Purdie v Truckell
[2017] NZHC 1840
•4 August 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000802 [2017] NZHC 1840
BETWEEN JUSTIN EUAN PURDIE AND TRACEY
ANNE PURDIE Applicants
AND
NEIL ADRIAN TRUCKELL First Respondent
AND
SUSAN LUCY NIKOLAOU Second Respondent
AND
KAREN MAREE POWERS Third Respondent
AND
TERRANCE JOHN POWERS Fourth Respondent
AND
CHRISTCHURCH CITY COUNCIL Fifth Respondent
Hearing: 2 June 2017 Counsel:
H C Matthews for the Applicants
D M Lester for First, Second, Third & Fourth Respondents
No appearance for the Fifth RespondentJudgment:
4 August 2017
JUDGMENT OF NATION J
Introduction
[1] The Purdies’ property (Lot 2) is subject to a covenant (the 2005 covenant) for the benefit of the respondents’ land, primarily to protect the views from the respondents’ land over Lot 2. The 2005 covenant prohibited the Purdies from having
trees on their land higher than five metres.
PURDIE v TRUCKELL & ORS [2017] NZHC 1840 [4 August 2017]
[2] A previous owner of Lot 2 had to obtain a resource consent to build a home on Lot 2. The resource consent application was opposed by the owner of other land that adjoined Lot 2 (the Dorrance property).
[3] Orders granting the resource consent were ultimately made by the Environment Court by agreement. That consent was on terms. Those terms were also included in a covenant registered over Lot 2 for the benefit of the Dorrance land. To comply with those terms, there had to be trees on Lot 2 between at least seven and 10 metres in height, and arguably up to 20 metres in height.
[4] In a judgment of 9 June 2016, I granted the Purdies’ application for
modification of the 2005 covenant, to allow the owners of Lot 2 to comply with the
2010 covenant but indicated that would be on terms. The terms were intended to provide continuing protection for the views from the first, second and third respondents’ properties to the extent that could be consistent with the 2010 covenant. I refer to those respondents collectively as “the respondents”.
[5] Without the benefit of landscaping evidence, I tentatively indicated what those terms might be but reserved leave to the parties to make further submissions if that was necessary.
[6] There was a meeting of the parties on 29 January 2017. Minutes were prepared by the third respondent, Karen Powers. They recorded a significant measure of agreement on a number of matters.
[7] I was subsequently told the parties had made significant progress in reaching agreement as to what those terms should be. The parties sought extended time to continue those discussions and later to allow the parties to discuss and deal with the consequences of the February 2017 Port Hills fires. Those fires seriously threatened the homes of all parties and burnt trees on Lot 2 and the Dorrance land.
[8] Ultimately, however, certain issues were not resolved and the proceedings were set down for hearing on 2 June 2017.
[9] Updating affidavits were filed by Mr Purdie for the applicants and by the respondents. A landscape architect, Mr Densem, also filed an affidavit and associated reports.
[10] The beginning of the hearing was delayed while the parties continued with their discussions but ultimately no agreement was reached and the hearing proceeded. Mr Densem was the only witness questioned or cross-examined. In conjunction with this hearing, I visited the sites with counsel and with Mr Densem.
[11] At the end of the this hearing, I asked counsel to set out in a memorandum the precise orders that would be required in respect of agreed terms. I subsequently received draft orders from Mr Matthews, counsel for the Purdies. After some delay, because he was overseas, I received a response to those proposed orders from Mr Lester for the respondents.
[12] Having regard to counsels submissions’ and the memoranda filed as to the draft orders, the main issues I have to deal with are:
· controls on height and nature of planting on Lot 2;
· timing for removal of dead or damaged trees from Lot 2;
· number of permitted out-buildings; and
· compensation.
[13] There is also disagreement over some of the details in draft orders which were prepared for the applicants. I deal with those disputes in a way which should enable the parties to quickly agree on how both judgments of this Court are to be reflected in orders which can be registered against the relevant titles.
Controls on height and nature of planting
[14] In my judgment of 9 June 2016, I suggested that one of the terms on which the 2005 covenant could be varied could be:
No tree, including retained pines, in the area shown on Plan RMA
92015049/5 on the southern side of the approved building platform is to
exceed 15 metres in height. Trees planted along the southern boundary of
Lot 2, adjacent to the Dorrance property as shown on site plan RMA
92015049/2, are not to exceed 20 metres in height. All other planting to be established as shown on RMA 92015049/2 and development concept 2 is not to exceed 10 metres in height. No trees planted on Lot 2 shall be allowed to protrude through a horizontal plane with an elevation at 132 metres above sea level.
[15] On the basis that 15 metres was a minimum height for trees on the southern side of the building platform on Lot 2, the Purdies asked that the term specify the maximum height of the trees in that area be 15 to 20 metres. This was to avoid the need for them to be frequently topping or pruning trees to keep them at a height of no more than 15 metres and to ensure consistency with the 2010 covenant.
[16] The respondents’ position is that permitting trees in that area to be at 15 to 20 metres would unnecessarily interfere with their views. They sought a variation of that term so that the trees in that area would be at no more than 10 metres. In submissions, Mr Lester also argued that, whatever the maximum height would be, it should be a strict maximum, albeit with the proviso that maintenance of the trees at that maximum should not require them to be topped or pruned more than once within a certain interval. He suggested yearly.
[17] None of the parties were concerned at the suggested allowance for trees planted along the southern boundary of Lot 2, adjacent to the Dorrance property, to be at a height up to 20 metres. Any trees in that area would not significantly interfere with the view from the respondents’ properties. Most, if not all, of the trees that were in that area have been cleared away. There is unlikely to be any replanting of similar trees in that area.
[18] Although owners of the Dorrance land could argue that resource consent RMA 92015049 and the 2010 covenant requires the owner of Lot 2 to establish such planting in that area, it seems clear the planting would be at a level where it could not screen the Purdies’ buildings from views from the home on the Dorrance land. Through evidence and submissions, I was told of the way in which the parties to these proceedings had engaged with Mr Dorrance over the issues they are facing. There has been no suggestion from him that he requires trees that could be up to 20 metres to be established along that boundary.
[19] It thus seems that all parties and Mr Dorrance accept that, while the 2010 covenant could permit trees 20 metres high along the Dorrance boundary, this is not of concern to them.
[20] The 2005 covenant permitted planting on Lot 2 to a maximum height of five metres. Condition 15 of RMA 92015049 states that, subject to the prohibition in condition 16 against trees protruding through a horizontal plain with an elevation at
132 metres above sea level and the planting required in plans associated with RMA
92015049, all trees on Lot 2 should have a minimum height at the time of planting of
1.5 metres, shall be allowed to continuously grow until they reach a minimum height of seven metres and be maintained at no less than seven metres and no more than 10 metres in height.
[21] Condition 15 in RMA 92015049 did not recognise the restrictions in the 2005 covenant over Lot 2. Planting between seven and 10 metres outside the specified areas was neither needed nor apparently desired to protect the views from the Dorrance property. Planting elsewhere on Lot 2 at between seven and 10 metres would potentially and unnecessarily interfere with views from the respondents’ properties and others adjoining Worsleys Road. Although in these proceedings I cannot vary the conditions of RMA 92015049, it is highly unlikely that owners of the Dorrance property or others who will benefit from the 2010 covenant would want or be able to insist that planting outside the specified areas shown in plans associated with RMA 92015049/2 should grow to and be maintained at a height between seven and 10 metres.
[22] The parties to these proceedings are not seeking to ensure there is open clear space on Lot 2 but agree there should be a maximum five metre height for all trees on Lot 2, except to the extent higher planting is permitted by this judgment within specified areas.
[23] Counsel for the applicant and respondents met with Mr Dorrance prior to the hearing before me. Subsequently, counsel, through Mr Matthews, sent Mr Dorrance a letter recording what they understood his position to be and asked for confirmation that they had set the position out correctly or, if not, a brief note as to what his
position was. After the hearing, counsel advised me of the response he received. For the record, in summary, I note that his position is:
(a) He is not concerned about pine trees for their own sake or their amenity value – but only as interim screening until such time as the mound trees and surrounds are fully established and provide the intended full screening (of the Purdie home).
(b) The planting on the mound (Lot 2) and surrounds when established is the key to provide screening. He has always considered this will be the more effective screening for his property as long as those plantings are successful and effective and longstanding.
(c) Once the mound screening is established, such that full screening is provided (achieved through height mound, one story house, more established and easy grown specimen trees that grow quickly), he will agree to amend the 2010 covenant so that the taller trees and plantation trees can have their heights lowered and/or be removed altogether – as at that point, he will no longer have any interest in those trees, their function as providing interim screening being complete.
(d) He also wanted to be informed of what else had been agreed to between the respondents and the Purdies, in particular, whether there were to be two or three sheds and where they would be located.
[24] The further evidence I have received illustrates well how issues such as this would be better resolved through agreement by all parties rather than through just some of those parties looking to the Court to dictate a result which those bound by it must deal with. There are constraints on what the Court can put in place through a judgment in the current proceedings which those interested would be able to avoid or mitigate if they were able to work cooperatively.
[25] Neither the Purdies nor the respondents have sought to join the owners of the
Dorrance property as parties to the proceedings so orders cannot be made to vary the
2010 covenant for the benefit of the Dorrance property.
[26] On the other hand, even if the owners of the Dorrance property had been joined as parties to these proceedings, any order in these proceedings could not vary RMA 92015049 as issued by the Environment Court and the conditions attaching to that resource consent.
[27] The respondents had, it would seem now with considerable justification, applied to the Environment Court for the recall of its judgment on the basis the terms of the proposed orders should not have been made without the respondents being given notice of the basis on which RMA 92015049 was to issue. In the face of what I was told was strong opposition from the parties to that consent order, including the Christchurch City Council and the owners of the Dorrance property, that application was withdrawn just prior to the earlier hearing in these proceedings.
[28] Thorncroft’s application to the Court for a resource consent, which resulted ultimately in RMA 92015049 being issued by the Environment Court, was initially supported by a number of documents including a landscape assessment prepared by Mr Graham Densem. In that report, he recommended:
To give visual mitigation to neighbours to the west, south and north and to general mitigation for distant views from the west, ‘Tree Areas’ are proposed as on Development Concept 2. It is proposed these comprise native and exotic trees that will achieve a height of no less than 7 metres when grown, in order to satisfactorily mitigate the visual effects, but no more than 10 metres, in order to not block off views of those behind.
[29] His development concept 2 plan is attached as schedule A to this judgment with the site for a residential building on Lot 2 shown in red.
[30] The City Council’s landscape architect supported the application on certain conditions. One of those conditions was to require Council approval of the landscape plan for the site including tree planting as shown in the development concept plan 2.
[31] In the Council’s decision, initially granting the consent, the resource consent issued included conditions:
11. Except as required by condition 12, all trees shall have a minimum height at the time of planting of 1.5m and shall be allowed to
continuously grow until they reach a minimum height of 7 metres. The trees shall be maintained at no less than 7m and no more than 10m in height.
12. No trees planted on site shall be allowed to protrude through a horizontal plane with an elevation at 132 metres above sea level.
[32] Mr Dorrance appealed that decision to the Environment Court, as a result of which RMA 92015049 was confirmed but subject to conditions. Those conditions required:
9. Tree planting on the application site shall proceed in accordance with the Site plan, the Additional Landscape Assessment, the Planting Plan and the Cross Section Plan labelled RMS92015049/2-5.
10. All trees planted on the site shall be limited to the species listed in the Additional Landscape Assessment of Proposed Planting RMA92015049/3 and the Planting Plan RMA92015049/4.
Those plans are attached as schedules B, C and D to this judgment. I refer to the
area in which specific planting was required as “the RMA area”.
[33] In his recent affidavit, Mr Densem said he was providing his evidence as an expert in accordance with the High Court Code of Conduct for expert witnesses and doing so independently of all parties. As a landscape architect, he has had extensive experience with development and conservation on the Port Hills.
[34] Mr Densem acknowledged that his designs for the 2010 resource management application overlooked the requirements of the 2005 covenant and failed to incorporate the “nurse crop” aspects of his intended design.
[35] Mr Densem also said that, in hindsight and ignoring the legal oversights, his
2010 design was “over the top” in seeking to achieve an area of attractive hillside planting, rather than simply to screen the house on Lot 2 from the Dorrance property. He said the cross-sections show the screening was achieved by the 25 per cent of trees on the higher area of land and the lower ones added no screening at all unless tall. He said the cross-sections show that screening can be achieved by trees of seven to 10 metres mature height and taller trees are not necessary.
[36] In a report prepared on 9 June 2016, Mr Densem said that, although his planting plan incorporated into RMA 92015049 required poplars to be planted, they were included as the quickest growing trees but with the intention they would be removed once the slower growing trees became effective. He had allowed for pines to remain on Lot 2 as shown on the plans associated with the resource consent but had intended they would remain as a “nurse crop” sheltering newly planted trees. He had intended that there would be pathways cut through the trees to provide access to the newly planted trees to assist with watering and maintenance.
[37] Mr Densem had also intended that the pines would be removed as the planted trees grew. He said that, while his cross-section plan showed trees reaching heights of between 10 and 20 metres, he was showing what the height of the trees would be if not topped and that he had considered trees at a height of seven to 10 metres would have been sufficient to screen a house on Lot 2 from the Dorrance property. I observe that, if his intention had been to ensure that all trees were maintained at a height of no more than 10 metres, it is hard to understand why he produced a cross- section plan that portrayed to all concerned that there would be screening up to 20 metres in height.
[38] Responding to questions from the Court, Mr Densem said that, in an “ideal world”, there would have been a time limit on how long there could be trees between
10 and 20 metres high to the south of the mounded area because trees at that height would not have been necessary to protect the Dorrances view.
[39] Mr Densem also says that, at the time he prepared the reports in 2010, he was not aware that the respondents were not consulted and, had he been so aware, “a more modest design could have been adopted”. I find this somewhat surprising. His initial report, supporting the application, was that planting should be no higher than seven to 10 metres to protect views from the properties belonging to the respondents and others. His plants and list of trees, as provided to the Environment Court, were finalised after discussions with a landscape architect for Mr Dorrance. There was nothing in his plans to suggest that they were subject to any views that might be expressed by the owners of properties along Worsleys Road. The cross-section plan
allows for trees of 10 to 20 metres height although medium trees of five to 10 metres height on the mound would screen a building on Lot 2 from the Dorrance house.
[40] In his evidence for these proceedings and an associated report, Mr Densem presented a new landscape proposal, planting plan, site plan and cross-section which he suggested could replace the plans that were approved as part of RMA 92015049 and the 2010 covenant. These showed planting over a significantly reduced area confined to the upper slope and mound, a limit to trees of seven to 10 metres mature height comprising a core of evergreen trees with deciduous trees around the periphery for seasonal affect. He provided an indicative list of suitable plants including plants retained from the 2010 plan that were suitable in height and fire- retardant.
[41] There may well be considerable merit in what Mr Densem is proposing given the concerns which the respondents have as to the terms of RMA 92015049 and the
2010 covenant, and what has been learnt from the 2017 Port Hills fires with regard to the value of fire-retardant trees and the particular dangers inherent with pines and other trees such as totara. All the parties to these proceedings and Mr Dorrance are no doubt acutely aware of the latter, given the way their properties were seriously endangered by those fires.
[42] However, in these proceedings, I cannot legally vary the terms of RMA
92015049 or the 2010 covenant. I have already given judgment that the applicants are entitled to an order varying the 2005 covenant to the extent that is required to enable the owners of Lot 2 to comply with the 2010 covenant. Were I now to impose terms that required a variation to the 2010 covenant, the Purdies would continue to face all the impediments to building a home on their property in the same way as required the judgment I have already given. It is apparent from the position adopted by Mr Dorrance that, although at some point in the future he may agree to a variation of the 2010 covenant, there is uncertainty as to that. There would also be significant delay given any such agreement on his part would be reached only after he has seen what has been achieved through planting in accordance with RMA 92015049 and the
2010 covenant.
[43] In his affidavit, Mr Densem then discussed what was required in accordance with the 2010 covenant plantings. In his affidavit and accompanying reports, he outlined ways in which he considered plantings in accordance with the 2010 covenant would compromise the respondents’ views and suggested steps that could be taken to lessen intrusion into their view lines and also, through an amendment to planting requirements, reduce fire risk. In his summary of options, he suggested that, if the 2010 covenant was retained but modified, something approaching his new design would give the best outcome for the respondents. He is, however, again speaking of an outcome which this Court cannot achieve through these proceedings. The reality is that, in part through Mr Densem’s 2010 plans and cross-section diagrams, all parties have to live with the 2010 covenant as it is.
[44] The Purdies have already established some planting in accordance with the requirements of the 2010 covenant. The buildings most at risk from the planting of any non-fire-retardant trees will belong to the Purdies. They will be responsible for fire protection on their property and have the greatest incentive to ensure they have the means to minimise the risks in that regard and to extinguish any fire that might start or come onto their property.
[45] In submissions for the respondents, Mr Lester stressed that, because any interference with the 2005 covenant is affecting their property rights, it should be to the minimum extent necessary. Recognising the effect of the judgment which the applicants have already obtained, Mr Lester said that interference with their property rights should be to the minimum extent required to allow the applicants to build a home on their property in accordance with the 2010 resource consent. He suggested that, because RMA 92015049 and the 2010 covenant required planting and trees to be as shown on the plans accompanying the consent orders, it would be possible to attach conditions consistent with those plans, providing for a range of different maximum heights within the planting area and for the Court to effectively put in place a new planting plan shown as area 4 on Mr Densem’s revised landscape proposal site plan and accompanying planting plan.
[46] For reasons canvassed in Mr Densem’s evidence, it would be sensible in the longer term not to retain pines on Lot 2. It would be sensible to have plantings on
Lot 2 which are of fire-retardant species. It should be possible to provide screening of the home on Lot 2 for the Dorrance property without planting over the full area required by the 2010 covenant if there are trees up to 10 metres high on the mound and the higher land around that mound. There is scope for the parties and Mr Dorrance to work towards achieving such an outcome but it is not an outcome that I can impose through varying the 2005 covenant in the way I have already held is necessary and justified. I cannot in these proceedings impose a planting plan or restrict the area of planting in a way that varies what is currently required by the
2010 covenant and RMA 92015049.
[47] I also consider, partly based on my most recent site inspection, that planting in accordance with the 2010 covenant as it stands will not have the detrimental impact on the respondents’ views to the extent they are concerned about. Mr Densem portrayed what that impact could be in a series of visualisations with trees in the 2010 covenant area at either 10 metres or 20 metres, however, it is likely the reality will be different than what is suggested in those visualisations. The planting in the upper area on or adjacent to the mound involves different trees that will grow at differing rates to differing maximum heights. The plans that are part of RMA
92015049 allow for existing and inter-planting to a maximum height of between 10 and 20 metres. As Ms Nikolaou and Mr Densem have both referred to, a significant number of existing pine trees on Lot 2 were badly burnt in the Port Hills fires. They will probably not recover and will have to be removed. Although I cannot mandate a change to the 2010 covenant or RMA 92015049, with the views as expressed by Mr Dorrance, I would expect the pines that have been destroyed by fires will not have to be replaced with similar trees or trees that would have to grow to even a 15 metre height. It is unlikely there will be the unbroken barrier of trees at a 20 metre height as shown in Mr Densem’s visualisations or an unbroken barrier of trees at 10 metre or 20 metre heights as shown in his alternative visualisations.
[48] I also consider the photographs taken by Mr Densem, as to the current view from the respondents’ properties and the potential impact of trees at either a 20 metre or 10 metre height, show the impact on views to the maximum disadvantage for the respondents, the photographic point being from a point towards the front of the
flatter part of their sections before they slope down towards Lot 2, rather than the view from their homes.
[49] I also note that, while the respondents have always been anxious to retain the rural views which their properties enjoy and which are of value to them, the reality now is that those rural views will be significantly affected by the residential development which is now both permitted and actively being pursued on land within their view. Mr Densem demonstrated how there will be very little, if any, residential development on the valley floor but there will be residential development on upper hillside areas which are currently open land. Those areas are in view of the respondents’ properties.
[50] There should be cooperation between the parties over management of existing plantings and further plantings to meet the conditions of RMA 92015049. The Christchurch City Council should also assist in this regard. The Council has some responsibility for the problems that arose through the way the 2010 resource consent failed to recognise the 2005 covenant over Lot 2. The Council joined in signing the consent memorandum for the Environment Court and joined in advising the Environment Court that “no person who did not make a submission would have done so had they been made aware of the amendments now proposed”. The Council advised the Court of this although Mr Densem’s plans, which were incorporated into the consent order, provided for planting in excess of 10 metres in height when the Council’s landscape architect had earlier said that planting should be less than 10 metres in height. The Council is in a position to influence what happens on the site through monitoring compliance with the conditions of RMA 92015049.
[51] The cross-section plan, which is RMA 92015049/5, shows trees on and immediately adjacent to the mound at a maximum height of 10 metres with existing and inter-planting trees on the lower slopes at a height of 15 to 20 metres. Planting in accordance with that plan would not require or allow all trees to be at a maximum height of 20 metres and would require a number of the trees in certain areas to be at no more than 10 metres in height. Mr Purdie has said he would use his best endeavours to keep those trees to a maximum height of 15 metres although, to avoid having to frequently top trees, he would want some flexibility over this. He will
have that flexibility if, consistent with the 2010 covenant and RMA 92015049, he is permitted to plant and maintain trees in accordance with the plans, including the cross-section plan RMA 92015049/5.
[52] A number of pines in the RMA area were badly burnt in the Port Hills fires and appear unlikely to recover. They also appear to now be taller than the five metres permitted by the 2005 covenant. Mr Purdie wanted to see if they recovered with the 2017 spring before removing them. There may also be pines outside the RMA area which, if not killed by the fires, are already higher than five metres or likely to be so soon. The 2010 covenant requires the owners of Lot 2 to remove dead or damaged trees from Lot 2. Given the damage done by the 2017 Port Hills fires, I would expected neighbours to show some understanding and tolerance with regard to the burden the applicants, like other land owners affected by the Port Hills fires, now face in dealing with the damage caused by the fires.
[53] The submissions I have received as to the terms for the variation to the 2005 covenant suggested that the respondents would not want the height of trees on the mound to be measured from ground level if that would result in the height of the trees plus the mound being more than 10 metres. The height of the trees, as required by the 2010 covenant and the resource consent, is 10 metres from the level of the mound. The establishment of that mound and the planting of the trees on it, with those trees being able to grow to that height, was an essential feature of the 2010 consent. I have already held the 2005 covenant is to be varied to enable the owners of Lot 2 to comply with the 2010 consent. But for this, the parties had agreed the height of the trees should be measured from ground level or from the base of the trees. There should not be any exception or proviso for those trees that are planted on the mound as required by RMA 92015049 and the 2010 covenant.
[54] The 2005 covenant includes a prohibition against the planting of any poplars on Lot 2. The planting plan incorporated into the 2010 covenant and RMA
92015049 requires poplars to be planted as part of the screening for the benefit of the Dorrance property. Mr Densem confirmed that the intention was that the poplars were to provide initial screening because they are fast growing but would not be required permanently when other trees had reached the necessary height.
[55] To comply with the 2010 covenant, the applicants require the prohibition against the planting of poplars in the 2005 covenant to be removed. The respondents say any amendment should require the poplars to be removed when they are at the maximum height. Such amendment would not be consistent with the 2010 covenant. It will not be permissible for the poplars to exceed the maximum heights provided for in the plans associated with the 2010 covenant and RMA 92015049. Because they are likely to grow more quickly than the other trees, the owners of the Dorrance property may still require them for screening once they have reached the maximum height but, once other trees around them are well established and at a similar height, it would be reasonable to expect that they will no longer be required for screening, that the owners of Lot 2 will not want to continue topping them at their maximum permissible height and, at that point, all parties, including the owners of the Dorrance property, will agree to remove the poplars. Nevertheless, the owners of Lot 2 will have to ensure the poplars are never higher than the maximum height shown on RMA 92015049/5. In these circumstances, I do not consider the removal of the prohibition against planting poplars will be a significant detriment to the respondents. The removal of that prohibition is required to give effect to my earlier judgment.
[56] I deal with the dispute over the planting that is to be permitted on Lot 2 as a term of the already granted modification of the 2005 covenant and the removal of trees as follows:
(a) Before any building on Lot 2 commences, the Purdies are to plant the trees required by the 2010 consent and planting required to screen the buildings and building platform from the respondents’ properties. They are also to ensure all such planting is served by irrigation before building commences.
(b) Within 18 months, all pines that have been killed by the 2017 Port Hills fires or which are on Lot 2 outside the RMA area are to be felled and cleared from Lot 2.
(c) Trees are to be planted and maintained in the areas shown on plan RMA
92015049/2 on the southern side of the approved building platform, generally in accordance with the cross-section plan RMA 92015049/5. Trees planted on the mound to the southern side of the building and on the house side of that mound are not to exceed 10 metres in height from ground level including the ground level of the mound, as established in accordance with the 2010 covenant and RMA 92015049. Trees are to grow to and be maintained at a height between 15 and 20 metres only at those points where trees up to 20 metres tall are shown on cross-section plan RMA 92015049/5. Elsewhere in that RMA area, trees are to be maintained at a height between 10 and 15 metres and are not to exceed
15 metres. The height of the trees is to be measured from the base of the trees.
(d) The 2005 covenant is to be modified by deleting the prohibition against the planting of poplars on Lot 2.
Number of permitted out-buildings
[57] With the original application, the Purdies sought the removal of a prohibition in the 2005 covenant against the erection of any building of “timber pole framed construction”. They wanted to be able to build a shed on their land. For reasons discussed in my earlier judgment1, I did not consider there could be a reasonable objection to the erection of an implement shed provided that the design and site of such a building took account of its proximity to the respondents’ properties and the impact it could have on their views.
[58] On 29 January 2017, the respondents met with the Purdies to discuss issues arising out of my earlier judgment that needed to be addressed. Minutes of the meeting were prepared by the respondent Karen Powers and included the following
section:
1 Paras [92]-[98].
(114) Modification of the 2005 covenant to allow a shed, of a plan agreed by all parties. Planting be done to screen the shed and the area to be fenced off.
Justin and Tracey are proposing three sheds. Two would be close to the boundary of the Truckell and Nikolaou properties and set into the ground a metre, thereby only protruding 2.6 metres above the existing ground level. The shed would be of a colour and cladding acceptable to all and have planting to a maximum of 5 metres around it to further obscure it from view. This was agreed to by all.
The third proposed shed is also agreeable, so long as it is built outside of any view line from the properties along Worsleys Road – so sited on the valley side of the RMA trees. This is a re-location from it’s [sic] present proposed site.
With three sheds being allowed for, it should be stated that all vehicles, machinery, etc be housed in the proposed sheds, not elsewhere on the property.
We all agreed that these sheds need not be fenced.
[59] Although that agreement had been reached at that meeting, in his submissions Mr Lester said the respondents were now only agreeing to two sheds. In a further memorandum, he said the respondents had agreed there could be a third shed provided it was in the valley area outside the view-line from the respondents’ properties. He said that, with a number of the trees destroyed by the Port Hills fires, it would no longer be possible to achieve this, hence the respondents’ objection to the construction of a third shed.
[60] The respondents had not required that, if two sheds were built, those sheds should be outside the view-line from their properties. It is agreed as to how the sheds should be constructed and coloured so as not to detract from the views from the respondents’ properties. All sheds are to be screened from the respondents’ properties with appropriate planting. The respondents want it to be a condition of the modification of the 2005 covenant that vehicles and material associated with the use of Lot 2 are stored tidily in buildings. This will be more easily achieved if the applicants are able to build the sheds they require to do this.
[61] I accordingly rule that the 2005 covenant is to be modified in the manner as detailed in clause 5.9, including 9.1 to 9.6 of counsel’s memorandum of 30 June
2017. Clause 9.4 should be amended to stipulate that the colour for the walls and
roof of each shed is to be the same. Clause 9.5 should be amended to read “when the sheds are constructed, vehicles and machinery, when not in use and/or required for activities on Lot 2, are to be stored in the sheds”. What activities are permitted on Lot 2 is determined by the zoning of the land and perhaps conditions of the covenant which are not in dispute.
[62] There should be a change to clause 9.6 so that it stipulates the required planting will be undertaken at the same time as the sheds are constructed.
[63] The applicants proposed that there be a deletion of the prohibition in the 2005 covenant against the erection of any building of timber pole-framed construction. The respondents want it to remain. Agreement has been reached over the roof and cladding for the sheds. Given the nature of the building platform already established on Lot 2, it would seem unlikely the applicants are proposing to erect a building of timber pole-framed construction for their home. Deletion or retention of the current prohibition against such construction may thus be of no practical consequence to any of the parties so that this should not be an issue which I need to deal with. However, leave is reserved to the applicants for them to come back to me on this if necessary.
[64] It is apparent from counsel’s memoranda that there are a number of matters referred to in the memorandum of 20 June 2017 and proposed draft orders that are agreed to. To enable the parties to quickly finalise the specific required orders, I deal with what appear to be still at issue as follows.
[65] There is no disagreement that only one dwelling will be permitted on Lot 2. The applicants said this will be achieved through incorporation of the provisions of the 2010 covenant for the benefit of the respondents. The respondents require that requirement to be expressed. It would be appropriate to do this in the modification of the 2005 covenant.
[66] The parties have agreed that there can be trees/vegetation on the balance of Lot 2 outside the RMA area up to five metres but want the reference to that to also refer to any other structures on the property. If that is consistent with the 2005 covenant, it would be appropriate.
[67] Agreement has been reached as to the fencing that will be required on Lot 2. Consistent with that agreement, it would be appropriate for 5.4 to refer to the area being fenced being “defined by reference to and following the five red survey points”.
[68] The applicants were proposing that certain provisions from the 2010 covenant be incorporated in the modifications of the 2005 covenant, but not all of them. Save for clause 16 of the 2010 covenant, which says that trees were not to protrude through a horizontal plain with an elevation of 132 metres above sea level, the respondents wish to obtain all the benefits of the 2010 covenant. At the time of the earlier hearing, the applicants had agreed to this. That is what should now be implemented.
[69] Counsel for the respondents has not commented on the suggestion as to how the variation of the 2005 covenant should be effected. It seems from 10.1 that it was being proposed that the 2005 covenant should be surrendered in some respects but retained in others. If it is going to be retained in any form, it would seem appropriate to implement these changes by way of variation through Court orders.
Compensation
[70] In submissions, Mr Lester asked that leave be reserved to the respondents to seek compensation for the interference with their property rights.
[71] No evidence was presented at the time of the earlier hearing as to the way the value of the respondents’ properties would be affected if the Purdies were to succeed with their application.
[72] For reasons discussed in my earlier judgment, without changes to the 2005 covenant so that the Purdies would be able to build a home on their property, the problems created by RMA 92015049 and the 2010 covenant would have likely led to ongoing problems for the respondents’ properties in obtaining compliance with the
2005 covenant. The likely use and neglect of Lot 2 would have further detracted
from the views which the respondents’ properties currently enjoy.
[73] I note that in her latest affidavit, Ms Nikolaou referred to the way she has had to tolerate the “messy site” on Lot 2 since the Purdies purchased Lot 2. Mr Truckell said he agreed that Lot 2 would benefit from being used for a house. Karen Powers annexed to her last affidavit a brief letter from a valuer indicating there could be a significant impact on property values if “tree heights as per the 2010 covenant were completed to their ending”. That letter was hearsay and Mr Naylor was not available for cross-examination. However, I also note that he said the recent fires would impact on potential values and that there was potential for all parties concerned with both the 2005 and 2010 covenants to adopt a common-sense approach to planting and density which would mitigate the adverse affects of planting on neighbours.
[74] In my judgment of 9 June 2016, I indicated that the Court’s ability to provide for compensation to the respondents would not be a factor that I would weigh in the balance in considering whether the Purdies’ application should be granted. There will be some interference with the views from the respondents’ properties with the planting that is now required and permitted. With the views of Mr Dorrance now recorded in this judgment, and with what all parties have learned through experiencing the recent Port Hills fires, there is the potential for all parties to cooperate and work together to enable Lot 2 to be used in a way that will be of benefit to adjoining properties. The potential for that to happen will be reduced if these proceedings are allowed to effectively remain before the Court indefinitely through leave being reserved to the respondents to, at some uncertain time in the future, seek compensation.
[75] It will take energy and significant financial involvement for the Purdies to build on Lot 2, establish the necessary planting, deal appropriately with the wilding pines and further develop Lot 2 in a way which will enhance the view from the respondents’ properties. These proceedings need to be brought to a conclusion so the prospects of achieving all of this are enhanced. I am not reserving leave to the respondents to seek compensation at some later time and there will be no order requiring the Purdies to pay the respondents’ compensation.
Conclusion
[76] With the benefit of all the evidence that has been put before me, it would seem that all parties to these proceedings and Mr Dorrance would benefit from:
(a) the eventual removal of all pines from Lot 2;
(b) planting of fire-resistant trees on the lower slopes to the southern side of the mound that would grow to a maximum height of 10 metres; and
(c) plantings that would remain on the area of the mound and in the area shown as area 4 on Mr Densem’s recent plan, being at a maximum height of seven to 10 metres.
[77] The Court is not able to direct that all of this must happen but the parties need to work together. The information that has emerged through these proceedings raises significant issues as to the way RMA 92015049 was obtained. It also appears the condition of that resource consent do not reflect what was required to protect the interests of all concerned. That will be relevant if any of the parties have to resort to further Court proceedings to obtain the benefits of, or to enforce the obligations provided for in RMA 92015049.
[78] With this further judgment, all terms on which the 2005 covenant is to be varied can now be set out in detail in draft orders. It should be possible for counsel to file a memorandum as to precisely what orders are required and I direct that they do so within 21 days. If this cannot be done by agreement, the applicants are to file a further memorandum as to what they propose within that time. The respondents are to file their response within a further 14 days.
Costs
[79] The Purdies were successful with their application on terms. They were, however, making an application and seeking orders which required an interference with the respondents’ property rights as provided in the 2005 covenant. My tentative view is that costs should lie where they fall. If no agreement is reached over costs,
either on this basis or any other basis, then a memorandum as to costs is to be filed by the applicants within one month and a memorandum on behalf of the first to third respondents within six weeks. The memoranda are to be no longer than four pages. If necessary, I will determine costs on the basis of those memoranda.
Solicitors:
White Fox & Jones, Christchurch
GCA Lawyers, Christchurch.
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