Roseneath fence back in court
A couple at the centre of a highprofile neighbours’ dispute over a view-blocking Wellington fence say they could face the same situation if a council appeal succeeds, a judge has been told.
Wellington City Council has appealed against an Environment Court decision that it says has caused a ‘‘survey nightmare’’.
The council said it was appropriate for the ‘‘play fort’’ that blocked the harbour views of Roseneath couple Peter and Sylvia Aitchison to be removed, but not for the reason the Environment Court gave.
The structure the Aitchisons’ neighbour David Walmsley built had unacceptable effects for the Aitchisons, council lawyer Richard Fowler, QC, said at the High Court in Wellington yesterday. But that should have been dealt with by an exception to the normal rules, Fowler said.
The Environment Court said the council was wrong in the way it measured the ‘‘tent’’ within which building was allowed when retaining walls changed the ground level from one property to its neighbour.
The Aitchisons’ lawyer, Andrew Cameron, told a High Court judge yesterday that the case showed the absurd and anomalous outcome that the council’s rules created. If the council won its appeal, the Aitchisons could face the same situation again, Cameron said.
In September, 2015, the Aitchisons won their case against the council and against Walmsley, over the ‘‘play’’ structure, leading to the structure being removed.
The council wanted to return to the way it measured ‘‘building recession planes’’ before the Environment Court decision that freed the Aitchisons from the wooden box built against their glass-paned terrace.
The interpretation the Environment Court decision adopted was causing a significant problem for the council city-wide because of Wellington’s ‘‘extraordinary topography’’, Fowler said. There were massive consequences for uphill development rights in the capital.
The council’s approach, where a retaining wall or structure meant different ground levels for neighbours, was to treat the boundary as the starting point for the measurement of where building should be allowed. The Aitchisons say it should be ground level in front of the wall.
From the starting point planners measure up 2.5m and inwards at 45 degrees to form a ‘‘tent’’ within which building was allowed.
The council and the Aitchisons don’t agree about what the Environment Court ruling meant.
A second lawyer for the Aitchisons, Morgan Slyfield, said the council overstated the alleged impractical consequences of the Environment Court’s decision.
The court cannot be wrong simply if it required the council to do more work, he said.
Justice Karen Clark reserved her decision.