Barry Park Investments Limited v Johnson
[2019] NZCA 686
•23 December 2019 at 3.30 pm
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA179/2019
[2019] NZCA 686
BETWEEN BARRY PARK INVESTMENTS LIMITED
AppellantAND
XANTHE ANNA JOHNSON AND
MARK ANDREW GRAHAM
Respondents
Hearing: 18 November 2019
Court:
Gilbert, Dobson and Whata JJ
Counsel:
G J Kohler QC and S J R Neville for Appellant
K M Quinn and C B Pearce for RespondentsJudgment:
23 December 2019 at 3.30 pm
JUDGMENT OF THE COURT
AThe appeal is allowed in part.
BThe finding that the wall constitutes a wrongly placed structure is upheld.
CThe terms of relief that is just and equitable are amended in the respects set out in [89] and [90] of this judgment.
DThe appeal is otherwise dismissed.
EThe costs orders in the High Court remain unaltered.
F There is no order as to costs in this Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
Table of Contents
Introduction [1]
Grounds of appeal [8]
The facts [10]A wrongly place structure? [18]
Was trespass made out? [41]Nuisance [47]
RemediesPrinciples[50]
Factual findings [56]
Challenge on appeal [68]
Our assessment [75]
Costs [91]
Result [93]Introduction
[1] This appeal arises from litigation between residential neighbours as to the consequences of an old drystone wall not following the line of the boundary between their properties in Tawari Street, Mt Eden, Auckland. Instead, the wall, constructed largely of basalt rock, stands to an irregular but material extent on the accessway into the respondents’ property, which is downhill from the appellant’s property at 22 Tawari Street (No 22).
[2] The respondents were the plaintiffs in the High Court. They are the owners of 24 Tawari Street (No 24), which is situated on a rear section, accessible by an unsealed driveway running between 22 and 26 Tawari Street. After purchasing the property in 2012, they discovered that their driveway does not run over the land as defined on their title but, in skirting around the bottom of the wall, instead runs to a significant extent over parts of 26 and 26B Tawari Street (No 26), their neighbour on the other side from the wall. The boundaries of No 24 are represented on an Auckland City Council aerial photograph attached as Appendix 1. The extent to which the unsealed driveway intrudes into No 26 is discernible on the photograph. The extent of the incursion of the wall across the boundary between Nos 22 and 24 is as surveyed on the plan attached as Appendix 2.
[3] The owners of No 26, who are not parties to this litigation, are prepared to allow the respondents to use the driveway as formed for their own private access, but would oppose its use for the increased volume of traffic that would be involved in any redevelopment of the respondents’ property. The owners of No 26 are also not prepared to sell or swap areas of land to enable the respondents to incorporate the drive as formed within the accessway on their own title. If the owners of No 26 were to withdraw their consent to access over the eastern side of their property, then the accessway into No 24 would be reduced at its narrowest point to 1.28 metres.
[4] The appellant company is the owner of No 22. The company holds the property on trust for the benefit of the long-standing occupant, Martin Burton, and the proceedings treat Mr Burton as the beneficial owner, making decisions in respect of the property. The High Court judgment personified Mr Burton as the effective defendant, and we do likewise.
[5] Potentially material details, which could establish how the wall was constructed over the boundary, are lost in the mists of time. It seems most likely that the wall was constructed in the mid-1880s shortly after the boundary between what are now Nos 22 and 24 was surveyed along the line that remains the boundary between the two properties today. Difficulties in re-aligning the wall to follow the boundary line are compounded by the presence of Mr Burton’s wooden villa, constructed in the 1880s, which rests on the top of the drystone wall for a significant part of its length.
[6] In the High Court, Muir J held that the wall comprised a wrongly placed structure in terms of the Property Law Act 2007 (the Act), entitling the respondents as owners of No 24 to relief under the Act on terms that the Court considered just and equitable.[1] Muir J also found that the extent of the wall’s encroachment into No 24 amounted to an actionable trespass at common law.
[1]Johnson v Barry Park Investments Ltd [2019] NZHC 597 [High Court judgment].
[7] Because of the options available to Mr Burton once his liability to remove the encroachment was established, the Judge directed that he do so, either adopting the methodology put in evidence by the respondents’ expert, or some alternative approved by a registered structural and geotechnical engineer.[2] The Judge ordered that the works were to be at Mr Burton’s cost except for the costs of removing any original basalt outcrops that would have been naturally occurring at the time the wall was built on or around them, plus an allowance for betterment accruing to the respondents from the final form of the wall as reinstated on the boundary. Costs, including increased costs, were awarded to the respondents.[3]
Grounds of appeal
[2]The terms of the High Court orders are set out at [66] below.
[3]Johnson v Barry Park Investments Ltd [2019] NZHC 1213 [Costs judgment].
[8] Mr Burton contends that the Judge erred in analysing the character of the wall. He argued that it was a common wall, retaining the land on No 22 and providing a boundary fence between Nos 22 and 24. On that basis, the parts of the wall on No 24 could not constitute a trespass as the owner should be taken to have consented, thereby granting an express or implied licence for the presence of the parts of the wall that are on No 24.
[9] As to the statutory cause of action, the Judge is said to have erred in applying the definition of “wrongly placed structure” in s 321 of the Act.[4] The reasoning focused on the function of the structure rather than any imputed intention for it. Arguably, the Judge erred in finding the wall’s function or purpose was to provide a flat building platform for No 22. Instead, it was a retaining wall and to mark the boundary, so it could not be characterised as being wrongly placed. Alternatively, if the threshold in s 321 was triggered, then ss 324 and 325 afforded the Court a wide discretion as to remedy and the Judge had not applied correct principles in the orders that were made. He had failed to take account of relevant factors and the orders made were not just and equitable.
The facts
[4]The terms of the definition in s 321 of the Property Law Act 2007 are set out at [18] below.
[10] Both properties were part of a significantly larger holding known as “Rocky Nook” that was subject to initial subdivision in or around 1882. Approximately 100 lots of standard width set out in a street pattern were surveyed. Records show that what is now No 22 was transferred by the subdividing owner to a Mr Gilbert on 11 March 1884. Research suggests that the existing house at No 22 was built by 1889. The wall must have been constructed before the house because the house rests on the backfilled area behind and on the top of it. The lot immediately west of what is now No 22 (that is, No 24) was not sold by the subdivider until 1898. Accordingly, unless the wall was constructed by the subdivider before No 22 was sold, then the wall was erected by the first owner of No 22 while No 24 remained in the ownership of the subdivider.
[11] There was no evidence of any issue being raised about the wall encroaching over the boundary between what are Nos 22 and 24 prior to the issue being raised by the respondents after they acquired No 24 in 2012.
[12] In 1957, the then owner of the lot that has become No 24 and the two lots adjoining it further to the west, amalgamated them and carried out a fresh subdivision. This provided the presently configured No 24 with an accessway off Tawari Street leading to a section behind two newly configured smaller lots fronting Tawari Street that have become Nos 26 and 28. The survey plan produced by Mr Grierson, the surveyor engaged for the task, noted along the boundary between what are now Nos 22 and 24 “stone wall [generally] on [boundary]”, with an indication of a retaining wall in the first third of the length of that boundary running south from the street frontage. Although the plan is endorsed with numerous measurements, it is accepted that the 1957 survey did not alter the previously existing boundary line between Nos 22 and 24, which has remained in the same place since the original subdivision in about 1882.
[13] Mr Burton acquired No 22 in 1979. Approximately 21 years ago, a work place accident caused him permanent injury and he has been confined to a wheelchair since that time. The house has been adapted for his use. Although tenanted for several years, he has lived there continuously since 2014. Photographs of his home suggest that it is in a neglected, if not decrepit, state. It is accepted that Mr Burton had no idea of the extent to which the wall on his western boundary encroached into the accessway for No 24.
[14] The respondents are architects who purchased No 24 with a view to developing it. The existing cottage on the property is also described as being very old and dilapidated. The marketing when they purchased it included the slogan, “Develop … Or Detonate!”. Aerial maps maintained by Auckland City Council with property boundaries marked on them, such as Appendix 1, showed on close analysis at least a prospect that the wall on the boundary with No 22 encroached over the accessway from the road into their rear section. Subsequent to purchasing No 24, the respondents raised with the Auckland City Council the structural safety of the dwelling on No 22. Whilst the local authority confirmed its structural soundness, this was hardly an initiative to engender positive neighbourly dealings.
[15] The Judge accepted that the respondents were not aware at the time of purchase that the wall encroached materially over their legal boundary with No 22. They were equally unaware that the driveway used to access their section intruded over the adjoining property at No 26 on the other side of the accessway to a material extent.
[16] At the time of the respondents’ purchase of No 24, the relevant resource management provisions would have allowed the development of two residential units. Since their purchase, Auckland’s Unitary Plan has been introduced and, subsequent to resolution of appeals, is now in effect. The plan has zoned this part of Mt Eden for “Terraced Housing and Apartment Buildings” (THAB), which authorises higher density residential dwellings.
[17] The obstacle to pursuing any redevelopment of No 24 is the limitation on the width of the accessway into it. As defined in its title, the accessway has a width of 3.05 metres. The reality on the ground is that, without relatively substantial intrusion over into No 26, no vehicular access is possible at all. To provide an accessway of a minimum of 2.6 metres, measured east from the western boundary with No 26, would require the removal of relatively substantial portions of the wall at various points. To clear the obstruction on the accessway for its full legal width of 3.05 metres would involve substantial removal of the wall, to an extent that at points would deprive Mr Burton’s house of support. If a new wall that did not encroach on the accessway were to be constructed along the legal boundary, it would preferably be perpendicular rather than sloping. Further excavation under Mr Burton’s house would be required in order to provide such a wall with the necessary support.
A wrongly placed structure?
[18] The first issue in the appeal is whether the statutory provisions in the Act are engaged. Part 6 of the Act provides for special powers of the Court to impose orders in respect of land in certain circumstances. They are generally of a remedial nature. Sub-part 2 deals with wrongly placed structures,[5] with s 321 providing the following definition:
[5]Other sub-pts include powers to authorise entry on neighbouring land, and to deal with landlocked land, and trees and unauthorised improvements on neighbouring land.
wrongly placed structure means a structure that—
(a) is situated on or over the land affected, not being the land intended for the structure (whether or not the land intended adjoins the land affected); or
(b) is situated on or over the land affected but was not placed there—
(i) by, on behalf of, or in the interest of a person who was, at the time, the owner of the land affected; or
(ii) under a contract made with, or by way of a gift made to, a person who was, at the time, the owner of the land affected.
[19] The concept of “land affected” is defined to mean any land on which a structure is actually situated, while “land intended” means any land on which a structure was intended to be situated.
[20] Section 322 provides for persons with defined interests in land affected by a wrongly placed structure, or the owners of the land where it was intended the wrongly placed structure would be placed, to apply to the Court for relief.
[21] This sub-pt of the Act not only includes provision of relief for those adversely affected by a wrongly placed structure, but also contemplates relief in the converse situation where a valuable structure has been wrongly located on someone else’s land and the owner of that land asserts entitlement to the structure because it represents a valuable addition to their land.[6]
[6]A number of the forms of order provided for in s 325 of the Property Law Act are to ameliorate the impact of the loss of such structures where those constructing them have located them in the wrong place. See at [51] below.
[22] Counsel urged different approaches to what the legislature meant by “land intended for the structure”. There may be cases where there are reliable records of what was intended by the parties involved in the construction of a relevant structure. In other cases, of which the present is an example, an appropriate alternative is to infer what the intention must have been from the function or purpose that the structure fulfilled when it was constructed. Whether the structure is in the wrong place (so that it is wholly or in part not on the land intended for it) may have to be discerned by reflecting on its location in light of the purpose it was intended to fulfil.
[23] In determining the intended location of a structure, the Court may be assisted by considering either the function it serves or the purpose for which it was constructed, or by reflecting what those responsible for its construction intended at the time. The analysis in a particular case cannot be criticised for adopting one or other of these lenses as the means of determining the intended location of the structure.
[24] Mr Kohler QC challenged the Judge’s finding, made on the balance of probabilities, that the purpose of the wall was to provide a level platform for the construction of a house on No 22.[7] Instead, Mr Kohler argued that the primary function was as a retaining wall and/or as a boundary fence or divider between the then recently subdivided sections. Mr Kohler accepted that a consequence of the construction of the wall was the provision of support for a building platform on No 22, but disputed that would have been the motivating intention of whoever was responsible for its construction. Implicitly, if the purpose of the wall was to divide the neighbouring sections and retain the ground on the higher side (No 22), then it is more likely that it was located by agreement between the neighbours and is therefore not located other than where intended.
[7]High Court judgment, above n 1, at [12].
[25] The Judge took into account evidence from Mr Black, a geotechnical expert called by the respondents, who had identified loose basalt cobbles and soil as fill extending under the floor in the south-east corner of Mr Burton’s house. That demonstrated that graded fill had been used for approximately the whole of the width of the house at that point, extending back a considerable distance from the face of the wall. The Judge rejected an alternative purpose proposed by Mr Kohler that the wall had been constructed to contain the slope between the two sections. The Judge found that the natural contour of the slope along that boundary was not sufficiently steep for any form of terracing to be needed between the two sections.[8]
[8]At [13].
[26] In the High Court, Mr Quinn, for the respondents, invited analogy with two High Court decisions that applied the provisions in the Act dealing with wrongly placed structures in cases that involved residential flats on sections subject to cross‑leases.[9] Either by extension beyond the permitted footprint for the structures of each flat, or by drafting errors in defining the individual cross-lease areas relative to existing pathways, the legal position of the flat owners’ titles did not reflect the reality on the ground. In both decisions, the High Court rejected narrow arguments as to how to assess the intended location of contentious structures, finding that the provisions in the Act could apply irrespective of whether the location of structures had occurred deliberately and whether placed before or after the legal boundaries were settled. Having reviewed the reasoning in those earlier cases, the Judge observed:
[45] These cases establish that the essential inquiry is not one based on the intention of the builder but on a common-sense assessment of what is the purpose or function of the structure. In that context the inquiry into which property it “goes with” handily defines the concept.
[9]Duncan v Taylor (2011) 12 NZCPR 235 (HC); and Boyer v McCracken [2017] NZHC 755, (2017) 18 NZCPR 671.
[27] We agree that approach reflects the legislative purpose of the provisions in the Act.
[28] On the sketchy and potentially unreliable details of the sequence of events in the 1880s, we agree with the Judge that the most likely intention of those constructing the wall was to provide a level building platform for No 22.[10] On the basis that the subdivision establishing the boundary between Nos 22 and 24 occurred before the wall was constructed, but with the wall being built prior to construction of the house on No 22 in the late 1880s, that provides the most likely explanation for the extent of work required for its construction and backfilling. In the absence of consent by the adjoining owner, such a retaining wall to create a flat building platform could be constructed up to, but not over, the boundary.
[10]High Court judgment, above n 1, at [29].
[29] The 1882 subdivision created what is now No 22 and the section immediately to the west (that is, divided by the boundary line now in contention) as identical sized rectangles.[11] For sections that were already relatively long and narrow, there does not appear to be any logical reason why the owner of the section on the western side of that boundary (that is, now the accessway part of No 24) would agree to an encroachment over the boundary to what at some points would have been a material extent. This point has less impact than would be the case if the nearest adjoining lot to the west of No 22 was sold individually. However, the transfer of that land in 1898 was of three sections to the west of No 22.
[11]The next two sections further to the west (on one of which No 28 is now located) also had similar widths in terms of road frontage but were slightly shorter in terms of the depth of the sections.
[30] If indeed the intention attributable to the party responsible for construction of the wall was to create a retaining wall and a boundary fence, then there is no evidence to suggest that the construction would be intended to encroach significantly beyond the then recently surveyed boundary. More would be required to make out the intentional placing of the wall substantially beyond the boundary than a possible inference that it was easier to build it there because of the natural contours of the underlying basalt rock. Common sense would suggest that if those responsible for construction wanted to use the wall to demarcate the boundary, then their intention would be to have the wall follow the boundary. In those circumstances, the extent of the wall beyond the boundary is wrongly placed.
[31] Further arguments against a finding that the wall was wrongly placed included Mr Kohler citing old authority for the proposition that, once in place, a drystone wall would become part of the land on which it sat.[12] He also cited the proposition that a party wall straddling a boundary between two fee simple properties would, in the absence of other legal commitments, be found to be owned as to the half on each owner’s property by that owner, with an implied easement over it to the adjoining owner whose position was the same.[13]
[12]Holland v Hodgson (1872) LR 7 CP 328 (Exch Ch) at 335.
[13]Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at [1.7.06] citing Tram Lease Ltd v Croad [2003] 1 NZLR 73 (HC).
[32] Mr Kohler also invited analogy with this Court’s judgment in Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd.[14] That litigation involved rock anchors constructed to secure the land across lots that, at the time, were in common ownership. After the sale of part of the original property, the new owner objected to their presence. The Court concluded that the rock anchors had become part of the land under which they were installed and therefore were owned by the owner for the time being of the respective parcels of land.[15] Mr Kohler argued that the same position pertained here, so that the owners of No 24 could not complain about the part of the wall on their land because it had become a part of the land. Mr Kohler submitted that it was of no significance that in the Lakes Edge Developments litigation, the rock anchors had been placed when both parts of the land intended to be supported by them were in common ownership, so that consent of the then owner was material to their construction.
[14]Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] NZCA 205, [2017] 3 NZLR 336.
[15]At [65].
[33] We consider that distinction is material, and the analysis of whether the parts of the wall on No 24 are wrongly placed cannot be avoided by the status of the wall having become a part of the land on that lot.
[34] Mr Kohler linked a further point to his argument that the portions of the wall encroaching No 24 had become part of No 24 by criticising the Judge’s analysis as necessarily finding that the whole of the wall on No 24 was an encroachment. In terms of its physical composition, Mr Kohler argued that finding was inevitably incorrect because the wall is constructed on pre-existing natural outcrops.
[35] We do not accept there is any inadequacy in the Judge’s reasoning by not distinguishing the extent to which the wall was constructed in the 1880s, and then backfilled, from the pre-existing natural outcrops. Certainly, Mr Burton could not be required to remove naturally occurring impediments to access over the full width of the accessway, but the predominant aspect of the encroachment is the wall as constructed. It is therefore appropriate to characterise the wall as a wrongly placed structure because of that predominant aspect of it, subject to relieving Mr Burton of the cost of removal of the naturally occurring components of it in order to reinstate a structure that does not encroach.
[36] In the High Court, Mr Kohler also sought to characterise the wall as a common or party wall. He relied on a description from the text New Zealand Land Law addressing one category of walls in the following terms:[16]
Where a wall is placed between two properties but persons in both properties have a legal interest in it, it is called a party wall. If the wall width straddles the boundary of two fee simple properties, and no other legal instrument or legislation applies, then the courts will usually find that each property owner owns their half of the wall along its length, but that there is an implied easement over it to the adjoining neighbour, who does likewise.
[16]Toomey, above n 13, at [1.7.06].
[37] In supporting the Judge’s analysis rejecting the notion that it is a party wall, Mr Quinn submitted that, of the range of circumstances where a party wall or common wall might be recognised, the only one of potential relevance here is “[a] wall divided longitudinally into two sections, one belonging to each of the adjoining owners”. Mr Quinn endorsed the Judge’s reliance on the analysis in Hinde, McMorland & Sim Land Law in New Zealand from which this definition came.[17]
[17]High Court judgment, above n 1, at [25]–[29], analysing Don McMorland and others Hinde, McMorland & Sim Land Law in New Zealand (loose-leaf ed, LexisNexis) at [6.054].
[38] After reviewing the circumstances in which a structure could be a party wall, the Judge held:
[29] I accept the plaintiffs’ submission that such circumstances [that is, that half the width of the wall stands on the land of each owner] plainly do not apply in this case. The wall does not have an identifiable centreline. As I have indicated, for much of its length what presents as wall is simply the western face of a much deeper artificial building platform on the defendant’s property. Moreover, to the extent it can be considered to have a centreline, it is not divided by the two properties. And there is no evidence that the wall was built by adjoining owners at their joint expense. To the contrary, I have found that, on the balance of probabilities, at least to the extent the wall provides a foundation for the house and supports its front garden, it was erected by the then owner of number 22 to establish a level building platform and curtilage.
(Footnote omitted).
[39] We agree with the Judge’s reasons for rejecting Mr Kohler’s argument that the wall should be seen as a party wall.
[40] We accordingly agree with the Judge that para (a) of the definition of “wrongly placed structure” applies to the extent of the wall encroaching over the boundary. We comment on the possible application of para (b) of that definition in our consideration of the appellant’s challenge to the Judge’s finding that trespass was also made out. That alternative common law basis for the respondents’ claims is not necessary to uphold the outcome on liability but may influence the analysis of the form of relief available to the respondents.
Was trespass made out?
[41] The respondents’ claim in the High Court was that a predecessor in title of Mr Burton’s had erected a structure encroaching on their land at No 24, thereby committing a trespass. The continued presence of the wall amounted to a continuing trespass and, as owners of the land encroached upon, they were entitled to require its removal, even if they had “come to the trespass” in the sense of inheriting it when they acquired No 24.
[42] The Judge found the elements of trespass were made out, on the basis of his rejection of the appellant’s claims that the structure amounted to a party wall, or alternatively that the respondents owned those parts of the structure that were located on their land.
[43] On appeal, Mr Kohler challenged the finding of trespass on the ground that the respondents could not establish that the wall had not been built with the consent of the then owner of the relevant part of No 24. This argument assumed an onus on the respondents, as plaintiffs, to establish that the wall was not constructed with the consent of their predecessor in title. Mr Kohler suggested that the sequence of events in the 1880s led naturally to the inference that the then adjoining owners co‑operated in constructing the wall to take advantage of the natural features existing approximately along the boundary line. We have rejected this argument in our earlier analysis of whether those constructing the wall intended it to encroach across the boundary as it has. Alternatively, Mr Kohler argued that there was not sufficient evidence for the respondents as plaintiffs to discharge the onus he attributed to them to establish the absence of consent by their predecessors in title.
[44] Counsel did not cite any authority on who has the onus of proving the absence or existence of consent in a claim for trespass. This Court has held that justification for the presence on a property as a defence to a tortious action for trespass has to be pleaded and proved by the defendant.[18] There is also an analogy with the defence of licence, where an alleged trespasser can defend a claim by proving that the act undertaken on the land was with the authority of a third person who had a lawful right to possession.[19] Accordingly, the onus in circumstances such as the present would be on the defendant to a claim for trespass to make out consent. On our earlier analysis, we consider it more likely that the wall was the initiative of the then owner of No 22, without the positive consent of the subdivider who still owned the adjoining empty section.
[18]Wilcox v Police [1995] 2 NZLR 160 (CA) at 163.
[19]See generally Stephen Todd (ed) Todd on Torts (8th ed, Thomson Reuters, Wellington, 2019) at [9.2.06(1)].
[45] In relation to para (b) of the definition of “wrongly placed structure”, Mr Kohler submitted that an inference arose that the wall had been placed there on behalf of, or in the interests of, the person who, in the 1880s, was the owner of what has become No 24 so the exclusion in para (b)(i) applied. Mr Kohler would be on stronger ground than he was in the trespass analysis in contending that an applicant for relief relying on the interpretation in (b)(i) of the definition has the onus to establish that the structure was put on the affected land other than by, on behalf of or in the interests of the person who was, at that time, its owner. We accept on the present facts that the respondents would need to discharge the onus of establishing that negative proposition to qualify for relief if they could only rely on the definition in (b). However, as we have found the definition in (a) made out, it is unnecessary to decide this point.
[46] Had it been necessary, consistent with our analysis on the prospect of a defence of consent to the claim in trespass, we would be inclined to accept that the respondents could make out that the structure was placed there other than by, on behalf of or in the interests of the then owner of the land on the western side of the common boundary. Where the motivation for the wall was to create a level platform for a house and surrounding area at No 22, there is no apparent reason why the owner on the other side of the boundary would consent to the wall being placed so as to materially reduce the width of their section.
Nuisance
[47] Mr Kohler treated the judgment as upholding the claim for nuisance and challenged the grounds for doing so, essentially on the basis that the respondents could not make out that the appellant had unreasonably interfered with the use and enjoyment of their land. Further, that it was not a matter of interference because the existing rock was simply a fact.
[48] We do not treat the judgment as making a positive finding of nuisance against the appellant. The judgment made parallel observations about the prospect of claims in nuisance and trespass in the same paragraphs,[20] and then made the observation:
[68] As the plaintiffs themselves concede, the facts of this case fall more naturally within the tort of trespass. However, nothing particularly turns on the point. The plaintiffs assert the same facts and seek identical relief in respect of both causes of action.
[20]High Court judgment, above n 1, at [64]–[67].
[49] There is nothing in the remainder of the reasoning that depends on a finding of nuisance and we do not treat it as relevant to the material findings under challenge in the appeal.
Remedies
Principles
[50] Subpart 2 of part 6 of the Act is a re-enactment of two provisions of the Property Law Act 1952 — s 129, as amended in 1957, and s 129A, as inserted in 1963. Comments by the then Attorney-General, the Hon J R Marshall, on the 1957 amendment bill’s second reading suggest that a reason for the introduction of the new provision was to ameliorate the harshness of the outcome in the converse situation where the owner of a valuable structure had innocently encroached by building part or all of a structure on someone else’s land.[21] The common law did not contemplate a solution in which the owner of the land encroached upon might be required to transfer the requisite part of the property encroached upon in return for compensation. The common law was similarly inflexible in the opposite situation where, as here, an encroachment is not useful to the owner of the land on which it encroaches. Once trespass is made out, the common law remedies for claimants would be damages, or an order for removal of the encroachment.
[21](16 July 1957) 312 NZPD 856–857.
[51] The scope of remedies available under the Act are extensive:
325 Orders court may make
(1) In granting relief under section 323 on an application under section 322, the court may make 1 or more orders to the following effect:
(a) requiring any land specified in the order to be vested in the owner of the land affected by, or the land intended for, the wrongly placed structure, or in any other person with an estate or interest in either of those pieces of land:
(b) granting an easement over any land specified in the order for the benefit of the land affected by, or the land intended for, the wrongly placed structure:
(c) giving the owner of the land affected by, or the land intended for, the wrongly placed structure, or any other person with an estate or interest in either of those pieces of land, the right to possession of any land specified in the order for the period and on the conditions that the court may specify:
(d) giving the owner of the land affected by the wrongly placed structure, or any other person having an estate or interest in that piece of land, the right to possession of the whole or any part of the structure that is specified in the order:
(e) allowing or directing any person specified in the order to remove the whole or any specified part of a wrongly placed structure and any specified fixtures or chattels from any land specified in the order:
(f) requiring any person to whom relief is granted under paragraphs (a) to (e) to pay to any person specified in the order reasonable compensation as determined by the court.
(2) In an order under subsection (1)(a), the court may—
(a) declare any land that is to be vested in any person to be free from any mortgage or other encumbrance; or
(b) vary, to the extent that the court considers necessary, any mortgage, lease, or contract relating to that land.
(3) An order under subsection (1) may be made on any conditions the court thinks fit concerning—
(a) the execution of any instrument; or
(b) the doing of any other thing necessary to give effect to the order.
(4) Part 10 of the Resource Management Act 1991 does not apply to a transfer or other disposition of land giving effect to an order of the court under subsection (1).
(5) Section 348 of the Local Government Act 1974 does not apply to any easement granted in an order of the court under subsection (1).
(6) An order under subsection (1) may be registered as an instrument under, as the case requires,—
(a) the Land Transfer Act 2017; or
(b) the Deeds Registration Act 1908; or
(c) the Crown Minerals Act 1991.
[52] The overriding consideration stipulated in s 323(2) of the Act is:
The court may grant relief if the court considers it is just and equitable in the circumstances that relief should be granted.
[53] Then in s 324, a non-exclusive indication of potentially relevant considerations is provided in the following terms:
324 Matters court may consider in determining application for relief
(1) In determining an application, under section 322, for relief under section 323, the court may have regard to—
(a) the reasons why the wrongly placed structure was placed on or over the land affected; and
(b) the conduct of the parties; and
(c)the extent to which any person has been unjustifiably enriched at the expense of the person seeking relief because the owner of the land affected has become the owner of the wrongly placed structure.
(2) Subsection (1) does not prevent the court from granting relief merely because the person seeking relief knew of the true boundaries or ownership of the land affected at the time that the structure was placed there, or at the time when that person became the owner of, or acquired an estate or interest in, the land affected, the land intended, or the structure.
[54] Given the remedial purposes of these provisions in the Act, we consider the legislature intended there to be a relatively low threshold for consideration of relief once the existence of a wrongly placed structure was established. The constraint applying thereafter in making any of the range of orders provided for in s 325 is that such relief must be just and equitable. The Judge was mindful of this approach to relief, citing this Court’s decision in Guo v Bourke that the statutory jurisdiction is engaged where neighbours are unable to resolve disputes that have arisen.[22] We adopt the observation from that case:
[12] The powers are remedial, and hence are typically expressed in broad terms. Generally, relief may be granted when the court considers it just and equitable, and orders may be made on such terms and conditions as the court thinks fit. The courts are therefore empowered to make pragmatic but principled decisions in circumstances where, as here, neighbours are unable to resolve disputes that have arisen.
[22]Guo v Bourke [2017] NZCA 609, (2017) 19 NZCPR 168.
[55] We incline to the view that the greater range of potential remedies provided for in s 325 of the Act was intended by the legislature to ameliorate the rigidity of remedies for trespass at common law. Even if that was not a legislative purpose, we consider that remedies in cases such as the present where trespass by a structure is made out are likely to be addressed more appropriately if the Court has regard to the wider range of remedies available under the Act.
Factual findings
[56] Here, the Judge appears to have approached his assessment of the appropriate terms for relief from the perspective that the respondents had made out their claim for trespass. On that cause of action they presumptively could seek a mandatory injunction requiring the removal of the extent of the structure encroaching across the boundary, or alternatively damages in lieu, likely to be quantified by reference to the cost of the removal of the encroachment.[23]
[23]See generally Todd, above n 19, at [9.2.07(4) and 9.2.07(5)].
[57] In the High Court, the appellant opposed relief being granted to the respondents, arguing that it would be neither just nor equitable. Mr Kohler argued that when the respondents purchased No 24 in March 2012, professional persons in their position ought to have identified the discrepancy between the driveway as formed and the legal boundary, had they made a reasonable extent of enquiry. Secondly, he argued against relief on the ground that the restoration of the accessway to the full width of 3.05 metres was being pursued to optimise the chances of their obtaining consent to more intensive redevelopment of the site under the new THAB zoning. Arguably, if they were granted a form of relief that achieved this, it would enable them to make substantially greater windfall profits out of redevelopment than they could reasonably have contemplated at the time of purchase.
[58] The Judge reviewed the evidence on the circumstances of the respondents’ purchase of No 24.[24] More thorough research prior to purchase could have revealed the discrepancy. For example, aerial photos with the boundaries marked on them would have signalled the extent to which the formed driveway appeared to deviate from the boundaries on the titles. (Those representations may not be completely accurate.) However, having accepted the evidence of the respondents that they were not aware of the discrepancy at the time of purchase, the Judge held that the failure to have done further research was not an omission disentitling them to relief.
[24]High Court judgment, above n 1, at [72]–[90].
[59] The Judge made the point that it might equally have been expected of Mr Burton when he purchased in the 1970s to check that the retaining wall, which was critical to the support of the western side of the house, was constructed within the legal boundary.[25] The Judge also accepted that Mr Burton was unaware of the discrepancy until it was raised with him by the respondents.
[25]At [89].
[60] The Judge reviewed the dialogue between the parties once the boundary discrepancy was identified. In 2013, the respondents had advanced a proposal that a new concrete wall be built with its inside face running on the boundary and with a batter to a base that would allow an accessway between that base and the western boundary of the accessway of 2.6 metres. To the extent that was a concession from insistence on creating a usable accessway of the full 3.05 metres, the Judge considered it should not preclude the respondents seeking relief that involved the creation of an accessway for the full width of their legal title.
[61] Although the Judge appears to have had some sympathy for the respondents over their inability to agree satisfactory terms with Mr Burton, he concluded that there was nothing in the conduct of the parties after the respondents had purchased No 24 which had particular relevance in terms of whether it would be just and equitable to grant relief.[26]
[26]At [91].
[62] In analysing the scope of potential orders the Court might make, the Judge reviewed the terms of s 325 of the Act.[27] Mr Kohler argued that the scope of the orders provided for in s 325 did not go so far as to enable the Court to require a party to undertake construction works. That power is not made explicit in the terms of the section.
[27]At [110]–[124].
[63] However, given the remedial purpose, we consider that s 325(1)(e) authorised the removal of those parts of the wall encroaching over the legal boundary. An order requiring that to occur can be made in terms of subs (3)(b) on conditions as the Court thinks fit, requiring the doing of anything necessary to give effect to such an order. We are accordingly satisfied the Judge had the power to make orders in the terms he did.
[64] The Judge also reflected on the options confronting the parties in achieving outcomes sufficient to address the problems created by the encroaching wall. On the basis that the appellant would be meeting all, or a substantial part, of the costs of reconstructing a wall that complied with the legal boundary, the Judge was mindful of the additional costs likely to be incurred in carrying out such works in a manner that preserved Mr Burton’s existing structure. Mr Burton was clear in his evidence that he was attached to the house, regardless of its condition, and intended to continue living in it. The Judge was also mindful that the real value of No 22 is as a development site so that, if confronted with the obligation to remove the encroachment, Mr Burton should not be precluded from rationalising the cost of work to do so by recognising that the existing house has reached the end of its economic life.
[65] The Judge found it was not a matter of economic necessity that Mr Burton remain in the house.[28] The evidence established that he is a relatively wealthy man and has, at least in terms of assets, resources to enable him to live elsewhere whilst works were being done to remove the encroachment.
[28]At [108].
[66] The Judge dealt with relief in the following terms:
[128] I grant the following relief. In doing so I define the word “encroachment” to mean all that portion of the man-made structure separating numbers 22 and 24 Tawari Street, Mt Eden, which retains material behind it,[[29]] including all material of whatever nature located between the western face of the structure and the boundary line, but with no obligation on the part of the defendant to remove the natural basalt footing of the structure (where such exists) or any other natural basalt outcrops or formations located at or above the level of the access way on number 24.
[29]Corresponding generally to where it sits beneath the western exterior wall of the house located on number 22. No order is sought in respect of the “freestanding” wall at the southern end of the boundary. The plaintiffs can in due course either relocate that onto the boundary or remove it.
(a) An order declaring the encroachment to be a wrongly placed structure for the purposes of pt 6 sub-pt (2) of the Property Law Act 2007.
(b) An order directing the defendant to remove the encroachment by 31 March 2020 and in so doing to carry out such further stabilisation works (either in accordance generally with the methodology identified by the plaintiffs’ expert, Mr G N Wood, and appended to his brief of evidence dated February 2019 as Schedule A or in accordance with such other methodology as is approved by a registered structural and geotechnical engineer and is tabled with the Court by 20 July 2019), such order being with the purpose and effect of ensuring that neither the house located at number 22 Tawari Street, nor any part of the land on which it is situated, will collapse or slip on to the plaintiffs’ property.
(c) An order that the plaintiffs permit the defendant to have reasonable access to their property for the purposes of carrying out of the removal and any further stabilisation works.
(d) An order that the defendant give reasonable advance notice to the plaintiffs of the date of commencement of the works and expected duration.
(e) An order that the costs of the removal and stabilisation works be borne by the defendant.
(f) In the event the defendant adopts Mr Woods’ methodology, or like methodology involving construction of a new reinforced concrete wall with western face on the boundary of numbers 22 and 24 Tawari Street, I reserve leave to the defendant to apply for further orders recognising any or all of:
(i) the costs of removal of any natural basalt outcrops or formations;
(ii) betterment accruing to the plaintiffs (either generally or in terms of driveway establishment).
(g) An order that the plaintiffs grant to the defendant an easement to accommodate the foundations of any new retaining wall —such easement to include an obligation on the defendant and its successors in title to maintain the wall and its foundations and a right of access to the defendant and its successors for such purposes.
(h) An order granting leave to the parties to apply for ancillary relief in accordance with para [127] hereof.
(i) In the event of noncompliance with order (b) hereof, and without derogating from any other rights or remedies available to them, I grant leave to the plaintiffs to apply for such alternative relief as specified by them in writing to the defendant’s solicitors a minimum of 14 days prior to application.
[67] That paragraph had been preceded by the following observations, as referred to in [128(h)]:
[127] In a case such as this, where reluctantly the Court has to accept the inevitability of some supervisory role, and where all possible contingencies associated with the removal of the encroachment cannot be accurately foreshadowed, I consider it also prudent to reserve leave to the parties to apply for any ancillary orders and directions which may be considered necessary. Clearly, however, that is not an invitation to revisit any of the judgment’s essential findings and conclusions.
Challenge on appeal
[68] Mr Kohler submitted that the discretion under s 325 of the Act had not been exercised in a just and equitable way and that the Judge had failed to give any or adequate regard to the following factors:
(a)the retaining wall has existed in its present form for more than 130 years;
(b)the evidence did not establish that the wall was built wrongly by the appellant’s predecessor in title;
(c)Mr Burton did not build the structure and came to the Court “entirely innocent”;
(d)it was the respondents’ predecessor in title rather than the appellant who created the access difficulties of which they currently complain, namely the inadequacies of the survey when the present access to No 24 was created in 1957;
(e)the respondents could easily construct a driveway of 2.4 metres wide by undertaking modest works on their own property, but now seek a wider driveway because of the “opportunity to make unexpected (at time of purchase) windfall profits as a result of the Auckland Unitary Plan”;
(f)Mr Burton will enjoy no benefit, there being no windfall benefit to him as a result of the Auckland Unitary Plan;
(g)the respondents must have known of the access restrictions at the time of their purchase or they were extremely negligent in not discovering them;
(h)the court orders will require the wall to be moved so that it is entirely on the appellant’s property, imposing an on-going burden on Mr Burton in order to maximise the respondents’ driveway width; and
(i)Mr Burton was, prior to and during the High Court hearing, prepared to compromise but by the time of the hearing the respondents would not agree to anything less than the full width on terms where they refused to contribute to the costs of the work required.
[69] The evidence was that the costs of reconstructing the wall in the way recommended by experts retained for the respondents would be some $400,000.
[70] Mr Quinn submitted that because the appellant was challenging the exercise of a discretion on this aspect of the appeal, the appellant had to show that the Judge erred in law or principle, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong.[30] Mr Quinn disputed that the factors listed by Mr Kohler were overlooked by the Judge. Arguably, they were all reflected either explicitly or impliedly in the Judge’s reasoning.
[30]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
[71] Mr Quinn responded to each of the points raised by Mr Kohler on an assessment of just and equitable terms of relief. He submitted the evidence did establish the wall had been built wrongly by the appellant’s predecessor in title because it encroached across the then recently established legal boundary in the mid‑1880s. Mr Quinn disputed that Mr Burton could claim to be entirely innocent because, although he did not create the original encroachment, he has continued it and, after being made aware of it, refused to remedy it, continuing to make use of the encroaching structure by relying on the support it provides for his house. Mr Quinn also disputed that the evidence had established the feasibility of creating a 2.4 metre wide driveway with only modest works. Rather, a driveway of that width would still require removal of a substantial part of the wall. Further, reflecting the Judge’s reasoning, Mr Quinn submitted that the Court should not approach remedies on a basis expecting the respondents to compromise on the quality of their access. The respondents’ evidence was that, whilst planning conditions were not rigid, the greater the reduction from an accessway of the full 3.05 metres width, the less likely they were to obtain the necessary consents for whatever development they settle on for No 24.
[72] As to the absence of any benefit for the appellant, the consequence of the change to the zoning seems likely to be reflected in the land values of both properties so it would be a matter of Mr Burton’s election not to change the manner of use of his property that resulted in him achieving no financial benefit. Mr Quinn questioned the relevance of the change in planning provisions for the properties, because the extent of the encroachment over the respondents’ legal accessway would also have prevented their entitlement to develop the site under the planning regime prior to the introduction of the Auckland Unitary Plan.
[73] Mr Quinn disputed that relocating the wall so that it was confined to Mr Burton’s property imposed an on-going burden on him. As the Judge had found, the wall enabled use of Mr Burton’s land by creating a level platform for his house and front garden.
[74] As to the reasonableness of the parties’ conduct since the problem had been identified, Mr Quinn referred to the evidence of Ms Johnson that when the problem first came to light, they were actually prepared to pay for the wall. However, by the time of the hearing, the money they would have spent on the wall had been spent on legal fees because of Mr Burton’s uncooperative attitude.
Our assessment
[75] Assessing the financial impact of the orders, it is appropriate to assume that effecting removal of the extent of encroachment of the wall in a way that continues to provide support for the western side of Mr Burton’s house is likely to cost in the region of the estimates adduced in evidence for the respondents. Since the judgment, Mr Burton has not proposed any alternative mode of effecting the removal of the encroachment, as it was open for him to do in terms of the High Court orders. Mr Kohler’s parting shot was that Mr Burton would live with re‑alignment of the wall to create a 2.6 metre wide accessway for No 24, without addressing who would pay for it. That indication does not match the overall effect of the evidence Mr Burton gave in re-examination on this point and then, at the end of his evidence, in answer to questions from the Judge. In the course of a longer answer in re-examination, Mr Burton had said:
I feel comfortable that I could cope with, through consulting engineers, at a reasonable cost, a 2.8 metre wide driveway. I think the extra 200 millimetres which I suspect strongly the council will not require, will be significantly more expensive.
[76] Questioned by the Judge after that answer, Mr Burton referred both to driveways of 2.6 and 2.8 metres width, and deflected questions as to who he considered should pay for such work.
[77] The inclusive list of matters the Court might consider in determining relief under s 324 of the Act is relatively short and expressed in general terms. Whilst the list is relatively confined, we do not consider that it requires the exclusion of any matters arising in a particular case, where the Court recognises such matters as affecting the evaluation of a just and equitable form of relief.
[78] As to the consideration under s 324(1)(a) of the reasons why the wrongly placed structure is where it is, we agree with the Judge’s factual analysis that the wall will have been placed where it sits at the initiative of the then owner of No 22, and for the benefit of that property in creating a level platform for a house and garden. This is not a case in which the placement of the wall encroaching to the extent it does has any equivalent advantages for the owners of No 24.
[79] In terms of the conduct of the parties (s 324(1)(b)), there will be circumstances in which conduct of one or more parties prior to the structure being identified as wrongly placed will be relevant to assessing the terms of just and equitable orders. Equally, the conduct of the parties once the extent of encroachment of a wrongly placed structure has been identified may well influence an assessment of the just and equitable forms of remedy. Here, the conduct of both parties prior to discovery of the extent of encroachment is entirely unremarkable, so it is a neutral factor in considering what might be just and equitable relief. We agree with the Judge that any deficiencies in the respondents’ pre-purchase appraisal is not sufficient to count in the balance against them in determining just and equitable relief.
[80] With regard to the standard of conduct of the respective parties since the encroachment was identified, there is scope for acknowledging the somewhat obstructive attitude of Mr Burton to the respondents’ attempts to achieve a solution. On balance, we accept that it was able to be treated as a neutral feature of the circumstances, particularly as the Judge treated lack of co-operation in the conduct of the proceedings as a factor in awarding a net 10 per cent uplift in the level of costs to which the respondents were entitled.[31]
[31]Costs judgment, above n 3, at [12]–[19].
[81] Treating both current owners as blameless for the encroachment is, in the particular circumstances here, not an end of the analysis on establishing responsibility for an expensive problem that needs a cure. We accept Mr Kohler’s submission that responsibility for the current problem can be attributed, at least in some measure, to the respondents’ predecessor in title at the time of the 1957 subdivision creating the current accessway into No 24 as a back section. There is no sufficient explanation for why the surveyor completing plans for that subdivision did not raise the issue that the accessway being created by adoption of the 1882 boundary between what are now Nos 22 and 24 was not practically usable for vehicular access. Detailed plans prepared by the surveyor at the time endorse a material extent of encroachment, thereby creating the problem that relief in the proceeding is intended to cure.
[82] Section 324(1)(c) contemplates the unjust enrichment of the owner of the land on which a wrongly placed structure is located. That does not apply here, where the owner of the land encroached upon wants the structure removed. However, that does not preclude a broader assessment of the financial consequences of the steps needed to make wrongly placed structures conform with the legal boundaries of the affected properties in the converse situation as arises here.
[83] We do not accept Mr Kohler’s argument that the subsequent introduction of the Auckland Unitary Plan, allegedly creating an opportunity for windfall profits for the respondents, should dictate the attribution of the cost of removing the encroachment. In 2012, the prospect of resource management provisions enabling denser residential buildings in such suburbs may well have been a reasonable proposition. The respondents point out that resource consent for any new development at No 24 will require a substantially wider accessway than presently exists. The essence of Mr Kohler’s concern is that correcting the encroachment presently appears to have substantial upside for the respondents, and none for the appellant.
[84] Mr Burton’s subjective approach to the problem reflects a particular perspective: he wants to continue living in his house as it presently is, and perceives no improvement in the value of the property for his own purposes from paying for a re-alignment of the wall to remove the encroachment. However, once the extent of the encroachment of the retaining wall needed for a flat building platform on No 22 was identified, the potential obligation to remove the encroachment by re-aligning the wall became a liability that would affect the value of No 22.
[85] The economically rational outcome for No 22 may well be to recognise that the obligation to re-align the wall brings an end to the life of the present house. Were it to be demolished, the cost of the remedial work would be reduced and the value of the land as a redevelopment proposition would be increased by the extent to which the contingent liability of having to remove the encroachment has itself been removed.
[86] Notwithstanding the lack of clear evidence on the impact of removal of the encroachment on future values of Nos 22 and 24, we see this factor as a consideration in this case that is material to producing a just and equitable outcome. The effect of the Judge’s orders would be to require Mr Burton to bear all of the substantial costs of removing the encroachment, except for the part of the costs incurred in removing the natural outcrops of basalt that occurred along that line, plus an allowance for the betterment that may be reflected in the state of the respondents’ accessway after the work has been completed.
[87] The following considerations influence a determination on what is just and equitable terms for removal of the encroachment in the present case:
(a)the encroachment has existed for 130 years;
(b)no predecessor in title to what is now No 24 has ever taken issue with the encroachment;
(c)the predecessor in title of No 24 should have been put on notice as to the encroachment when the survey for the subdivision was undertaken in 1957, at which point the encroachment could have been mitigated at a much more modest cost;
(d)that opportunity arose before Mr Burton purchased No 22 and neither of the current owners can be attributed with responsibility for the encroachment; and
(e)on the present state of affairs, the respondents will be substantially advantaged by removal of the encroachment, whereas the remedial works will be disruptive for Mr Burton and will not enhance the value of his property, at least whilst he maintains its present use.
[88] In light of these factors, we are satisfied that the Judge’s formula did not achieve a just and equitable outcome. We consider that the just and equitable allocation of liability for the works, however they are to be done within the orders made by the Judge, should take into account each of the considerations we have just listed. We accordingly allow the appeal to the extent of altering financial responsibility for the works that will be needed. The Judge separately allocated to the respondents the cost of removal of the parts of the encroachment that were naturally occurring prior to construction of the wall, plus a contemplated allowance for betterment in terms of the improved nature of the accessway it provides for them.[32] We are not satisfied that the works will necessarily result in betterment for the respondents, but depending on the form in which the works are carried out, provision for them to be liable for the extent of costs for achieving betterment should be recognised. After deduction of those sums, the remaining cost ought then to be divided equally between the appellant and the respondents.
[32]It is our assumption that it will be efficient for contractors clearing the encroachment to remove those parts naturally occurring prior to the construction of the wall as part of the same scope of works, and to be able reasonably to apportion the costs of the two components of the work.
[89] Subject to that change, and the slippage caused by pursuit and resolution of the appeal, we consider the remainder of the orders as crafted by the Judge are justified and do provide a solution that is just and equitable between the parties. We direct that the dates of 20 July 2019 and 31 March 2020 in order (b) are to be extended to 20 March 2020 and 30 October 2020 respectively.
[90] The terms of orders (e) and (f) are to be replaced with the following:
(e) The costs of carrying out the works are to be allocated as follows:
(i)the respondents/plaintiffs are to be liable for the cost of removal of the parts of the encroachment that were naturally occurring prior to construction of the wall;
(ii)the respondents/plaintiffs are to contribute to the overall costs to the extent they achieve betterment in the improved nature of the accessway the works will provide; and
(iii)subject to deduction of the sums payable by the respondents/plaintiffs under (i) and (ii), the remaining costs are to be divided equally between the appellant and the respondents.
Costs
[91] Mr Kohler foreshadowed the need to re-assess High Court costs in the event that the appellant succeeded. We are not inclined to revisit costs in that Court. The justification for the costs orders made remains.
[92] Given the partial extent to which the appeal has succeeded before us, we consider that both parties to the appeal ought to bear their own costs in this Court.
Result
[93] The appeal is allowed in part.
[94] The finding that the wall constitutes a wrongly placed structure is upheld.
[95] The terms of relief that is just and equitable are amended in the respects set out in [89] and [90] of this judgment.
[96] The appeal is otherwise dismissed.
[97] The costs orders in the High Court remain unaltered.
[98] There is no order as to costs in this Court.
Solicitors:
Ellis Gould, Auckland for Appellant
Heimsath Alexander, Auckland for RespondentsAppendix 1
Appendix 2
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