Andrew v Sidwell Developments Limited Partnership - [2025] NZCA 418

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA310/2024
[2025] NZCA 418

BETWEEN	SIMON LEO ANDREW, JODIE ANN MARGARET ANDREW AND NICHOLAS INDEPENDENT TRUSTEE CO LIMITED Appellants
AND	SIDWELL DEVELOPMENTS LIMITED PARTNERSHIP Respondent

Hearing:	4 November 2024
Court:	Ellis, Peters and Muir JJ
Counsel:	C T Walker KC, A J Thorn and A R Kenwright for Appellants A S Ross KC and Y J Lee for Respondent
Judgment:	21 August 2025 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed in part.

BThe matter of compensation is remitted back to the High Court for reconsideration.
CThe respondent must pay the appellants’ costs for a standard appeal on a band A basis with usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS

ELLIS AND PETERS JJ [1]

MUIR J [99]

ELLIS AND PETERS JJ

(Given by Peters J)

Table of contents
Para no

Introduction

Sidwell

Background

Location

Transfer of Lot 7

Covenant

Rodney District Plan

Plan Change 55

Lot 8

Registration of the covenant and sales of lots

Auckland Unitary Plan/Wainui Precinct

National Policy Statement and Plan Change 78

Sales of Lots 1, 2, 4, and 6

Application to the High Court

Property Law Act 2007

Synlait Milk Ltd v New Zealand Industrial Park Ltd

Judgment under appeal

Section 317(1)(a)(ii)

Submissions

Discussion

Section 317(1)(b)

Submissions

Discussion

Discretion

Compensation

Conclusion

Costs in the High Court

Result

Introduction

The appellants (the Andrews) are the owners of Lot 3, DP184199, being 15 Endsley Rise, Wainui (Lot 3).
The respondent (Sidwell) is the owner of Lot 6, DP184199, being 64 Sidwell Road, Wainui (Lot 6).
The Andrews appeal against a decision of Brewer J granting an application by Sidwell to modify a restrictive covenant dated 27 June 1996 (the covenant), and declining to order Sidwell to pay compensation to them.[1]
[1]Sidwell Developments Limited Partnership v Top Dream Developments Ltd [2024] NZHC 899 [High Court judgment]; and Property Law Act 2007, ss 316 and 317.

Lots 3 and 6 derive from a larger subdivision of land in 1973, discussed below, and both comprise approximately 4 ha. Until recently, the covenant has been registered against the title to each of Lots 1 to 6 of that subdivision, with each lot both benefited and burdened by the covenant.[2]

Sidwell

[2]When we refer below to “Lots 1 to 6” or “the six lots”, we mean these six lots.

Sidwell is a limited partnership. Its general partner is Sidwell GP Ltd. The directorships of the latter suggest it is a joint venture between McConnell Developments Ltd and parties associated with Top Dream Development Ltd (Top Dream), the owner of Lot 4 of the subdivision.
In October 2022, Sidwell obtained two resource consents relating to Lot 6. One was to subdivide the land into 74 residential lots and two vacant “superlots”.[3] The other was to construct 74 residential dwellings and four minor dwellings in several typologies and, amongst other things, undertake associated earthworks. For reasons which follow, we note here that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrew v Sidwell Developments Limited Partnership

Details

AGLC: Andrew v Sidwell Developments Limited Partnership [2025] NZCA 418
Case: [2025] NZCA 418
Decision Date: 21 August 2025 at 10.30 am

CaseChat Overview and Summary

Simon Leo Andrew, Jodie Ann Margaret Andrew, and Nicholas Independent Trustee Co Limited (the Andrews) appealed against a decision of Brewer J granting Sidwell Developments Limited Partnership’s (Sidwell) application to modify a restrictive covenant dated 27 June 1996 (the covenant) and declining to order Sidwell to pay compensation to the Andrews. Sidwell sought to extinguish the covenant as it applied to Lot 6, one of the lots the covenant burdened and benefited. The Andrews wished to retain the covenant in place against all six lots. Sidwell’s proposed development of Lot 6 would involve 74 residential lots, two vacant superlots, and associated earthworks. The Andrews argued that Brewer J erred in granting Sidwell’s application and in declining to order Sidwell to pay compensation. Sidwell submitted that the covenant ought to be modified or extinguished because of a change in the character of the neighbourhood and because the continuation of the covenant in its existing form would impede the reasonable use of Lot 6 in a different way from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation. The Court found that Sidwell had established a ground for modification or extinguishment of the covenant under s 317(1)(b) of the Property Law Act 2007. Sidwell had acquired Lot 6 with the intention of extinguishing the covenant, developing the land, and doing so without compensating the Andrews. Sidwell also submitted that the covenant should be extinguished because it impeded the reasonable use of Lot 6. The Court found that the reasonable use of Lot 6 had changed and that the covenant impeded the reasonable use of Lot 6 in a different way from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation. Sidwell’s proposed development was a permitted or controlled activity under the applicable zoning but was not permitted or controlled under the covenant. The Court found that the covenant impeded the reasonable use of Lot 6 and thus the covenant ought to be modified or extinguished. The Court found that Brewer J’s decision to grant Sidwell’s application was correct but that Brewer J erred in declining to order Sidwell to pay compensation to the Andrews. The Court found that it was not mandatory to order compensation but that it was usually equitable to do so. The Court found that the Andrews were entitled to compensation for any diminution in the value of Lot 3 if Sidwell’s development proceeded. The Court found that the Andrews were also entitled to a share of the benefit released to Sidwell from removing the covenant (and thus enabling the development to proceed). The Court found that the quantum of such compensation was not a matter it was able to determine in this appeal and that the matter should be remitted to the High Court to determine the quantum of compensation in light of this judgment.

Orders