Wellington City Council v Aitchison
[2017] NZHC 1264
•9 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-752 [2017] NZHC 1264
UNDER The Resource Management Act 1991 IN THE MATTER
of an appeal under section 299 of the Act
BETWEEN
WELLINGTON CITY COUNCIL Appellant
AND
PETER AND SYLVIA AITCHISON Respondent
Hearing: 29 August 2016 Counsel:
R J B Fowler QC and K M Anderson for Appellant
A D F Cameron and M J Slyfield for RespondentsJudgment:
9 June 2017
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct that the delivery time of this judgment is
4:00 pm on 9 June 2017
WELLINGTON CITY COUNCIL v AITCHISON [2017] NZHC 1264 [9 June 2017]
Introduction
[1] Two properties sit on a steep slope rising up from Oriental Bay in Wellington. Mr and Mrs Aitchisons’ property sits above Mr and Mrs Walmsley’s.1 The boundary between the properties is 20m or so in length. For much of its distance it is defined by an old concrete retaining wall approximately 2.5m high. The Walmsleys desired privacy in their garden. To avoid being overseen by the Aitchisons from their uphill property the Walmsleys constructed a children’s play facility along the boundary.
Over 4m high the structure spawned antagonism and litigation. The Aitchisons felt “walled in” and claimed adverse effects to their health and well being. Ultimately the Environment Court ordered removal of the structure.2 I refer to this decision as the “Enforcement Decision”.
[2] An earlier decision of the Environment Court had declared that the construction and use of the children’s play facility was not a permitted activity under the Wellington City Council District Plan.3 The decision turned on the interpretation of the definition of “ground level at the boundary” in the District Plan. It is this decision, which I refer to as the “Declaratory Decision”, that is the subject of the present appeal.
Background
The properties
[3] The dispute has a reasonably lengthy and involved history which I think is desirable to set out in order to place the competing and complex legal and factual contentions in a useful context.
[4] The Walmsley’s property at 1 Carlton Gore Road is a convex rectangular
allotment 437m² in area. Their two-storey home (constructed circa 1935) sits at the
1 In fact the property is owned by Walmsley Enterprises Limited [WEL]. The issues do not concern legal ownership but they engage the interests of occupiers of property. For that reason I will refer to Mr and Mrs Walmsley rather than to the legal entity that owns the property they occupy. I mean no disrespect to Mr and Mrs Walmsley or to Mr and Mrs Aitchison when, for convenience, I reference only to their surnames.
2 Aitchison v Walmsley [2016] NZEnvC 13 [Enforcement Decision].
3 Aitchison v Wellington City Council [2015] NZEnvC 163, (2015) 19 ELRNZ 319 [Declaratory
Decision].
northeast end of the property. The entire property sits above a steep drop-off down to Carlton Gore Road. William Stevens, a senior planner for the Wellington Council, described the land available for amenity use as “compromised for privacy” once the new building at 11 Maida Vale Road was constructed. The lower apartment at
11 Maida Vale Road, the Aitchison’s apartment, has its outdoor courtyard space immediately adjoining the common boundary of the two properties in an elevated position thereby dominating the outdoor space which the Walmsleys desire to use in privacy.
[5] The Walmsleys had originally planned to erect a 2m high fence on top of the concrete wall that runs along the boundary. The retaining wall at each end is just clear of the boundary, by approximately .05m. At each end where the wall is physically clear of the boundary, the Council considered the Walmsleys were entitled to erect a 2m high fence on top of the wall. But over the longest section of the wall which touches the boundary it was not possible to do so because the total height of over 4m failed to meet District Plan standards. The total height comprised the 2m (plus) high wall and the proposed 2m high fence on top of the wall. The Council measured the fence height from the foot of the wall.
[6] The Walmsleys were determined to erect some form of barrier along the boundary to protect the privacy of their garden area. They eventually decided to erect a children’s “play structure” which, because it was intended to be used in association with residential activity, would be regarded as a “residential structure” and therefore subject to different standards than for fences. The Walmsleys obtained a building permit from the Council and erected the structure. The structure was
described in the Enforcement Decision in this way:4
The play structure takes the form of an elevated walkway just over 1 metre wide attached by posts to the retaining wall. The walkway varies between about 2.2 and 3 metres or so above ground level on the Walmsley side. Access to the walkway is gained by a steep ladder at one end and egress by a slide at the other end. The walkway is somewhere between 11 and 12 metres in length and is constructed at different levels. It has bubble panels, a sway bridge and a turret tower. The walkway has timber walls or fences along either side. On the Walmsleys’ side the timber wall starts at walkway level so that it is possible to stand underneath the walkway in places and use it as
4 Enforcement Decision, above n 2, at [12].
a pergola or such. Facing the Aitchisons’ property the timber wall extends
right down onto the retaining wall.
[7] Timber fences were constructed along the top of the retaining wall at each end of the structure. While the fences and play structure walls were of identical timber there were differences in height. The play structure walls were between 2.2 and 2.4 metres above the retaining wall and the two fences at each end were 1.8 and
2 metres above the retaining wall.5
[8] The structure was built without a resource consent and on a non-notified basis because the Council was of the view that it complied with the rules relating to “building recession planes” in the District Plan.
[9] For the purpose of applying the District Plan the Council regarded the structures as being three separate structures. When viewed from the Aitchisons’ side of the boundary they presented as one long, continuous, wooden fence over 20m in length albeit at varying heights. The Environment Court considered a “high degree of artificiality” was involved in treating the structures as three separate structures. Its view was that they could just as accurately have been described as a fence to
which a structure or walkway had been attached.6 Nevertheless, the proceedings
were advanced by the parties on the basis that the structures were permitted by the rules in the District Plan when they could not be permitted had they been one long, continuous fence.
[10] Mr Aitchison doubted that the screening of their property in fact achieved the privacy which the Walmsleys said was the purpose of the children’s play structure. That is because other neighbours in Maida Vale Road continued to have, he said, unimpeded views of the Walmsleys’ garden from their various angles and perspectives.
[11] Mr Aitchison had a residual concern that the fence was “intended to address a
long-standing grievance” held by Mr Walmsley over the development of the
apartments at 11 Maida Vale Road. Mr Aitchison has offered alternative suggestions
5 At [13].
6 At [14].
and concepts which would screen the Walmsleys’ garden area from the Aitchisons’ sight and thus provide the privacy the Walmsleys seek. His evidence is that attempts to resolve the matter have proven unsuccessful.
[12] Those aspects of the background are not, of course, relevant to the interpretation of the applicable standards and provisions but they provide something of the flavour of the dispute.
[13] In this appeal one of the Council’s criticisms of the Declaratory Decision is that the Environment Court’s approach was inappropriately coloured by the Court’s concern for the adverse effects of the structure on the Aitchisons.
The litigation
[14] Taking the view that the structure was not permitted under the District Plan the Aitchisons sought and obtained from the Environment Court a declaration confirming that the play structure breached the permitted activity standards and was in breach of s 9 of the Resource Management Act.7 Mr Walmsley’s appeal against the Declaratory Decision was set down to be heard in February 2016. The Council filed an intention to appear and be heard on the appeal.
[15] In reliance on the Declaratory Decision, and because the Walmsleys had taken no steps to stay the Declaratory Decision, the Aitchisons applied for orders requiring removal of the play structure and fence. The Council was a co-applicant but not in relation to the whole application. The Council expressly disassociated itself from that part of the application based on the Environment Court’s declaration that the construction and use of the play structure is not a permitted activity under the District Plan. The Council’s position was that it was premature to seek orders based on non-compliance with the District Plan when the interpretation of those District Plan provisions was under appeal. In short, while accepting the play structure had severe adverse effects on the environment, the Council’s position was
that it is a permitted activity under the District Plan.
7 Declaratory Decision, above n 3, at [34].
[16] The Enforcement Decision issued on 22 January 2016 required removal of the “offensive” and “objectionable” structure. The Walmsleys complied with the enforcement orders. As well, the appeal against the Declaratory Decision was withdrawn.
[17] For the Aitchisons, the enforcement orders and the withdrawal of the appeal against the Declaratory Decision resolved matters. But the Council pursued an appeal against the Declaratory Decision. For obvious reasons the Aitchisons did not wish to have to continue defending their position. They challenged the ability of the Council to pursue an appeal when the existing dispute between the Aitchisons and the Walmsleys was at an end, the Walmsleys having abandoned their appeal. If the Council continued the appeal the Walmsleys would be required to participate in order to protect their future position.
[18] Ultimately, the High Court was persuaded to the Council’s position. The Council had filed a notice under s 305 of the RMA signalling its wish to contend that the Environment Court was in error and this constituted, or was analogous to, a cross-appeal.8 The Council had a legitimate interest in the issues raised by the appeal and there was a wider public interest in the interpretation of the District Plan.9
[19] As Mr Fowler QC submitted on the Council’s behalf before this Court:
As the creator and regulator of the District Plan, the Council has a particular interest in how its District Plan is applied and interpreted. How it is interpreted is important not only to the Council, but the residents of Wellington who are controlled by it: …
[20] The Council is interested in ensuring the District Plan is applied consistently and coherently and that the interpretation of the provisions in the District Plan should be fair and achieve their intended purpose.
Relevant provisions in the District Plan
[21] The District Plan is concerned to provide a reasonable level of residential amenity throughout the residential area.
8 Wellington City Council v Aitchison [2016] NZHC 167, (2016) 19 ELRNZ 154.
9 At [27].
[22] The explanation to Policy 4.2.4.1 states:
The scale and placement of new buildings can have a significant impact on the amenity enjoyed by neighbouring properties. The District Plan contains provisions that seek to strike an appropriate balance between facilitating new development and protecting the amenity of neighbouring properties.
[23] Mr Alistair Aburn, an expert witness called by the Aitchisons, is an experienced planner with over 30 years experience in town planning and resource management. He explained that the District Plan acknowledges the “qualities” or “experiences” that contribute to residential amenity. They include:
(a) access to direct sunlight/daylight; (b) privacy;
(c) absence of building bulk and height and inappropriate sitting.
[24] The District Plan contains residential area rules at chapter 5 and, at 5.6, residential area standards. The standards at 5.6.2 apply to the construction of buildings and structures in residential areas. Standard 5.6.2.8 governs building
recession planes the definition of which is in section 3.10:
BUILDING RECESSION PLANE means the three dimensional plane(s) used to manage the height and location of buildings and structures in relation to the ground level and boundaries of the site on which they are located.
[25]
The requirements of building recession planes are detailed at 5.6.2.8.
By
5.6.2.8.1:
All buildings and structures, including fences and walls, shall be contained within a building recession envelope (in the form of a “tent” constructed by drawing recession control lines over the site from all parts of all boundaries),
…
[26] The standard of particular relevance to this case is 5.6.2.8.2:
Each recession control line shall rise vertically for 2.5m from ground level at the boundary and then incline inwards, at 90° to the boundary in plan. [Emphasis added]
[27] Plotting of the recession control line cannot begin until “ground level at the boundary” is located.
[28] The District Plan defines “ground level” for different purposes, for example: for the purpose of calculating building density in the central area, for the purpose of measuring building height and for the purpose of measuring recession planes. The definition of ground level at the boundary for the purpose of measuring recession planes was introduced as part of the change to the plan in 2010. The definition is:10
GROUND LEVEL FOR THE PURPOSE OF MEASURING RECESSION PLANES
means the existing ground level at the boundary of the site. Where a retaining wall or retaining structure is located on the boundary the ground level shall be taken from the front surface of the retaining wall/structure at the boundary.
[29] This appeal concerns the meaning of the definition.
The Declaratory Decision
[30] The Environment Court concluded the Council had erred in its interpretation of the definition of “ground level” in the District Plan by determining the origin point for the vertical 2.5m measurement was at the top of the retaining wall separating the properties rather than at the front surface of the base of the wall.11
[31] In its concise yet complete decision the Environment Court touched upon the development of 11 Maida Vale Road in the 1990s, the removal of a fence at that time from the area of the concrete wall and the Council’s position in 2000 regarding measurement of height of fences.12 Having described the background to the building of the play structure and its effect on the Aitchisons13 the Court turned to the key provision in the plan, standard 5.6.2.8.2, set out at [26] above. The Court analysed
the definition in light of s 5 of the Interpretation Act 1999, the object of District Plan
10 Wellington City Council District Plan 2017, s 3.10, definition of “ground level for the purpose of measuring recession planes”.
11 Declaratory Decision, above n 3, at [34].
12 At [3].
13 At [4]–[7].
provisions and the need to appropriately balance facilitating new development and protecting the amenity of neighbouring properties.14
[32] The Environment Court considered its approach was consistent with the guidance provided by the Court of Appeal when interpreting plans and sections within plans.15
[33] The evidence established that the front surface of the retaining wall is vertical. Therefore the question was whether, in measuring the vertical component of the recession control line, the measurement is to be taken from the bottom of the front surface of the wall or from its top-most point. The Court considered a proper interpretation of the definition required the measurement to be taken from the bottom of the wall:16
The contextual approach to interpretation points overwhelmingly, we consider, to the bottom or toe of the wall as being the point from which to make the vertical measurement. If that is done, the land on the lower side of the wall is no worse off, in terms of the permissible height of structures on the neighbouring land across its boundary, than it would be if the land on both sides of the boundary was perfectly flat. On the other hand, the land on the higher side has its amenity protected (to some degree at least) from serious impairment by structures being erected to accord with a recession plane that takes its vertical component from the top of the wall.
[34] The Environment Court concluded the Council had misdirected itself on the definitions in question and its consideration of the proposed childrens’ play structure should have been guided by the following conclusions which the Court expressed in the form of the following declarations:17
(a) that the concrete wall between 1 Carlton Gore Road (Lot 2, DP
14867) and 11 Maida Vale Road (Lot 1, DP 14867) (the wall) is a retaining wall or retaining structure for the purpose of the application of the definition ground level for the purpose of measuring recession
planes in the Wellington City District Plan;
14 At [9]–[33].
15 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) cited at [30].
16 Declaratory Decision, above n 3 at [33].
17 At [34].
(b)that the part of the wall on the north-western boundary of 11 Maida Vale Road is located on the boundary for the purpose of the definition ground level for the purpose of measuring recession planes in the Wellington City District Plan;
(c)that ground level for the purpose of measuring recession planes on the north-western boundary of 11 Maida Vale Road is the level at which the existing surface of the ground on the property at 1 Carlton Gore Road meets the toe of the front surface of the wall;
(d) that the construction and use of the childrens’ play structure (or
facility) next to the boundary between 1 Carlton Gore Road and
11 Maida Vale Road is not a permitted activity under the Wellington
City District Plan;
(e)that as a consequence of declarations (a), (b), (c) and (d) the use of the land next to the boundary between 1 Carlton Gore Road and 11 Maida Vale Road for a childrens’ play facility contravenes section 9 of the RMA.
Arguments on appeal
[35] The Council contends the Environment Court erred in law by incorrectly interpreting the definition of “ground level for the purpose of measuring recession planes” in r 3.10 of the District Plan. The Council seeks to have the Declaratory Decision set aside.
[36] The parties filed extensive written submissions and I was further assisted by counsels’ detailed oral arguments. Although it does not do justice to the careful and full arguments that were made I propose to summarise the parties’ positions.
Wellington City Council
[37] In support of the contention that the Environment Court’s interpretation is in error Mr Fowler submitted:
… a retaining wall now has the power to significantly alter the development potential of an uphill property because as soon as one is put ‘near the boundary’, the [building recession plane] for both properties is measured from the ground at bottom of that wall and not the original ground level.
[38] The Council is concerned that the result is unusual and illogical because the uphill property loses significant development potential through a neighbour choosing to do earthworks on their land up to the boundary. The interpretation of the definition will result in absurd outcomes across Wellington, interfere with expectations of property owners (particularly uphill owners) and does not provide a practical way of administering the District Plan. In the Council’s view the reality is that the meaning adopted is only sensible in this specific scenario, due to the severe adverse effects of the structure, but it is far from sensible when applied across the many other scenarios in the Wellington district.
[39] Mr Fowler submitted that because the retaining wall is not on the boundary the existing ground level at the boundary is discernible. On that basis the first limb of the standard applies and it is unnecessary to consider the second limb of the definition. That being the case the ground level is that on the Aitchisons’ side of the wall.
[40] But even if the wall is on the boundary the second limb of the definition requires an intersection between the vertical plane of the boundary and the front surface of the retaining wall. The ‘front surface’ also includes the top or any exposed surface of the retaining wall. That being the case the ground level is that on the Aitchisons’ side of the wall. This interpretation, it is said, works in other typical scenarios in Wellington.
The Aitchisons
[41] The respondents acknowledge the ambiguity of the words in the definition but support the Environment Court’s contextual approach to resolving the ambiguity and obscurity.
[42] The respondents view the Council’s approach as promoting an outcome that is inconsistent with the expectations of property owners, is administratively
impractical and creates an absurdity. The respondents consider the Council’s concern about adverse outcomes across Wellington to uphill property owners is misplaced and the evidence establishes that the Council’s approach “perpetuates the offensive and objectionable (absurd) outcome experienced by the Aitchisons”.
[43] The respondents do not accept that this Court, on appeal, can substitute its own opinion for that of the Environment Court unless its decision is aberrant.
[44] Mr Cameron submitted that this Court on appeal should not be drawn into a “trade-off” between the facts of this case and speculative unproven anomalies. The only demonstrably anomalous outcome was the scenario confronting the Aitchisons described in the Enforcement Decision as a contrivance undertaken to get around rules preventing the construction of a fence.18 The respondents consider the approach taken by the Environment Court to the interpretation of the definition is correct in all the circumstances.
Analysis
[45] The rules in district plans have the force and effect of a regulation made under the RMA.19 Thus the Interpretation Act applies and a purposive approach to interpreting the rules is appropriate. Further the Court of Appeal has confirmed that it is appropriate to seek the plain meaning of a rule from the words but it is not appropriate to undertake that exercise in a vacuum:20
… regard must be had to the immediate context (which in this case would include the objectives and policies and methods set out in s 20) and, where any obscurity or ambiguity arises, it may be necessary to refer to the other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.
[46] Counsel did not dispute the applicable principles. Further both Mr Fowler and Mr Cameron cited the decision of the High Court in Nanden v Wellington City
18 Enforcement Decision, above n 2, at [72].
19 Resource Management Act 1991, s 76(2).
20 Powell v Dunedin City Council [2004] 3 NZLR 721 (CA) at [33].
Council in which the Judge considered the former definition of “ground level” in the
Wellington City Proposed District Plan.21 Nanden emphasised:22
(a)the desirability of an interpretation which avoids absurdity or anomalous outcomes;
(b)the desirability of an interpretation that is likely to be consistent with the expectations of property owners; and
(c)the importance of practicality of administration by City Council officers.
[47] With these principles in mind I turn to consider the meaning of the definition which I set out once more:
GROUND LEVEL FOR THE PURPOSE OF MEASURING RECESSION PLANES: means the existing ground level at the boundary of the site. Where a retaining wall or retaining structure is located on the boundary the ground level shall be taken from the front surface of the retaining wall/structure at the boundary. [Emphasis added]
[48] As the Environment Court observed the first part of the definition is straightforward enough. A boundary on level ground can be readily plotted. If the boundary is on a vegetated or naturally surfaced slope while plotting it might be slightly more laborious but it is well within the capability of experts in the field.23
[49] The perceived difficulties appear when the second limb of the definition is invoked. The second limb applies when “a retaining wall or retaining structure is located on the boundary”. The second limb gives rise to the question: what does
“located on the boundary” mean?
21 Nanden v Wellington City Council [2000] NZRMA 562 (HC).
22 At [48] cited with approval in Mount Field Ltd v Queenstown Lakes District Council
HC Invercargill CIV-2007-425-700, 31 October 2008 at [36].
23 Declaratory Decision, above n 3, at [12].
“located on the boundary”?
[50] The Environment Court compared the Concise Oxford dictionary definitions of “at” and “on”.24 “On” is defined as “physically in contact with and supported by (a surface) — located somewhere on the general surface area of (a place)”. “At” on the other hand is defined as “expressing location or arrival in a particular place or position”. The Court observed:
[16] In a pure sense, and in a context where all dimensions can be measured with no margin for error, that distinction makes sense. In theory a boundary is a line dividing one allotment from the next. It may be infinitely thin, but it is fixed and unmoving. If something is at that line, it will be located in a position that is in contact with that line, on one side or the other.
[17] If, on the other hand, something is on that line it will, notionally at least, be supported by the surface area of the line. So, with that interpretation, on would involve the concept of being across or straddling the boundary line.
[51] The description of a boundary line as “infinitely thin” accords with the expert evidence given on behalf of the Council by Mr Stevens. He described a boundary as being, in a geometric sense, a two-dimensional plane which is infinitely thin. What we see in technical diagrams and drawings is a representation of the boundary.
[52] I do not understand the Council to be taking a different approach to the meaning of “located on the boundary”. Rather, the Council’s objection is to the application of the second limb to a retaining wall which at each end was not “on” the boundary but only near it.
[53] It seems that the Council’s concern about the Environment Court’s approach to the definition arises from the Court’s application of its interpretation to the facts in light of its view that the distinction between something being “on” a line and “at” a line is less workable in the real world.25 The Court pointed to the historical plotting
of the boundary to illustrate the point.
24 At [16].
25 At [18].
[54] Mr Peter Drown, a surveyor engaged by Mr and Mrs Aitchison, plotted the
northern boundary of 11 Maida Vale Road and reported that it was located “generally
0.05 [north-west] of the common face of the old concrete retaining wall and the newer plaster wall”. At that time Mr Drown was unaware that there were two separate walls. There was no visible space between the two walls and Mr Drown thought the front face of the newer plaster wall was the face of the walls.
[55] Mr Drown was again engaged in 2015 by Mr Aitchison to survey the northern boundary once more. During his 2015 site Mr Drown identified locations along the relevant boundary where holes in the gap-filling material between the two walls enabled him to measure the positions of the back face of the concrete wall and the front face of the plaster wall. From that Mr Drown was able to establish with greater accuracy than in 2010 the relative positions of the walls and the boundary.
[56] He reported that the south-eastern face of the concrete wall, that is the wall closest to the Aitchisons’ apartment, is generally on the boundary for two-thirds of its length (at the south-western) end. The remaining portion of the wall along the boundary varies from being on the boundary up to 0.05m clear of the boundary.
[57] A technically correct assessment of survey measurement accuracy should be stated as a confidence interval. Accuracies are generally stated as +/- a particular distance. Mr Drown said that, in general surveys, this figure would be +/- 2–3 cms. His evidence was that in this particular instance he measured to the existing boundary marks along the wall and the largest difference between the calculated position and the measured position was 34 mm. He therefore stated that the accuracy of his survey is +/- 3 cm.
[58] In their agreed statement the parties’ experts agreed that the survey diagram prepared by Mr Drown reflects the ‘as built’ situation of the wall vis-à-vis the surveyed boundary. The experts also agreed that either end of the wall is clear of the boundary. In the middle section of the boundary the wall touches the boundary.
[59] On the basis of Mr Drown’s work the Environment Court concluded that:26
26 Declaratory Decision, above n 3, at [20].
from the back of the wall — (the face closest to the Aitchison property — may vary between being at and on the boundary (ie touching it, or overlapping it); or up to 3 [cm] on the Aitchison side of the boundary, or between 2 and 8 [cm] on the Walmsley side of the boundary.
[60] It was at this point in the Court’s analysis that it reached a fundamentally different position from the position put forward by the Council and adopted by Mr Walmsley:27
… the retaining wall sits on the land at 1 Carlton Gore Road … near the boundary with 11 Maida Vale Road … . That is simply not our understanding of the evidence … and we must proceed accordingly.
[61] The Environment Court appeared to rely on Mr Drown’s survey report for its conclusion that the back of the wall may vary between being “at and on the boundary” in the way described in para [59] above. Of course, Mr Drown’s evidence was that the concrete retaining wall was generally on the boundary for two- thirds of its length and the remaining portion varied from being “on” the boundary to up to 5 cms “clear of the boundary”. He did not at any point say the retaining wall was “at” the boundary.
[62] The Council’s case rests on the fact that at each end the concrete wall is up to
5 cms clear of the boundary. Therefore the building recession plane should have been measured from ground level at that point. The retaining wall not being on the boundary at those points, the second limb of the definition was not engaged and the first limb only applied. To that extent the Environment Court’s decision was in error.
[63] Notwithstanding that the Council criticises the Declaratory Decision for conflating “on” and “at”, my understanding of the decision is that it did not ultimately do so although there was an appearance of conflation at times.28 Rather, the Environment Court took the view that, given the very close degrees of proximity, the purpose of the District Plan provisions and the practical impossibility of constructing a poured concrete retaining wall to millimetric accuracy, the reasonable and informed person would say that for the purposes of the measurements required
the wall was either on or at the boundary.29
27 At [21].
28 For example, at [16] and [31].
29 At [31].
[64] In my view the Environment Court’s approach to the meaning of “on the boundary” and the application of the meaning, was not in error.
(a)While some guidance can be taken from the dictionary definition of “on” that must be seen in the context of a relationship between a three-dimensional retaining wall and a conceptual two-dimensional vertical plane which is the boundary. As Mr Cameron submitted:
It is axiomatic, that in this context, not all of the object can accurately be said to be ‘on’ the plane. Indeed no matter where the wall and boundary coincide, it will always be technically correct (if somewhat counter-intuitive and misleading to the lay person) to say that almost all of the wall is “not on” the boundary. However, this conceptual appreciation of the technical meaning of ‘boundary’ is central to the ambiguity of the first part of the sentence.
The space theoretically occupied by the boundary is physically occupied by the wall. In this sense they are “in contact” with each other thus meeting an aspect of the dictionary definition of “on”.
(b)It is only as one moves from the central section of the wall towards either end that a very slight separation occurs between the wall and the boundary. Where the boundary is straight the wall angles away slightly towards the lower property, the gap between the wall and boundary being 5 cm (with a margin of error of +/- 3 cm). In those circumstances it was available to the Environment Court to conclude that the wall is “located on” the boundary for the whole of the length that is adjacent to the play structure.
(c) Considering the substantial nature of the wall (a concrete structure
20m long, approximately 2m high and 15cm thick) and that it was likely to have undergone slight movement on the hillside over
50 years where it deviates from the boundary that deviation is, as
Mr Cameron submitted, de minimis.
(d)When assessing whether a wall of that scale is “located on the boundary” within the ordinary meaning of those words and in
practical terms the gap at each end was insignificant and inconsequential. The Court had a proper basis for concluding that the varying but close degrees of proximity, the purpose of the plan provisions and the impossibility of pouring a concrete wall of this scale to millimetric accuracy, that the wall was on the boundary.
(e)In policy terms the Environment Court’s approach is consistent with the objects and purpose of the building recession plane standard and the history that led to the formulation of the standard in its current form.30
From what point is the vertical measurement to be taken?
[65] The recession control line “shall rise vertically from ground level at the boundary”. With a retaining wall on the boundary how does one identify the point from which the vertical measurement is to be taken? The second limb purports to answer that question:
… ground level shall be taken from the front surface of the retaining wall structure at the boundary.
[66] The Council says this part of the second limb requires an intersection between the vertical plane of the boundary and the “front surface” of the retaining wall and as “front surface” includes the top or any exposed surface of the retaining wall, ground level in this case is that on the Aitchisons’ side of the wall.
[67] The respondents say the appellant treats the reference to “front surface” and “at the boundary” as if they are both descriptors of a single position. That is, there is a physical point that will be both at the boundary and on the front surface. And this is what leads the Council to assert that “front” includes every exposed surface of the wall including the “top” and the “back”. On the appellant's approach that is necessary because some walls are incontrovertibly "on" the boundary, but the only surface intersecting the boundary is the “top”. This requires the appellants to assert
that the "front" includes the “top”.
30 The explanation to Policy 4.2.41. is set out at [22] above.
[68] The Aitchisons say their interpretation does not inevitably require the “front surface” and “at the boundary” to coincide. When a wall is on the boundary an exception is created to the ordinary position that a single point will provide both the horizontal and vertical location for commencing the building recession plan calculation. The definition directs the plan user to take the vertical value from one place (“ground level ... front surface”) and the horizontal location from another (“at the boundary”) to establish the starting point for the recession plane envelope.
[69] I consider a useful starting point is the report of the Hearing Committee engaged in the District Plan Change 72 residential area review.31 When considering the definition of ground level for measuring recession planes a number of different options were discussed at a meeting between the Council and those who had made submissions but they could not agree upon a definition that dealt with all situations triggered by the definition operative at that time. What they could, and did, agree was that it was better “to use existing ground level as the default measurement, as this at least had the benefit of being simple to understand and administer”.
[70] The Hearing Committee’s Report describes the outcome of those discussions as follows:
A meeting between officers and submitters … was held on 17 May 2010. The parties agreed that the current definition did not work well in greenfield areas that have been subject to mass earthworks or in older neighbourhoods with long established retaining structures … .
While a number of different options were discussed at the meeting, the parties were unable to arrive at a definition that dealt with all situations where the current definition was triggered. The parties therefore tended to agree that it was better to use existing ground level as the default measurement, as this at least had the benefit of being simple to understand and administer. The parties did agree that in situations where a retaining wall was located on the boundary, it made sense to measure ground level from the front face of the retaining wall, rather than from the level of the ground behind the retaining wall.
The Hearing Committee agreed with the position reached by officers and the submitters, and decided that the definition should be amended as follows (amendment is shaded and underlined):
31 Wellington City Council Wellington City District Plan Change 72: Report of Hearing Committee
(August 2010).
GROUND LEVEL FOR THE PURPOSE OF MEASURING RECESSION PLANES: means the existing ground level at the boundary of the
site. Where a retaining wall or retaining structure is located on the boundary the ground level shall be taken from the front surface of the retaining wall/structure at the boundary.
[71] The intention behind the definition that is now in place cannot be ignored. Because “it made sense” to do so the intention was to measure ground level from the front face of a retaining wall rather than from the level of the ground behind the retaining wall. The Hearing Committee agreed that where a retaining wall is located on the boundary the measurement should be from its front not the rear and that is reflected in the definition.
[72] That alone is a powerful indicator of the meaning to be given to the definition. Other indicia point the same way. The building recession planes are intended to manage access to sunlight. The District Plan states that “building recession standards are intended to protect people’s access to a reasonable amount of direct sunlight”. The importance of this amenity was to the fore of the Hearing Committee’s consideration of submissions which, if accepted, would have compromised access to sunlight.
[73] The Hearing Committee Report records that it considered two submissions relating to building recession planes. One submission advocated their removal to allow efficient use of land and the development of 2–3 story houses. The second suggested amending building recession plane policies to state that owners were encouraged to arrange their dwellings to receive sunlight from adjoining public domains. The Hearing Committee rejected both submissions because of the significant impacts on sunlight, daylight and privacy that would result.
[74] The second limb is an exception to the default position which is that the vertical measurement is taken from one place, ground level at the boundary. Ground level is obviously the lowest point (above ground) on any site. Taking the lowest point for the start of the vertical 2.5m measurement has as its object, and effect, the best management of access to sunlight. Or to put it another way it protects that particular amenity for the benefit of those at risk from having the amenity compromised by constructions on neighbouring land.
[75] There is no linguistic or policy rationale for ignoring that core purpose of the building recession plane when construing the second limb of the definition.
[76] I consider the proper approach is to take the measuring point of the building recession plane as being ground level taken from the front surface of the retaining wall or structure. As Mr Cameron submitted a measurement at “ground level “[substitutes] for the default position (where there is not a wall on the boundary) that “existing ground level at the boundary applies.” Then the words “at the boundary” are given effect in this way. The building recession plane is fixed at the boundary. The point is well illustrated by the respondents’ diagram which is attached as an appendix to this judgment.
Summary
[77] Mr Fowler skilfully advanced comprehensive submissions on behalf of the Council. His legal and factual arguments were supplemented by diagrams depicting retaining walls with and without parapets and with no, or with varying degrees of, slope. During the hearing I had the benefit of Mr Fowler demonstrating on a whiteboard the practical implications of the different interpretations proposed by the parties. Mr Fowler could not have said more on behalf of the Council.
[78] In the end I have preferred, as the correct interpretation of the definition, a construction that does not overlook any of the words used and gives the words their proper meanings in context, including in the broader context of the residential rules in the District Plan. Importantly, this interpretation promotes the purpose of building recession planes, and achieves an appropriate balance between facilitating new development and protecting the amenity of neighbouring properties.
[79] There was no evidence before the Court of the practical difficulties that the Environment Court’s approach is said to create for the Council’s administration of the standards. There were of course sketched scenarios but I accept that these should not be “traded-off”, as Mr Cameron put it, against the real facts of this case.
[80] I think it is highly unlikely that property owners would have expected the
results we have seen in this case from the Council’s administration of the District
Plan. On the one hand the Environment Court ordered the removal of a structure it described as a “contrivance undertaken to get around rules” preventing the construction of a fence, whose adverse effects were “extreme” and “severe” and which was “offensive” and “objectionable”. On the other hand the Council maintains the structure was compliant and a “permissible activity” under the rules. For a structure such as this to be classed as a “permitted activity” is nothing short of anomalous. Its effects were precisely the kind that were intended by the PC72 amendment to be avoided.
[81] Mr Cameron’s response to the Council’s regulatory enforcement argument is compelling. The Council’s position is that homeowners in the position of the Aitchisons are not left stranded by the Council’s approach to the definition. That is because, while a structure may be permitted by the Council, enforcement orders seeking removal of a permitted structure may be sought. That argument, of itself, suggests a flawed approach to the definition. The envelope for permitted development is set low for reasons I have set out. Recession control lines starting at the default position of ground level provide the best opportunity for maximising residential amenities including, obviously, light. This aspect of the regulatory regime is to be met by the standards and definition in the District Plan — correctly construed — not by an expectation that property owners whose amenities are compromised are to take the initiative of court action in order to protect their amenity. While that option is always available the intent of the definition is not that property owners themselves will act as de facto enforcers (regulators) to secure, through the inconvenience and expense of litigation, the protection which the standards provide.
[82] In conclusion the point from which 5.6.2.8.2 requires the vertical measurement to rise is at “ground level at the boundary”. Where there is a retaining wall on the boundary a two-step process will be engaged: first, “ground level” will be the point where the front surface of the wall meets the ground. Secondly, the point “at the boundary” is where the ground level intersects with the boundary.
Result
[83] The appeal is dismissed.
Solicitors:
DLA Piper, Auckland for Appellant
Brookfields, Wellington for Respondents
Karen Clark J
ATTACHMENT
Referred to at [76] above
4