No More Appeals: It Is Time to Pay Up

Some court cases really should be sorted in one day because the vindictiveness of one of the participants is blatantly obvious. Right from the start of this legal case, I was firmly on the side of the people whose neighbour used a loophole in the council rules to enable him to not only block their view but to also block the sunlight to their front deck.

Peter Aitchison and the 4m wooden fence blocking the views from his Roseneath apartment in 2015. Photo / Mark Mitchell
NZ Herald

A “last ditch effort to try to get some justice” in court has failed for the man who built a fence blocking his neighbours’ million-dollar views of Wellington Harbour.
David Walmsley’s application for leave to appeal a decision relating to the money he was ordered to pay over the issue has been dismissed by Justice Karen Clark.
Walmsley was ordered to pay $72,500 in legal costs after a court case arising from a fence he built on his Roseneath property that masqueraded as a children’s play structure.
He put up a 4m-high, 11m-long fence on his exclusive Maida Vale Rd property in 2015, using a legal technicality to gain council permits.

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.
But the total height didn’t meet District Plan standards, so they 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 Aitchisons said the structure immediately devalued their home by $900,000.
The matter has been through numerous court cases – with the fence being pulled down in 2016 – but Walmsley brought it back to the High Court at Wellington on May 17.
In court Andrew Cameron, the lawyer for the Aitchisons, detailed the number of appeals and several applications to recall decisions on the costs that had been made.
He said Walmsley’s appeal on costs went as far as the Court of Appeal, which declined to overturn the decision. Walmsley then made two applications to recall the decision, which were declined. He then made a further two applications to recall the Environment Court’s original decision on costs, and after that was declined, he made another appeal to recall the High Court’s decision not to overturn the costs decision.

Those are an awful lot of attempts to avoid the inevitable but he is not the first determined litigant to stubbornly refuse to quit. His poor neighbours must be so relieved that their ordeal is finally over.

This judgment related to Walmsley wanting to appeal the refusal to recall the High Court’s decision. That decision, however, had already been the subject of an appeal in the Court of Appeal and was declined.

[…] “with the greatest respect to Mr Walmsley’s sense of injustice”, the arguments had been “thrashed to death” in every court and it needed to stop.

Justice Clark also considered an order to restrain Walmsley from commencing or continuing any more court processes in relation to the structure.
“The present application is yet a further attempt to relitigate a point that has been addressed and determined by the Environment Court, the High Court and the Court of Appeal,
It is extraordinary that he would seek to relitigate the issue in this way. The application is completely lacking in merit and constitutes an abuse of process.”
She said Walmsley had embarked on a “fruitless cycle of litigation, which is burdening the respondents and the court processes”.
Justice Clark directed the registry not to accept for filing any further documents […]

A Newspaper


The courts should exercise this power more often for the sake of people like the Aitchisons. They have been put through hell by a man who does not know when to quit. Where is the justice in that?

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