Property owners allowed use of tunnel, Navy says

The Navy has denied that a tunnel under private homes in Devonport is trespass.

In the High Court at Auckland, John Waugh and his former partner Karen Robinson are seeking around $460,000 in compensation.

The tunnel from the North Yard to the South Yard of the Devonport Naval Base passes under the couple's former property at 18 Rutland Rd and emerges adjacent to it.

Bruce Gray, acting for the couple, told Justice Mark Cooper that the Navy had been trespassing until it was granted an easement in July last year.

But Malcolm Parker, representing the Attorney-General on behalf of the Defence Force, yesterday denied that there had been any trespass, as the plaintiffs had acquiesced in the Navy's use of the tunnel.

Even if the Navy's use of the tunnel did constitute a trespass, Mr Parker contended that the couple should be entitled to only nominal or modest damages, not the $460,000 they were seeking.

The tunnel was built under emergency wartime legislation. The legislation was repealed in 1950 but no steps were taken to seek rights to use the tunnel.

Mr Parker said that following an investigation in 1996, the Navy realised that it had no statutory basis for continued use of the tunnel and began negotiations with landowners.

All owners, with one exception, including the plaintiffs had granted an easement and all the other owners, but one, had agreed compensation.

Mr Parker said that there had been no trespass as the Navy had continued using the tunnel with the apparent acquiescence of the landowners.

He said that the plaintiffs had never demanded that the Navy stop using the tunnel and expressly said in a letter from their solicitors that there had never been any suggestion of legal proceedings to prevent the defence force from using it.

"Although these proceedings have been issued, the defendant (the Navy) contends that the plaintiffs' acquiescence in the use of the tunnel, the statement in the letter from the plaintiffs' solicitors and their willingness to negotiate and grant an easement means that they acquiesced in the Navy's use of the land and there was no trespass."

He said that if the court decided that some rental should be paid, there would be evidence from a registered valuer who would provide a "more realistic assessment" to that of the plaintiffs' expert.