A couple whose home borders a school has described their “abject horror” at discovering a 5.5m climbing tower had been built outside their fence, allowing people to gaze into their windows at all hours of the day and night.
Alan and Anita, who don’t want their surnames used, are bewildered as to why the structure - dubbed by Alan the “tower of terror” - was built on the boundary instead of somewhere else on the school grounds away from a fenceline. A quote obtained by the Ministry of Education (MoE) to relocate the web-like structure was more than $90,000.
MoE said it had agreed to move the structure when it carried out a future project at the school. There is no date yet for this to happen.
The couple’s Lower Hutt home has a sunny, north-facing living area and kitchen, but they must spend much of the day with the blinds down to avoid the stares of people climbing the netting.
They have endured heckling from climbers, items being thrown at their house and windows and people of all ages climbing the structure and staring into both levels of their two-storey home.
Anita even spotted what she believes was a Peeping Tom watching her about 9.30pm. When she stood up and spotted the man she believed was in his 50s, he scurried away.
On one recent occasion, Anita was at home anxiously awaiting cancer tests telling her whether the disease had spread. Stressful enough, but as she moved from room to room, a gaggle of school students waved and yelled to her, watching through her windows and calling out to their friends when they spotted where she’d gone.
When, in exasperation and no small amount of distress, Anita called Hutt Intermediate School and asked for them to do something about her unwanted audience, she said the woman on the other end of her phone told her: “I will get our friendly children to stop waving at you.”
The couple have lived in their home for 21 years and said they had no issue with noise, as they knowingly bought next to a school. But they did not expect such a looming structure to be placed nearly on the boundary line.
The playground was put up in mid-2022 and the couple have spent the past year and a half fighting the school, Hutt City Council and Ministry of Education with the help of a lawyer to get the issue resolved, with no luck.
“We live our lives not looking out these windows,” Anita said.
“You stand at your breakfast bar buttering your toast and next thing you look up and there’s someone looking at you.”
When Alan first looked out the window and spotted it, he felt “abject horror”, he said.
They were “absolutely gutted and gobsmacked” at the decision to place the tower there.
Alan emailed the school to ask about the decision, and in an email response, principal Mike Gillatt said schools were designated for education purposes, so consultation was not required, nor was a consent.
The pair were never notified the structure was going up, and were told afterwards there was no obligation to consult neighbours before building it. They were also told that, as the District Plan allows the construction of six-storey residential buildings in this area, a 5.5m play tower was insignificant in comparison.
“They don’t care, they just batted us off.”
The couple have since had trouble sleeping, and become stressed about their property value and privacy. They say they think about the issue every day.
“We haven’t once had an apology,” Anita said.
The school’s lawyers also sent correspondence to Alan and Anita’s lawyer, saying the location of the playground was an “operational decision” and that much of the school grounds were established as fields, courts and astroturf.
The school may also be demolished and rebuilt in the future and it was important to place the playground in an area where it would not be likely to be affected.
Ministry of Education general manager of asset management Simon Hatherill told the couple in a letter that, if feasible, the relocation of the tower would be prioritised when the school is redeveloped. There was no set date for this to occur.
Hatherill’s letter included a $90,195 quote to relocate the structure.
The couple also sought the opinion of King’s Counsel lawyer Paul Radich, who said the school and ministry had an obligation under common law to consult with the couple and owed them a duty under the Resource Management Act 1991 (RMA) to avoid, remedy or mitigate adverse effects arising from the playground. He also said they had potential liability to the couple under the tort of nuisance.
The letter from Hatherill did not argue the point, but said the ministry did not agree it had breached any legal duties or created actionable nuisance.
The ministry told the Herald they had no involvement with the initial construction and had no detail as to why that location was chosen for the climbing frame.
Hutt City Council’s head of planning, Tim Johnstone, also responded to Radich’s opinion, saying it was a matter of opinion as to whether the RMA had been breached. The council has declined to issue an abatement notice to the school.
When contacted for comment, Gillatt referred queries to the ministry. Hutt City Council confirmed no consent was required for the work.
“The neighbouring owner requested that council take enforcement action under the Resource Management Act against the school for building the playground,” a spokesman said.
Because the structure met the relevant rules under the District Plan and was allowed under the RMA, the council did not consider it appropriate to spend public resources on a formal statutory enforcement process.
The case is reminiscent of another in neighbouring Wellington, where an infamous court case was battled out over several years to determine whether a fence masquerading as a play fort was allowed to be built, blocking out million-dollar harbour views for the house behind.
The Roseneath Fence saga began after David Walmsley built 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 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.
Walmsley said the neighbours never had a right to the stunning view, and said he was being denied privacy in his backyard.
“It’s a great view, it’s just not theirs, they don’t own it, like they don’t own my car,” he said.
Walmsley said the Aitchisons didn’t have the view when they moved in.
The case went through multiple court battles until Walmsley was eventually forced to take down the fence and ordered to pay $72,500 in legal costs.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 10 years.
His eldest brother said they were struggling to comprehend their sudden loss.