Nova Scotia River Estates Ltd v Whangarei District Council

[2017] NZHC 196

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2016-488-000140 [2017] NZHC 196

BETWEEN

NOVA SCOTIA RIVER ESTATES

LIMITED Applicant

AND

WHANGAREI DISTRICT COUNCIL Respondent

Hearing:	2 February 2017
Appearances:	Paul Cogswell for the Applicant No appearance for the Respondent
Judgment:	17 February 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 17 February 2017 at 4:45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

NOVA SCOTIA RIVER ESTATES LIMITED v WHANGAREI DISTRICT COUNCIL [2017] NZHC 196 [17 February 2017]

[1]      The first call of this matter was before me on 2 February 2017.  Mr Cogswell appeared for the applicant.   There was no appearance for the respondent, the Whangarei District Council (“the Council”).

[2]      This is an originating application. A without notice application seeking leave to commence the proceedings by way of originating application was granted by Bell AJ on 10 November 2016.   Orders for substituted service on the respondent were granted by the same Judge on 13 December 2016.

[3]      Mr Cogswell has filed a helpful memorandum explaining the position.  The application is supported by an affidavit from John Gordon Gilding, the applicant’s solicitor.

[4]      The applicant seeks the following order:

“Pursuant to r 19.5(1) of the High Court Rules the applicant’s orders for extinguishing and varying land covenant instrument numbered El7700191.8 (“the  Covenant”)  lodged  against  the  land  contained  in  Lots  1  to  30, Deposited Plan 396647 (North Auckland Registry); Lot 104, Deposited Plan

498746 and Lot 91, Deposited Plan 498746 (both North Auckland Registry)

and Lots 1 to 20, Deposited Plan 498746 (North Auckland Registry) may be commenced by way of originating application under Part 19 of the High

Court Rules.”

[5]      The  background  and  reasons  for  the  application  are  fully  set  out  in Mr Gilding’s affidavit and Mr Cogswell’s memorandum in support.   They can be briefly summarised.

[6]      The applicant,  Nova Scotia River Estates  Limited,  is  developing land  in

Waipu, Northland. The land is proximate to the Waipu Town Centre.

[7]      The development creates a number of residential sections which have been or are in the process of being sold on which purchasers will erect residential homes.

[8]      The applicant has already sold two stages of the development.  Houses have been built on the site and others are currently being built.  Further stages are being developed.

[9]      The issue which has arisen relates to a covenant registered against all titles forming the site.  This covenant protects the quality and amenity of the entire site by imposing a number of obligations as to the type of dwelling which may be constructed on the sites, the use of the sites, the visual impact of certain activities, etc.  It is, in all respects, an orthodox restrictive covenant.

[10]     As part of the development, certain land is required to be vested in the local territorial authority.   That land is vested to  provide roading and  reserves.   The Council, which is the relevant local territorial authority, has already taken title to some of the development land.

[11]     However, the difficulty faced by the applicant is that the covenant, as drafted, applies to all land, including land intended now to vest in the Council as roading and reserves contribution.  The limitations in the covenant are incompatible with the use the Council will put the land to, namely roading and reserves.  Thus the applicant needs to extinguish and vary the covenant to provide for the use of the land to be and already vested in the Council.

[12]     There is no consequential or adverse effect on the privately owned land.  The application relates only to land vested in the Council and further lands to be vested in the Council.  The rights granted by the covenant will continue to apply as between the owners of the land.   It will, however, exclude the land vested in the Council. Protections as to amenities, etc will continue unaffected.

[13]     Although the Council has been served it appears to have elected not to be represented.   While that is understandable given the uncontentious nature of the application and the fact that as a result of these orders being made the Council will be the beneficiary, it would have been helpful and courteous to the Court if the Council had thought fit either to make a nominal appearance to consent to the making of these orders or, alternatively, filed its consent in a joint memorandum.

[14]     On the basis of the submissions made to me and the evidence presented I am satisfied that the orders should properly be made and direct accordingly.

[15]     There does not appear to be any issue as to costs.

[16]     I also grant leave to the applicant to seek such further or other orders as may be necessary to give effect to the application.

Moore J

Solicitors:
Cogswell Law, Auckland