Aitchison v Wellington City Council - [2018] NZHC 1674

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-964

[2018] NZHC 1674

UNDER the Resource Management Act 1991

IN THE MATTER

of an appeal under section 299 of the Act against the decision of the Environment Court dated 25 October 2017

BETWEEN

PETER AND SYLVIA AITCHISON

Appellants

AND

THE WELLINGTON CITY COUNCIL

Respondent

WALMSLEY ENTERPRISES LIMITED

Interested Party

Hearing: 7 May 2018

Counsel:

A F D Cameron for Appellants No appearance for Respondent

No appearance for Interested Party

Judgment:

10 July 2018

JUDGMENT OF CLARK J

[1] This is an appeal on questions of law from a costs decision of the Environment Court.1

Context

[2] Mr and Mrs Aitchison own a residential property directly above a property which Mr Walmsley and his mother own through their company, Walmsley Enterprises

1 Aitchison v Wellington City Council [2017] NZEnvC 176 [Environment Court costs decision].

AITCHISON v THE WELLINGTON CITY COUNCIL [2018] NZHC 1674 [10 July 2018]

Ltd (WEL or the Walmsleys). The properties share a common boundary. The Walmsleys erected a 4m high, 22m long structure on the boundary. It comprised a solid wall with a walkway and play structure attached. The structure gave rise to two pieces of litigation.

[3] In the first proceeding the Aitchisons sought a declaration under the Resource Management Act 1991 (the Act) that the structure contravened s 9 of the Act. The primary issue centered on the correct interpretation of Standard 5.6.2.8.2 in the Wellington City District Plan. The Standard governs the way in which recession control lines are to be plotted. In its decision issued on 17 September 2015 the Environment Court declared the structure was not a permitted activity, that resource consent was required and the use of the land for the structure contravened the Act.2 The Environment Court’s declaratory decision was upheld on appeal to the High Court.3

[4] The second proceeding was commenced in the Environment Court while the High Court appeal of the declaratory decision was under consideration. The Aitchisons sought enforcement orders requiring the Walmsleys to remove the structure. The enforcement proceedings were brought on the basis that, even if the structure complied with the District Plan, the Walmsleys had failed to mitigate the adverse effects of that structure as they were required to do by s 17 of the Act. The Aitchisons’ argument was upheld. The Environment Court found significant and severe adverse effects on the residential amenities of the Aitchisons’ property.4 The structure was overbearing and dominant; caused profound loss of sunshine and reduction in natural light; significant and severe loss of sweeping views; and loss of privacy. Enforcement orders requiring removal of the structure and fence were issued. That decision was not appealed and the structure has been removed. Costs awarded to the Aitchisons in the Environment Court were upheld on appeal to the High Court.5

2 Aitchisons v Wellington City Council [2015] NZEnvC 163, [2016] NZRMA 45 [Environment Court declaratory decision].
3

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1674
Decision Date: 10 July 2018

CaseChat Overview and Summary

In this case, the Aitchisons appealed against the costs decision of the Environment Court which ruled that the Wellington City Council (the Council) was not liable for any costs in the proceedings. The Aitchisons sought an award of costs in respect of the Environment Court’s declaratory decision that the structure erected by the Walmsleys contravened the Resource Management Act 1991. The appeal raised questions of law as to whether there is a presumption against awarding costs against a respondent council and, if costs are to be awarded, what is an appropriate sum and what should be the respective contributions of the parties liable for costs. The Court held that there is no presumption against awarding costs against the Council and that the award of costs against the Walmsleys only was in error. The Court also held that in the circumstances of this proceeding, an elevated award of costs is just and awarded the Aitchisons 60 per cent of their reasonable costs. The Court ordered the Walmsleys to pay $16,500 and the Council to pay $41,479.26. The Aitchisons are entitled to costs on this appeal. Unless the Aitchisons, the Council and the Walmsleys otherwise agree, the Council and the Walmsleys are each liable to pay 50 per cent of those costs.

Orders