Pair sue Navy over Shore tunnel

John Waugh, outside court yesterday, had intended to subdivide his property but then found out about the tunnel. Picture / Glenn Jeffrey

Former owners of a Devonport property are seeking around $460,000 in compensation from the Navy for a tunnel under their land.

John Waugh and Karen Robinson, who owned a house at 18 Rutland Rd, are suing the Attorney-General, alleging trespass.

The tunnel from the North Yard to the South Yard of the Devonport Naval Base passes under the couple's former property and emerges adjacent to it.

Their lawyer, Bruce Gray, told Justice Mark Cooper in the High Court at Auckland yesterday that the alleged trespass covered a six-year period up until July last year, when the Navy acquired an easement.

The couple have separated and sold the property, but Mr Gray said that was not material to the case.

The tunnel, constructed in 1941 and 1942 under emergency regulations, is 340m long and passes under 13 privately owned properties as well as public roads and Navy property.

It enables pedestrians, cyclists, cars, forklifts, buses and small trucks to get from one part of the base to the other without having to use public roads or go through security checks.

In 1950, the defence emergency regulations were repealed, but Mr Gray said it appeared that the Navy believed it had a statutory easement that enabled it to use the tunnel.

In 1982, claims of subsidence and vibration by the then owners of an adjoining property at 20 Rutland Rd had highlighted that the Navy had no legal right to use the tunnel.

Mr Gray said the plaintiffs were not aware of the tunnel when they bought the 1012sq m property. They had intended to subdivide but were prevented by the tunnels' presence.

Mr Gray said the plaintiffs argued that the unauthorised use of the tunnel constituted a trespass. They were seeking compensation for wrongful use of their land.

He said the Navy had enjoyed cost savings from use of the tunnel and those savings were relevant to what would have been paid to acquire right of passage. An expert traffic engineer had assessed the benefit to the Navy from using the tunnel over that six-year period at $2,751,370 compared with the next least costly alternative route.

"They [the plaintiffs] say the court should assume a willingness by the defendant [the Navy] to pay all landowners affected by the tunnel one half of the benefit to it from the tunnel rather than the next least expensive option," Mr Gray told the judge.

Because the plaintiffs' property was more affected than others, where the tunnel was much deeper, Mr Gray said their valuer believed they should receive 36.75 per cent of the total payment to all affected landowners, about $460,000.