New plea to cut fence case costs

The family who were forced to remove a view-blocking fence in the Wellington suburb of Roseneath want a second appeal over the $72,500 legal costs they were ordered to pay.

David Walmsley argued the case for himself and his mother in the Court of Appeal yesterday.

The High Court has already dismissed one appeal against the costs the Walmsleys were ordered to pay in the Environment Court to Peter and Sylvia Aitchison, the uphill neighbours of their property. The Aitchisons had wanted nearly $140,000.

Walmsley went to court again, seeking a second appeal. The Court of Appeal has reserved its decision.

Speaking after the hearing, Walmsley said his mother could have made millions developing her family home into apartments, but it was worth more to her to have an open piece of lawn overlooking the harbour.

The fence, which included a children’s play fort, was built in 2015, on or close to the boundary with the Aitchisons’ terrace, blocking their view. Adults standing on the structure could see into the Aitchisons’ apartment.

Earlier, Walmsley had told the judges that the costs ordered in the Environment Court went far beyond the quarter to a third of costs normally awarded.

In a test case, which he said it was, there were no grounds for awarding any costs. The structure had been built with council consent, and the Wellington City Council had considered the effects on the neighbours, Walmsley said.

But lawyer Andrew Cameron, for the Aitchisons, said it was not a test case. It was a settled area of law, and the judge had correctly summarised it.

The council’s interpretation of its planning rules had been incorrect, Cameron said.

While the fence or fort was in front of their apartment the Aitchisons were not able to live there.

Walmsley said that, with the dispute unsettled, as far as he was concerned, his family could not live in their home.