvia Aitchison’s property and one owned by David Walmsley had set a legal precedent that could drastically limit the height of structures built on hills without resource consent..
The council is now facing the prospect of having to rewrite its District Plan, depending on what happens next with the fence stoush as it moves from the Environment Court to the High Court.
Whatever happens, it appears the council is determined to see the end of the 4-metre-high structure that is blocking the Aitchisons’ million-dollar harbour view.
City councillors were told that if the High Court effectively gave the structure the thumbs-up then council staff would consider invoking other areas of the Resource Management Act to make it noncompliant.
Walmsley, who works in the council’s IT department, was able to get sign-off on the 11-metre-long structure because he listed it as a children’s fort, which is a permitted activity, rather than as a fence, which would be subject to tougher height restrictions.
If his High Court appeal fails it will mean the end of the fence, but it will create a new problem for the council.
Part of the Aitchison-Walmsley court stoush was over where the boundary between their properties actually lay. Their homes sit on a slope with the Aitchisons at the top, Walmsley at the bottom, and a retaining wall in between.
The council considered the property line to be roughly at the base of the Aitchisons’ apartment and the top of Walmsley’s retaining wall. But the Environment Court decided it was actually at the bottom of Walmsley’s retaining wall, a few metres further down the hill.
If the retaining wall was not there then the property line would be at the base of the Aitchisons’ apartment. So by building the retaining wall, Walmsley effectively shifted – by lowering – the boundary between the two properties.
The upshot of all this for anyone else living on a hill in Wellington – a decent chunk of the city – is that simply building a retaining wall can create new restrictions on what both parties are legally allowed to build on their property.
The council’s manager of city planning and design, Warren Ulusele, told councillors they may want to consider changing the District Plan to fix this, because the legality of other permitted hillside structures across the city could be thrown into question.
‘‘It’s all theoretical at the moment, it’s something that needs to be worked through, but . . . in Wellington with our [hilly] topography it’s worth thinking about.’’
Walmsley could not be reached, and the Aitchisons declined to comment.
But Walmsley has said previously that if the District Plan valued the Aitchisons’ view over his privacy and building rights, then it would need to undergo a significant change.
‘‘The value of my property is in the land, and if I’m unable to build on it or develop it as I wish then the value is diminished.’’
Greater Kelburn Progressive Association co-chairman Robin Buxton said he had watched the stoush over the structure unfold with interest – ‘‘it’s what I would call a spite fence’’.
He hoped the situation would force the council to clarify their rules.
Buxton said any change around how high people could build structures on their land near the boundary line and from what base they should be measured should be clearly stated, then opened to public consultation.
‘It’s all theoretical at the moment, it needs to be worked through, but ...in Wellington with our [hilly] topography it’s worth thinking about.’ Warren Ulusele, council manager of city planning and design