Wellington City Council loses appeal over meaning of 'ground level' in case of view-blocking fence in Roseneath

Peter Aitchison and the four-metre-high wooden fence blocking the view of Wellington City and Harbour from his apartment in Roseneath in 2015. Photo/Mark Mitchell

Wellington City Council has lost an appeal over the Environment Court's decision on a fence masquerading as a children's fort in Wellington, blocking million dollar views.

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

In the appeal decision released by the High Court in Wellington, the judge said the Walmsleys 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.

The view from Peter Aitchison's apartment before the four-metre-high wooden fence blocked the view of Wellington City and Harbour. Photo/Mark Mitchell

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.

"The Environment Court considered a 'high degree of artificiality' was involved in treating the structures as three separate structures," the judge said.

Walmsley was made to remove the fort in 2016, but the council appealed the Environment Court's decision due to its reasoning, which it said had an effect on the interpretation of the District Plan.

The Environment Court ruled the council had erred in its interpretation of the definition of "ground level" - the argument was around whether the structure should be measured from the top or the bottom of the retaining wall between the properties.

The retaining wall was only near the boundary, not on it.

The council's lawyer said the Environment Court's decision meant "a retaining wall now has the power to significantly alter the development potential of an uphill property".

"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," the judge said.

"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 'permissible activity' is nothing short of anomalous."

He said that on a property where a retaining wall was by the boundary, a two step process should be engaged.

"Ground level" will be at the point where the front surface of the wall meets ground, and the point "at the boundary" is where the ground level intersects with the boundary.

The judge dismissed the appeal.