[1] On 22 January 2016 the Environment Court ordered the removal of a play structure which Walmsley Enterprises Ltd had erected on or close to the common boundary between the Walmsleys’ property1 at 1 Carlton Gore Road, Wellington and
the Aitchisons’ property at 2/11 Maida Vale Road.2 Costs were reserved in favour of

the Aitchisons and the Wellington City Council.3

[2] The Council made no costs application. The Aitchisons sought indemnity costs substantially in excess of $100,000. On 10 June 2016 the Environment Court issued a decision ordering the Walmsleys to pay the sum of $72,500.00 in
reimbursement of costs incurred in the enforcement proceedings.4

1      The property is owned by Walmsley Enterprises Limited. For consistency with the decisions of the Environment Court I refer in this judgment to “the Walmsleys” and “the Aitchisons”.
2      Aitchison v Walmsley [2016] NZEnvC 13 [Enforcement Decision].
3 At [80].
4      Aitchison v Walmsley [2016] NZEnvC 114 [Costs Decision].

WALMSLEY ENTERPRISES LIMITED & ORS v AITCHISON [2017] NZHC 1504 [30 June 2017]

[3] The Walmsleys appeal the order for costs. They say no costs should have been awarded or that indemnity costs in a lesser sum should have been awarded. The Aitchisons cross-appeal, saying that indemnity costs in a greater sum should have been awarded.

Background

[4] In late 2014 and early 2015 the Walmsleys erected a structure attached to the retaining wall on the boundary. The Environment Court found the structure had the following adverse effects on the Aitchisons’ property:

·the structure was dominant and overbearing to such an extent as to constitute a severe adverse effect;5

·the structure enabled persons on the walkway to view directly into the internal and external living spaces of the Aitchison apartment from very close proximity which had a significant adverse effect on the Aitchisons’ privacy;6

· the structure had a significant and severe adverse effect on views from the

Aitchisons’ property;7

· the structure had a significant adverse effect on sunlight amenity of the

Aitchisons’ property;8

· overall, there were significant and severe adverse effects on the residential
amenity of the Aitchisons’ property resulting from the presence of the structure;9

5 Enforcement Decision, above n 2 at [33].
6 At [34].
7 At [40].
8 At [46].
9 At [48].

·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.10

[5] Those findings led the Court to making an enforcement order requiring removal of the structure even though it was assumed to comply with the requirements of the District Plan.11

[6] The hearing took…

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.

Continue reading Walmsley Enterprises Ltd v Aitchison

Details

AGLC: Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504
Case: [2017] NZHC 1504
Decision Date: 30 June 2017

CaseChat Overview and Summary

Walmsley Enterprises Limited and others appeal an order of the Environment Court that they pay costs to the Aitchisons in excess of $100,000. The Aitchisons cross-appeal, saying that indemnity costs in a greater sum should have been awarded. The appeal and cross-appeal were heard in the High Court at Wellington. The appeal was dismissed and the cross-appeal was dismissed. The parties were ordered to bear their own costs on the costs application. The Environment Court had ordered the removal of a play structure which Walmsley Enterprises Ltd had erected on or close to the common boundary between the Walmsleys’ property at 1 Carlton Gore Road, Wellington and the Aitchisons’ property at 2/11 Maida Vale Road. The Court found the structure had severe adverse effects on the Aitchisons’ property. The Aitchisons sought indemnity costs substantially in excess of $100,000. The Environment Court ordered the Walmsleys to pay the sum of $72,500.00 in reimbursement of costs incurred in the enforcement proceedings. The Walmsleys appealed the order for costs. They said no costs should have been awarded or that indemnity costs in a lesser sum should have been awarded. The Aitchisons cross-appealed, saying that indemnity costs in a greater sum should have been awarded. The High Court found that the Environment Court had not erred in law in making the order for costs. It was not in dispute that the Aitchisons had been put to unnecessary expense. It followed from that conclusion that it was reasonable that costs be awarded in their favour. The Court considered the case for an award of costs to the Aitchisons was overwhelming. The significant and severe adverse effects of the structure on the Aitchisons’ amenity when combined with the Walmsleys’ knowledge of the adverse effects led the Judge to the view that the costs award should be “very substantial”. The Judge considered it was not reasonable to pass the full amount of the legal costs which represented a daily rate of $5830.50 onto the Walmsleys. An amount in the vicinity of 50 per cent of the claimed amount was considered to be a reasonable (if not generous) allowance. Nor would the Judge make any allowance for Mr Slyfield as outside counsel. However, full recovery of the witnesses’ costs was said to be reasonable.

Orders