Dunedin man Chris Gable knows only too well the issues
that arise when the authorities learn a property encroaches
on a reserve - even if the property is a house that has stood
for more than 80 years, and even if it only encroaches in one
corner by 16cm. He told Debbie Porteous his tale of
Chris Gable says he rues the day he tried to be helpful and
inadvertently became involved in a process he views as
''bureaucracy gone mad''.
The father-of-two had started a renovation project extending
the back wall of his 87-year-old Malvern St villa to the edge
of a balcony at the rear of the house.
He bought the North Dunedin student flat in 2010 intending to
turn it back into a family home.
He was not increasing the footprint of the house, he had
received a building consent from the Dunedin City Council,
and a building inspector had already signed off replacement
Then he decided to get a surveyor in to make sure a new back
boundary fence to replace one that had been in place since
1877 was going up in the correct place.
That is where, he says, bureaucracy started to go ''mad'' and
the building stopped.
The surveyor found the correct boundary of the property ran
through a small corner of Mr Gable's house.
A 16cm triangle of the house was actually in the Woodhaugh
Gardens scenic reserve.
The council, which was to pay half the cost of the fence,
ordered him to stop building until the encroachment was
resolved, either by removing it or formalising it.
That required an exchange of land, the purchase of some
reserve land (a long and expensive public process) or a
licence to occupy (which relies on the encroachment being
Mr Gable pleaded to the council building control unit for
leniency, without success. He complained to councillors about
the decision, again without success, and eventually lodged a
formal complaint with the Ombudsman.
The Ombudsman also found in the council's favour.
The situation, he said, was crazy.
After two years and thousands of dollars spent fighting the
decision, and unable to afford the probable tens of thousands
it would cost for a land swap or buying a piece of the
reserve, he had decided to acquiesce and not carry out the
renovations he had planned. He still believed he had a legal
right under the Property Law Act in that no party was at
fault for a wrongly placed structure and relief should be
The council's position was that crown reserves were excluded
from that Act and the Reserves Act, which required councils
to act on the discovery of an encroachment on a reserve,
applied. So too did the Building Act, which does not allow
building across property boundaries. The Ombudsman suggested
Mr Gable argue his position through the courts, but Mr Gable
said he could not afford to do that.
While he is not going to build in that corner at the moment
and may yet apply for a licence to occupy, to buy him some
time on deciding what to do, Mr Gable says he is ''majorly
... [annoyed]'' with the way the council handled the matter
and he wants other people to be aware they could have similar
An architect prepared the plans for the building project and
a building consent had been issued. The boundary with the
Woodhaugh Gardens was shown on the council's public
''webmap'' as running behind the house, although the council
would later rely on the boundary being correctly recorded on
all files, including the webmap.
He felt he had done everything right, but it had backfired
The battle with the council and ombudsman had caused Mr Gable
significant financial and personal stress, and his partner
had moved out as a result.
He described the council's position as ''institutionalised
''Why do have they no in-built ability to review the
facts?''He also despaired of what he called a lack of common
''You'd think, under the circumstances, given the triviality,
given the lack of public interest [in the land going back
into reserve], given that I got the surveying done here to
get the fence in the right place, that maybe [letting him
build on the encroachment] would be the right thing to do.''
To the Ombudsman, he said: ''You can see why I am upset by
this: I have acted in good faith throughout and yet ended up
with something other than I thought I was buying.''
While the Building Act was clear, the house had been standing
there for 87 years, he said.
''This is not a new build, yet the council seem to be
regarding it as just this.
''There is absolutely no public interest in the persecution
of myself and my family. The land gained by the council in
this way would be of no practical use, unless they took to a
number of native trees with chainsaws.''
Adding to his disappointment, the ombudsman stood behind the
council, saying the Notice to Fix was not unreasonable given
the council was required under law, once it became aware of
any encroachment on a reserve, to have it removed or
Ombudsman David McGee further stated that had the council
acquiesced in the building he was carrying out on the
reserve, it would have been in dereliction of its public
Mr Gable said the absurdity of the situation was compounded
by the fact he was issued consent by the council's own
building team, who also approved new foundations.
He was also infuriated by incorrect statements made by
council staff in documents, including that the encroachment
was discovered before he started work, that he was building a
deck extension, and that he was extending the footprint of
Building services manager Neil McLeod said he was not aware
of the exact statements made by staff but, by his
understanding, he generally concurred with Mr Gable about the
type and timings of the building project.
However, even if mistakes such as those were made, those
issues were irrelevant to the over-riding issue - that once
an encroachment was discovered, even one that had existed for
time immemorial, the council legally could not allow building
to continue and had to have the encroachment removed or
In every case where the council became aware of an
encroachment, it acted, he said. Any encroachments that
existed were either historic or recent mistakes and existed
only because the council was unaware of them. It was true
that if Mr Gable had not had the survey done, probably no-one
would have become aware of the encroachment. Regarding why a
building consent was approved if there was an obvious
encroachment, he said the Building Act placed the onus on the
person applying for the consent to provide correct site
If the council were to check the details of every plan
submitted itself, the cost to ratepayers would be exorbitant.
In this case, the correct boundary would have been shown on
available documents, including council files available to the
public. It appeared the person drawing up the plans might
have interpreted some dimensions incorrectly, leading to
boundary issues not being identified at that early stage and
the consent being issued.
Mr Gable pointed out that the council was required in its
Town Belt Management Plan to ''proactively monitor and manage
the removal and formalisation of existing encroachments''.
''Had the council done any proactive monitoring in the last
100 years or so, I would not be in the situation in which I
find myself today. This amounts to dereliction of duty.
Perhaps the time has come to take some responsibility for
Parks and Reserves manager Mick Reece said the council did
not have enough money to send staff around checking every
boundary of a reserve. Once it was aware of an encroachment,
it was proactive in resolving it. Recreation and reserves
team leader Paulien Leijnse said her team, and everyone who
had been involved at the council, was ''very sympathetic'' to
Mr Gable's situation, but they had no choice. The law was the
law and they could not ignore it.
''And we have been given the role of protecting that land for
the Crown. In all aspects it's ours, except when it comes to
The council usually dealt with fewer than 10 encroachments a
year. Having a house across a boundary, as in Mr Gables'
case, was unusual, as the issue was usually land.
Her best advice to people who owned, or were looking to buy,
a property beside a reserve - and there were likely to be
thousands of such properties in Dunedin - was to check the
LIM, which would have instructions for such properties.
''We are not trying to be the bad guys here. We've tried to
make it easy for people to find this information out, but
people do need to go for a LIM or get a lawyer to check it