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Pollard v Williams

Pollard v Williams

Case [2019] NZHC 2029 16 August 2019

Natural Justice & Procedural Fairness

Property Law

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2019-416-1

[2019] NZHC 2029

UNDER THE Property Law Act 2007

IN THE MATTER OF

an application to vary a land covenant

BETWEEN

KIERAN PATRICK POLLARD

Appellant

AND

GRAEME DENYS WILLIAMS AND DERRY STOVELL

Respondents

Hearing: 30 July 2019

Appearances:

D Jenkin for Appellant

N Witters for Respondents

Judgment:

16 August 2019

JUDGMENT OF COOKE J

Table of Contents

Background[3]

Approach on appeal[11]

Appellant’s key point on appeal[13]

Assessment[16]

Substantial injury[20]

Purpose of the covenant[21]

Injury[28]

Precedent effect[31]

Application in the present case[35]

Terms of the variation[38]

Conclusion and costs[49]

POLLARD v WILLIAMS [2019] NZHC 2029 [16 August 2019]

[1] Mr Pollard appeals from the decision of the District Court granting an application under s 317 of the Property Law Act 2007 (the Act) by Mr Williams and Ms Stovell for variation to a restriction contained in covenants over their land.1 Broadly speaking, the covenants required property owners of a development to construct only new dwellings on the development, and not relocate existing housing or use second hand materials. Mr Williams and Ms Stovell want to relocate a historic homestead onto the site. All other property owners in the development have agreed to them varying the covenants to allow them to do so apart from Mr Pollard. Judge Cathcart agreed it was a case where it was appropriate to modify the covenants on the basis that, under s 317(1)(d) of the Act, the proposal “would not substantially injure any person entitled”.

[2] Mr Pollard now appeals on the basis that the District Court did not correctly interpret and apply the relevant provisions, and on a number of related grounds.

Background

[3] The subdivision is at the top of Winifred Street, Wainui Beach, Gisborne. It comprises 10 main lots varying in size from 3409m2 to over two hectares. I understand the relevant zoning under the District Plan is “rural residential”, and that there is presently a minimum lot size of one hectare. The developer sold the last of the lots in 1998 and no longer has an interest. Five of the lots have established houses on them. Mr Pollard’s lot is next door to the lot owned by Mr Williams and Ms Stovell. His trust purchased the land in 2013 and he is in the process of building a new home on his site.

[4] Each of the titles in the subdivision have covenants registered against the title as part of the original development. The covenants provide as follows:

1. Not to erect any temporary buildings or structures on the land except such buildings or structures as are to be used in conjunction with the construction of permanent buildings on the land and which will be removed from the land upon the completion of works.

1 Williams and Stovell v Pollard [2018] NZDC 26379.

2. Not to permit any building or associated works in the course of constructions to be left without substantial work being…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Pollard v Williams

Details

AGLC: Pollard v Williams [2019] NZHC 2029
Case: [2019] NZHC 2029
Decision Date: 16 August 2019

CaseChat Overview and Summary

Pollard appeals from the District Court’s decision to vary restrictive covenants over a subdivision in Wainui Beach. The appeal was on the basis that the District Court did not correctly interpret and apply the relevant provisions, and on a number of related grounds. The covenants as part of the original development were intended to preserve the visual appearance of the development. One of the covenants prevented the relocation of any used dwelling onto the land. The respondents wish to relocate a historic homestead onto their lot. The homestead is to be substantially re-roofed and re-clad with new materials so that it will appear new from the outside. The appellant does not consent to the variation, and accordingly the application was made on the basis that s 317(1)(d) of the Property Law Act 2007 applies. The District Court granted the application, holding that the covenant should be varied in the exercise of the discretion, and ordering the respondents to pay the appellant $15,000 as compensation. The High Court found that the District Court was substantially correct in its decision, although it erred in terms of the precise variation of the covenants. The appeal was allowed in part so that the variations to the covenants are as expressed at [41] above. The respondents are entitled to 80 per cent of a costs award on a 2B basis. Costs will be reserved until any proposals on a without prejudice accept as a costs basis are made.

Orders