Dirt flies between neighbours over boundary dispute

The High Court has ordered a retaining wall be built along the boundary.

The High Court has ordered a retaining wall be built along the boundary.

A New Plymouth camping site owner has lost a High Court appeal against his neighbour in a dispute that began over a pile of dirt.

Egmont Eco Leisure Park owner Gary Ogle fell out with neighbour Peter Aitken after Aitken bought two adjoining sections and began to build a house for his mother in Maratahu St, Westown, in 2013.

During the excavation of the building platform Aitken's contractor "unintentionally" pushed soil into Ogle's property in three areas along the shared 97 metre-long boundary which runs alongside the Waimea Stream.

Aitken offered a "quick fix" solution to push the dirt back after his mother's house was built, but this was rejected by Ogle and the matter was heard in the District Court in New Plymouth in November 2015.

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Instead Ogle sought a permanent injunction to have the property restored to its former condition, a retaining wall built along the boundary, and $10,000 damages.

The court heard there had been no loss of land value for Ogle from the dirt being pushed onto his section, nor any loss of vegetation which had grown through in the two-and-a-half years between construction of the house and the court hearing. 

But it found earthworks and building work by Aitken could pose a risk of subsidence in future and had amounted to a nuisance action. 

Ogle's preferred solution to this risk was an engineer-designed retainer wall with earth anchors and poles driven 10 metres under the ground, estimated to cost $100,000.

The section was sold to another buyer before the hearing and Aitken shifted to another region for work, making it difficult for the court to order the spoil's removal.

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In a reserved decision New Plymouth District Court Judge Gary Barkle​ awarded Ogle $1000 in damages against Aitken for trespass, and ordered Aitken to build a retaining wall, and reshape and replant the boundary bank.

Ogle appealed that decision in the High Court on the basis the remedies did not address his losses, and the damages should have been for wrongful use, and not trespass.

But in a High Court judgement released this week, Justice Karen Clark dismissed the appeal.

Ogle was entitled to nominal damages for the interference to his possessory rights and the $1000 damages awarded was appropriate, she said.

There was no conscious wrongdoing by Aitken, who did not deny his liability for his contractors' work.

Justice Clark said Aitken had not disregarded Ogle's rights, and had instead wanted to make amends immediately by pushing the soil back onto his property.

Aitken was obligated to have a retaining wall built, she said.

Pierre and Ngaire Maalouf​, who bought the house off Aitken in January, are now waiting for the retaining wall to be built along the boundary.

"We couldn't understand why a retaining wall was not built before the house was finished," Pierre Maalouf​ said.

A condition to have a wall built was added to the sale and purchase document before the couple bought the house, he said.

No slumping had occurred to their section, he added.


 - Stuff

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