Fred van Brandenburg and Chris Meehan fell out in 2014 over the 5m-high, 90m-long mound on Mr van Brandenburg’s property in Speargrass Flat, between Queenstown and Arrowtown.
Mr van Brandenburg, an internationally acclaimed architect, had the mound built to that height in response to Mr Meehan — the developer of several residential subdivisions in Queenstown and Wanaka — building his home closer to the boundary than originally approved on the neighbouring site.
The mound’s height is almost double what was approved, on a non-notified basis, by the Queenstown Lakes District Council in 2014.
Mr Meehan had subsequently gained consent to move the building platform and build a taller structure, but the variations to the original consent were not registered before work began.
The Flax Trust, of which Mr van Brandenburg is a trustee, applied for retrospective consent for the higher mound. Mr Meehan’s company Speargrass Holdings objected, and the consent was denied by the council, but Flax Trust won on appeal to the Environment Court in 2016.
At a hearing in the High Court at Invercargill in February, Mr Meehan challenged the mound on three fronts: appealing the Environment Court decision, applying for a judicial review of the council’s decision not to notify the original consent application for the mound, and seeking a judicial order to have the mound removed.
In her decision released last month, Justice Dunningham set aside the Environment Court decision after finding several errors in the judgement.
However, she turned down Speargrass’ application for a judicial review of the council’s non-notification of the original consent application for the mound, commenting it appeared to have been filed as "something of an afterthought to maximise pressure on Flax Trust".
Mr Meehan’s actions over the previous three years led her to the view his "primary concern is with the as-built earth mound, and not the consented earth mound".
Too much time had passed since Mr Meehan became aware of the earthworks consent, and Flax Trust would be prejudiced by the delay because it had subsequently sought an amendment to the consent and taken part in two appeal hearings.
In relation to the application for an order to have the mound removed, Justice Dunningham said the mound was "so dominant in scale, and so proximate to the house on the Speargrass property that it does have an undue effect on its use for residential living".
The council had accepted it erred in its processing and substantive decision on the earthworks consent, but it was preferable any changes to the mound be addressed through the Resource Management Act process rather than her using the "blunt tool" of an order under the Property Law Act.
Since last month’s judgement, Speargrass has lodged appeals of the latter two elements of the decision: the application for judicial review of the council’s decision not to notify the original consent application for the mound, and its application for an order requiring the mound be removed.
