Walmsley v Aitchison - [2017] NZCA 500

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/2017
[2017] NZCA 500

BETWEEN	HEATHER WALMSLEY, DAVID CULLEN WALMSLEY AND WALMSLEY ENTERPRISES LIMITED Applicants
AND	PETER AITCHISON AND SYLVIA AITCHISON Respondents

Hearing:	30 October 2017
Court:	French, Winkelmann and Brown JJ
Counsel:	D C Walmsley in person for Applicants AFD Cameron and M J Slyfield for Respondents
Judgment:	7 November 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal is declined.
BThe applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Winkelmann J)

The applicants, Mr David and Mrs Heather Walmsley,[1] seek leave to bring a second appeal against an order of Judge Dwyer in the Environment Court requiring them to pay the respondents, Mr Peter and Ms Sylvia Aitchison, a costs award of $72,500.[2] That order for costs was confirmed on appeal by Clark J.[3] The Walmsleys wish to argue on a further appeal that Clark J was wrong to uphold the costs award made in the Environment Court.
[1]Son and mother respectively.
[2]Aitchison v Walmsley [2016] NZEnvC 114 [EC Costs decision].
[3]Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504 [HC decision].
The relevant leave provision is s 303 of the Criminal Procedure Act 2011.[4] Together with ss 299 and 308 of the Resource Management Act 1991, it allows for a second appeal on a question of law, but provides the Court must not give leave for such an appeal unless satisfied that:
(a)the appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

Background

Declaratory order proceedings

[4]See Resource Management Act 1991, ss 299 and 308.

Mr Walmsley and his mother own a residential property through their company, Walmsley Enterprises Ltd. The Aitchisons own the residential property directly above the Walmsley property — they share a common boundary. The Walmsleys erected a four-metre high, 22-metre long structure on that boundary, comprising a solid wall with a walkway and play structure attached.
The Aitchisons issued proceedings against Walmsley Enterprises and the Wellington City Council, seeking declarations under s 310(c) of the Resource Management Act that the structure contravened that Act. We refer to these proceedings as the Declaratory Order proceedings. The Aitchisons argued that the Council was wrong to view the structure as a permitted activity and therefore as not requiring a resource consent. On 17 September 2015 the Environment Court declared that the structure was not a permitted activity, it therefore did require resource consent and, for these reasons, the use of the land for the structure contravened s 9 of the Resource Management Act.[5] That decision was then appealed to the High Court, which ultimately upheld the Environment Court’s decision.[6]

Enforcement order proceedings

[5]Aitchison v Wellington City Council [2015] NZEnvC 163 [EC Declaratory decision].

[6]Wellington City Council v Aitchison [2017] NZHC 1264.

Before the…

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 v Aitchison

Details

AGLC: Walmsley v Aitchison [2017] NZCA 500
Case: [2017] NZCA 500
Decision Date: 7 November 2017 at 11.30 am

CaseChat Overview and Summary

David and Heather Walmsley sought leave to bring a second appeal against an order of Judge Dwyer in the Environment Court, requiring them to pay the respondents, Peter and Sylvia Aitchison, a costs award of $72,500. The order was confirmed on appeal by Clark J. The Walmsleys wished to argue on a further appeal that Clark J was wrong to uphold the costs award made in the Environment Court. The Court found that the application for leave to bring a second appeal should not be granted. The proposed grounds of appeal raised largely factual issues rather than questions of law, focusing as they did upon the weight given to matters in the decision to award costs. Moreover, many of these arguments were made before Clark J and were fully addressed by her. The Court saw no error in her approach.

The Court concluded that the proposed grounds of appeal were without merit. The proceedings were not a test case as the Environment Court and the High Court had addressed the Walmsleys’ arguments with a straightforward application of the legislation to the facts. The Court also found that the Aitchisons’ pursuit of enforcement proceedings was entirely reasonable and the commencement of those proceedings was the fastest route to resolution. The application for costs was not made out of time and there was no basis for challenging Clark J’s analysis that there was no punitive element in the award of costs.

The Court declined the application for leave to bring a second appeal. The applicants must pay the respondents costs for a standard application on a band A basis and usual disbursements.

Orders