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Auckland developer’s High Court appeal fails

31 May 2004

Auckland developer’s High Court appeal fails

The High Court has upheld Auckland City’s case against a property developer whose excavations on a residential development site damaged neighbouring properties.

Selwyn Mews Limited appealed a 2003 District Court ruling that it had failed to act with due care when excavating a site at 88-92 Selwyn Street, Onehunga. The Court also found the company had failed to comply with a court order to build retaining walls designed to prevent further subsidence on neighbouring properties and imposed fines totalling $36,500.

The High Court decision on the appeal is in favour of Auckland City and the District Court’s decision to impose a deterrent fine.

Warren Adler, incident management team leader at Auckland City, says the ruling is a warning to developers who fail to consider the impact of their work.

“Individuals and companies should take council’s efforts to protect the environment and communities from adverse effects of land use and development very seriously. This is especially the case when the Environment Court has made orders supporting council’s enforcement action,” Mr Adler says.

Problems initially arose in 2002 when the developers made a substantial cut to the toe of a bank near the site. After heavy rain, there was a large subsidence. It affected both the company’s land and a neighbour’s land. Minor damage was also caused to another property.

Council compliance officers responded quickly to a complaint about the subsidence and issued a notice to rectify. A new retaining wall was constructed along one neighbour’s boundary but council also applied for an enforcement order from the Environment Court for two further retaining walls to be built to secure the bank and another neighbour’s property.

Selwyn Mews Limited was a consenting party to the order but failed to comply within the six-day timeframe or seek a variation. Auckland City then prosecuted the company.

The District Court accepted that geotechnical investigations should have been carried out before excavation or that an engineering consultant should have been on hand while the work was being carried out.

In reference to the District Court decision, the presiding High Court judge, Justice Randerson, said: “Plainly, it would have been a simple matter to have carried out geotechnical investigations prior to the commencement of excavation work which the [District Court] Judge found involved a major cut and batter…One would have thought that was a basic precaution in all the circumstances.”

Justice Randerson went on to say: “Orders of the Environment Court (and indeed any court) are to be taken seriously. The scale of maximum potential fines under the Act underscores that proposition. In the present case, the total maximum fines which could have been imposed were $600,000. The fines actually imposed were a small fraction of that potential and were appropriate in all the circumstances of the case…The suggestion that the appellants should have been discharged without conviction is a startling one in the circumstances.”

Mr Adler says the city is pleased with the High Court’s ruling.

“Excavation is an increasing feature of development in Auckland City. Pressure is growing to build more residential capacity in smaller spaces but within height limits allowed by the District Plan.

“Development is going down as well as up. In Auckland’s wet environment, this brings with it a greater risk of slippage. Both the District Court and High Court recognised the need for a precautionary approach by developers.”


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