JOHNSON v BARRY PARK INVESTMENTS LIMITED [2019] NZHC 597

JOHNSON v BARRY PARK INVESTMENTS LIMITED [2019] NZHC 597 [27 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-455[2019] NZHC 597BETWEEN XANTHE ANNA JOHNSON AND MARKANDREW GRAHAMPlaintiffsAND BARRY PARK INVESTMENTS LIMITEDDefendantHearing: 12 – 15 and 20 February 2019Appearances: K Quinn and C Pearce for the PlaintiffG J Kohler QC and S J Neville for the DefendantJudgment: 27 March 2019JUDGMENT OF MUIR JThis judgment was delivered by me on Wednesday 27 March 2019 at 3.30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.CounselK Quinn, Barrister, AucklandC Pearce, Barrister, AucklandG J Kohler QC, Barrister, AucklandSolicitors:Heimsath Alexander, AucklandEllis Gould, AucklandTABLE OF CONTENTSIntroduction [1]Background facts including relevant findings [7]The plaintiffs' claims [15]The issues [19]Does the wall encroach on the plaintiffs' access way? [21]Is the wall a "wrongly placed structure"? [31]Other relevant statutory provisions [47]To what extent is "ownership" of the wall relevant? [54]Are there claims in nuisance and trespass? [64]Has the defendant adopted or continued the trespass? [69]Discretionary factors relevant to relief under the Act [72]Remedy [96]Result [128]Costs [129]Introduction[1] The plaintiffs and the defendant are, respectively, the owners of 24 and 22Tawari Street, Mt Eden. It is in an area of the city once called "Rocky Nook", whichis towards the western edge of the Mt Eden lava flow. The street descends steeply tothe west. To establish level building platforms for several of the properties in thestreet, rock walls have been built using the plentiful local basalt. One such wall islocated between the defendant and plaintiffs' properties. Sitting atop the wall with itsbearers, in some cases directly on the graded rock, is an old (probably C 1885) villa ina very deteriorated condition. It is occupied by a Mr Martin Burton for whom thedefendant (solicitor's) company holds the property on trust. Although the house doesnot in many places have wall linings, and enjoys only the most basic amenities, andalthough Mr Burton is a wealthy man1 with the capacity to either restore the house orredevelop the property, he appears to like it as it is. He has lived there now for over30 years.[2] Unfortunately, the wall on which the house sits (and indeed a small part of thehouse itself) is substantially located on the 3.05 metre surveyed driveway which leadsto number 24 (which is a rear lot). The wall itself is substantial – about 2.5 metreshigh at the road and tapering out towards a natural rocky outcrop at the rear of MrBurton's house.[3] The house at number 24 is also very much at the end of its economic life. It isoccupied by two young architects and their young child. They bought it in 2012 withthe intention of redeveloping the site. Their most recent plans are for two town housesand a duplex. This is significantly fewer dwellings than allowed under the intensivezoning which applies to both the plaintiffs' and defendant's properties, but theyconsider it an appropriate style of development.[4] They say, however, that there is little prospect of them obtaining resourceconsent for their proposal (assuming at least one car space/garage per dwelling whichthey consider the market demands) without the infringing wall being relocated within1 The evidence establishes him as beneficially owning multiple properties throughout Auckland andNorthland, in many cases unencumbered and in others with modest mortgages. His properties at22 and 22A Tawari Street have a combined valuation of $2.775 M and are unencumbered.the defendant's boundary.2 On the plans they have developed (which includeconstruction of a new reinforced concrete wall) the cost of so doing could be in thevicinity of $400,000.[5] The parties cannot agree about whether a new wall needs to be built and, if so,in what location3 and who should bear the cost of it (or, if both parties, what theincidence of that cost should be). They pass all these potentially difficult issues to theCourt for it to assess.[6] In that context the plaintiffs invoke both common law remedies (in nuisanceand trespass) and the Court's statutory jurisdiction under ss 321 to 325 of the PropertyLaw Act 2007 (the Act) to grant relief in respect of "wrongly placed structures". Theysay that the Court should authorise them to construct a new wall within the defendant'sproperty and at its expense. Initially the defendant counterclaimed for an injunctionbased on alleged rights of natural support, but that argument was not maintained attrial.Background facts including relevant findings[7] Subdivision of the area in which the plaintiffs' and defendant's properties arelocated appears to have first occurred in or around 1882.4 A house (likely to have beenconsiderably smaller than the existing dwelling which has been subject to numerousalterations and additions over time), appears to have been constructed on thedefendant's land (which was first transferred in 1884), by at least 1889.5 Since thehouse sits on top of the wall,6 it can safely be concluded that it (or at least a significantpart of it) was built during the mid-to-late 1880's.2 As to the minor infringement caused by the defendant's house, they are confident dispensationcould be obtained on a resource consent application and do not therefore seek a demolition order.3 Whether on the defendant's land with the face of the wall comprising the boundary, or theplaintiff's land, or with the central line of the wall comprising the boundary.4 The last digit of the date is not legible on the relevant deposited plan.5 Contemporary records of the Mt Albert Road Board invited review of applications for identifiedlocal works at "Mr Gilbert's at Rocky Nook", W. R Gilbert being the then owner and a clerk inthe employ of the Board.6 More accurately, the edge of what is effectively a rock reclamation.[8] Furthermore, since the base of the wall consists, for much of its length,7 ofhand placed basalt rocks it can also safely be concluded that the number 24 drivewaylevels (where adjacent to the base) were those that pertained in the mid 1880's.[9] Of course, formation of what is now the driveway may have involvedeliminating various natural humps and hollows, but I am unable to accept, as thedefendant's geotechnical engineer Mr Williams invites me to do, that large scaleexcavation was involved in the creation of the driveway and that the wall thereforeprovides natural support to number 22, possibly to the extent of 1.5 metres or more atvarious points along the boundary.[10] I come to that conclusion for the following reasons:(a) The base of the wall is approximately level (albeit on a gentle inclinenorth to south) with the footpath and edge of the road formation. Inturn, where the wall reaches the footpath it continues at a right angle infront of the defendant's property ultimately tapering out towards itseastern boundary. In so doing the wall created the opportunity for alevel platform for the defendant's house which is well above streetlevel.(b) There would have been no point in excavating the access way, let aloneby 1.5 m or more, to have left it at a lower level than the footpath androad. Mr William's position therefore invites the conclusion that thefootpath and road have themselves been lowered substantially from thenatural contour level.(c) There is no evidence that such extensive road works occurred at orabout the time of initial subdivision and it seems unlikely, given theequipment available to 19th Century road-makers, that they would havewished, in what was difficult and rocky terrain, and which was likelyintersected by numerous shallow basalt outcrops corresponding to7 Well down its length and in the vicinity of the rear most portion of the defendant's house the wallis built over and around a natural rocky outcrop which continues to ground level.original lava flows, to have modified the contour to that extent. A morelikely scenario, in my view, is that the road essentially followed thenatural contour.(d) Mr Williams response is to suggest that the road had/could have beenexcavated at a later time, but again there is no evidence of that and againit seems inherently unlikely that whoever owned the land nowcomprising number 24 would, in the mid 1880's, have wanted toexcavate an access below what would have been the road and footpathlevel.(e) Prior to 1957,8 numbers 24, 26 and 28 Tawari Street were comprised inone rectangular title. Numbers 26 and 28 were then subdivided off,each with Tawari Street frontages leaving number 22 as a rear lotserviced by the access strip. Again, it seems inherently unlikely that amajor excavation would have been undertaken along the boundary ofnumbers 22 and 24 using 19th Century technology when the then ownerof number 24 had available to him or her what were likely to be simpleroptions for the establishment of access (over the areas now comprisingnumbers 26 and 28).(f) Aerial photographs dating from both 1940 and 1958 show that physicalaccess to what is now the plaintiffs' house predates lodgement of the1957 subdivision plan and construction activity on numbers 26 and 28,suggesting that the existing formation has always been regarded as themost convenient. That is unlikely to have been the case if it involvedextensive excavation.(g) Although Mr Williams suggested that the very high retaining wall (heconsidered it possibly about 10 metres tall) between numbers 15 and 17on the opposite side of the street indicates that the site at number 15was created by excavation, which might therefore be considered8 The relevant survey was conducted in January 1957 but the subdivisioned plan was not depositeduntil December 1958.characteristic of the area, I am not persuaded. The natural contourdrops very steeply to the north in the vicinity of numbers 15 and 17,and it is at least equally plausible that the base of that wall also is at (orabout) natural ground level with the height of the wall – simplyreflecting the extent of construction necessary to establish a levelbuilding platform for number 15.[11] On the balance of probabilities I therefore conclude that no substantialexcavation occurred along the access strip and that, for the length of the access way,the base of the wall broadly corresponds to natural ground level.[12] Again on the balance of probabilities, I find the purpose of the wall was toprovide a level platform for the construction of a house on number 22 – the westernboundary of that property having formerly been approximately two and a half metreslower than the eastern at the north west corner, along with a gentle south to northcontour which had to be accommodated. That conclusion is supported by theobservations of the plaintiffs' geotechnical expert Mr Black. He noted loose basaltcobbles without interspersed soil, directly under the floor in the south east corner ofMr Burton's house – indicating that graded fill was used some distance from the wall.It is also supported by Mr Black's physical examination of the underfloor area adjacentto the wall (an exercise not conducted by Mr Williams) which indicated "stackedboulders" extending "a long way back (a metre or more) from the face of the wall intothe area under the mid-section of the dwelling". He contrasted this with a "shallowveneer or facing over natural rock" and his observations are clearly consistent with theintroduction (or relocation from other parts of the property) of substantial quantitiesof material along the western boundary.[13] I do not accept, as Mr Kohler QC invites me to do, that the wall was constructedas much to contain a fretting slope between numbers 22 and 24 as to provide a platformfor number 22. I do not consider the natural contour across number 22 sufficientlysteep for that to have been a relevantly animating concern, particularly given theapproximately 15,000 years that have elapsed since the Mt Eden eruption and theopportunity for a natural stable contour to be established over the intervening period.[14] I return to these findings in the context of Mr Kohler's submission that,although the face of the wall encroaches significantly into the access way, it cannot beconsidered an encroachment in a legal sense because the wall is a common or partywall.The plaintiffs' claims[15] The plaintiffs plead three causes of action. In the first, they allege that the wallis a wrongly placed structure for the purposes of pt 6 sub-pt 2 of the Act. They claimit is just and equitable that the Court should grant them relief and, in addition to adeclaration as to the wall's status, seek orders either directing the defendant to removethe encroachment or permitting the plaintiffs to do so and, in that event, requiring thedefendant to bear the costs of removal and reinstatement or replacement.[16] The second cause of action is in nuisance. It alleges that Mr Burton, asbeneficial owner of the property, was aware of the encroachment since at leastFebruary 2013 and has failed to take any steps to abate it. It is alleged that if theencroachment is not removed, the plaintiffs will suffer loss by virtue of their inabilityto access their property and in terms of its development potential. The relief sought isa mandatory injunction seeking removal of the encroachment, with an alternativeclaim for equitable damages in lieu of injunction and in an amount to be quantified"representing the diminution in value of the plaintiffs' property".[17] The third cause of action is in trespass and relies on the same facts andparticulars of alleged loss as the nuisance claim. The relief sought is also in identicalterms.[18] These causes of action are not pleaded in the alternative. This reflects theposition under s 323(4) of the Act which provides that the granting of relief under sub-pt 2 does not deprive any person of any claim they might otherwise have for damages.99 In its terms, the reservation applies to damages claims only. This is because the relief grantedunder the Act will typically substitute for any injunction order which may have been sought. Theinjunction sought in the plaintiffs' second and third causes of action should technically beconsidered alternative remedies to relief sought in the first.The issues[19] These appear to be as follows:(a) Does the wall encroach onto the plaintiffs' access way?(b) Is the wall a "wrongly placed structure" for the purposes of pt 6, sub-pt 2 of the the Act or does it give rise to an actionable trespass ornuisance?(c) If so, what relief (if any) should the Court grant?[20] There are, however, some subsidiary matters which need to be addressed. Iwill identify these under separate heads.Does the wall encroach on the plaintiffs' access way?[21] It is undisputed that the face of the wall lies (at some points substantially) overthe plaintiffs' access way. The surveyed width of that access way is 3.05 metres.Adjacent to the footpath the distance from the base of the wall's face to the westernboundary of the access way is 2.82 metres. At that point both a small portion of thetop of the wall and its entire face are within the title of number 24. As one movesfurther south, the level of intrusion is greater. So, for example, at a point under theenclosed veranda of Mr Burton's house the width is 2.6 metres only. Proceedingfurther south the access way widens slightly to 2.7 metres before narrowingdramatically underneath the laundry/bathroom annex at the rear of Mr Burton's house.Here the wall extends out to join a natural basalt outcrop leaving a distance of 1.28metres only between the base of the wall and boundary of the access way. The naturalbasalt outcrop (which the plaintiffs accept the defendant has no responsibility toremove and which the plaintiffs will need to cut back in order to establish lawfulaccess) then extends further into the access way.10 As the base of the wall extends outto meet the outcrop, so too the top of the wall11 comes to be largely within the access10 The actual distance is unmeasured on the relevant survey, but I estimate the maximum incursionto be approximately 2.4 metres, leaving an available legal access way of .605 metres.11 Which, at this point, starts to be distinct from the material behind it.strip. That continues to be the case southward to the point where the access strip opensinto the plaintiffs' property. The distance between the base of the wall and the edge ofthe access strip is at that point 2.05 metres only.12[22] Beyond the point at which the entrance way opens into the plaintiffs' propertythe wall assumes a freestanding character. It is at that point almost entirely located onthe plaintiffs' land. That problem has been exacerbated by the 1957 resurvey which,at the southern-most portion of the boundary, adjusted the boundary line by 20centimetres to the east. That being the case, an adjustment of 10 centimetres midwayalong the boundary can also be assumed. It was accepted by the surveyors called forboth parties that this adjustment to the 1882 survey should now be accepted as correct.It does not, in my view, materially affect any of the outcomes in this case.[23] At one point (at its southern extremity) the defendant's house itself encroachesover the access way by some 7 centimetres. The plaintiffs do not seek any relief inthat regard – an accommodation which I consider relevant to my overall assessmentof the merits of their position.[24] Although the above summary is largely uncontentious on the survey evidencethe defendant's expert, Mr Finlayson, eschews the word "encroachment" in a positionwhich mirrors the submission of Mr Kohler. That submission is, as I have indicated,to the effect that no part of the wall can be considered an encroachment because itslegal status is that of a "common" or "party" wall. I cannot accept that submission.[25] There are four types of party wall recognised in the seminal authority Watsonv Gray13 and which Hinde McMorland & Sim Land Law in New Zealand summariseas follows: 14(a) a wall of which the adjoining owners are tenants in common;(b) a wall divided longitudinally into two sections, one belonging to eachof the adjoining owners;12 At this point the wall is much reduced in height and can be distinguished from the material retainedby it.13 Watson v Gray [1880] 14 ChD 192.14 Hinde, McMorland & Sim Land Law in New Zealand (LexisNexis, Wellington, 1997) at [6.054].(c) a wall which belongs entirely to one of the adjoining owners but issubject to an easement in favour of the other to have it maintained asa dividing wall; or(d) a wall divided longitudinally into two sections each section beingsubject to a cross-easement in favour of the owner of the other.[26] The text goes on to state that under the Land Transfer system, party walls inthe first category can only be created where the adjoining owners are, at the time thewall is built, tenants in common of the underlying land. That is not the case here. Nordo the third and fourth categories apply, as there are no party wall easements recordedon either parties' title.[27] In respect of the second category Hinde states that:Where a wall is built on the boundary so that the centreline of the wallcoincides with the boundary line, the property in the wall follows the propertyin the land upon which it stands even though the wall was built at the jointexpense of the parties.[28] The text cites Matts v Hawkins as authority for that proposition.15 That caseestablishes that if adjoining owners build a wall at joint expense, precisely along theboundary so that "one half of the thickness stands on the land of each" the wall isowned up to the boundary line by each owner, rather than as tenants in common.[29] I accept the plaintiffs' submission that such circumstances plainly do not applyin this case. The wall does not have an identifiable centreline. As I have indicated,for much of its length what presents as wall is simply the western face of a muchdeeper artificial building platform on the defendant's property. Moreover, to the extentit can be considered to have a centreline, it is not divided by the two properties. Andthere is no evidence that the wall was built by adjoining owners at their joint expense.To the contrary, I have found that, on the balance of probabilities, at least to the extentthe wall provides a foundation for the house and supports its front garden,16 it waserected by the then owner of number 22 to establish a level building platform andcurtilage.15 Matts v Hawkins (1813) 5 Taunt 20.16 I use the term "garden" loosely. It is an almost impenetrably overgrown area.[30] The defendant relies on the Court of Appeal's decision in Tram Lease v Croad,but in my view, it does not assist.17 In that case the rear wall of a shoe repair shop hadbeen built over the boundary when the two sites were in common ownership. Theowner then leased the shoe repair site and created a party wall easement over the wall.The easement was intended to be renewable with the lease but apparently the DistrictLand Registrar insisted that such provision be deleted. As a result, the shoe repair sitelost the benefit of the easement when the lease was later renewed. This did notpreclude relief under s 129 of the Property Law Act 1952 – the predecessor provisionsto those now in sub-pt 2 of the 2007 Act. Nor did the fact that the two properties werein common ownership at the time the wall was built, nor did the fact that it wasdeliberately placed over the boundary. The case is certainly not authority for theproposition that a structure placed off title can be considered a common or party wall.Is the wall a "wrongly placed structure"?[31] The gateway to relief under sub-pt 2 of the Act is identification of a "wronglyplaced structure". This is defined in s 321.wrongly placed structure means a structure that—(a) is situated on or over the land affected, not being the land intended forthe structure (whether or not the land intended adjoins the landaffected); or(b) is situated on or over the land affected but was not placed there—(i) by, on behalf of, or in the interests of a person who was, at thetime, the owner of the land affected; or(ii) under a contract made with, or by way of a gift made to, aperson who was, at the time, the owner of the land affected.[32] "Land affected" is in turn defined as meaning "any land on which a structureis actually situated" and "land intended" as "any land on which a structure wasintended to be situated".[33] "Structure" is defined in s 4 to mean:any building, driveway, path, retaining wall, fence, plantation or otherimprovement17 Tram Lease v Croad [2003] 2 NZLR 461 (CA).and includes for the purposes of sub-pt 2 a partially built structure and "any part of astructure".18[34] Relief is not, however, available under the Act if the wrongly placed structureis a fence (in which case disputes are to be resolved, by exercise of the jurisdictionconferred by s 24 of the Fencing Act 1978).19[35] "Fence" is in turn defined in s 2 of the Fencing Act 1978 as meaning:A fence, whether or not continuous or extending along the whole boundaryseparating the lands of adjoining occupiers; and includes all gates, culvertsand channels that are part of or are incidental to a fence; it also includes anynatural or artificial watercourse or live fence, or any ditch or channel or raisedground that serves as a dividing fence.[36] While possibly not the most helpful definition, I accept the plaintiffs'submission that the retaining wall at issue in these proceedings is self-evidently not afence. Equally clear, however, is the fact that it comprises a "structure" for thepurposes of sub-pt 2.[37] In alleging that the wall constitutes a wrongly placed structure, the plaintiffsrely primarily on the definition in sub-para (a)—"a structure on or over land affectednot being the land intended for the structure".[38] Mr Quinn submits that, although the definition at first blush suggests aninvestigation into the subjective intentions of whoever built the structure, that is notthe case. He relies on two recent authorities for the proposition that the reference to"land intended for the structure" refers to the land that the structure is intended toserve. Thus the question is not what was in the mind of the builder but rather, whatwas the evident purpose of the construction.[39] The first of these decisions is Duncan v Taylor.20 In that case the respectiveproprietors of a cross-leased property had gradually expanded their flats to exceed thefootprints reserved for building under the cross-lease plan. The plaintiffs' flat18 See inclusive definition of "Structure" in s 321.19 Section 323(3).20 Duncan v Taylor [2010] 12 NZCPR 235 (HC).encroached on a common area and right-of-way as well as on an area of land set asidefor the flat owner's exclusive use, but on which building was not permitted. Thedefendants' flats also encroached on common areas. The plaintiffs sought relief undersub-pt 2. The defendants argued that they were precluded from doing so because,having deliberately built on common property, their extensions could not beconsidered a "wrongly placed structure". In doing so they relied on a District Courtdecision in Aitken v Mitchell.21[40] Rodney Hansen J rejected that submission. He held that: There is nothing in that part of the definition to suggest that the structurewould not be wrongly placed if the person placing it on the land acteddeliberately, with knowledge that he or she was not entitled to place thestructure there. The definition is apt to cover both intentional and inadvertentacts.[41] In the result, he declined to order any of the owners to remove their respectiveencroachments, instead ordering a rectified plan and requiring each encroachingowner to pay compensation for the land they had effectively appropriated.[42] On the defendant's counter-claim for trespass, the Court found the cause ofaction made out, but held that the defendant had not substantiated any claim todamages.[43] Boyer v McCracken likewise involved a cross-lease – in that case of a frontand rear flat.22 The structure at issue was a path that provided access from the shareddriveway to the front porch of the plaintiffs' rear flat. The path pre-dated the 1992cross-lease subdivision. At the time each party had purchased their respectiveproperties, there was a fence between the path and the garden of the defendant'sroadside flat, suggesting that the path was part of the plaintiffs' rear property. Inreality, the true boundary was on the other side of the path, meaning that the pathformed part of the defendants' leasehold estate. The plaintiffs sought relief under sub-pt 2. As in Duncan v Taylor, the defendant argued that the Act could not apply as the21 Aitken v Mitchell DC Christchurch CIV-2007-009-1810, 4 August 2008.22 Boyer v McCracken [2017] NZHC 755.path was not a wrongly placed structure. That submission was rejected by Hinton J.Her findings were as follows:[46] In this instance, as noted, the path has been in place since well beforethe subdivision and was clearly intended to create access to the porch, frontdoor and eastern boundary of Flat 1 at a time when Flat 1 was the only buildingon the land.[47] Counsel for Ms McCracken submits that, given the path wasintentionally constructed in its current position and on the correct land, whichis land Ms McCracken now owns, her land has always been both the landintended and the land affected. Logically, therefore, the path was not"wrongly placed".[48] It seems to me that the definitions of "land affected" and "landintended" do not need to be so narrowly read. They can refer to the presentsituation, not just the position at the time the structure was placed.[49] This is made clear by s 322(2) which specifically provides that:The application may be made whether the wrongly placed structurewas placed on or over the land affected˗˗(a) before or after any boundary of that land or of the landintended for the structure was fixed; or(b) before or after this Act comes into force.(emphasis added)[50] I also do not agree that it is a precondition to s 322(2) that the pathqualifies under s 321. Section 322(2) clarifies and is to be read together withs 321.[51] Further, as the plaintiffs submit, many wrongly placed structures willhave been intentionally placed where they are, for whatever reason. Part 6,Subpart 2 is designed to provide for that situation, where appropriate.[59] The subdivision having occurred after the path was there, turned thepath into a wrongly placed structure. After creation of the new boundary line,the plaintiffs' property is the land on which the structure was intended to besituated and Ms McCracken's property is the "land affected", or land on whichthe structure is actually situated.[44] Subsequently the Court noted that:[75] The path obviously goes with Flat 1. It provides access to thefront door and down the eastern side of that property.[45] These cases establish that the essential inquiry is not one based on the intentionof the builder but on a common-sense assessment of what is the purpose or functionof the structure. In that context the inquiry into which property it "goes with" handilydefines the concept.[46] In this case the passage of 140 years means that it is not possible to state withcertainty why the wall encroaches over the boundary of number 22. But no suchfinding is essential for the jurisdiction in sub-pt 2 to be invoked. Indeed, Boyer vMcCracken establishes that even if the wall was built before the boundary betweennumber 22 and its neighbour to the west was fixed, this would not alter the outcome.Rather, the essential focus is on the wall's function. That function was (and is) toestablish a level building platform for what is now Mr Burton's house. Indeed, itforms the foundations of the house. In my view, the wall clearly "goes with" thatproperty which is therefore the property "intended" for the structure. To the extent itencroaches on to the plaintiffs' property the structure is, in my view, thereforeappropriately considered "wrongly placed".23Other relevant statutory provisions[47] Section 322(1) prescribes who may apply for relief under the Act. Among suchpersons are the owners of land affected by the wrongly placed structure. I accept theplaintiffs are in that category on account of the limitations on access resulting fromthe encroachment. At the moment, vehicular access to their house occurs by the graceand favour of the owners of number 26. Out of necessity the physical formation ofthe driveway in fact departs almost completely from the title of number 24 as itapproaches the end of the surveyed access way. In addition, I accept that the currentlocation of the wall, which at the point of greatest encroachment reduces the availablelegal access to 1.28 metres only, has a prejudicial effect on the way in which number24 may in the future be developed. I will discuss that development potential morefully later in this judgment.23 I repeat in that context my earlier finding that, on the balance of probabilities, I do not considerthe wall to have been built as a "protection mechanism" for number 24 against rockfall fromnumber 22.[48] Section 322(2) in turn provides that an application may be made whether thewrongly placed structure was placed on or over the land affected:(a) before or after any boundary of that land or of the land intended thatthe structure was fixed; or(b) before or after the 2007 Act came into force.It was this provision which featured significantly in the Duncan v Taylor decision.24[49] Section 323 sets out the Court's jurisdiction. It may grant relief to any personentitled to apply "if [it] considers it just and equitable in the circumstances". In Guov Bourke the Court of Appeal stated that the special powers of Court in pt 6 of the Act(including obviously those in sub-pt 2):25 are remedial, and hence are typically expressed in broad terms. Generallyrelief may be granted when the court considers it just and equitable, and ordersmay be made on such terms and conditions as the court thinks fit. The Courtsare therefore empowered to make pragmatic but principled decisions incircumstances where, as here, neighbours are unable to resolve disputes thathave arisen.[50] Section 324 then identifies a number of matters which the Court may considerin determining applications for relief. These are:(a) the reasons why the wrongly placed structure was placed on or overthe land affected; and(b) the conduct of the parties; and(c) the extent to which any person has been unjustifiably enriched at theexpense of the person seeking relief because the owner of the landaffected has become the owner of the wrongly placed structure.[51] Significantly, s 324(2) provides:Subsection (1) does not prevent the court from granting relief merely becausethe person seeking relief knew of the true boundaries or ownership of the landaffected at the time that the structure was placed there, or at the time when thatperson became the owner of, or acquired an estate or interest in, the landaffected, the land intended, or the structure.24 Duncan v Taylor [2010] 12 NZCPR 235 (HC).25 Guo v Bourke [2017] NZCA 609 at [12].[52] This subsection is significant in that it brings to the statutory jurisdiction aprinciple analogous to the common law rule that an action in trespass is not precludedby a claimant having "come to the trespass". The subsection is also important (forreasons I will subsequently explain) in recognising a claimant's "ownership" of thewrongly placed structure is not a barrier to relief.[53] Section 325 sets out the orders the court may make. In the context of the reliefsought by the plaintiffs, the relevant provisions are s 325(1), (e)-(f) and s 325(3).325 Orders court may make(1) In granting relief under section 323 on an application under section322, the court may make 1 or more orders to the following effect:(e) allowing or directing any person specified in the order toremove the whole or any specified part of a wrongly placedstructure and any specified fixtures or chattels from any landspecified in the order:(f) requiring any person to whom relief is granted underparagraphs (a) to (e) to pay to any person specified in theorder reasonable compensation as determined by the court.(3) An order under subsection (1) may be made on any conditions thecourt thinks fit concerning—(a) the execution of any instrument; or(b) the doing of any other thing necessary to give effect to theorder.To what extent is "ownership" of the wall relevant?[54] At the forefront of Mr Burton's defence is the proposition that, to the extentthe wall encroaches on the plaintiffs' land, it is owned by them, precluding a claim intrespass (or inferentially) under the Act. Mr Kohler QC particularly emphasises the1957 survey which identifies the wall as "generally on boundary" and says that, whereit deviated into number 24, it became part of the Torrens title at that time issued forthe property. He says that the owners of number 24 were thereafter either able toaccept the accretion to their title or exercise the self-help remedy of removal. He addsthe rider, however, that anyone exercising self-help remedies was subject to commonlaw obligations not to imperil the defendant's house. This submission wouldeffectively impose on them the costs of stabilisation and possibly reinstatement.[55] I am unable to accept it. At common law, an action for trespass has never beenprecluded by the fact that the encroaching structure formed a part of the plaintiffs' landat purchase. In Hudson v Nicholson, for example, the encroachment consisted of "nineshores and nine timbers" which supported the defendant's neighbouring house.26 Thesupports had been installed before the plaintiff purchased the property. The timbers atleast predated the plaintiffs' ownership.27 The plaintiff could not remove the supportswithout endangering the defendant's house. As a result of the encroachment he wasprevented from building his own home and accessory buildings as he had planned.[56] The pleading was framed as an action on the case, for which the modernequivalent is a claim in nuisance. The defendant was held liable. On appeal, it wasargued, firstly, that because the supports had been erected before the plaintiff hadpurchased his property, no claim was available and secondly, that any action shouldhave been brought in trespass, not on the case.[57] The appeal was dismissed. In his lead judgment, Lord Abinger CB held:28The whole of this declaration shews that these timbers were put into the soilof the plaintiff for the purpose of supporting the defendant's house and theywere continued there by the defendant himself, rendering him substantially atrespasser, as much as if he had struck a pole in the land of the plaintiff. []I think, therefore, that this is substantially a trespass. [] Then the onlydifficulty on this point is the writ of summons being described on the recordas being in an action on the case. I am not, however, aware of any case inwhich this has been considered at all material; and I think a variance betweenthe writ and declaration is no ground for arresting the judgment.[58] Two essential principles emerge from the decision. Firstly, it does not matterthat the defendant did not erect the structure. If he or she adopts or continues thetrespass liability will arise, albeit the encroachment must first be brought to thetrespasser's attention. That principle was more recently affirmed in Burton v Winter2926 Hudson v Nicholson (1839) 5 M & W 437 (emphasis added).27 It is unclear from the judgment whether the shores were placed on the plaintiffs' land while thedefendant owned the neighbouring property or beforehand.28 At 189.29 Burton v Winter (1993) 1 WLR 1077 (CA).in which the defendants were found liable for an encroaching garage wall built by theirpredecessor in title. It also features in The American Law Institute Restatement of theLaw of Torts (Second):30A trespass may be committed by the continued presence on the land of astructure, chattel, or other thing which the actor's predecessor in legal interesttherein has tortiously placed there, if the actor, having acquired his legalinterest in the thing with knowledge of such tortious conduct or havingthereafter learned of it, fails to remove the thing.[59] In New Zealand, it was also affirmed in Cousins v Wilson:31The second contention made by the purchasers was that this was a continuingtrespass and thus they became entitled to sue for continuing damage on takingpossession. That the person obtaining possession is entitled to sue forcontinuing damage by trespass, though unable to sue for damage occurringbefore taking possession is plain enough. Thus, as exemplified, in two casescited in the course of argument; Hudson v Nicholson (1839) 5 M & W 437,where timber was left on land and Konskier v B Goodman Ltd [1928] 1 KB421where rubble was left on land, a later possessor was entitled to sue for thecontinuing injury arising after the date of possession.[60] Secondly, it does not matter that the encroachment predates the plaintiffs'purchase of their property, since the adoption/continuation of the encroachmentrepresents an ongoing trespass. I accept the plaintiffs' submission that this would notbe the case on the argument Mr Kohler advances.[61] In Harrow Burrough Council v Donohue the English Court of Appeal put theposition clearly as follows:32 in a situation such as the present where the landowners have been totallydispossessed by the defendant's encroaching building, the plaintiffs doindeed have an option. They may say, "Thank you very much" and accept theencroachment as an accretion to their land with which they are free to deal asthey please; or they may take their remedy at court. If they follow the lattercourse, they are entitled as of right to one or other of two remedies; that is tosay to an order for possession, or to a mandatory order for the taking down ofthe offending building.[62] In my view such a principle equally applies whether the case involves a limitedencroachment (as here) or a total dispossession (as in Harrow). Nor, in my view, is30 The American Law Institute Restatement of the Law of Torts (Second) (1965) at § 161(2)(emphasis added).31 Cousins v Wilson [1994] 1 NZLR 463 (HC).32 Harrow Burrough Council v Donohue (1995) 1 EGLR 257 (CA).the principle any different in the Torrens context. Although the wall can be regardedas an accretion to the title acquired on registration that cannot preclude a claim intrespass.[63] These common law principles necessarily inform the position under the Actbut ss 324(1)(c) and (2) in my view take the matter beyond argument. That is becauseboth recognise that the plaintiffs' acquisition of an estate or interest in the structure isnot a barrier to relief if it was "wrongly placed".Are there claims in nuisance and trespass?[64] The defendant argues that there is no trespass because the wall does notrepresent an "unjustified direct interference with land in the possession of another".33It bases that submission on the propositions, already rejected by me, that the structureis a party wall or alternatively that the plaintiffs' "ownership" of at least parts of thestructure precludes a cause of action in tort.[65] It also says that there was no "positive voluntary act" as the tort requires, but Ireject that argument also. The positive voluntary act was that of the defendant'spredecessor in title who caused his building platform to in part encroach on theadjoining property. Hudson v Nicholson and Burton v Winter both support theexistence of an action in trespass on the factual findings I have made.[66] I accept, however, the defendant's submission that the trespass is limited onlyto those parts of the wall that are man-made and cannot extend to any natural rockoutcrops which protrude into the access way. The plaintiffs do not contend otherwise.[67] The plaintiffs also claim in nuisance. An actionable nuisance generallyinvolves something offensive, be it noise, fumes or odours emanating from thedefendant's land and which wrongly and unreasonably affects the plaintiffs' land.Closer to the facts of this case, it also captures failing retaining walls which then startto encroach over the relevant boundary,34 and cases involving tree roots which33 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed: Thomson Reuters, Wellington, 2016)at [9.2.01].34 Bolton v Knight [1924] NZLR 1043.undermine adjacent structures.35 However, both such examples involve somethingemanating from the defendant's land, whether it be retained soil or roots, which hasthen passed on to the plaintiffs' property.[68] As the plaintiffs themselves concede, the facts of this case fall more naturallywithin the tort of trespass. However, nothing particularly turns on the point. Theplaintiffs assert the same facts and seek identical relief in respect of both causes ofaction.Has the defendant adopted or continued the trespass?[69] In Sedleigh-Denfield v O'Callaghan the Viscount Maugham defined theconcepts of adoption and continuation within a nuisance context as follows:36In my opinion an occupier of land "continues" a nuisance if with knowledgeor presumed knowledge of its existence he fails to take any reasonable meansto bring it to an end though with ample time to do so. He "adopts" it if hemakes any use of the erection, building, bank or artificial contrivance whichconstitutes the nuisance.[70] I consider that approach equally apposite to a claim in trespass, and in my viewthe defendant has clearly adopted/continued such trespass by using the wall to supporthis house and the retained land to the north and south of it.[71] I also accept that he has been on notice of such encroachment since at least2013 when the plaintiffs identified it and raised it with him.Discretionary factors relevant to relief under the Act[72] The defendant relies on two principle matters to say that it is neither "just" nor"equitable"37 for relief to be granted in respect of any wrongly placed structureidentified by the Court. If that submission is not accepted, it says that the same mattersare relevant to the nature of relief which should be granted. They are:35 For example, Delaware Mansions Ltd v Westminster City Council [2002] 1 AC 321.36 Sedleigh-Denfield v O'Callaghan [1940] AC 880 (HL).37 Adopting the words of s 323(2).(a) That when the plaintiffs purchased number 24 in March 2012,reasonable inquiry would have identified that the physical drivewayservicing the property was substantially off title, and thus identified theencroachment.(b) That in seeking to establish a physical access coincident with their legaltitle (3.05 metres), the plaintiffs are endeavouring to maximise theirdevelopment opportunities under the Terrace Housing and ApartmentBuilding (THAB) Zone in the Auckland Unitary Plan (AUP) to anextent which significantly exceeds the opportunities available at thetime of purchase.[73] To assess the significance of these factors it is necessary to pick up the factualnarrative again from the point of the plaintiffs' first interest in the property.[74] Both plaintiffs have architectural degrees. Ms Johnson practices as anarchitectural designer and Mr Graham as a registered architect. They have been in arelationship for some years. Both gave evidence that they had never previously actedas an owner/developer, although they did undertake some internal renovations at theirprevious home. Nevertheless, in purchasing number 24 they had in mind itsdevelopment potential. This is consistent with the way in which the property wasmarketed by Bayley's Real Estate. Indeed it used a "develop or detonate" by-lineto its materials describing their house as a:very humble turn of the century homestead in almost original condition andallowing you to remove/demolish it with a clear conscience or, alternativelyadd to to create your dream home in the city.[75] Accompanying photographs showed a run-down property on an overgrownsection. The sale was described as an "estate liquidation" with the property being"offered to the market for the very first time".[76] At that stage the property was zoned residential 6A. A valuation, includedwithin the Bayley's marketing material identified that the highest and best use of thesite was "for redevelopment with two new dwelling units in either freestanding orjoined configuration that would best suit the varying land contours whilst maximisingwestern views". Ms Johnson and Mr Graham considered, however, that a three-dwelling development may be possible.[77] After purchase, their first thoughts were to move the existing house to the southeast corner of the property, extend it and subdivide off a new site to the west. Thiswould have required compliance with Part 11 — Subdivision of the City of AucklandDistrict Plan. Under the Residential 6(b) zoning which applied at the time a "private-way" serving not more than three rear sites was required to have a minimum legalwidth and height of 3 metres and a minimum formation width of 2.4 metres.38 Afurther requirement was that "no building or part of a building shall encroach on orover the required legal width at less than the legal height".[78] These formative ideas were, however, placed on hold when the proposedAuckland Unitary Plan was published in September 2013 because this allowed forsignificantly greater intensification of the site. The Unitary Plan is now operative withthe proposed THAB zoning confirmed and all appeals relevant to access now resolved.[79] The THAB zone is described in s H6 of the Unitary Plan as follows:The Residential – Terraced Housing and Apartment Buildings Zone is a highintensity zone enabling a greater intensity of development than previouslyprovided for. This zone provides for urban residential living in the form ofterraced housing and apartments. The zone is predominantly located aroundmetropolitan, town and local centres and a public transport network to supportthe highest levels of intensification.[80] The minimum size for new vacant lots in the THAB zone is 1200 squaremetres. The plaintiffs' planning expert, Mr Campbell deposed that this is not to restrictthe number of dwellings or units built in the zone, which in fact has no densityrestrictions. Rather, it is to ensure that sites within the zone are developed, are not cutup into smaller vacant sites and are the subject of integrated multi-dwellingdevelopments. Number 24 Tawari Street is 1,029 square metres only with the resultthat it could not be subdivided without resource consent.38 City of Auckland – District Plan Isthmus Section – operative 1999 (updated 28.10.2014) Part 11paragraph 11.5.3.1A(a).[81] Developments within the THAB zone are not subject to any parking orvehicular access requirements. Theoretically a multi-level, multi-unit developmentcould occur with pedestrian only access to the street and public transport networks.However, in evidence which I accept, the plaintiffs consider that the topography of thesite (which falls steeply to the west), coupled with the surrounding character of theneighbourhood, predicates a less intensive form of development comprising three orpossibly four dwellings, two in a duplex configuration and with up to two detachedtown houses. In further evidence, which I accept, they say that for a development ofthis nature to be attractive to its potential market they would need to provide at leastone off-street parking space or garage for each proposed dwelling.[82] In terms of the now operative plan, this would require a minimum formedaccess with a width of 3 metres "provided it is contained within a corridor clear ofbuildings or parts of buildings with a minimum width of 3.5 metres". Even if theproperty was to be redeveloped with one dwelling only, the minimum formed accessrequirements (in that case 2.5 metres within a minimum 3 metre corridor clear ofbuildings or parts of buildings) could not be satisfied. That is because, as I havealready indicated, the base of the wall leaves an access way which for some distanceis less than 2 metres (at one point reducing to 1.28 metres).[83] Because of the "corridor" requirements in the plan and the fact that the wall isregarded as a building for plan purposes, the minimum requirements for a fourdwelling/four car park development are unlikely to be satisfied, even if the wall wasre-established with its western face on the boundary. That problem is compounded bythe fact that the defendant's house extends up to 7 centimetres into the access corridor.As a result, the plaintiffs' planner, Mr Campbell, stated that a resource consent willstill be necessary.[84] In theory such consent might also be possible in respect of a four-unit, four carpark development with a physical formation of less than 3 metres. Mr Campbellsensibly conceded as much on the basis of the Council's stated aim of intensificationwithin the THAB zone. He said that whether consent was granted for a narroweraccess way depended on whether the proposed design was acceptable in terms oftraffic safety. However, stating what I consider to be the obvious, he also said thegreater the deviation from Council's minimum requirement the less would be theprospect of obtaining resource consent. In that context, although the encroachmentcaused by Mr Burton's house was one, in his opinion, able to be accommodated in aresource consent process, he considered it unlikely that the plaintiffs' proposals would,for example, be acceptable with only a 2.4 metre driveway.[85] My conclusion in relation to this evidence is that although the position cannotbe stated with certainty, the plaintiffs' prospects of undertaking a four-unitdevelopment on the site with carparking would indeed be much less favourableassuming a formed access width of 2.4 metres only, especially given the fact that theowners of number 26 could at any time build a fence down the western side of theaccess way reducing the "corridor" to the same 2.4 metres.[86] Significantly also, even the plaintiffs' current use and enjoyment of theproperty is materially restricted by the encroachment. That is because vehicular accessis by grace and favour of number 26 and restricted to private vehicles only. Even toredevelop the site as a single dwelling (if permitted by Council) would be asubstantially more onerous task with this limitation. I accept therefore that theencroachment has material consequences (actual and potential) for the plaintiffs.Importantly in the context of the conclusion I reach, the defendant did not call anyplanning evidence in opposition to Mr Campbell.[87] And I consider Mr Quinn also fairly raises the point, why should the plaintiffsbe forced to accept a physical access way narrower than their legal entitlements addinga significant further level of uncertainty to reasonable and sensible developmentproposals – in so doing effectively exonerating the encroachment? And why shouldthe fact that their development opportunities have expanded since purchase be relevantin this respect? Absent good reasons the plaintiffs should in my view be entitled tomaximise the lawful opportunities which Council's zoning has provided.[88] Mr Kohler says that one such reason is the fact that the plaintiffs should haveidentified the encroachment prior to their purchase. He put it to both Ms Johnson andMr Graham, that as experienced professionals, they should have been alerted to theencroachment by the fact the physical access to number 24 deviated substantially tothe west, approximately half way down the driveway. He emphasised, in particular,an aerial photograph of the site which the plaintiffs accepted they had obtained priorto purchase and which showed the formed access way in parts significantly outsidethe surveyed boundary. In response, Ms Johnson said she had not appreciated thatthere was an encroachment at that stage and suggested that aerial photographs candistort perspective. Mr Graham in turn pointed out that at the top of the drivewaythere were two posts and a gate, creating the impression that the driveway was in itscorrect location when in fact it had deviated almost entirely off title at that point. Bothhe and Ms Johnson said that it was not until they had the property re-surveyed thatthey appreciated the problem created by the wall.[89] I accept that a more vigorous review, even of the materials in their possession,would have alerted the plaintiffs to potential problems before purchase. However,likewise when Mr Burton was contemplating purchase of his property in the late 1970she could have established its true boundaries. The somewhat precarious way in whichhis house sits directly on top of the edge of the wall, with one of its bearers lying onthe rock fill, could even be considered circumstances which placed at a premium suchinquiry. But no such inquiry was made.[90] Overall, I regard these potential failures in due diligence as neutral betweenthe plaintiffs and defendant. I am reinforced in that conclusion by the fact that, lookingat the matter from a common law perspective, the plaintiffs would not be precludedfrom seeking relief simply on account of having "come to" the nuisance or trespass –that is, having been aware of it at the time of purchase. The position is the same underthe Act, which specifically provides in s 324(2) that the court is not precluded fromgranting relief merely because the person seeking relief knew of the true boundariesor ownership of the land affected at the time of purchase. Where, as I accept occurredhere, the purchase was made with no actual knowledge of the encroachment theposition must be even stronger (whatever better inquiry may have revealed).[91] Nor do I consider that there is anything in the conduct of the respective parties,after the plaintiffs' purchase, which has particular relevance in terms of whether itwould be just and equitable to grant relief.[92] The plaintiffs identified the encroachment in 2013. It was raised withMr Burton. The correspondence indicates increasing frustration on their part that, forsome months after purchase, Mr Burton had retained scaffolding against the wallseemingly to allow basic maintenance. For his part Mr Burton was concerned aboutpossible effects on his house from construction of a service trench down the westernside of the access way. He considered the establishment of such services prematureand designed deliberately to provoke him. The plaintiffs in turn considered that bylaying concrete under his enclosed veranda (directly on to the rock fill behind the wall)and in the annex Mr Burton was attempting to entrench his position.[93] As the plaintiffs became more frustrated with the absence of a solution to theencroachment issue they raised with Council whether Mr Burton's house wasstructurally sound. They considered that they had a professional obligation to do sobecause of their concerns about possible collapse. However, the Council did not sharetheir concerns. Understandably, Mr Burton took umbrage at these developments.Repeated further requests to address the issue were, on my view of the evidence,stonewalled.[94] Overall, I do not consider there to be anything in the plaintiffs' conduct whichdisqualifies them from relief. The record indicates that they reasonably andappropriately raised the encroachment with Mr Burton and pressed their case. Theyreasonably explored other alternatives to proceedings, including a boundaryadjustment which would have involved them selling a portion of land to Mr Burtonand, in turn, acquiring additional land from the owners of number 26, but such ownerswere not persuaded. They have, throughout the dispute, taken the reasonable positionthat the 7 centimetre encroachment by Mr Burton's house does not need to beremoved. It is in precisely these circumstances where, as the Court of Appeal said inGuo v Bourke, "neighbours are unable to resolve disputes that have arisen",39 that thestatutory jurisdiction is engaged.[95] Nor do I consider the fact that the plaintiffs developed a 2013 proposalinvolving a new concrete wall between numbers 22 and 24 with an inside face on the39 Guo v Bourke [2017] NZCA 609 at [12].boundary and with a batter to a base 2.6 metres from the western boundary of theaccess way, precludes them from now seeking a solution involving no encroachmentat all. That proposal was advanced in the period July/August 2013 before publicationof the proposed unitary plan. As I have indicated, I do not consider the plaintiffsshould be required to compromise (or at least imperil) reasonable developmentopportunities that have arisen since purchase in order to provide continuedaccommodation of what is a wrongly placed structure. At common law they couldhave sought abatement of the trespass by way of mandatory injunction and, in myview, it is unlikely any discretionary factors would have weighed against such relief.In lieu, damages would have been an available remedy. The consequences of theencroachment are (unlike some of the de minimis cases) real and substantial. In myview there is nothing unjust or inequitable about requiring or allowing the full extentof the encroachment to be removed. However, by whom, involving what methodologyand with what ultimate result represents the more difficult question. It is to thoseissues I now turn.Remedy[96] The plaintiffs advance a series of alternative remedies to which they may beentitled. These range from a simple order that the defendant remove the encroachmentwithin a fixed date (the plaintiffs suggest 12 months), through options which have thedefendant required to undertake stabilisation works in the course of removal (either ofan unspecified nature or in accordance with the methodology developed in evidenceby their expert structural engineer, Mr Wood), to what is their preferred option,namely, that they be permitted to undertake the work themselves at the cost largely ofthe defendant.[97] They describe a direction to the defendant to remove the encroachment asbeing the Court's "conventional relief". I accept that is so. However, they suggestthat in this case the Court should go further because if the defendant is left to developits own methodology, which Mr Burton may be inclined to do without professionalassistance, there exists a high risk that his house will collapse into the access way.[98] The methodology adopted by Mr Wood involves temporary support to (and inpart removal and reconstruction of) the house and the construction of a new reinforcedconcrete retaining wall. He divides the western wall of the house into three zones: thefirst (Zone A) corresponding to the enclosed veranda, the second (Zone B) to theliving/dining room immediately to the south and the third (Zone C) comprising theannex washroom at the rear of the house.[99] In Zone A, his methodology calls for the veranda roof and walls to betemporarily removed and the concrete subfloor, recently laid by the defendant, to becut back. This creates room in the order of 1.2 to 1.5 metres, behind the propertyboundary so that the encroaching stone work can be removed. Then a new retainingwall can be built and back filled. Finally, the concrete floor, walls and roof of theveranda can be reinstated.[100] In Zone B, he proposes that a temporary steel beam be fixed along the face ofthe living/dining room wall, which would be supported by props. This would allowrocks below the house to be removed and the replacement wall to be built in the sameway as in Zone A. Once the new retaining wall was in place, the temporary supportcould be removed and the outer wall of the living/dining room left to rest on top of thenew retaining wall.[101] In Zone C, he proposes that the western wall and edge of the roof be removed,again to provide sufficient clearance for removal of the encroachment. Again theremaining portion of the roof would be supported with temporary timber propspending construction of the new wall and subsequent replacement of the Zone C floorand wall.[102] On the basis that the new retaining wall runs the full length of the access way,(that is beyond the defendant's house to the street frontage), the plaintiffs' quantitysurveyor estimates a total cost of $421,379.55 including GST, Council consent fees,professional fees40 and a contingency allowance of 20 per cent.40 $46,500 plus GST.[103] Evidence was also given by an experienced engineering contractor,Mr T Donnelly, who estimated the cost of the works at $255,370.15. However, thissum excluded consent and professional fees and the quantity surveyor's proposedcontingency allowance which, if included on a like for like basis, would take hisestimate to $371,419.18 GST inclusive.[104] Some reduction in these costs could be anticipated if the new retaining walldid not extend northward from the corner of the defendant's house to the road orsouthward to the end of the access way. The amount of such deduction is not identifiedin the evidence.[105] In relation to these estimates the plaintiffs propose that:(a) if they be permitted to undertake the works at the defendant's cost, thedefendant's liability be capped at the amount of their quantitysurveyor's estimate less the reductions referred to below;(b) there be a deduction of $20,000 (inc GST), against their quantitysurveyor's estimate of $14,283 (inc GST), to take account of the costsof removal of natural basalt features for which the defendant is notresponsible;(c) the sum of $25,000 (inc GST) be deducted, against their estimate of$22,300 (inc GST), to reflect the fact that the foundations for theboundary wall can also serve as a concrete driveway to access theirproperty; and(d) in the event they be permitted to build a new wall the full length of theaccess way, that they make a contribution (to be determined by theCourt) to recognise the "aesthetic benefits" available to them and the"peace of mind" in having "a new properly engineered vertical wallalong the length of their driveway".[106] The defendant says it will remedy the trespass if required. However, it saysthat neither under the Act nor at common law can the Court grant the plaintiffs theirpreferred remedy – and that if it can, it should, as a matter of discretion, neverthelessnot do so.[107] Referring to the plaintiffs' proposed methodology, Mr Burton said that hefound it "unthinkable to think about what the consequences would be for me.Certainly, apart from whether I would be able to continue to live in my home, it wouldhave a very significant effect upon my retirement".[108] To the extent that that was an attempt to influence the Court in the exercise ofits discretion I consider it unsuccessful. As the cross-examination demonstrated,Mr Burton is a wealthy man, with diverse property interests and a net equity of at least$12 million but probably significantly more. He has multiple options for temporaryaccommodation if required,41 even recognising, as I do, that he has a disability.42Although I accept that he may not immediately have available the cash resources toundertake the work proposed by Mr Woods, the plaintiffs' suggested time period forcompletion would allow him comfortably to realise one of his many assets. Likewise,if he considered the deteriorated condition of his house and the development potentialof his now re-zoned property were such that the plaintiffs' proposals were uneconomic,he would have adequate opportunity to explore his further options within the timeperiod.[109] I turn then to consider what remedies are available to the Court and what ordersthe Court should in my view appropriately make.[110] Clearly the Court has power under s 325(1)(e) to direct the defendant toremove the wrongly placed structure. Consistent with my previous findings, such anorder would require removal of all man-made material located between the face of thewall and the boundary line of the properties, with no obligation on the defendant toremove the wall's natural basalt footing where such exists, or any other natural basalt41 It may not be required – the enclosed veranda (which appears to be used for storage and not to belived in) and the living/dining room would be fully supported during the works. Some temporarybathroom arrangements may, however, be necessary.42 Mr Burton is confined to a wheel chair after a work place accident approximately 30 years ago.outcrops or formations located at or above the level of the access way. Ancillary ordersrequiring the plaintiffs to permit the defendant to have reasonable access to theirproperty for the purposes of the works and requiring the defendant to give reasonableadvance notice would, in that context, be necessary. Implicit in the order would be theassumption that the costs of the removal works were to be borne by the defendant.[111] Such a remedy has the advantage of allowing the defendant an opportunity toconsider the economics of preserving the existing dwelling and, if it considers that tobe appropriate, to develop a potentially less expensive methodology than thatadvanced by the plaintiffs. In the absence of the house it may be possible, for example,simply to create a new rock batter (with or without "shotcrete" stabilisation) entirelywithin boundary. Likewise, part of the house could be removed or, as the plaintiffsacknowledge, it could be temporarily propped pending later redevelopment of the site.Alternatively, the defendant could opt for Mr Wood's methodology or something closeto it.[112] From the plaintiffs' perspective, the apprehended problem is that if the Courtdoes no more than require the encroachment to be removed it runs the risk of whatMr Quinn calls a "disaster" unfolding on the boundary. He said that would inevitablyresult in fresh proceedings before the Court and probably in acute circumstances.[113] At common law, where the Court has considered it necessary to prevent repeattrespasses or nuisances or anticipated future trespasses or nuisances, it has "sparingly"recognised a jurisdiction to specify that certain works take place.43 In Redland BricksLtd v Morris, the House of Lords emphasised that any such order should identify, withas much particularity as possible, what is required to be done.[114] In my view the direction which the Court can give under s 325(1)(e) of the Actto remove a wrongly placed structure could properly include a direction as tomethodology, even without the expanded jurisdiction in s 325(3) permitting conditions"necessary to give effect to the order". Mr Kohler argues, however, that whenstipulating any such methodology the Court could certainly not go as far as to require43 Kennard v Cory Brothers & Co Ltd [1922] 2 CH1 per Scrutton LJ at 20-21; Redland Bricks Ltd vMorris [1970] AC 652 per Lord Upjohn at 667.construction of a new reinforced concrete wall. He contrasts conditions necessary togive effect to an order with those that expand the nature of the order and emphasisesthat the critical word in subs 325(1)(e) is "remove".[115] However, such approach seems inconsistent with that adopted by the Court ofAppeal in Guo.44 It emphasised the availability of relief where it is "just andequitable" and the fact that under pt 6 orders could "generally" be "made on such termsand conditions as the Court thinks fit". In so doing it expanded the "conditions"referred to in s 325(3) to include "terms and conditions" and adopted a generousinterpretation of what terms and conditions may be necessary to "give effect to theorder".45[116] In the present case I do not consider it necessary to express a final opinion onthese points. That is because, Mr Wood's methodology is, as I have indicated, onlyone of several options available to the defendant. In those circumstances it would not,in my view, be appropriate to mandate his approach. But equally, in my view, it mustbe open to the Court to ensure that the "removal' methodology does not cause anongoing nuisance or trespass or the risk of disastrous collapse. From a practicalperspective this tension can be adequately resolved by requiring removal, either inaccordance with the methodology developed by Mr Wood (including his proposals toensure long-term stability of the building platform) or such other methodology as maybe approved by a registered structural and geotechnical engineer and tabled with theCourt within an identified period. Then, if Mr Burton chooses to adopt a solutionconsistent with the ultimate redevelopment of his site, he is free to do so. If, on theother hand, he chooses to embrace either generally or specifically Mr Wood'smethodology, then the Court could ensure an opportunity to seek a contribution fromthe plaintiffs reflecting the various factors they themselves identify. The remedy inthat context would be both the pragmatic and flexible.44 Guo v Bourke [2017] NZCA 60.45 The decision itself reflects such an approach. It authorised Ms Guo to remove the offending gateson the condition that she granted an easement to the defendant. On a strict construction, it wasnot necessary to grant the easement in order to give effect to the removal order but suchrepresented both a "pragmatic" and principled result. At [12].[117] As to the plaintiffs' proposed alternative remedy, the Court clearly hasjurisdiction under s 325(1)(e) to make orders permitting the plaintiffs and theircontractors to remove such parts of the wall as encroach on their property. Thedifficulty arises, however, in respect of the proposed additional relief directing thedefendant to bear the costs of removal (and any costs of any reinstatement orreplacement to the extent such may be necessary). For obvious reasons, the plaintiffshave no interest in one order without the other.[118] I do not consider that the Court has jurisdiction under the Act to grantadditional relief of this nature. Subsection 3 does not assist, for what I consider to betwo reasons.46[119] Firstly, it recognises the ability to make orders "on any conditions". Theconcept of an order allowing a plaintiff to do something on the condition that thedefendant meets the costs of so doing is an awkward one. Typically, the conditions aCourt might impose would represent a qualification to the permission, not a source ofadditional rights. Nor does a construction of conditions to include "terms andconditions" fully alleviate that problem.[120] Secondly, the conditions relevantly permitted by the subsection are, in theirterms, those "necessary to give effect to the order". Even allowing for a pragmaticallygenerous interpretation of those words, it is difficult to see how the plaintiffs'proposals for reinstatement with a fully engineered reinforced concrete wall are"necessary" to give effect to an order allowing them to remove the encroachment. AsMr Quinn candidly acknowledges, there are other, probably significantly lessexpensive options which would be sufficient to secure the house.47[121] Mr Quinn relies on s 325(1)(f), in terms of which the Court may make orders"requiring any person to whom relief is granted under subparas (a)-(e) to pay anypersons specified in the order reasonable compensation as determined by the Court".He submits that, in this case, s 325(1)(f) would permit cost sharing "in either direction"46 I note that the plaintiffs do not in fact rely on the subsection. Their argument is based ons 325(1)(f).47 Indeed, he did not actually advance an argument under subs 3.since "the Court's orders will grant relief to both plaintiffs and defendant and bothparties will inevitably be named in the order". He further submits, and I accept, thatthe relief granted to the plaintiff is relief from the encroachment. However, morecontroversially, he suggests that, in the defendant's case, the relief would be "fromwhat would otherwise be the consequences at common law".[122] However, only persons to whom relief is granted under subparas (a)-(e) maybe required to pay compensation. The suggested relief from common lawconsequences is not a relief within those categories. Nor is the word "compensation"apt to describe the payment that is proposed in favour of the plaintiffs.[123] Nevertheless, as s 323(4) recognises, relief under the Act does not exclude anyclaim to damages a person might otherwise have.48 And it is possible that a Courtcould combine an order under the Act allowing a plaintiff to remove a wrongly placedstructure and a damages award at common law for the costs of abatement of a provennuisance or trespass.49[124] In my view, however, relief involving a combination of orders unders 325(1)(e) and damages for the costs of removal and reinstatement is not (at least atthis stage) appropriately given.[125] For a start, it would involve a remedy beyond the existing pleadings since theonly damages award sought in the statement of claim is "equitable damages in lieu ofan injunction representing the diminution in value of the plaintiffs' property". Morefundamentally, however, it would lock the defendant into a scheme of works whichwould be undertaken (at least substantially) at its cost and which may be excessivehaving regard to the condition of the existing house and the redevelopment potential48 Such an award must nevertheless take into account any relief granted under the Act (see s 325(5)).49 Delaware Mansions v Westminster City Council [2002] 1 AC 321(HL). Australian courts havebeen more reluctant to recognise the right to recover the costs of abatement as damages (see Youngv Wheeler (1987) Aust Tort Reports 80; Proprietors of Strata Plan No 14198 v Cowell [1989]24 NSWLR (SC) 478 and Richmond City v Scantelbury [1991] 2 VR 38). However, theirwillingness to allow recovery of equivalent costs as "a reasonable step taken in mitigation ofdamages" (See Proprietors of Strata Plan No 14198 at 486(f)) has meant that, in practical terms,little has turned on the point. Moreover, in Richmond City, the Supreme Court of Victoria alsorecognised that irrecoverability of the costs of abatement only applied to costs incurred beforecommencement of action and did not preclude compensation by way of damages for costs to beincurred in the future.of the defendant's site. In circumstances where, absent the house, a new batter couldbe established entirely within the defendant's title the Court should, in my view, bereluctant to impose its (or the plaintiffs') vision of what is an appropriate method toremove the encroachment.[126] In terms of the discretion I am required to exercise under s 325, there is, Iconsider, a preferable course which at first instance leaves the methodology to besettled by the defendant. In coming to that conclusion I am influenced by Mr Burton'scommitment (through counsel) to "remedy the trespass if required". However, in myview, it would also be appropriate to reserve to the plaintiffs leave to seek alternativerelief (in addition to any other remedies which might be available to them) if thatcommitment and the Court's associated orders are not adhered to.[127] In a case such as this, where reluctantly the Court has to accept the inevitabilityof some supervisory role, and where all possible contingencies associated with theremoval of the encroachment cannot be accurately foreshadowed, I consider it alsoprudent to reserve leave to the parties to apply for any ancillary orders and directionswhich may be considered necessary. Clearly, however, that is not an invitation torevisit any of the judgment's essential findings and conclusions.Result[128] I grant the following relief. In doing so I define the word "encroachment" tomean all that portion of the man-made structure separating numbers 22 and 24 TawariStreet, Mt Eden, which retains material behind it,50 including all material of whatevernature located between the western face of the structure and the boundary line, butwith no obligation on the part of the defendant to remove the natural basalt footing ofthe structure (where such exists) or any other natural basalt outcrops or formationslocated at or above the level of the access way on number 24.(a) An order declaring the encroachment to be a wrongly placed structurefor the purposes of pt 6 sub-pt (2) of the Property Law Act 2007.50 Corresponding generally to where it sits beneath the western exterior wall of the house located onnumber 22. No order is sought in respect of the "freestanding" wall at the southern end of theboundary. The plaintiffs can in due course either relocate that onto the boundary or remove it.(b) An order directing the defendant to remove the encroachment by31 March 2020 and in so doing to carry out such further stabilisationworks (either in accordance generally with the methodology identifiedby the plaintiffs' expert, Mr G N Wood, and appended to his brief ofevidence dated February 2019 as Schedule A or in accordance with suchother methodology as is approved by a registered structural andgeotechnical engineer and is tabled with the Court by 20 July 2019),such order being with the purpose and effect of ensuring that neitherthe house located at number 22 Tawari Street, nor any part of the landon which it is situated, will collapse or slip on to the plaintiffs' property.(c) An order that the plaintiffs permit the defendant to have reasonableaccess to their property for the purposes of carrying out of the removaland any further stabilisation works.(d) An order that the defendant give reasonable advance notice to theplaintiffs of the date of commencement of the works and expectedduration.(e) An order that the costs of the removal and stabilisation works be borneby the defendant.(f) In the event the defendant adopts Mr Woods' methodology, or likemethodology involving construction of a new reinforced concrete wallwith western face on the boundary of numbers 22 and 24 Tawari Street,I reserve leave to the defendant to apply for further orders recognisingany or all of:(i) the costs of removal of any natural basalt outcrops orformations;(ii) betterment accruing to the plaintiffs (either generally or in termsof driveway establishment).(g) An order that the plaintiffs grant to the defendant an easement toaccommodate the foundations of any new retaining wall – sucheasement to include an obligation on the defendant and its successorsin title to maintain the wall and its foundations and a right of access tothe defendant and its successors for such purposes.(h) An order granting leave to the parties to apply for ancillary relief inaccordance with para [127] hereof.(i) In the event of noncompliance with order (b) hereof, and withoutderogating from any other rights or remedies available to them, I grantleave to the plaintiffs to apply for such alternative relief as specified bythem in writing to the defendant's solicitors a minimum of 14 days priorto application.Costs[129] The plaintiffs have succeeded in terms of the first alternative relief pleaded intheir first cause of action. They are entitled to costs. Provisionally, I consider thoseappropriately assessed on a 2B basis.51[130] Absent agreement between counsel (which is my expectation) briefmemoranda (maximum five pages) may be filed and served on the followingtimetable:(a) by the plaintiffs in support by 22 April 2019;(b) by the defendant in opposition by 13 May 2019; and(c) by the plaintiffs in reply 20 May 2019.__________________________Muir J51 This assumes the absence of any particular considerations of which I am currently unaware.