Second appeal against $72,500 costs in Roseneath fence case fails

Peter Aitchison and the four-metre-high wooden fence blocking the view of Wellington City and Harbour from his apartment in Roseneath. The fence has since been removed. File photo / Mark Mitchell

A man who built a fence blocking his neighbours' million-dollar views has lost an appeal against having to pay legal costs.

David Walmsley put up a 4m-high, 11m-long fence on his exclusive Maida Vale Rd property in Roseneath, Wellington, using a legal technicality to gain council permits.

He and his mother, Heather Walmsley, had originally wanted to build a 2m fence on top of a 2m retaining wall to gain privacy for the garden area, as their neighbours, Peter and Sylvia Aitchison, had a courtyard area overlooking it.

But the total height didn't meet District Plan standards, so the Walmsleys instead put up a children's "play structure", which was subject to different standards than for fences. They got a building permit from the Wellington City Council and put up the fort.

Eighteen months and two court cases later, the Environment Court ordered the structure be taken down and the Walmsley's pay $72,500 in costs to the Aitchisons.

The Walmsleys have taken the battle over costs to court for a second appeal, on the grounds that the matter was a test case clarifying an issue of law, that they behaved reasonably in relying upon the Council's advice, the Aitchisons' request for costs was made out of time, the costs order was punitive, and court cases were conducted unfairly.

In a judgment released today by the Court of Appeal, Justice Helen Winkelmann said the judges had concluded a second appeal should not be granted.

"The proposed grounds of appeal raise largely factual issues rather than questions of law, focusing as they do upon the weight given to matters in the decision to award costs," she said.

Many of the arguments were also made before a previous judge, who fully addressed them at the time.

"We see no error in her approach and we therefore assess the proposed appeal as being without merit."