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Neighbours dispute: Restraining orders issued to stop 'World War 3'

Author
Tracy Neal,
Publish Date
Sun, 10 Dec 2023, 9:52AM
Kendall Smart with dog Gumboot at his hilltop property in north Nelson. Smart applied for a restraining order against his neighbour after a dispute over the shared access to their properties. A judge granted the order and also issued one against Smart. Photo / NZME
Kendall Smart with dog Gumboot at his hilltop property in north Nelson. Smart applied for a restraining order against his neighbour after a dispute over the shared access to their properties. A judge granted the order and also issued one against Smart. Photo / NZME

Neighbours dispute: Restraining orders issued to stop 'World War 3'

Author
Tracy Neal,
Publish Date
Sun, 10 Dec 2023, 9:52AM

Kendall Smart got on well with his neighbour, Carl McAllansmith until he built a gun range on his property.

The road they shared to their properties on a forest-clad hilltop in remote north Nelson became the flashpoint for a dispute that ended up in court and a restraining order on each of them to prevent “World War 3″ breaking out, the judge said.

Attempts by the pair to represent themselves had resulted in a cross-stitch of legal knots, which the District Court was left to try and untie.

Smart sought a restraining order against McAllansmith who he claimed was using footage gathered from security cameras that monitored traffic on the shared road as evidence against him in the brewing battle.

McAllansmith and his wife Natalia McAllansmith then sought a restraining order against Smart, alleging he had harassed them by making a complaint to the local council over the gun range.

The sign near the bottom of the hill that leads to Kendall Smart's home in north Nelson. Photo / Tracy Neal
The sign near the bottom of the hill that leads to Kendall Smart's home in north Nelson. Photo / Tracy Neal

The applications were to be heard on the basis both were opposed, but the matter was resolved without a hearing so the parties could get on with their lives rather than “waste them in court”, Judge Robert Spear said.

Both sides eventually agreed to a tailored, mutual order that wouldn’t impede their right to hold a firearms licence.

“I appreciate the relationship here is not in good shape but that’s not always been the case,” Judge Spear said in the Nelson District Court.

“If I hear this, it might set up an environment for World War 3 to break out.

“I will make a decision that others will have to live with, and which would result in criminal sanctions if the rules are breached,” Judge Spear said.

Smart told NZME he had moved to the bush-clad, 30-hectare hilltop property 45 minutes from Nelson city and over the Whangamoa Saddle seven years ago.

The creator of industrial and steampunk artworks and furniture who lived off-grid said he was drawn to the peace and the quiet of the property, its remoteness and its views east to Mount Duppa and the Pelorus area.

His property was one of a handful up a 6km gravel road off State Highway 6 between Nelson and Blenheim. Access was via the left branch of Lower Flowers Rd, with the right branch a forestry access road to Hori Bay on the Tasman Bay coastline.

Smart’s place branched off the gravel road 3km up.

A couple of years after he set up home, the McAllansmiths moved in and developed the neighbouring property into luxury accommodation, Peak View Retreat.

Smart told NZME the increase in traffic and its associated road maintenance was perhaps the beginning of the friction.

Then one day, he says Carl McAllansmith began building what turned out to be a gun range off the shared road, 2km from Smart’s house.

The sign at the left fork of the shared private road that leads to a handful of properties including Kendall Smart's home and Peak View Retreat. Photo / Tracy Neal
The sign at the left fork of the shared private road that leads to a handful of properties including Kendall Smart's home and Peak View Retreat. Photo / Tracy Neal

He said not all property owners were against the range but for him, the worst part was the noise.

“How can you enjoy your property when someone has started a live-fire shooting range and all you hear is shooting all day?”

Then, members of the public using the range began parking on the right-of-way. Signs sprung up warning all users of the shared road that they were entering a live firing range area, surveillance cameras went in, and gates went up.

Smart told NZME much of the problem stemmed from a surveying “muck up” when the road was built which meant an easement had to be created through the property now owned by the McAllansmiths.

“A lot of the fight was about them trying to stop me using my legal access, and finding an alternative.”

Judge Spear suggested that preventing someone from using a right-of-way to get to their home would raise “quite a few interesting legal issues”.

Carl McAllansmith declined to speak with NZME, but his lawyer Jennifer North said in court the cameras on the right-of-way had become the most contentious part of the dispute, but they had been placed on private property and were there for a legitimate reason.

North said the cameras were police approved for the gun range and were not filming neighbours nor their visitors coming and going.

One camera was at the bottom entrance to their property and placed as overtly as possible to be a warning deterrent.

As for complaints about the gates being closed, North said that was a legal requirement because of the firing range.

“Mr McAllansmith acknowledges people have a right to access their properties, but the gates are closed if someone is on the range,” North said.

She also asked on McAllansmith’s behalf that Smart stop making complaints to local and central government authorities about the range, but Judge Spear said no one could be restrained from making what might be a justifiable complaint.

Smart’s lawyer Yvanca Clarisse steered hard for a resolution and suggested that a restraining order might work for both parties.

Essentially, both should be able to use the right-of-way without any further issues, she said.

“My client considers this to be a big concession.”

Smart said outside court that while a hearing might have resulted in no order against him he conceded it was the right thing to do.

Judge Spear was grateful that a consent position had been reached.

Special conditions in the order included that no signs were to be placed on the right-of-way without the consent of all; that it was not to be used as a parking area for any shooting competition, and that neither party was to post any disparaging comments about the other on any social media platform.

No surveillance camera footage was to be used for anything that amounted to harassment.

Judge Spear said there was no concern about either not being a fit and proper person to hold a firearms licence.

“I’m grateful that this difficult and fraught matter has been resolved in the way it has,” he said.

Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.

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