Jackson v Small
[2023] NZHC 343
•1 March 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-000864
[2023] NZHC 343
UNDER the Declaratory Judgments Act 1908 and Part 18 of the High Court Rules 2016 IN THE MATTER
of an application for a Declaratory Judgment
BETWEEN
SCOTT KERRY JACKSON and SARAH ANNE JACKSON
Plaintiffs
AND
GEOFFREY CLEMMENT SMALL and ARIA SMALL
First Defendants
BOMBAY INVESTMENTS LIMITED
Second Defendant
Hearing: 24 June 2021, 6-10 & December 2021
Supplementary memorandum from plaintiffs 13 December 2021
Appearances:
TJG Allan for the Plaintiffs
A E Simkiss for the Defendants
Judgment:
1 March 2023
JUDGMENT OF DUFFY J
This judgment was delivered by me on 1March 2023 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Grove Darlow & Partners, Auckland (Mr TJG Allan)
Minter Ellison Rudd Watts, Auckland (SCDA Gollin/A E Simkiss)
JACKSON v SMALL [2023] NZHC 343 [28 February 2023]
[1] The parties in this proceeding are neighbours in a rural subdivision of lifestyle blocks. There are registered restrictive covenants on the titles of all these blocks. The owners of some blocks thought an equestrian facilities building the first defendants had erected on their block was not compliant with the two restrictive covenants registered on the title of this land.
[2] The owners commenced this proceeding, which has resulted in protracted litigation with three hearings in this Court and one in the Court of Appeal. The plaintiffs were initially unsuccessful before Gordon J in this Court on all their claims.1 They appealed to the Court of Appeal and were partly successful insofar as that Court found Gordon J had misinterpreted the covenants.2 This issue was re-heard by Gordon J, who found the equine facilities building does not comply with the covenants.3 The Judge made orders directing the first defendants to take certain steps to achieve compliance.4 Those steps commenced but were not completed. Some plaintiffs discontinued their claims against the first defendants.
[3] However, one of their number (formerly the second plaintiffs Scott Kerry Jackson and Sarah Anne Jackson), have returned to this Court seeking a mandatory injunction to further enforce the terms of the covenants.5 The first defendants, Geoffrey Small and Aria Small, oppose this application.
[4] The second judgment of Gordon J and the orders made thereon have not been appealed. Accordingly, there is now no doubt that the present equestrian facilities building contravenes the covenants and the plaintiffs are entitled to have that rectified. The issue for me to determine is whether such rectification should be by a mandatory injunction that (a) requires the first defendants to de-construct the existing building to a point where it complies with the covenants; or (b) a wholesale removal of that building with the land on which it stands being re-instated to its former appearance.
1 Taylor v Small [2018] NZHC 2785.
2 Taylor v Small [2019] NZCA 152.
3 Taylor v Small [2020] NZHC 2023.
4 At [153]–[155]. Gordon J reserved leave to the parties to return to this Court to apply for further directions or further orders: at [153(e)].
5 The other plaintiffs have since discontinued their claims against the defendants. For this reason the intituling on this judgment shall read as Scott Kerry Jackson and Sarah Anne Jackson v Geoffrey Clemment Small and Aria Small and Bombay Investments Limited.
Before considering these questions, it is necessary to consider the judgment of Gordon J.
The orders
[5] In her second judgment Gordon J found that the present equestrian facilities building breached the first and second requirements of the restrictive covenants on the land. She also found that the first defendants had been the “authors of their own misfortune”, which cleared the way for some form of injunctive relief to be made.6 Accordingly she ordered that:7
(a)Within three months of the date of this judgment, the first defendants are to provide the plaintiffs plans of alterations to the equestrian facilities building prepared by registered architect or architectural designer with reference to the restrictive covenants and this judgment.
(b)Within 5 months of the date of this judgment, the plaintiffs and the first defendants may file a consent memorandum advising the Court that they have agreed to plans and specifications of agreed modifications to the existing equestrian facilities building (Agreed Modifications). Such plans are to be attached to the consent memorandum.
(c)In the event of the parties filing the agreed modifications, the first defendants shall: -
(i)Effect and complete the Agreed Modifications; and
(ii)Obtain the code compliance certificate in respect of the Agreed Modifications; and
(iii)File the code compliance certificate attached to a memorandum in this Court
all within 14 months of the date of this judgment.
(d)In the event that the parties cannot agree on modifications to the existing equestrian facilities building, they have leave to apply to the Court for directions or further orders. Any such applications shall be made promptly after the expiry of the 5-month period referred in paragraph 2(b) above.
(e)The parties shall have leave to apply for directions if any issues arise in relation to the implementation of these orders.
6 Taylor v Small, above n 3, at [138].
7 At [153].
[6] Relevantly, Gordon J refused to grant injunctive relief to the effect that if the parties could not agree on appropriate modifications to the equestrian facilities building it was to be pulled down and removed from the first defendants’ property with the site being reinstated. In this regard the Judge accepted the submission for the first defendants that the orders the plaintiffs sought would inappropriately give them a right of veto over any proposed modification design. The Judge found the appropriate order was one that simply allowed for input from the plaintiffs. But she did reserve leave for the parties to return to Court for further directions or orders should they be unable to reach agreement on any proposed modifications.
[7] The failure of the parties to reach agreement on the modification of the equestrian facilities building means paragraph (d) of the orders of Gordon J is now in effect, and the plaintiffs have relied on the leave reserved to them to make the present application for orders to enforce the covenants.
Subsequent events
[8] Since Gordon J delivered judgment on 11 August 2020, the parties have been unable to reach agreement on an appropriate modified design, which is why they are before this Court again.
[9] The hearing commenced before me on 24 June 2021 but was adjourned part-heard to enable the parties’ expert witnesses to confer on whether modification of the existing building was possible and, if so, how should it be done. By then the first defendants had engaged their own expert witness. Earlier on they had gone to trial without the benefit of expert evidence to support their case.
[10] However, regrettably nothing had been done about ensuring the experts conferred in accordance with r 9.43 of the High Court Rules. Accordingly, the requisite direction was given under r 9.43; there was also agreement that the trial should be adjourned part-heard to enable the experts to confer and prepare their joint statement.
[11] During the adjournment period and before completion of the experts’ joint statement the first defendants’ expert altered his proposed design.8
[12] The trial resumed in December 2021; it included a site visit. By then there was some agreement between the experts, but they remained at odds over how the present equine facilities building might be modified to conform with the covenants. The contest is now between the design proposed by the plaintiffs’ expert Christopher Hume (the Hume design) and that presently proposed by the first defendants’ expert Graham Strez (the Strez design).
[13] The inability of the parties to reach agreement on a modified design has meant that it is now for me to decide on the proposed modified designs. This is against a background where the present building is clearly non-compliant, and unless it is modified to comply with the covenants it must be demolished, and the land reinstated to how it appeared before the building was constructed.
[14] If I favour the Hume design, I can generally treat that design as compliant with the covenants.9 The plaintiffs have taken action to enforce the covenants and they are hardly likely to promote a design modification that does not comply with them. The discontinuance of proceedings by other plaintiffs indicates they have no interest in further pursuing compliance with the covenant, so I do not need to consider their views. On the other hand, the plaintiffs’ disapproval of the Strez design does not necessarily mean this design will not comply with the covenants. Whether it does or not is a matter for me to determine bearing in mind the findings already made by the Court of Appeal and subsequently by Gordon J on the meaning of the covenants and how that meaning is to be applied.
The terms of the covenant
[15] It is first helpful to set out the terms of the restrictive covenants since the modified designs must be assessed against those terms. The relevant parts of each covenant are identical, and state as follows:
8 This meant that much of the evidence the experts had filed for the hearing on 24 June 2021 became redundant as the modification was substantially different from the original proposed design.
9 With the caveat of my findings in relation to stud height at [136]-[142].
(i)That the Covenantors shall not erect or permit to be erected or placed on the servient lands or any part thereof of any building or erection other than a new (not being an existing building previously occupied or used and removed from another locality) single dwellinghouse and such farm outbuilding or ancillary buildings as are usual and reasonable for the type of rural use of the land in the subdivision (of which the dominant land and the servient lands form part) and of a nature design or style (including that of the garden or landscaping aspects and fencing of surrounding grounds) in keeping with each other such that the dwellinghouse and any additional buildings and the surrounding grounds thereof blend in with the rural nature of the surrounding area to ensure that a pleasing and aesthetically compatible appearance is maintained for the benefit of the dominant land and all the servient lands.
[16] The above terms do not lend themselves to precise formulaic application; they require an evaluative interpretation of the restrictions that are to be imposed. The Court of Appeal and Gordon J in her second judgment have outlined how the evaluative exercise is to be undertaken.
Judicial interpretation of the covenants
[17]The Court of Appeal found the covenants impose two requirements:10
[59] In our assessment, the relevant parts of the covenants are best read as meaning that any dwelling house and outbuilding must:
(a)be usual and reasonable for the type of rural use of the land in the subdivision; and
(b)be of a nature, design or style in keeping with each other.
[60] These two requirements are distinct but are designed to achieve the same overall purpose of ensuring that the subdivision blends in with the rural nature of the surrounding area. In other words, the last portion of cl (i) of the covenants, beginning from “such that”, expresses the purpose of the two requirements we have outlined at [59]. The first requirement is aimed at ensuring the buildings are not unusual for a rural property. The second requirement is aimed at maintaining consistency between the buildings within the subdivision.
[61] The first requirement is concerned with assessing whether a building is “usual and reasonable” for rural use. In other words, there needs to be an assessment of the type of land use that is being carried out, including on the dominant and servient lots, and whether, when viewed objectively, the building in question is reasonable.
10 Taylor v Small, above n 2.
[62] The second requirement acts to ensure a level of consistency between the designs and styles of the various buildings within the subdivision. Gordon J and the parties have treated this as limited to consistency between the dwelling house and outbuilding. If, however, the “a” in the phrase “a new … single dwelling house” is interpreted as meaning “any”, as Gordon J correctly concluded, there is no basis to limit the phrase “in keeping with each other” to just a dwelling house and its outbuilding. The “each other” must refer to all other dwelling houses and outbuildings within the subdivision. This interpretation is consistent with the purpose of the covenants to ensure that the buildings “blend in” and “that a pleasing and aesthetically compatible appearance is maintained for the benefit of the dominant land and all the servient lands”.
[18] In the second judgment Gordon J applied the Court of Appeal’s directions in this way:11
[110] What is required is an assessment, first, of the type of land use that is being carried out on the dominant and servient lots in the Taylor subdivision and, second, whether, when viewed objectively, the equestrian facilities building is usual and reasonable. Mr Wilkinson-Smith [then counsel for the first defendants] is incorrect when he submits the assessment permits a consideration of buildings beyond the Taylor subdivision. Although the purpose of the two requirements is to ensure buildings blend in with the rural nature of the surrounding area, the assessments the Court makes in both the first and second requirements involves comparisons within the Taylor subdivision.
[19] Gordon J found the type of land uses in the Taylor subdivision included “rural residential uses, an avocado orchard and the farming of cattle”.12 She accepted the submissions from counsel for the plaintiffs that rural use in the subdivision encompasses both the type of use and its scale.13 She found the main type of rural use was rural residential.14 She also found that whilst the first defendants were not precluded from keeping horses on their land, the present equestrian facilities building was not an objectively usual or reasonable building in the context of the other rural uses in the subdivision.15 It was not “usual” because its “form, scale and materiality bear no relationship to any of the existing typology or character of the existing built form”.16 The Judge also found the existing building was not objectively reasonable.17 In this regard the Judge considered the building was not fitting or appropriate for all
11 Taylor v Small, above n 3.
12 At [112].
13 At [112].
14 At [112].
15 At [115].
16 At [115].
17 At [116].
the above reasons that related to the second requirement.18 Further, neither the location of the building on the first defendants’ land nor the asserted reasonableness of the facilities within the building were relevant to this assessment.19
[20] There was no appeal from Gordon J’s second judgment. This means the findings Gordon J made in that judgment on the Court of Appeal’s interpretation of the covenants and how they were to be applied are binding on me. I must apply them when I come to consider whether the modified design proposals are materially different from the present design, and if they are whether they comply with the covenants.
[21] I also consider that those aspects of Gordon J’s first judgment that were either not challenged by appeal or not reversed on appeal remain in force and binding on the parties and on me. In this regard I note that, as was recognised by Gordon J in her first judgment, there are no limits or requirements as to size or dimensions on any buildings in the covenants.20
[22] In one respect I am in the same position as the Court of Appeal and Gordon J when it comes analysing the modified design proposals. It is still the case that the first defendants have not built a dwelling house on their land, which means that technically any equestrian facilities building will not comply with the covenants. Because until there is a dwelling house on the first defendants’ land no equestrian building facility can be said to be an ancillary building or an outbuilding.21 In her first judgment Gordon J refused to grant an injunction to correct this non-compliance, because she did not think it equitable to require the building to be removed only to have it restored once a dwelling house was built on the first defendants’ land.22 This approach was not challenged on appeal.
[23] The parties are presently content for the modified design proposals to be considered as a notional ancillary building or outbuilding. It is expected that if a
18 At [116].
19 At [116].
20 Taylor v Small, above n 1, at [104]. This finding was not overturned on appeal.
21 This finding was made in Gordon J’s first judgment, and it was not challenged on appeal. Therefore, it is binding on me.
22 Taylor v Small, above n 1, at [19].
modified equestrian facilities building can be achieved the first defendants will then proceed with building their dwelling house.
[24] The compliance analysis is made more difficult when there is currently no dwelling house against which the proposed new designs of the equine facilities building can be assessed, in order to see how well each blends with and is aesthetically compatible with the other. Whilst any buildings on the first defendants’ land must also blend with and be aesthetically compatible with other buildings in the subdivision, obviously as a starting point in principle any dwelling house and ancillary buildings on the first defendants’ land should blend with and be aesthetically compatible with themselves. If they are not that may create an aesthetic visual disturbance that prevents compliance with the covenants. For this reason, I will also need to consider the proposed design of the first defendants’ dwelling house when I assess the modified design proposals’ compliance with the covenants.23
The modified design proposals
[25] A photograph showing the north and west sides of the present equine facilities building is attached to this judgment at Appendix A. The residential part of the building is shown at the northern end of the building. It uses brown/orange wooden cladding and is two stories, although it is the same height as the rest of the building. Beside it on the west side is a blue roller door. The remainder of the building is clad in dark coloursteel and has a large, homogenous form with no other features on the west wall.
[26] The proposed design modifications by Mr Hume are attached marked Appendix B. The proposed design modifications by Mr Strez are attached marked Appendix C.
Areas of agreement
[27] The experts were agreed that what can be identified as the residential part of this building as well as one bay (known as the circulation area) of the stables should
23 See [160]–[162] herein.
be removed. This would remove the wooden cladded two storied area and the metal roller door on the western side and surrounds beside it. Both agreed that residential accommodation is not permitted in an outbuilding. Mr Hume accepted under cross-examination that once the residential part of this building is removed the length of the west wall will be reduced to 72 percent of its former length.
[28] The residential part of the present building includes an office and lunchroom/bathroom facilities area. Both experts were agreed these facilities could still be provided by being included in a separate single storey building to be sited close to the modified equine facilities building. Their respective designs for this new building have roughly the same floor area, stud (wall) height and overall size. Certainly, there was no dispute that either of the designs will comply with the covenants. The Hume design has a mono pitch roof that extends to include a north facing veranda roof, which provides sun protection for an outdoor seating area. The Strez design has a gable roof. With both designs the new single storey building’s long axis runs east/west; this is the opposite of the remainder of the modified equine facilities building (horse truck/stables area), which has a north/south long axis.
[29] Both agreed that the new single storey building could be clad with dark coloured long run steel. Later in his evidence Mr Strez suggested that the walls of this building could perhaps be clad with the same cladding as would be used on the first defendants’ proposed house. Mr Strez’s view was this would visually and aesthetically tie the new single storey building to both the house and the horse truck/stables area.
[30] Mr Hume has the new single storey building positioned apart from the horse truck/stables area with an open air space between each building. This means that visually the two buildings will appear as fully separated from each other; and functionally the unloading of horses from the horse truck and their movement into the stable area will happen in the open space area between the two buildings, with no overhead protection from the weather.
[31] Mr Strez has also positioned the new single storey building a similar distance apart from the horse truck/stables area, but he has chosen to place a glazed glass canopy between the two buildings. Up close the use of the glass canopy will visually
connect the two buildings. From a distance it is difficult to imagine how the glass canopy might be seen, given its transparency and its placement between the two buildings. Thus, the two buildings might appear from a distance to be separate, but functionally the presence of the glass canopy will ensure there is a covered area where horses can be unloaded from the horse truck and taken into the stable area, without being exposed to weather.
[32]Under cross-examination Mr Hume stated that he and Mr Strez were:
pretty well in agreement for the lunchroom [the new single storey building] and the space in front of the building. Where we differ is Mr Strez effectively says the balance of the building is fine and that’s where we disagree.
I understand this answer to mean that Mr Hume was not concerned about: (a) the size of the new single storey building; (b) whether or not there was a glazing between this new building and the modified equestrian facilities building; and (c) whether or not its roof line was gable or mono pitch.
[33] However, I note that the roofline Mr Hume has proposed for the modified stable area of the building is a series of mono pitches, which he described as saw-toothed in appearance. Therefore, if that roof line were to be adopted it would be more compatible if the new single storey building had a mono pitch roof rather than a gable roof.
[34] On the other hand, the Strez design has a single gable roof line which covers both the stable area and the truck bay. Therefore, if that roof line were to be adopted the use of an east/west gable roof line for the new single storey building would be more compatible with the other building than the mono pitch roof Mr Hume has proposed. Put shortly, the roof design for the new single storey building fits best with the roofing design each expert proposes for the horse truck/stables area.
[35] Initially, in his design of the stables area Mr Hume used dark coloured vertical wooden cladding, and apart from the metal roller doors in the area to accommodate the horse truck, the other doors on the modified equine facilities building were wooden. Further he placed wooden split stable doors along the west and east sides of
the stable area of the building. However, under cross-examination he made several concessions in this regard.
[36] First, he accepted that all the doors could be metal rather than some being made of wood. Second, he accepted the cladding could be dark coloured long run corrugated steel, which could be either the existing cladding or new cladding of similar type, if replacement was required. Third, he accepted that the wooden split stable doors that he had added to the western side of the building could instead be replaced by windows; the purpose of either was simply to break up the visual bulk appearance of the west wall and to give it more human scale.
[37] Mr Hume accepted under cross-examination that he had not considered and, therefore, had made no provision for the impact of the horse walker on the presence of the stable doors on the west side of the building. The horse walker is positioned close to the west wall of the stable area of the equine facilities building. It was suggested to him in cross-examination that the location of the horse walker could preclude the stable doors he proposed having any functionality, because it may not be possible for horses to enter and exit where he had positioned some of those doors, given the presence of the horse walker. He did not dispute this possibility. Fourth, he accepted that his reduction of the horse loose box area of the stables from eight (four aside) loose boxes to six (three aside) loose boxes was unnecessary, and the existing configuration of eight (four aside) loose boxes could remain if the stud height of this part of the building were reduced by 1.2 metres. If the four aside loose boxes remain the length of the stable area of the modified equine facilities building will be the same under either design.
[38] Mr Strez identified the covenant as having three design characteristics which required compliance: (a) “nature, design and style in keeping with each other”; (b) “blend in with the rural nature of the surrounding area”; and (c) “be pleasing and aesthetically compatible in appearance”. In his statement which is attached to the expert’s joint statement Mr Strez referred to Mr Hume’s evidence in an affidavit dated 31 January 2020 (which was for the second hearing before Gordon J). Mr Strez recorded that he agreed with the description Mr Hume had given of his understanding of “nature”, “design”, and “style”. Mr Strez then went on to note that in this affidavit
at [21] Mr Hume had said he considered “blending in” was the same as “nature”, “design”, and “style”. Mr Strez said he disagreed with that.
[39] There is a measure of agreement between the experts on their understanding of “nature”, “design”, and “style”. I consider it helpful to set out the basis of this agreement. It is to be found at [16] of the 31 January 2020 affidavit of Mr Hume, who deposed that in the context of the covenant he considered “nature” to mean the inherent features and physical qualities including landscape and other features of the subdivision and buildings. He considered “nature” encompasses the overall environment of the subdivision and associated infrastructure. He considered that “design” in the context of the covenant meant the organisation of practical, environmental, physical, emotional and aspirational elements and generators into a cohesive whole that is pleasing, compatible and appropriate to its overall context. He considered that “style” in an architectural or design sense was a descriptor of type and of time. It could be a basic description of building typology such as residential, industrial, commercial, urban, rural etc. It could have a material dimension to it, for example weatherboard, stone, brick etc. It could have a time dimension to it, for example Victorian, colonial, villa, cottage, contemporary, modernist etc. In the context of the covenant Mr Hume considered “style” is the quality and typology of the existing buildings and landscape within the subdivision. I propose to use these terms in accordance with the agreed meanings.
[40] Whilst Mr Strez has recorded in his statement attached to the joint statement of experts that he considers “blending in” and “aesthetic compatibility” to have a different meaning from that given to it by Mr Hume, I note that the evidence of Mr Hume on the meanings he attached to the aforementioned words was accepted in the second judgment of Gordon J. Accordingly, I consider there is no room now for me to deviate from those meanings. Further, I agree with Mr Hume that the definition of “blend in” means something that is similar in nature, design and style because that is how “blending in” is achieved. I also agree with Mr Hume’s definition of “aesthetically” compatible as meaning something that is visually pleasing or appealing when viewed together as a group, of a similar typology.
Areas of disagreement
[41] In Mr Strez’s view either design for the balance of the equine facilities building complies with the covenants, and his should be preferred because it is the cheaper of the two. In Mr Hume’s view his design is the minimum for meeting the covenants, whereas the Strez design does not.
[42] The Strez design for the horse truck/stables area leaves the present stud height of the existing building untouched. The roof line which presently covers the stable and horse truck area remains much the same.24 However, there would be the overall reduction in the size of the building to take account of the removed residential area and the circulation bay area.
[43] The Strez design proposes the insertion of five sets of double pane clerestory windows (10 windows in all) along the west side of the modified stables and on the east side, he provides for two sets of such windows. The modified west side would also be visually broken by the presence of the horse walker. On the east side the length of the horse truck accommodation wall would be visually broken by the presence of the existing three large water tanks and a pump shed, which sit beside the eastern wall. The south elevation would remain the same as the existing south elevation. The north elevation would be significantly changed by the removal of the residential part of the present building and the placement of the additional smaller building running on an east/west long axis.
[44] Put shortly for the horse truck/stables area the Strez design has added clerestory windows down the east and west sides in order to add features of interest and human scale to the building. Otherwise, Mr Strez has left its gable roof line and stud height intact. At the eaves the stud height is four metres and at the apex of the gable roofline the stud height is six metres.25 Also, he has left the structure on the east side that houses the horse truck intact. The horse truck it accommodates is 11 metres long.
24 There is some adjustment to take account of the removal of the residential part of the present equine facilities building and the insertion of a glass canopy between the modified equine facilities building and the new single storey building.
25 The experts did not include in their joint statement any agreed measurements of the present equine facilities building. Some of the references to measurements given in their oral evidence conflict with the measurements Gordon J has outlined in her second judgment. I deal with this in the
[45] On the other hand, once the accommodation section of the present building is removed Mr Hume proposes further modifications to the horse truck/stables area. In total the modifications Mr Hume proposes reduce the size of the building by approximately 50 percent. The main factor here being the reduction in the stud height at the eaves by approximately 1.2 metres. However, in answer to questions from the Court Mr Hume stated that internationally 3.6 metres is recognised to be a height that would accommodate a rearing horse. Mr Hume said he had allowed a height of 3.6 metres in his design at the first purlin, which is not the stud height at the eaves of the building.26 He said the stud height at the eaves would be “marginally less”. If the present stud height is reduced by 1.2 metres the stud height at the eaves would reduce from four to 2.8 metres.
[46] With both designs the length of the horse truck area stops short of the stable area on the east side. However, the Strez design leaves the length of the truck area as it is at present, whereas, Mr Hume reduces this length to 14 metres, which is three metres longer than the length of the horse truck.
[47] Under Mr Hume’s design the structure on the east side of the building that accommodates the horse truck would retain its present four metres stud height, which is required by the height of the horse truck. There are roller doors at the northern and southern ends of this enclosed area and the idea is that the horse truck can be driven in one end and straight out the other end.27 The reduced length would allow the horse truck to be accommodated, with an additional three metres to spare. The present length allows room for a tractor to be housed there as well. Mr Strez accepted during cross-examination that the tractor could be housed in another building on the property.
discussion section of this decision. This is unsatisfactory because it means I cannot refer to measurements without first deciding on what I think they are.
26 The purlins run in a north south direction and sit on the rafters. The roofing iron is attached to the purlins. The first purlin will be some distance in from the wall. Because the roof slopes downwards from the ridge line the stud height at the eaves will necessarily be lower than at the first purlin. By how much is presently unknown because the design drawings are not working drawings. Mr Hume acknowledged that “you’d probably need another six drawings … to show how it is actually achieved”.
27 When built the area intended to house the horse truck could not do so because the dimensions of the lintel and the roller door did not allow sufficient height for the truck to enter. That error has now been rectified.
[48] The need to have the horse truck area remain at its existing stud height but allowing for the 1.2 metre reduction in the stud height of the stables areas has led Mr Hume to adopt the “saw-toothed” roof design referred to above.28 He also explained that the use of a mono pitch roof made the building more compatible with other outbuildings in the subdivision, which also use this roof form.
Submissions
Plaintiffs’ submissions
[49] The plaintiffs submit that the present hearing is not an opportunity for the first defendants to reargue matters that either were put in the trial before Gordon J, or which the first defendants failed to raise at that time. Nor should they attempt to argue about what the covenant means or other matters that Gordon J has already decided.
[50] The plaintiffs submit that the sheer size of the present equestrian facility building, which they say is six metres high at the roof apex, 33 metres long and 17 metres wide, and its “industrial” appearance is not reflective of residential country living. Further, this submission was accepted in the findings of Gordon J. They contend that the judgment of the Court of Appeal and Gordon J’s second judgment make it clear that the size of the first defendants’ land, the location of the present equine facilities building on this land and its use are not part of the analysis for compliance with the covenant. Rather, it is the structure itself in comparison to the other structures in the Taylor subdivision that is relevant. In this regard the plaintiffs rely on the findings of Gordon J at [115] and [116] of her second judgment.29
[51] Moreover, the reasons given in the judgments of both the Court of Appeal and Gordon J mean that the issues decided in those judgments are now res judicata. However, the plaintiffs submit that, in disregard of this state of affairs, the first defendants through their expert Mr Strez are impermissibly re-engaging on substantive issues that have already been determined when it comes to compliance with the covenant.
28 At [33] herein.
29 These findings are set out at [19] herein and the relevant passages are quoted at [156] herein
[52] The plaintiffs submit it would be inappropriate and perverse for a Judge who did not make the earlier substantive determinations, which include very clear statements as to remedy, not to apply the same approach as Gordon J. Her judgment sets out very clear determinations and statements about the kinds of modifications required to transform what the plaintiffs say is “an industrial shed” into a building that fits within the subdivision.
[53] The plaintiffs submit it is irrelevant that they are now the sole remaining parties in this proceeding, because the covenants can be enforced by any one of the covenantees. Accordingly, it makes no difference that other plaintiffs opted out after the first trial and before the Court of Appeal decision. It is further submitted that if the plaintiffs’ “industrial shed” is permitted to remain in any respect it will open the floodgates to other purchasers of the remaining properties in the subdivision to likewise construct identical “industrial sheds” as outbuildings. This being plainly inconsistent with the purpose and meaning of the covenant as was found by Gordon J.
[54] The plaintiffs emphasise that whether the equine facilities building is visible or not from other locations in the subdivision was found by Gordon J to be irrelevant to compliance with the covenants; she further found that even if she were to take its visibility into account as a factor in the exercise of her discretion for granting relief the present equestrian facilities building is visible from the plaintiffs’ property and from parts of another property in the subdivision. Accordingly, they submit it is irrelevant that the first defendants wish to screen parts or all of the building be it with fenestration, trees or other features intended to have a mitigatory effect. Here they refer to Mr Strez’s reference to the building being masked by the horse walker and/or growing trees. The plaintiffs contend the first defendants are estopped from relying on these matters given the findings of Gordon J. They further submit it is not logical on the one hand for the Court to find visibility is irrelevant in terms of excusing a breach of the covenant, but with the next breath find it relevant to fashioning the remedy that does nothing to alter the presence of the “unlawful industrial shed”.
[55] The plaintiffs further submit the Court cannot now backtrack and consider awarding damages. That remedy has already been ruled out by Gordon J. In her judgment she found this was not a case where damages would be an appropriate form
of relief.30 Gordon J having decided that issue it is submitted this Court cannot now revisit the matter, as the principles of both res judicata and/or functus officio preclude it from doing so. Accordingly, this Court cannot ignore Gordon J’s findings, and, save for the mechanics of the demolition or remediation order, the Court cannot recall and re-engage on the decision of appropriate relief.
[56] The plaintiffs submit that because a restrictive covenant is a creature of equity enforcement of its terms is usually restricted to equitable remedies. An injunction is usually the most appropriate way of enforcing a restrictive covenant, as a plaintiff is more likely to want to prevent a breach than to recover damages. Damages in lieu of an injunction can be sought where an injunction is inappropriate, but this has already been excluded by Gordon J.
[57] Moreover, the plaintiffs submit that the Court’s power for granting injunctions is unfettered by statute. The remedy is available whenever the justice of the case requires. The plaintiffs also refer to s 313 of the Property Law Act 2007 which they submit codifies the Court’s equitable jurisdiction to determine a dispute concerning a covenant and sets out in wide terms the orders the Court can make. Relevantly, they submit that mandatory injunctions have been granted in circumstances where buildings have been constructed in breach of restrictive covenants. In this respect the plaintiffs rely on the decisions in Omaha Beach Residents’ Society Inc v Ocean Management Ltd, Stolten v Young and McGoldrick v Lawson.31
[58] Further, the plaintiffs submit that Gordon J’s orders established a process for ensuring the equestrian facilities building complies with the restrictive covenants, and failure to comply necessarily leads to removal of the building.
[59] The plaintiffs contend that Mr Strez’s present statements about the redesign are informed by his affidavit sworn on 28 May 2021. They submit that in this affidavit he missed the mark because he purported to engage in the exercise of interpreting the covenant when Gordon J had already conclusively done that. The plaintiffs contend
30 Taylor v Small, above n 3, at [136(a)].
31 Omaha Beach Residents’ Society Inc v Ocean Management Ltd (2007) 8 NZCPR 796 (HC); Stolten v Young HC Auckland CIV-2008-404-1497, 8 August 2008, approved Young v Stolten [2009] NZCA 264; and McGoldrick v Lawson [2018] NZHC 2643.
that while Mr Strez refers to the Court of Appeal’s correctional decision he does not refer to “a single sentence of” the second judgment of Gordon J. Also his evidence at times contradicts Gordon J’s conclusions.
[60] The plaintiffs then refer to and rely on Gordon J’s findings on the evidence she heard from Mr Hume at the second hearing in relation to his description of the present equine facilities building and other buildings on the subdivision. Also, the plaintiffs rely on Gordon J’s findings that Mr Hume did not cling to his expressed views in an unreasonable way when cross-examined.
[61] The plaintiffs are critical of Mr Strez’s evidence. First, they do not accept his measurements of the present equine facilities building, which they say are based on plans rather than actual measuring of the building.
[62] Second, they argue that Gordon J’s judgment has interpreted the covenant and laid out the roadmap for what is now required. That judgment speaks to transforming an “industrial shed” into a structure that has consistency with the other structures in the Taylor subdivision. The indicia Gordon J identified are fundamental to reducing the sheer bulk, materiality and presence of this “shed”. Gordon J’s judgment makes it clear and the covenants refer to the visual effect of the “industrial shed” in and of itself when contrasted with both the “dimension and patina” of other outbuildings in the subdivision.32
[63] Third the plaintiffs argue that Gordon J’s judgment clearly demonstrates the exercise of modifying the equine facilities building is not something that is to be calculated mathematically, using empirical data. Instead, Gordon J was clear the visual bulk and presence of the “industrial shed” in conjunction with its industrial materials give it a scale that is, as the judgment said, so out of place that it must be “holistically reduced”.
[64] The plaintiffs are critical of Mr Strez insofar as he has commented that the cost and benefit of dismantling and reconstruction cannot be justified. The plaintiffs
32 Here the plaintiff refers to “sheds” on the Taylor, Johnstone and Savoury properties in the subdivision.
contend that compliance with the covenant does not engage such considerations. Gordon J did not engage on a cost benefit consideration. To the contrary, she decided the other way. The fact that there will be an uneconomic cost consequence for the first respondents did not preclude Gordon J from making the order that the present equine facilities building either was to be modified so as to conform with the covenant as interpreted by the judgment or demolished.
[65] The plaintiffs argue that Gordon J acted consistently with authority when she found that the hardship of complying with an injunction to enforce the covenants was because the first defendants had conducted themselves unreasonably and therefore the costs and benefits of compliance are not considerations. The plaintiffs are concerned that the first defendants, who are the authors of their own misfortune, are now wrongly attempting to revisit and recast Gordon J’s judgment. Such conduct offends against functus officio and res judicata principles and is entirely inconsistent with Gordon J’s decision.
[66] The plaintiffs contend that Gordon J held “the industrial shed” must be modified by reducing its bulk materiality design and style from “industrial shed” to be in keeping with other sheds for four reasons. First, the main type of rural use in the subdivision is rural residential not industrial. Second, the present equine facilities building is not usual because its form, scale and materiality bear no relationship to any of the existing typology or character of the existing built form. In short, it is different from the existing built form in all the ways described by Mr Hume and referred to by Gordon J. Third, the present equine facilities building is not objectively reasonable. It is not “fitting” or “appropriate”, again for all the reasons discussed by Gordon J. Fourth, the asserted reasonableness of the facilities within the present equine facilities building do not form part of the assessment.
[67] The plaintiffs further contend that the minimum modification in accordance with the judgment as it interprets the covenant is that described by Mr Hume in the proposed designs, which are shown as Appendix B to this judgment. Either the building is modified to that degree, or it must be removed.
[68] The plaintiffs submit that the orders made by Gordon J set out a sequence of actions required by the first defendants and responses by the plaintiffs enabling the first defendants to propose and reach agreement with the plaintiffs on modifications to the building. This involved a two-step process of agreement, and if agreement could not be reached there was the prospect of demolition. Gordon J did not make orders requiring demolition and removal so as to enable the earlier stage of the process she had outlined to be worked through.
[69] The plaintiffs accordingly seek orders which will effectively require the first defendants to modify the equine facilities building in accordance with the proposed design recommended by Mr Hume or in the alternative to demolish and remove the present equine facilities building.
First defendants’ submissions
[70] The first defendants submit that Gordon J’s judgment does not include guidance about the type, nature or degree of changes that were required for the equine facilities building to comply with the covenant. This was left to the parties.
[71] Further, the plaintiffs are wrong in their submission that Gordon J held the modification must be by “reducing its bulk, materiality, design and style from ‘industrial shed’ to be in keeping with other sheds”. The first defendants say nowhere in the judgment is that stated, nor does Gordon J use the descriptor “industrial shed.”
[72] The first defendants refer to negotiations they have attempted with the plaintiffs on the preferred design solution. They reject any suggestion that at any time they have behaved unreasonably in relation to this Court’s orders. They further submit that until Gordon J found the present equine facilities building did not comply with the covenants, that was not clear to them. This is because the covenants do not set out black and white rules about size, materials etc, and the first defendants contend it is genuinely difficult to interpret, as evidenced by the fact that the first High Court judgment was successfully appealed.
[73] Further, the first defendants submit that the plaintiffs cannot now object to the Court revisiting orders and exploring the basis of their application for orders when
they have invited the Court to embark on that exercise. The plaintiffs seek an equitable remedy, and accordingly they must satisfy the Court that their grounds are made out and the remedy is appropriate. The Court may respond by declining the application and/or fashioning an appropriate remedy.
[74] The first defendants rely on the discretionary character of injunctive relief and submit the Court is required to take a flexible approach, which reflects a specific evaluation of the remedy most appropriate in the circumstances. In this regard they refer to McLeish v Rock Hill Ltd which involved the enforcement of a covenant.33 On appeal Pankhurst J adopted a wide-ranging evaluative approach in considering an application for injunctive relief which included (a) plaintiff autonomy: so that where possible their choice of remedy should be respected; (b) economic efficiency: the relative efficiency of alternative remedies should be a proper and relevant matter to be taken into account; (c) the severity of the remedy on the parties and whether the proposed remedy is proportionate to the breach; (d) the nature of the right being supported by the remedy; (e) the moral view to be attached to the interests at stake; (f) the effect if any of a proposed remedy on a third party or member of the public; (g) any difficulties in calculation of damages; (h) the practicability of enforcement; and
(i) conduct of the parties.
[75] The first defendants’ primary position is that an award of damages and no injunction is appropriate. In response to the plaintiffs’ argument that the issue of an injunction has already been determined by Gordon J, the first defendants contend that the plaintiffs have reopened the issue of remedy by applying for a mandatory demolition order to replace the orders made on 11 August 2020. The Court is entitled to examine its merits in light of the evidence before it today. Further, the plaintiffs have not provided evidence on loss. Their injury is nominal or at best small and could be compensated by damages.
[76] The first defendants submit the extreme oppression to them of demolition of the building, which is essentially what the plaintiffs seek by requiring their modifications, is something out of proportion to the alleged but unproven harm to the
33 McLeish v Rock Hill Ltd (2010) 12 NZCPR 409 at [28].
plaintiffs. Other than the plaintiffs, none of the landowners entitled to enforce the covenants have now sought any remedy. None of those landowners have proved any loss or damage flowing from the breach of the covenant.
[77] Regarding the visibility of the equine facilities building, the first defendants submit that whilst its visibility of the building is not material to whether it complies with the covenants, it is relevant to the assessment of harm or loss and to the exercise of the discretion to grant a mandatory injunction. They submit that Mr Strez has given unchallenged evidence the equine facilities building will not be visible to the plaintiffs once construction of the new houses neighbouring their property is finished. It is only barely visible now. Their view of the equine facilities building is and will be minor.
[78] The first defendants also submit there is new screen planting on the plaintiffs’ property and the orientation of the plaintiffs’ home is to the northeast, not south which looks towards the building. Also relevant is the mature planting of evergreen and deciduous trees and hedging across the subdivision, but particularly around the Taylor house and garden and along the access road from the Johnstone’s entrance to the first defendants’. It is submitted these visibility issues are relevant to remedy and discretion. It is further submitted that based on the above an award of damages to the plaintiffs is the appropriate remedy as opposed to demolition or modification. Further, given there is no evidence of loss, nominal damages would be the only damages award that could be made.
[79] The first defendants acknowledge that they could have taken more care regarding the outbuilding’s compliance with the terms of the covenants. However, they submit the requirements of the covenants are not clear. Further, the equine facilities building was completed in 2014, and the plaintiffs raised no issue as to its compliance with the covenant until they filed the proceeding in May 2018.
[80] The first defendants submit that the conduct of the plaintiffs has been highhanded and they have rejected and refused to engage with proposals that were put to them by the first defendants following the second judgment in August 2020. Rather than make any effort to find an agreed solution the plaintiffs applied for an order to demolish the building. They ignored invitations from the first defendants that their
expert Mr Hume meet with Mr Strez and they only accepted this prospect when ordered by the Court.
[81] The first defendants submit that since this Court ordered the experts to confer and if possible reach agreement on the matters that Gordon J directed to be addressed, the present Court hearing was the first opportunity for the experts’ approaches to be interrogated and conclusions reached about how the present building can be made to comply with the covenants.
[82] The first defendants submit that all that is presently known is that the present equine facilities building does not comply with the covenants. Gordon J’s judgment does not give any clear indication of what changes would bring that building into compliance. Mr Hume has given a view on what would be a compliant design and set out a number of principles that guided his view. He was cross-examined on those principles and his opinion of the Strez design. All those matters are relevant to this Court’s present evaluation of the competing solutions, and whether and how each does or does not comply with the covenants.
[83] The first defendants emphasise that Mr Strez was cross-examined on three matters only. First, whether he disagreed with the finding of Gordon J that the present equine facilities building breached the covenant. It is submitted he confirmed very clearly and several times that he agreed with that finding. Second, precisely how many windows needed to be added to the western wall before it stops being “industrial”.34 He maintained the number of windows on the western side of the modified building alter its appearance by giving it a human scale that it lacked before. Third, there was cross-examination which alludes to Mr Strez being instructed in his evidence by the first defendants, which he rejected. The first defendants note that every other aspect of Mr Strez’s evidence was unchallenged. Accordingly, it is submitted counsel for the plaintiffs did not impeach Mr Strez or his evidence on topics which were not cross- examined on.
34 In the first defendants’ written submissions the wall identified is the eastern wall. However, the thrust of the cross-examination which shows eight windows are in issue clearly indicates this being a reference to the western wall.
[84] The first defendants contend that the plaintiffs have mischaracterised Mr Strez’s evidence by wrongly suggesting he used a numbers based approach. This was not put to him in cross-examination, and in fact his approach was quite the opposite. His emphasis was on a holistic approach and he de-emphasised measurements in favour of the subjective visual experience of the building. In this regard his approach was consistent with Mr Hume’s professed approach. Further, Mr Strez was not cross-examined on the economics of the two design options. His opinion is that Mr Hume’s and his own solution comply with the covenants. Where a choice is available it is proper to make a choice in favour of the most economically efficient answer. That is compelled by the case law and has nothing to do with the covenants’ wording per se.
[85] The first defendants submit that between the two poles of nominal damages and demolition are the solutions proposed by Mr Hume and Mr Strez. The contest is then between Mr Hume’s approach of deconstructing the shed and building something quite different in its place, or the more practical and economic approach of making the modifications recommended by Mr Strez. The first defendants submit both solutions would bring the equine facilities building into compliance with the covenant. They further submit that if the Court makes a mandatory order to modify the equine facilities building several factors favour solutions proposed by Mr Strez.
[86] First, economic efficiency: Mr Strez’s solutions modify the building in accordance with the Court’s order and they are far less expensive than Mr Hume’s, which require demolition or deconstruction.
[87] Second, severity and proportionality: the plaintiffs have not proved any harm. In those circumstances the more extensive and expensive works proposed by Mr Hume are disproportionate.
[88] Third, proportionality and morality: this is influenced by the fact that at the moment the plaintiffs live in the temporary accommodation in the equine facilities building. The disputes about the subdivision and latterly about the equine facilities building began in early 2016 and have prevented them from financing and building their own home. The litigation has cost them a lot financially and otherwise. Any
order for modification of the equine facilities building should be timed so that the first defendants are not made homeless and the time frame is achievable.
[89] Fourth, the function of the building: at present the dimensions and design mean that it functions well as a healthy environment for the horses kept on the land and to keep and store required vehicles and equipment. Best farming practices are mandated by the covenants. If modifications are to be made the building functioning as a healthy environment for the horses must be taken into account. The first defendants note that Mr Hume agreed with this statement in cross-examination.
[90] Finally, another consideration is the certainty and precision of the orders sought. Mr Hume’s concept is not well developed and there is considerable uncertainty about how it could or would be carried out. It is submitted the conduct of the parties favour the remedy at the less severe end of the spectrum.
[91] The first defendants’ submissions traverse the various agreements and disagreements between the experts, including the areas where Mr Hume made concessions, for example Mr Hume’s acceptance that the wooden stable door to break up the presently blank long western wall could be replaced with windows.
[92] The first defendants submit that Gordon J’s second judgment refers to “form”, “scale” and “materiality”, which are subjective and not objective characteristics. In this regard Mr Hume accepted under cross-examination that “form” can be roughly translated as shape or appearance. “Form” is not the same as “size” or “volume” or “footprint” and may have a lot to do with how something looks rather than its actual dimensions. “Scale” is similar in that it has some relationship to size, but it is not the same. Mr Hume agreed under cross-examination that the impression of “scale” or “bulk” and words like that are not objective but are more subjective. He also agreed that the relative proportions for aesthetic cohesion are not about the size or volume, but about the harmony of the entire building.
[93] The first defendants submit that none of the above considerations require or imply a size requirement for the design of the modified equine facilities building and certainly not a 50 per cent reduction in its size. These considerations are about the
building’s appearance, which is entirely what the relevant parts of the covenant are about. They argue that Mr Hume has wrongly adopted as one of his guiding design principles the notion that the building must be smaller. They submit that by requiring an approximately 50 per cent reduction in overall size Mr Hume has read a size criterion or requirement into the covenants that is not there. Thus, he has not followed the guidance of the Court and he has not justified his design solution on the basis of the actual requirements of the covenants. It is submitted that he has compounded and repeated his errors in two ways.
[94] First, he has conflated adding “human scale detailing” with reducing the size of the building. In this regard he agreed under cross-examination that there was no necessary connection between the two, and he agreed that the residential forms (buildings) in the subdivision had human scale, not because of their size but because of their features. None of this is consistent, it is submitted, with his requirement for a 50 per cent reduction in size. As to human scale elements not being about the size of the building, Gordon J held that due to their features such as fenestration, the dwelling houses have a sense of human scale, which is absent in the present equine facilities building so that even though some of the dwellings were higher with a larger footprint than the present equine facilities building they had a residential form. Thus based on Gordon J’s findings, lowering the height of the building or otherwise changing its size was not a necessary measure to address the issue of human scale. Further, Mr Hume’s own premise suggests this element is about detailing not size.
[95] Second, Mr Hume has justified his severe reduction in size by reference to existing outbuildings in the subdivision and to no other buildings. His design is intended to create a form of similar size, scale and bulk to the existing outbuildings. In doing this Mr Hume has read the words “size” and “bulk” into the covenants where they are not to be found. Further, Gordon J instructed that the appropriate comparison when considering compliance with the covenants is all of the buildings.35 However, by excluding all residential buildings from his comparison Mr Hume has not fulfilled that instruction. A number of the residential buildings are large, some much larger and some taller than the present equine facilities building. The correct approach would
35 Taylor v Small, above n 3, at [88].
have regard to all the buildings in the subdivision and not to strive arbitrarily to conform with the size of just one type of building. In this regard Mr Hume has also not done what the covenants require and his approach is not justified.
[96] The first defendants submit that had Mr Hume followed the guidance of Gordon J’s judgment he would have recognised the following. The equine facilities building is not inconsistent in terms of size (height, volume or footprint) with other buildings in the subdivision. An industrial look building is not out of step with the existing dwelling on the plaintiffs’ property or the one to the immediate south of the first defendants’ property.36 It is the features (rather than the size) of the existing dwellings that are relevant to their compliance with the covenants. There are a wide variety of ways in which the covenants can be complied with, which is evidenced by the wide variety of residential forms in the subdivision. There is no requirement the design be like existing outbuildings on other land in the subdivision, which use a mono pitch roof line. It is neither reasonable nor practical to expect farm outbuildings for a much larger 15 hectare farmable property to be constrained to the size of outbuildings that are suitably sized for smaller lots.
[97] The first defendants submit that Mr Hume’s proposed design is expensive and uncertain in terms of execution and “buildability”, nor is it justified by the requirements of the covenants. They submit these issues flow from Mr Hume’s erroneous emphasis on the “shed form” to the exclusion of all other possible design precedents or possibilities. As he explained, he has arranged the “lean to” shed form across the building’s footprint and that is why the two mono-pitch roof forms have been proposed. However, this roof design is unnecessarily complex. The same applies to the alternative roof design he proposed, which uses what he described as Dutch gables. It is submitted there is no structural reason for these complex roof designs. Under cross-examination Mr Hume explained that the reason for it was to get a building that looks like a shed or a stable. However, there is no reason why the “lean to” shed form must or even should be imitated by the stable. First, it is a stable not a shed. Second, it is not possible to reconcile Mr Hume’s proposal that the stable should have traditional stable “visual language” with his design approach, which is trying to
36 This latter reference is to a newly built house and garage which has dark coloured long run steel cladding as the roof and walls.
mimic the shed form of the other buildings in the subdivision. Mr Hume agreed that there is no need to mimic these other forms on the subdivision but that is precisely what his design does. Further, an appropriate comparison for the purposes of assessing compliance with the covenants is all the built forms rather than only the sheds/outbuildings on the subdivision.
[98] Mr Hume’s evidence was that there is a general perception as to what a stable building might look like, and the language he adopted was traditional. He acknowledged that there was no building of that nature, design or style in the subdivision nor are there other stables. The first defendants submit, however, that traditions and styles change and there are many stables in New Zealand that might not resemble the “traditional” stable idea. In this regard the first defendants, as an example, point to the original Taylor cottage on the subdivision which was built in the early 1900s. It has a style traditional to that timeframe and is completely different in style from the home the Taylors built on the subdivision in the 1970s. It is noted there are other residential buildings in the subdivision and it is clear they are not in the same style as the aforementioned buildings and there is no reason for that requirement to be imposed on the outbuildings. It is submitted style changes over time and whilst not so many years ago the use of coloursteel as a residential cladding would have been shocking, now it is not unusual and, in fact, there is a house in the subdivision where it and its outbuilding are clad with dark toned coloursteel. It is also submitted that there is nothing inherently industrial or otherwise offensive about the material. It is part of the rural and more recently the urban vernacular of New Zealand architecture.
[99] The first defendants contend that Mr Hume’s idea of lowering the eaves and roofline of the stables area of the equine facilities building is unrealistic. His proposed method of essentially propping the roof, and then running a saw around the building’s exterior walls to reduce the stud height, he admitted under cross-examination was understating the work required and he could not give any examples of this technique being used. On the other hand, Mr Strez’s evidence was there would be considerable work required to brace and support the roof with constructing Mr Hume’s design, and it was unlikely the building work would be carried out in that way. Mr Strez’s views, which he based on his considerable experience in the building industry, were not challenged in cross-examination. He was also not challenged in cross-examination on
his view that Mr Hume’s approach to lowering the stud height by 1.2 metres would require deconstruction and would by some considerable margin be more expensive than the Strez design.
[100] The first defendants submit that an unfortunate consequence of Mr Hume’s approach to stud height reduction is that the functionality of the equine facilities building will be compromised. When that was put to Mr Hume in cross-examination he protested but did not explain how his design would perform equally as well as the present equine facilities building. On the other hand, the first defendants submit that Mr Strez accepted there is justification for the first defendants’ view that the present high stud is better for the environment in which the horses are kept. The plaintiffs did not challenge Mr Strez on this point.
[101] The first defendants submit that Mr Hume’s approach shows a lack of attention to the task of the experts, which was to find a way to modify the building to comply with the covenants rather than deconstruct it and build something in its place. On the other hand the first defendants submit that Mr Strez was not driven by any arbitrary percentage type of reduction, nor by an incorrect focus of only one building form. He has taken a holistic approach, and this approach is right in terms of the covenant and should be adopted by the Court.
[102] The first defendants submit there is no dispute that there are many other ways to comply with the covenants. They contend the Court should not adopt an approach which imposes an unnecessarily complex solution when it is clear there are simpler alternatives, including the one advanced by Mr Strez.
[103] Mr Strez has given his expert opinion the building is capable of being modified to comply with the terms of the covenants. His evidence on this topic was largely unchallenged. He says there may not be just one architectural answer; compromise may be required particularly when measured against construction costs and benefits. It is submitted the approach is appropriate and in contrast to Mr Hume’s. He submitted the Court should adopt the less expensive design proposed by Mr Strez.
[104] The first defendants also submit that Mr Hume’s approach is not susceptible to being reduced to orders of the Court. In his evidence he described it as a concept design and therefore it must still be uncertain. The details have not been worked through. Mr Hume acknowledged as much. Further, the Hume design does not simply take away, it adds to and changes the equine facilities building in important and potentially highly complex ways. In contrast, the Strez design can easily be turned into orders of the Court by adopting the work required and the order required as set out in his statement. Even though it is at a concept phase it is perfectly clear what is required and its “buildability” is not an issue. The order could be by reference to the design drawings of Mr Strez and his description of works.37
Discussion
[105] The disputed legal issues regarding the meaning and application of the covenants have been resolved by the judgments of the Court of Appeal. Gordon J’s second judgment has determined that the present equine facilities buildings is non-compliant with the covenants. The first defendants did not appeal the second judgment of Gordon J and therefore they must accept the present equine facilities building is non-compliant. The plaintiffs’ submissions in this respect are correct. The remaining issues for me to determine are whether the plaintiffs are entitled to the relief they now seek either in the form of a demolition order or an order requiring modification to the extent proposed by Mr Hume, or whether the changes achieved by the Strez design will suffice. In this regard the first defendants (a) contend that damages are an appropriate remedy; and (b) oppose orders requiring the adoption of the Hume design and argue that the Strez design will comply with the covenants.
Damages as an appropriate remedy
[106] I do not accept the first defendants’ argument that by making a fresh application for a mandatory injunction the plaintiffs have opened for consideration the question of whether damages are the more appropriate remedy. In her second judgment Gordon J found injunctive relief was warranted.38 I regard this finding as one that forecloses
37 Here the first defendants refer to the full set of drawings that were produced at trial as Exhibit A and the individual statements Mr Strez attached to the joint statement of experts.
38 See Taylor v Small, above n 3, at [140].
any consideration by me of damages as an alternative remedy. The orders that Gordon J made left it open to the parties to agree on modifications to the present building. It is clear from those orders that if no agreement was reached on modification then, failing a compliant modification of the present building, injunctive relief requiring demolition and removal would follow.
[107] The substantial and binding effect of the orders made in Gordon J’s second judgment is that, absent the parties’ agreement on modification, either the Court is presented with a modified design that complies with the covenants or the Court will order demolition and reinstatement of the land on which the present building stands. Those orders were not appealed. Accordingly, I am satisfied an award of damages is not an available remedy.
The form of the injunctive relief
[108] The key questions for me to determine are whether the Strez design will comply with the covenants and, if not, then despite the plaintiffs’ designs being no more than conceptual/preliminary designs, whether injunctive relief requiring modification that generally accords with those designs should be ordered. Failing that the plaintiffs will be entitled to orders for demolition, removal and reinstatement of the affected site. The answers to these questions largely hinge on the expert evidence I heard.
Burden of proof
[109] As mentioned earlier, the first defendants are bound by the decisions of the Court of Appeal and Gordon J in relation to the present equine facilities building. For them to seek fresh determinations from me on whether the Strez design complies with the covenants or not they must first persuade me this design is materially different from the present equine facilities. Unless they can do that the findings of the earlier decisions will remain binding on them.
[110] However, once the first defendants satisfy me the Strez design is materially different from the existing building there is then the question of whether it will comply with the covenants. Answering this question requires a fresh assessment; albeit one
that relevantly conforms to the findings by the Court of Appeal and the second Gordon J judgment where necessary. When it comes to answering this second question, I consider it is for the plaintiffs to prove non-compliance rather than for the first defendants to prove compliance. At this point the contest is between the first defendants who are proposing to modify a non-compliant building by using the Strez design and the plaintiffs who contend their expert Mr Hume has offered the only compliant design.
[111] The first defendants have always been at liberty to erect or modify buildings on their property so long as those buildings comply with the covenants.39 The covenants do not oblige servient land owners to obtain the consent of others in the subdivision before they construct a building. The obligation of servient owners is to ensure any proposed building complies with the covenants; if they construct a building that is non-compliant, they take the risk that covenantees in the subdivision may take action to enforce compliance. When covenantees take such action the burden of proof is on them to prove non-compliance. The servient landowner does not need to prove compliance. In Ngati Rangi Trust v Genesis Power Ellen France J in the Court of Appeal referred to the evidential principle that a person who wants the Court to take action must prove his or her case.40 Here the plaintiffs argue that the Strez design will not be compliant and only something that reflects the changes advocated by their expert Mr Hume will be enough to make any new design compliant. Accordingly, I consider the burden is on the plaintiffs to prove the Strez design is non-compliant.
Are the first defendants attempting to re-litigate the second judgment of Gordon J?
[112] The plaintiffs largely argued that the case the first defendants make for the Strez design is precluded by Gordon J’s second judgment. The plaintiffs’ counsel also objected to certain questions put to Mr Hume about the Strez design by Ms Simkiss, counsel for the first defendants, on the ground they were intruding into subject matter
39 The first defendants could have simply proceeded to implement the Strez design and left it to the plaintiffs to go to Court for orders stopping the implementation on the basis it was neither materially different from the original offending building nor was it separately compliant with the covenant. In her second judgment Gordon J recognised the plaintiffs have no right of veto over any modification of the existing building.
40 Ngati Rangi Trust v Genesis Power [2009] NZCA 222, [2009] NZRMA 312 at [23]. The judgment is a minority judgment, however, that does not detract from this statement of principle, which was not in issue in the appeal.
that was already determined by Gordon J.41 Such arguments would have strength if the Strez design was like the present equine facilities building. However, that is not something that can be assumed. Provided the first defendants can show the Strez design is materially different from the present equine facilities building, I consider they are free to advance the Strez design as being compliant with the covenants and to cross-examine Mr Hume on why this might be so. The first defendants’ submissions and cross examination of Mr Hume were aimed at achieving this end. Obviously they are bound by the legal findings of the earlier judgments, but the factual findings made about the present building will not affect a new design if it is materially different from the present building. In this regard I note that Gordon J did not find there was an absolute bar on the presence of stables on their land.42
[113] It follows that the first defendants are free to make submissions to support the adoption of the Strez design as a suitable modification of the present building and to challenge the evidence of Mr Hume insofar as he would dispute the design’s compliance. It was right and proper for the first defendants’ counsel to embark on such cross-examination given the first defendants intended to invite me to reject Mr Hume’s expert opinion. The plaintiffs’ objections are unwarranted and are, therefore, dismissed.
Failure of expert witnesses to confer properly
[114] In this case it is necessary to address the performance of the expert witnesses as this has impacted on the quality of their opinion evidence. The role of an expert witness is to assist the Court; they should not be a partisan for the party who has engaged him or her. This means they should confer with each other, seek to find common ground where possible and where their views remain divergent, each should be prepared to address the areas of dispute not only from his own perspective but also from the other’s perspective. Regrettably, in this case the experts did not confer as well as they could have done. Also, they did not address the compliance question in
41 These objections were made during the hearing with the evidence accepted with its admissibility to be ruled on later. Subsequently on 13 December 2021 the plaintiffs’ counsel filed a memorandum scheduling these objections.
51 This would be the first purlin in from the external western wall and the first purlin in from the internal eastern wall. The supporting wall for the stable’s roof on the eastern side is the internal wall between the horse truck bay area and the stables, except for where the horse truck bay area ends and the stable’s part of the eastern side of the building continues. At this point the eastern side of the stable’s wall becomes an external wall.
it, and at least reached a common view on how far in from the stable exterior walls it would be before the 3.6 metre height was reached.
[138] Reducing the stud height of the stable walls down to 2.8 metres is a significant alteration to the building. Mr Hume suggested a method of doing so which Mr Strez thought was impractical and costly. I agree with Mr Strez’s assessment. The method of reduction Mr Hume suggests was previously untried by him. There is no evidence from expert builders that it can easily be done.
[139] There remains the concern about whether a stud height of 2.8 metres for the stables external walls will adversely affect the function of the stables. The covenants require a building to be consistent with the “usual and reasonable use of the rural land”. Mr Hume accepted under cross-examination that buildings in the subdivision that are used to accommodate rural animals like horses should do so in accordance with recognised animal welfare standards. Put simply, it logically follows that a usual and reasonable use of rural land would not include the erection of buildings that were unsafe or unhealthy for the animals they housed. An aesthetically pleasing stable that was built with a ceiling that was too low to safely accommodate horses would not be a usual and reasonable use of rural land.
[140] Mr Small’s affidavit evidence is that his daughter is engaged in serious equine pursuits, including international competitions. The horses viewed on the property looked to be around 16.2 hands plus in size. The 11 metre horse truck, equine facilities building and the adjacent dressage arena (which the Court of Appeal described as being of Olympic size) are all consistent with the serious pursuit of competitive equine activities.52 These activities involve more than the type of stables that might be built for ponies participating in pony club activities.
[141] Accordingly, I think the stud height of the stables should where possible conform to what are accepted international standards for stable design. For these reasons and based on the evidence before me I consider a stud height at the eaves of
2.8 metres should be avoided where possible.
52 Taylor v Small, above n 2, at [19(b)].
[142] In principle there is a question as to whether the stud height at the eaves of the area should be 3.6 metres rather than left at 4 metres. However, neither expert gave evidence on whether a reduction of 400 millimetres would improve the appearance of the building overall. Mr Strez considers the present stud height to be aesthetically acceptable. Mr Hume considers a more substantial reduction is required. I prefer Mr Strez’s evidence to that of Mr Hume on this matter. The evidence of neither expert helps me to determine whether a 400 millimetres reduction would measurably improve the overall appearance of the building. Accordingly, I consider the available choices, based on the evidence before me, are between the stud height proposed by Mr Hume and that proposed by Mr Strez, in which case I prefer that used in the Strez design.
[143] When Mr Hume said he had looked at the remainder of the Strez design (once the new single-story building on which they agree is put to the side) and assessed it for compliance with the terms of the covenant he revealed what I consider to be a mistaken approach. I do not see why assessment of the Strez design should be done in a piecemeal fashion.53 The better approach, when assessing compliance with the covenants, is to view the two buildings in the Strez design holistically as one aggregate. Indeed, the glass canopy between the single storey building and the higher horse truck bay/stables building ties each together so that they present as one entity. Further, when viewed in this way the differences in the size and height of each building and the juxtaposition of one against the other (with one having a longitudinal axis running north to south and the other having a longitudinal axis running east to west) make the aggregate appear to be of good quality, custom designed, and therefore aesthetically interesting and pleasing.
[144] Moreover, insofar as Mr Hume considered the present building needs to be reduced in size, the Strez design does reduce its size, albeit by a smaller amount than the Hume design. The Strez design reduces the length of the stables area’s western elevation to 72 percent of its former size. The length of the horse truck bay area will now also be reduced by six metres. Five double pane (10 windows in all) clerestory windows are inserted to add features of interest to the western wall. The same
53 The same would apply to assessment of the Hume design.
windows, albeit fewer in number, are also to be inserted in the eastern stables wall that projects beyond the truck bay area.
[145] I am satisfied the equestrian facilities building proposed in the Strez design has the appearance of a good quality architecturally customised design that is fit for its function and purpose. This is in contrast with the present equestrian facilities building, which was described in Gordon J’s second judgment as having the appearance of a “one size fits all solution” and being “more akin to buildings found in urban industrial settings”.54 In this regard I agree with Mr Strez when, while under cross-examination, he rejected the suggestion his design still had the large industrial shed like appearance of the present equine facilities building:
A. … I believe that by taking out that chunk which is like taking out a front tooth has made a big difference and the turning the amenities building around the other way I’ve taken some area off that that Mr Hume has kept in his, it’s reduced the bulk of that, I turn the ridgeline of that building the other way to it competes with the ridgeline of the main stable. These are to give it complexity, which is one of the characteristics that Mr Hume admired, he’s got in the houses that he described and I accept that, so it is more complex now and when it’s more complex it makes it more interesting and the offensive things that were there before don't exist anymore …
Q. I'm sorry Mr Strez, it’s not complex at all. It is simply a shed and you've put some windows in it, it’s the same shed with just eight windows in it?
A. … I disagree with you, it’s more complex in that it’s got more recessions, it’s got the building turned around, the long wall that exists in the longer western elevation has been reduced by about 15 per cent. I agree, it’s the same element that you're looking at but when you look at the building as a whole it’s got a different feel about it.
Q. So the 10 windows become the trick or technique to change this from being an industrial shed into a non-industrial shed?
A. I'm saying its collectively that and the cutting of the hole through – between 7 and 8 was it I think from my memory and reducing the bulk of the amenities building and regrouping that so it contrasts with the lineal approach of the other building which you can see in this diagram here. It’s given it a different characteristic and I accept that part of it might look industrial, but the overall impression has changed significantly. How much? T hat’s a matter of degree and you can't say it’s 78 per cent against 76, it’s not like that. One feels
54 Taylor v Small, above n 3, at [71] and [72]. No expert was called for the first defendants before Gordon J. There appears to have been no examination of the minimum stud height at the external walls of stables. Mr Hume had opined that functions other than the truck bay did not require the volume or height of the subject building. However, it would not then have been clear that an international standard recognises 3.6 metres as the appropriate stud height for the external walls of a stable.
right and one feels comfortable and you don’t question it and I’m just saying that I’m very comfortable with the way the height of the building, the shape of the building, the ridgeline of the building, the way it is and if we’re able to soften it by putting some fenestration which lowers the visual height of the building from the outside we can put more windows in if we like, they’re in that position because they just happen to fit above a nog or a dwang that runs horizontally through the building but it could be anywhere and we could add other things to it like a horizontal rail running through that looks like a handrail that gives you an impression of how you handle visual scale and Mr Hume has referred to that, I've referred to it in both my evidence and that’s part of the trick. This shouldn’t be seen as the final design. This is a concept of how we can resolve the problem and any architect who’s looking at that will give more detail and consideration to it and they might add more elements to make it even better, but this is something that’s not done at a consensual stage. That would be wrong.
[146] Accordingly, I find the changes the Strez design introduces will be enough to materially differentiate its appearance from that of the present equine facilities building.
How does the Strez design compare with the other buildings in the subdivision?
[147] The judgments of the Court of Appeal and subsequently Gordon J make it clear that the comparison exercise is with all other buildings in the subdivision, which includes dwelling houses:55
[29] In considering the second requirement, I bear in mind the direction of the Court of Appeal that the required comparison is to all dwelling-houses and outbuildings within the Taylor subdivision. This will require a consideration of the nature, design and style of the Smalls’ equestrian facilities building by reference to dwelling-houses and other farm outbuildings or ancillary buildings within the subdivision.
[148] However, in neither their written evidence nor the joint statement of experts have the experts expressly compared the Strez design to all the buildings in the subdivision. In his attachment to the joint statement of experts Mr Hume expressly referred to other outbuildings and attached photographs of them so the viewer could make a visual and scale comparison. In his evidence at the second hearing before Gordon J Mr Hume did refer to the houses in the subdivision by comparison. At [88] of her second judgment Gordon J stated:
I am conscious that the assessment I have made involves a comparison between dwelling-houses and a building which does not purport to be a
55 Taylor v Small, above n 3 (emphasis added).
dwelling-house. However, the wording of the covenants requires such a comparison and it is possible to make a comparison at the level of generality that Mr Hume adopted and that I have accepted.
[149] It may be Mr Hume believed the opinions he expressed in relation to the present equine facilities building can be applied to the Strez design, but if that is so he did not say this in evidence before me nor did he explain why that might be so.
[150] In his written evidence and the experts’ statement Mr Strez did not address how his design compared with all other buildings in the subdivision. Under cross-examination he acknowledged his design is not comparable to other ancillary/outbuildings in the subdivision given its unique purpose in contrast to the other ancillary/outbuildings. In this regard he sensibly recognised those buildings were the type of buildings typically used in a rural residential subdivision to store cars, tractors, farm implements and hay. They were of a smaller scale, size and materiality than a building that was built to accommodate a 11 metre long horse truck, stables to accommodate a total of eight horses plus tack room and feed room. He accepted in his evidence that there was no other outbuilding of its kind that might provide a comparator for his design. Some of his answers during the hearing show that he believed his design complied with the covenants and he gave explanations for why that was so. However, none were expressly tied to a comparison with the houses on the subdivision.
[151] The experts should have been directed by the respective lawyers for each party on the questions they had to address and how they were to address them. It is obvious from the judgments of the Court of Appeal and subsequently Gordon J that any proposed modification of the equestrian facilities building must be compared with other buildings in the subdivision, including the dwelling houses. Each of the experts could have looked at the competing designs (in particular the Strez design because this is what the first defendants want to implement) and given an opinion on how it compared with the dwelling houses. This Court is left with having to reach a view on this question based on what can inferentially be gleaned from the experts’ evidence. Insofar as anyone thought the question of whether the designs were materially different from the present building could be conflated with the question of the design’s compatibility with other buildings in the subdivision this was an error. The first
question involves comparing the designs with the present building, whereas, the second question involves comparing the designs with other buildings in the subdivision. The analysis is cleaner and tidier when each comparison is done separately.
[152] Because Mr Hume did not undertake a comparison exercise between the Strez design and the houses on the subdivision there is in this regard a lacuna in his evidence. Under cross-examination Mr Hume accepted that parts of the Strez design comply with the covenants. But his insistence that the stud height and the roof line are enough to render the larger building in that design non-compliant suggests that he thinks the overall design is not comparable to any of the other buildings in the subdivision. However, this does not tell me why, when looked at in its entirety, the Strez design is not comparable to any of the other buildings in the subdivision. Yet for Mr Hume to persuade me the Strez design (in its entirety) is not compliant with the covenants this is the explanation that he needed to give me. Accordingly, his evidence falls short when it comes to proof of non-compliance.
[153] Because the plaintiffs carry the burden of proving the Strez design is non-compliant with the covenants, this failing in their expert’s evidence leaves them in the position where their expert evidence does not go so far as to say the Strez design is not compatible to any other building on the property.
[154] It is difficult to see why the parties did not instruct their experts to address how the proposed designs compared to the houses in the subdivision. Although a design for an equine facility building is a different type of building than a dwelling house in terms of scale, size and materiality these two types of buildings are more similar to each other than each would be in relation to the other ancillary/outbuildings in the subdivision. As Gordon J mentioned at [88] of her judgment, it is possible to make this comparison at a level of generality.56
[155] In her second judgment Gordon J specifically considered the various dwelling houses in the subdivision, some of which were larger in size and height than the present equine facilities building. She concluded that despite some of them being of a larger
56 See [148] herein.
size and height than the present equestrian facilities building they had features that served to distinguish them from the featureless industrial appearance of the present building: She found as follows:
[92] Further by contrast, in relation to the essential character of the equestrian facilities building, Mr Hume says its orientation, form, scale and the materiality of the building and its surrounds bear no relation to any of the existing typology or character of the existing built form, including outbuildings and implement sheds.
[93] I accept Mr Hume’s evidence on this issue. The Small’s equestrian facilities building is different in nature to the existing sheds (as well as the existing houses).
[96] I accept Mr Hume’s opinion that the equestrian facilities building has not been “designed” in the sense that it does not result in a balanced or creative solution in the context of the other buildings in the Taylor subdivision and does not result in a development that is pleasing, compatible or appropriate to its overall context.
(Emphasis added.)
[156]Then in later passages in the judgment:
[113] The Court needs to make an assessment of whether the equestrian facilities building is usual and reasonable by reference to the existing rural use in the Taylor subdivision.
[114] The two words “usual” and “reasonable” have distinct meanings. Usual means something that is ordinarily to be found or common to a thing. Reasonable connotes fitting or appropriate.
[115] While the Smalls are not precluded from keeping horses on their land, I do not consider the equestrian facilities building is objectively usual or reasonable in the context of the other rural uses in the subdivision. It is not “usual” because its form, scale and materiality bear no relationship to any of the existing typology or character of the existing built form. In short, it is different from the existing built form in all the ways described by Mr Hume and referred to in my consideration of the second requirement.
[116] It is not objectively reasonable. It is not “fitting” or “appropriate”, again for all the reasons discussed in relation to the second requirement.
[157] I read these findings as meaning the present equestrian facilities building is not objectively usual or reasonable in the context of the other rural uses in the subdivision because its form, scale and materiality bear no relationship to any of the existing typology or character of the existing built form. But that is not to say all buildings that provide equestrian facilities would be equally objectionable on those grounds. The
Court of Appeal found the covenants are concerned with the “quality of buildings and the use that may be made of the servient land”. Nowhere do either the Court of Appeal or Gordon J find that an equine facilities building per se is not a permitted use of the subdivision. As I read their judgments an equine facilities building of appropriate quality that is otherwise compatible with other buildings in the subdivision is permissible.
[158] Such findings allow for the presence of an equestrian facilities building of a form, scale and materiality that bears a relationship to the existing typology or character of the existing built form. The present equestrian facilities building is undoubtedly different from the other existing built forms in all the ways as described by Gordon J. But whether the same can be said of the Strez design is a different and discrete issue for me to determine.
[159] Accordingly, it was for the parties to instruct their experts to opine on whether the designs in contention are objectively “usual and reasonable for the type of rural use of the land in the subdivision” and whether their respective designs are “of a nature design or style …in keeping with” other buildings in the subdivision. This requires consideration of whether the “form, scale and materiality” of the building designs bear any relationship to any of the existing typology or character of the existing built form. This is particularly relevant in relation to the Strez design, because it can be assumed that the plaintiffs agree the Hume design will comply. However, neither expert has expressly given evidence that directly addresses this topic, which leaves me with having to use their evidence inferentially to reach a view as best I can.
Application of the legal test for compliance
[160] The Court of Appeal has found that the compliance assessment is a two-step process.57 However, the first step, which involves comparison with other buildings on the first defendants’ property cannot be properly undertaken because the first defendants are yet to build their home. This will mean that subsequently when they come to build their home, they will have to ensure that it is compatible with an equine facilities building that adopts the Strez design. The Strez design use of gable roof
57 Taylor v Small, above n 2, at [59]–[60].
styles with dark coloured long run corrugated steel and the same material for wall cladding will require the home to be compatible with those design features. By illustration, if the first defendants were to build a white stucco low roof hacienda style home this would not be compatible with the Strez design for the equine facilitates building.
[161] Thus, adoption of the Strez design will place limitations on the subsequent design of the first defendants’ home. Mr Strez recognised the need for compatibility here when he suggested that perhaps the smaller single storey building, which runs on an east/west axis, could have the same wall cladding as that to be used in the first defendants’ home. This would allow that building to sit between the home and the stables part of the equine facilitates buildings and visually link one with the other. He also said he had suggested the first defendants raise the pitch of their proposed dwelling house from its present 25 or 26 degrees to establish a closer relationship between the dwelling house and the Strez design. I agree that having the dwelling house design adopt a similar roof pitch, as well as style and material would markedly assist in visually tying the two buildings together, and by doing so give each an appearance of custom design and quality. In this way the industrial/agriculture character attributed to the present equine facilities building could come to portray a particular architectural design choice as manifested in the Strez design for the equine facilities building and the dwelling house design. Mr Strez referred in his evidence to award winning architecturally designed houses that use high pitched gable rooves and long run galvanised steel cladding.
[162] Accordingly, I am satisfied that implementation of the Strez design will require some constraints to be placed on the style of home the first defendants build. It follows that any Court order that allows for the Strez design to be implemented will necessarily impose restrictions on the future design of the first defendants’ home.
[163] As for comparing the Strez design with dwelling houses in the subdivision, both experts agreed assessment of a design’s compliance with the covenants was a qualitative task, which involved taking a holistic view of the design.
[164] I consider a building that adopts the Strez design will have the appearance of an intentional architecturally designed building of a particular style (this being a style consistent with other New Zealand architecturally designed buildings that use high pitched gable rooves and long run galvanised steel for their roofing and cladding). There is now a similar example of this design type in the form of the house and separate garage built on one of the recently subdivided plots of land. The buildings on this land use dark coloured long run galvanised steel for their roofing and cladding, and they have gable end rooves. The plaintiffs’ house is a different style of house, but it adopts a design that replicates an industrial appearance with the use of a low-profile roof and bare concrete walls with silver coloured aluminium joinery. In its own way the plaintiffs’ home appears spartan and utilitarian, with a hint of the industrial (as per Mr Strez) albeit as the result of an intentional architectural design choice.
[165]As Gordon J recognised in the second judgment:
[85] In my view the word “style” in the covenants is used in a general sense and does not require a uniform architectural style. In other words, rather than “style” requiring the building to be of a particular material or period, I accept Mr Hume’s opinion that style is a more general reference to quality and type of buildings. This interpretation is underlined by the requirement in the covenants that the buildings be “in keeping” with each other in terms of their nature, design or style. “In keeping” does not require the same architectural style.
[166] I consider the Strez design offers the appearance of a quality architecturally designed set of buildings that reflect a recognised architectural genre. The juxtaposition of the two buildings of different heights with their opposing ridge lines as well as the fenestration on the longer building’s sides and the angles created by the difference in length between the truck bay and the stables building will all work to give a balanced and creative appearance to the overall appearance of this building complex. The essential import of Mr Strez’s evidence is to this effect. Such an impression will be enhanced once the first defendants build their dwelling house in a suitably compatible style to the Strez design. There is no evidence from Mr Hume to the contrary. His evidence went no further than to say the Strez design is not compatible with other outbuildings and ancillary buildings. The views I have
expressed of the Strez design lead me to conclude that in terms of its quality, type and style it will be compatible and in keeping with the dwelling houses in the subdivision.58
[167] Accordingly, I am satisfied there is nothing to prevent the first defendants from proceeding to construct the Strez design for an equine facility building, with the minor alterations discussed in this judgment. I see no basis for ordering the deconstruction and removal of the present equine facilities building other than in a way that will ensure that building conforms with the Strez design.
[168] It follows that I reject Mr Hume’s evidence that the size of the present equine facilities building must be reduced to the extent he provides for in his design. I accept the first defendants’ submission that Mr Hume has incorrectly chosen to reduce the size of the present building by approximately 50 percent. I accept the first defendants’ submission that in taking this view Mr Hume has read a size criteria or requirement into the covenants, when that is not present. He has not followed the findings of the earlier judgments on the compliance test for the covenants. His design solution cannot be justified by the actual requirements of the covenants. I agree with the first defendants that lowering the height of the stables area or otherwise changing its size is not a necessary measure to address the issue of “human scale”. This is something Gordon J found the present equine facilities building lacks while dwelling houses in the subdivision have human scale despite being of a larger size.
[169] I acknowledge the proposed modifications designed by Mr Hume provide an interesting custom designed set of stables. However, the reduced stud height at the eaves may adversely affect the function of this design for the reasons discussed earlier, which tells against the use of this design.59 The Hume design is also more problematic in terms of its cost and implementation, which are further factors that tell against adopting it. In any event if the Strez design is compliant there is no reason why the first defendants should not be permitted to implement it. Accordingly, the next step is to compare the Strez design with other buildings in the subdivision to see if it is compatible with any of them.
58 These views are expressed in the section of the judgment dealing with whether the Strez design is materially different form the present equine facilities building and in the present section.
59 See [136]–[141].
Result
[170] The plaintiffs’ application for an order directing demolition of the present equine facilities building is dismissed.
[171]The present equine facilities building is to be altered by the following actions:
(a)Removal of the wooden cladded residential north face of the present building and its replacement with a small single story building having a gable roof and a ridge line running on an east/west axis and using cladding like the present dark coloured long run steel cladding, dark coloured vertical boards or a cladding that ties in with the cladding to be used in the first defendants’ dwelling house.
(b)Removal of the west section of the present building; being the area described at [27] herein.
(c)Reduction of the length of the horse truck bay area by removal of six metres from its southern end.
(d)Adding a total of 10 clerestory windows to the western external wall of the stables area.
(e)Adding extra clerestory windows (to the two sets of windows proposed by Mr Strez) to the eastern external wall of the stables area in light of the longer projection of this wall in consequence of the reduced length of the horse truck bay.
(f)Taking such other steps as will make the present building conform with the Strez design.
[172] The first defendants are within 40 working days of this judgment to commission technical/working drawings to implement the above reductions and make further necessary alterations to achieve a building that confirms with the Strez design.
[173] The first defendants are within 60 working days of completion of the aforementioned technical/working drawings, to engage contractors to obtain necessary consents to carry out works on the present building in accordance with the aforementioned technical/working drawings and to perform building work to make the present building conform to the consented technical/working drawings.
[174] The first defendants are ordered to ensure the design of any dwelling house they build on their land is in a style that is compatible with the Strez design for the equine facilities building.
[175] The parties have leave to return to Court for further directions should the need to do so arise.
[176]The parties have leave to file memoranda on costs.
Duffy J
HUME DESIGN
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