Victims of view-blocking neighbour's 'overbearing' Wellington fence get $72,500
A couple whose harbour views were ruined when their neighbour erected a notorious fence have been awarded $72,500.
Peter and Sylvia Aitchison, of Roseneath, Wellington, won an Environment Court battle with David Walmsley and his mother Helen.
In a newly published decision, an Environment Court judge lambasted the Walmsleys after the latest chapter in the neighbourly stoush. David Walmsley earlier said the fence or "play structure" was built to enhance his privacy and redress a past wrong, but the judge took a dim view.
"The actions of the Walmsleys in erecting the structure and the presence of the structure were offensive or objectionable to such an extent as to have an adverse effect on the environment," Judge BP Dwyer wrote.
The whole structure was about 20 metres long and had an "overbearing" and intrusive effect on the Aitchisons, the judge said.
The Aitchisons, through their lawyer, had sought "substantially in excess of $100,000", he added.
The Walmsleys raised the structure attached to a retaining wall along their side of the boundary.
At each end, a boundary fence rose about 2m from the top of the retaining wall, marring the Aitchisons' prized harbour views.
Walmsley has previously said that all he wanted to do was re-erect a fence that property developers had torn down in 1995, when his grandparents owned the land.
"In 1995 this fence to our family home was destroyed to make way for the development of the property now owned by the Aitchisons.
"Not only did we not give permission to have our property altered, we asked for the fence to be restored after the build, but despite assurances, this was not done by the developers."
In January, the Walmsleys were ordered to remove the fence.
This followed a hearing during which David Walmsley accepted that, viewing the structure from the Aitchisons' side, it did look like a fence.
But he said his aim was privacy and, if what he was doing was reasonable on his own property, he did not have to have regard for his neighbours.
The court reserved costs in favour of the Aitchisons and Wellington City Council, but the council did not make an application for costs.
An earlier court decision last September found the structure contravened provisions of the Wellington District Plan. That issue remained unresolved, and the council was pursuing an appeal relating to how the rule should be interpreted.
That hearing was expected to be heard on August 29 in the High Court. The Aitchisons' lawyer, Andrew Cameron, said it would be inappropriate for him to discuss the case while the matter was before the courts.
Council city planning manager Warren Ulusele said the council's decision not to seek costs was consistent with its approach on clarifying District Plan interpretations on the basis that it was a matter of public good.
It wanted to provide certainty for other landowners with retaining walls on sloping sites, which were a common feature of the city's topography.
The council's stance had always been that the fence, while permitted under the District Plan, was not appropriate, he said.
Peter Aitchison and David Walmsley have been approached for comment.