The man who built a fence blocking his neighbours' million dollar views of Wellington harbour has made a "last ditch effort to try to get some justice" in court.

David 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.

Walmsley 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 matter has been through numerous court cases - with the fence being pulled down in 2016 - but Walmsley has brought it back to the High Court at Wellington this morning to seek leave to appeal a decision relating to the money he was ordered to pay over the issue.


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.

After the case went to the Environment Court, Walmsley was made to remove the fort in 2016.

The view from the Aitchisons' apartment before the fence went up. Photo / Mark Mitchell
The view from the Aitchisons' apartment before the fence went up. Photo / Mark Mitchell

Several other court cases have gone on since then, but ultimately it was ruled Walmsley should pay $72,500 in legal costs to the Aitchisons. The High Court also ruled the council should pay $41,479 and Walmsley should pay another $16,500. That figure is separate to the $72,500.

Back in 2016, Peter Aitchison said the fence made the couple feel "claustrophobic" in their own home.

"With Wellington as it is, houses are built on hills so what happened to us could happen to anyone," he said.

The decision on the $72,500 costs payment has gone through more than one appeal, and several applications to recall decisions on the costs have been made.


The confusing chain of events was laid out by Andrew Cameron, the lawyer for the Aitchisons, in court today.

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.

He now wants to appeal the refusal to recall the High Court's decision. That decision, however, has already been the subject of an appeal in the Court of Appeal and was declined.

Justice Karen Clark told Walmsley in court he needed to identify a mistake she had made to be able to persuade her to allow an appeal.

Walmsley said he felt he had suffered a miscarriage of justice and was having to pay costs for a structure which council oversaw.

"I end up with a $72,000 bill for doing everything by the book as far as I was concerned," he said.

"How do I build something on my land next time?"

He complained he would go through the correct processes through council and then "everyone changes their mind and it's my fault and I have to pay a bill".

Today's leave to appeal hearing was a "last ditch effort to try to get some justice".

"Of course, if there's no option for that, I will have to accept that if I'm out of options," he said.

Justice Clark summed up his position, saying "you see the costs outcome as the end result of a process you don't agree with and you see as unfair".

Cameron said this application must fail, because there were jurisdictional and procedural issues in what Walmsley was trying to do.

He said his clients should not have to bear the burden and pay the legal costs for this "ongoing cycle of activity for which [Walmsley] must take responsibility".

Walmsley's "sense of injustice has been responded to by the Court of Appeal in its judgment".

The judge reserved her decision.