Purdie v Truckell
[2016] NZHC 1231
•9 June 2016
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000802 [2016] NZHC 1231
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 AND TERRANCE JOHN POWERS Third Respondents
AND
CHRISTCHURCH CITY COUNCIL Fourth Respopndent
Hearing: 23-25 November 2015 Appearances:
H C Matthews for the Applicants
D Lester and N Robson for the RespondentsJudgment:
9 June 2016
JUDGMENT OF NATION J
[1] Mr and Mrs Purdie (the Purdies) wish to build a home on their 2.7 hectare lifestyle block on the Cashmere Hills near Christchurch. To comply with the conditions of a resource consent, there have to be trees on the property between at least seven and 10 metres tall. There is a covenant over their land which says trees must not exceed five metres. The Purdies apply under the Property Law Act 2007 to modify the covenant.
[2] The Purdies’ property (Lot 2, DP410631, CT440494) (“Lot 2”) has a rural
setting. It is on the north-eastern side of the Worsley Spur which runs from the low-
PURDIE v TRUCKELL & ORS [2016] NZHC 1231 [9 June 2016]
lying and relatively level land of and around Christchurch up and towards the Cashmere Hills. From Lot 2, there is a view out across farmland towards the city and the Cashmere Hills.
[3] Because of the zoning of Lot 2, its previous owners had to obtain a resource consent to permit the building of a dwelling on it. Through the way a resource consent was obtained, there is a covenant over the title to Lot 2 (the 2010 covenant) for the benefit of another residential property (the Dorrance land). That covenant prohibits further subdivision and further development of Lot 2. It also binds Lot 2 to conditions of a resource consent granted by an Environment Court order of 19
August 2010.
[4] Above Lot 2 are lots adjoining Worsleys Road. The first, second and third respondents (the respondents) are the owners of such lots. Their properties enjoy views out over Lot 2 towards the farmland below, the Cashmere Hills to the south and east, and the city and beyond to the north.
[5] The residential properties adjoining Worsleys Road have been developed over recent years. With their proximity to the city and rural outlook, they are valuable properties. The respondents’ properties have the benefit of a covenant (the 2005 covenant) which protects their view out over Lot 2 to the land beyond. This covenant prohibits the growing of any vegetation in excess of one metre within an area running parallel to the Worsleys Spur Road within 20 to 45 metres of the road and more than five metres within an area which is more than 45 metres from Worsleys Road.
[6] I summarise the conflict between the 2005 and 2010 covenants as follows:
· Location of dwelling. The 2005 Covenant restricts all dwellings on Lot
2 to an area within 30 meters of Worsleys Road. The 2010 Covenant requires any dwelling on Lot 2 be located in a specific area which is over
150 meters from Worsleys Road.
· Plants. The 2005 Covenant requires that no poplar trees can be planted on Lot 2. The 2010 Covenant requires planting which includes poplars.
· Tree heights. The 2005 Covenant requires trees to be kept below 5m in height. The 2010 Covenant requires trees to be between 7m and 10m in height (and arguably up to 20m in places).
Relevant history
[7] In 1995, the Christchurch City Council (the Council), in its new scheme plan, created a Living Hills zone. This allowed 3,000 m2 sites to be created along Worsleys Road where a residential dwelling would be a permitted activity.
[8] In 1997, the second respondent, Ms Nikolaou, purchased a 5.374 hectare property at 335 Worsleys Road. In 2003, she established a company, Thorncroft Limited (Thorncroft), to subdivide and develop 335 Worsleys Road.
[9] In 2004, Ms Nikolaou subdivided off three properties that were part of the original title for 335 Worsleys Road. These titles all adjoin Worsleys Road. Between them, they enjoy covenants over and for the benefit of the sections on similar terms to those in the 2005 covenant.
[10] In 2005, Ms Nikolaou subdivided the balance of what had been 335 Worsleys
Road to create lots 335D, 335E, 335F and 335.
[11] Lot 335D was sold by Ms Nikolaou to the first respondent, Mr Truckell. Lot
335F was sold to the third respondents, Karen and Terrance Powers. Ms Nikolaou retained Lot 335E.
[12] Lots 335, 335A, 335D, 335E and 335F are all subject to and have the benefit of the land covenant in transfer 6612687.4 (the 2005 covenant).
[13] In 2008, Ms Nikolaou, through Thorncroft, sold part of part of 335 Worsleys Road to the Council to use in developing storm-water drainage infrastructure and a walkway. What remained was Lot 2, owned by Thorncroft and subject to the 2005 covenant. The upper part of Lot 2 is Living Hills B zoning. A residential dwelling is
a permitted activity in this zone but a site area of 3,000 m2is required. The sale of
the land to the Council left the Living Hills B zone part of Lot 2 at approximately
1,660 m2. The balance of Lot 2 is zoned Rural Hills where a residential dwelling is not a permitted activity. The subdivision and sale of part of 335 Worsleys Road to the Council thus created a situation where a resource consent would be needed before a dwelling could be built on the remaining Lot 2.
[14] In 2008, Ms Nikolaou sold her shares in Thorncroft. In September 2009, Thorncroft, under the control of the new shareholders, applied for a resource consent to establish a single dwelling on a building platform on Lot 2. The Council required the application to be notified to various parties, including Ms Nikolaou as the owner of 335E, Mr Truckell as the owner of 335D and the Powers as the owners of 335F Worsleys Road.
[15] In January 2010, the Council granted the application subject to conditions. Mr Dorrance, a neighbour who had filed a submission in opposition to the resource consent application, appealed the Council’s decision to the Environment Court.
[16] The respondents were not party to the proceedings over the application for the resource consent, either before the Council or the Environment Court.
[17] The proceedings in the Environment Court were settled with the granting of a resource consent on terms set out in the consent memorandum. The parties to the consent memorandum were Mr Dorrance, the Council and Thorncroft. The conditions of the consent dealt with the siting of the proposed dwelling, the creation and planting of a mounded area to reduce the adverse impact of the permitted buildings on the rural outlook from the Dorrance property and detailed provisions as to the planting which had to be established on Lot 2 and maintained for the same purpose. The planting was to be in accordance with a cross-section planting plan of Graham Densem, landscape architect, dated 25 June 2010. No trees were to protrude through a horizontal plane with an elevation at 132 metres above sea level. The plans provided for the planting of medium trees that would be between five to 10 metres, and tall trees that would be 10 to 20 metres eventually. The conditions required that all trees at planting were to have a minimum height of 1.5 metres and were to be allowed to continuously grow until they reached a minimum height of seven metres. The trees were then to be maintained at no less than seven metres and no more than 10 metres in height, except as required by the cross-section planting plan. There is thus a potential contradiction within the consent as to the permitted height of trees that have to be planted on Lot 2.
[18] The consent memorandum to the Environment Court also recorded the parties’ agreement that a restrictive covenant would be registered against Lot 2 to prevent the further subdivision of the site.
[19] As a result of the consent memorandum, Mr Dorrance thus ensured the rural outlook for the Dorrance property would not be affected by more than one dwelling being built on Lot 2 through any further subdivision of that property. The covenant for the benefit of the Dorrance property goes further than that in also prohibiting any “further development” of the property. What “further development” refers to is unclear.
[20] Through the conditions attached to the resource consent, the Dorrance property also had the benefit of making the erection of a building and garage on Lot
2 subject to the establishment and maintenance of planting which would screen the building and garage from the Dorrance land. The planting, however, had to be of a sort and include trees of a height which would contravene the 2005 covenant for the benefit of the Nikolaou, Truckell and Powers properties. Despite the fact that Mr Dorrance was a lawyer, it seems the then directors of Thorncroft, its landscape architect (Mr Densem), its planners (Davie Lovell-Smith) and the Council all overlooked the fact that, if the owners of Lot 2 were to comply with the 2005 covenant, Thorncroft would not be able to comply with the conditions of the resource consent.
[21] Through the combined effect of the conditions attached to the resource consent and the 2010 covenant, there has developed a situation where the Council and the Environment Court have considered that it is appropriate, having regard to the provisions of the Resource Management Act 1991, for a dwelling and associated garage to be built on the proposed dwelling platform on Lot 2. But that cannot happen. To do so would breach the 2005 covenant.
[22] In February 2015, the respondents applied to the Environment Court to recall
the Court’s consent order of 19 August 2010 because of the conflict between the
2005 covenant and the terms of the proposed consent order. The Environment Court heard the application on 4 November 2015. On 5 November 2015, the respondents withdrew their application.
The Purdies’ purchase of Lot 2
[23] The Purdies purchased Lot 2 in January 2012. The marketing material said a resource consent had been granted for a building on Lot 2. In his affidavit, Mr Purdie said they were not aware the 2005 covenant would restrict any dwelling to an area within 30 metres of Worsleys Road or of the conflict between the conditions of the resource consent and the 2005 covenant.
[24] It may be that the solicitor did not give the Purdies adequate advice as to the risks they faced in buying this property to build a home on. I was told that solicitor has been censured through the Lawyers and Conveyancers Act 2006 complaints process for inadequate advice in this regard. Mr Purdie, however, instructed the solicitor to confirm the contract shortly after being advised in an email:
Further to our telephone discussion last night there is one further point I
should have mentioned in respect of the land covenant in Easement
8538861.1. That covenant provides that only one dwelling shall be permitted on the land as provided for by Resource Consent RMA 92015049.
That covenant is in favour of the Dorrance land further up the hill to the
south. Therefore a dwelling can only proceed in accordance with that Resource Consent. It may well be that if you wish to vary or substitute that consent for another then you would need the consent of Dorrance. That may not be easy to obtain. Paul Dorrance and his wife objected to the application for the resource consent and the covenant may have been entered into to overcome that objection.
The other matter we discussed was that land covenant 6612687.4 restricts the height of trees to 5 metres. However condition 11 of the Resource Consent provides that trees will be allowed to grow until they reach a minimum height of 7 metres and will be maintained between 7 and 10 metres in height. This is clearly in conflict with the land covenant registered against the title. I think the purpose of that condition was to screen the Dorrance property so they had only a restricted view of the new house to be built. I doubt whether any of the neighbours along Worsleys Road would object to the trees on the Dorrance boundary being 7-10 metres high. They may however complain if the height of trees exceeded 5 metres on other parts of the section. Hopefully the conflict between the two provisions will not be a practical difficulty.
[25] The solicitor did not point out that, if planting was to be permitted in accordance with an associated cross-section plan, the trees might have had to be between 10 and 20 metres in height.
[26] Following their purchase, the Purdies have spent a considerable amount of money and time in preparing the section, connecting services and preparing the
building platform in preparation for building a home complying with the 2010 covenant. They put the value of this work at around $200,000. They sold their home to free up funds to assist in development of the section.
[27] The Purdies are understandably most anxious at the situation they now find themselves in. As matters stand, they cannot proceed to build the home in the way they had planned. The conflict between the terms of the resource consent and the
2005 covenant is such that it will be impossible for any owner of the land to build a residential home on it so that the land is likely to be worth much less than the Purdies paid for it.
The application
[28] In their application, the Purdies ask the Court to modify the 2005 covenant so as to:
1. allow the owners of Lot 2 to comply with the 2010 covenant;
2. delete the prohibition against the erection of any building of “timber pole framed” construction;
3. delete the reference to any construction or location on Lot 2 of “any caravan, hut or other similar structure for any kind of permanent or temporary use”;
4. delete the prohibition against the planting of poplar trees on Lot 2; and
5. delete from the covenant a prohibition against any subdivision of the land for 10 years from 11 October 2005.
The respondents’ opposition
[29] Ms Nikolaou opposes the application because of her desire to protect the views and character of her property. She has been involved in owning and subsequently subdividing land in this area since she first purchased a house and land in 1995. She says that she has taken extensive professional advice over the years to
ensure that she had created “a quality subdivision which enhanced the environment
and amenities of the area”.
[30] In her affidavit, Ms Nikolaou explained that in 2012 she had initially been agreeable to a change in the 2005 covenant to permit a dwelling to be built on Lot 2 beyond 30 metres of Worsleys Road. However, she withdrew her cooperation, firstly because Mr Purdie had not done anything to prevent wilding pines on Lot 2 growing over five metres in height. Subsequently, when she discussed the height of the trees with him again, Mr Purdie said he could not comply with the five metre height restriction because of the 2010 covenant. At Ms Nikolaou’s request, he provided her a copy of the Environment Court order. She then saw the extensive planting that order required, the potential for trees to be five to 10 metres in height or even 10 to
20 metres in height and was most concerned at this. She believed the planting programme had the potential to create a “never-ending nightmare for height management, because of prohibitive costs in maintaining the height of trees”. She was concerned about the potential fire risk. She was concerned that the height restriction in the 2010 covenant would not be monitored and enforced given the owner of the Dorrance property would have little incentive in keeping the trees at the limit provided for in the 2010 covenant.
[31] Mr Truckell, in his affidavit, says that he and his wife purchased their section at 335D Worsleys Road principally for the rural valley view from the property, the view including the valley, the city at night and the Kaikoura Range as a backdrop. The property also appealed because of easy access to the Cashmere Hills and the rural aesthetic combined with the ease of being able to cycle into the city for work. Mr Truckell strongly objected to having clusters of large trees on Lot 2 which would obscure their views of the rural valley. He said he and his wife had relied on the protection which the 2005 covenant provided against having “any large trees, buildings, caravans, huts or similar structures, any relocatable or kitset dwelling or similar structures and noxious livestock or animals likely to cause nuisance”. He objected to the requested modifications to the 2005 covenant because of the detrimental impact they would have on the views they currently have of the rural valley below. Like Ms Nikolaou, he was concerned that Mr Dorrance, or any other owner of the Dorrance land, would not be under any obligation or incentive to
enforce the terms of the 2010 covenant limiting the maximum tree height to 10 metres so that they could end up powerless to prevent a breach of that covenant if the trees, as could well happen with poplars or other tall trees as specified in the landscape plan, were left to grow to their natural height.
[32] Mrs Powers, in her affidavit, emphasised the ways in which the planting permitted and required by the 2010 consent differed from what had been depicted in the plans which they initially agreed to. She said that in 2009 there had been a small cluster of pine seedlings on the Purdie property which they had always assumed would be removed before they breached the maximum five metre height, that pines were not originally part of the original planting which was to be part of the Thorncroft application. She was concerned as to the way those trees will result in the loss of the valley view from their home, stating that, with those seedlings now developed to 10 to 12 metre mature trees, this has already happened.
The law
[33] Section 317 Property Law Act 2007 provides as follows:
317 Court may modify or extinguish easement or covenant
(1) On an application (made and served in accordance with section
316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—
(a) the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:
(i) the nature or extent of the use being made of the benefited land, the burdened land, or both:
(ii) the character of the neighbourhood:
(iii) any other circumstance the court considers relevant; or
(b) the continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation; or
(c) every person entitled who is of full age and capacity—
(i) has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or
(ii) may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part; or
(d) the proposed modification or extinguishment will not substantially injure any person entitled.
(2) An order under this section modifying or extinguishing the easement or covenant may require any person who made an application for the order to pay to any person specified in the order reasonable compensation as determined by the court.
Change in the nature or extent of the use being made of Lot 2, s 317(1)(a)(i)
[34] Mr Lester said there had been no change in the use of Lot 2 since the covenant was registered in 2005, that a potential change of use in the future was irrelevant and the right of the registered proprietor to use the land should not and does not have pre-eminence over the rights of the party with the benefit of the covenant. He submitted there had been no change in the character of the neighbourhood. He submitted the creation of the 2010 resource consent and associated 2010 covenant could not constitute a relevant change in circumstances to justify modification of the covenant, given that that change was brought about through the applicant’s predecessor in title (Thorncroft). He submitted the resource consent was a circumstance personal to the applicant and, in that sense, could not be
relevant to the factors which should be considered by the Court.1
[35] Since the 2005 covenant was created, there has been a change to the nature of the burdened land, Lot 2. As a result of the subsequent sale of Lot 1 to the Council, it was no longer possible for a dwelling house to be built as of right within the uppermost 30 metres of Lot 2. If a dwelling house could be built on the lower part of Lot 1, all parties would reasonably have contemplated that, associated with the home, there could well be a need for other buildings such as a garage. Those buildings might also include an implement shed that could be associated with a small rural holding on which there are likely to be some animals either to graze the land or
to provide limited economic return. With such a use of the site, it could also be
1 He referred in support to an authority: Worldwide Leisure Ltd v Harland-Baker HC Rotorua
M21-91, 18 April 1991 at para [34] per Doogue J.
anticipated there would be a need for planting to enhance the appearance of the area, to provide shelter or to screen buildings and provide privacy from adjoining land.
[36] With a home to be built on the lower portion of Lot 2, it could also be reasonably anticipated that there would be a need for some earthworks in providing an access route to the house and some significant excavation of the land to provide a building platform. Substantial work has already been carried out in that regard. It was work authorised by the resource consent and not in breach of the 2005 covenant. It is also work to which the respondents have impliedly agreed in accepting there can be a home built on Lot 2 on the site for which a resource consent has now been obtained. There has thus been a significant change to Lot 2 through the excavation that has occurred for the building platform. If the 2005 covenant is not modified, that excavation will itself significantly detract from the view which the respondents have of Lot 2. If a home is not built, the Purdies or any other owners of Lot 2 would not have to take the other steps which the resource consent required to mitigate the way the creation of the building platform would detract from the respondents’ views.
[37] I do not accept that Worldwide Leisure is authority for the proposition that a rezoning of land or the granting of a resource consent for some activity on a particular block must be treated as a circumstance personal to the owner of the land, rather than as a change to the land itself. In Worldwide Leisure, Doogue J considered the defendants were seeking to modify a covenant restricting the way a property could be used for their personal benefit.2
[38] In AH Properties Ltd v Tabley Estates Ltd, Hammond J followed Doogue J’s reasoning.3 The Council, having purchased a major inner city building intending to use it as a library, where such use would be detrimentally affected by an encumbrance ensuring public access, Hammond J held these difficulties were circumstances personal to the Council.4
[39] Mr Matthews accepted for the Purdies that the particular financial risks and other stresses the Purdies were under, as a result of their purchasing Lot 2 when and
2 Worldwide Leisure Ltd v Harland-Baker, above n 1.
3 AH Properties Ltd v Tabley Estates Ltd HC Hamilton CP142/92, 3 September 1993.
4 At 39.
as they did, are factors personal to them and not to be taken into account as a change relating to the land. A zoning change or a resource consent, which permits a different or particular use of the land or which, as in this case, requires trees to be planted in a particular way, is in my view capable of constituting a change to the land. If not a change to the land in terms of s 317(1)(a)(i), it could establish the ground for justification set out in s 317(1)(b) or be taken into account as a change that has come about since the covenant was created because of “any other circumstance the Court considers relevant”, applying section 317(1)(a)(iii).
[40] In North Holdings Development Ltd, Katz J was concerned with a situation where, as a result of zoning changes, there was a direct conflict between a covenant and the relevant land’s zoning under the District Plan.5 Katz J noted the mismatch between the new zoning and the existing covenant had the potential to severely restrict the ability of nearly all owners to develop their lots.6 She considered the zoning changes could appropriately be taken into account in the “any other circumstances the court considers relevant” category in s 317(a)(iii).7 Whether the covenant ought to be modified as a consequence of those changes is an appropriate consideration in ascertaining whether the Court should exercise its discretion in all the circumstances of the case.
[41] The particular circumstances that provide grounds for modification in this instance relate to:
· the loss of the anticipated ability to build a home on the uppermost part of Lot 2, adjacent to Worsleys Road;
· the reasonable need for a home to be built lower down on Lot 2, a development which is agreed to by the respondents;
· the creation of a road and the excavation of a building platform required for such a dwelling, also inherently accepted by the respondents; and
5 North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [40] per Katz J.
6 At [29].
7 At [30].
· the granting of a resource consent which requires trees to be planted on a property on Lot 2 in a way that would make it impossible for any owner of Lot 2 to build a home on it with the covenant in its present form.
[42] Those circumstances do not relate to the Purdies personally. They relate to
Lot 2 and will continue to apply to that land whoever owns it in the future.
[43] My conclusion in this regard is not intended to in any way detract from the comments which Doogue and Hammond JJ made with regard to the difficulties that an applicant will face where it acquires land knowing it is subject to the registered rights of other landowners but seeks to use that land in some way which can occur only with an alteration to such rights. That is a circumstance which will normally weigh heavily against modification, at least in the exercise of the Court’s discretion. The fact the Purdies confirmed their purchase knowing of the 2005 covenant and the conflict with the 2010 covenant is a matter which I have considered in ultimately exercising my discretion.
[44] I am thus satisfied that, with it now being impossible to have a home at the top of Lot 2, adjacent to Worsleys Road, a building platform having been excavated lower down with a road also constructed to the site and with the respondents agreeing that is an appropriate site on which to build a dwelling house, there has been a change to Lot 2 since creation of the covenant. Accordingly, the Purdies have satisfied me that, pursuant to s 317(1)(a)(i), this Court does have the power to modify the 2005 covenant.
Continuation of the covenant/reasonable use of Lot 2, s 317(1)(b)
[45] Mr Lester submitted that continuation of the covenant in its existing form would not impede the reasonable use of Lot 2 in a different way or to a different extent from that which could have been foreseen by the original parties at the time the covenant was created because the respondents have indicated they have no objection to a building platform on the Rural Hills zone of the section, beyond the 30 metre limit within which the erection of a dwelling house is a permitted activity.
[46] I accept this ground for modification has been made out. At the time the
2005 covenant was created, it was anticipated that the land in Lot 335, including Lot
2, would be a landholding of some 3.56 hectares on which the owners could build a home in the upper area adjacent to Worsleys Road. The original block was never going to be large enough to be used economically for farming or other purposes normally associated with a rural landholding. With the covenant over it, the land could not be used for forestry. The land was close to other areas of low density residential development. The building of a home on Lot 2 is a reasonable use of part of the original Lot 335. The parties to the covenant when it was created would however have anticipated that any home on Lot 335 would have been built on the uppermost part of the land close to Worsleys Road and within 30 metres of it. Although Ms Nikolaou was a party to the creation of the original covenant and the subdivision involved through Thorncroft, there is no evidence that, at the time that subdivision took place, she anticipated that part of 355 Worsleys Road would be sold to the Council, making it impossible to build a home on the uppermost part of Lot 2.
[47] The reality is that, with the subdivision and the conditions of the 2010 resource consent, the continuation of the covenant in its present form would impede the reasonable use of Lot 2 in a different way than could have been foreseen when the covenant was created. Accordingly, this Court has jurisdiction to modify the covenant on the grounds referred to in s 317(1)(b).
Claimed abandonment/waiver, s 317(1)(c)(ii)
[48] Mr Matthews submitted the respondents could reasonably be considered by their acts or omissions to have abandoned or waived the right to the covenant through allowing the resource consent application to proceed without their input. In that regard, he referred to Mr Truckell and the Powers consenting to the application and Ms Nikolaou not being vigilant in ensuring that she was involved in the process. He also referred to the respondents withdrawing their challenge to the Environment
Court’s decision through withdrawing their application to recall that decision.8
8 Property Law Act 2007, s 317(1)(c)(ii).
[49] Ms Nikolaou says she was never informed of the resource consent application and thus took no steps in relation to it. Ms Nikolaou says that, at that time, she was living at Sumner. Although she said she was collecting mail “every now and then” she was sure she had not received the bundle of papers that would have been sent to her by the Council with the application.
[50] Records show the Council decided the consent application could proceed on a limited notification basis. Ms Nikolaou was one of a number of neighbours who had to be notified. Council records show the application was sent to Ms Nikolaou at
335E Worsleys Road and also the occupier of 335E Worsleys Road. Three people, including Mr Dorrance, who were on the Council’s list of people to be notified, filed submissions in response.
[51] The evidence from the Council was that it was likely Mr Truckell and the Powers were not served because they had indicated they consented to the application.
[52] Mrs Powers, with her husband, lives at 335F Worsleys Road. She said that in mid-2009 she had been approached by Mr Edwards, a director and shareholder in Thorncroft when it made the application. She had heard that he might have been planning on building four houses on the section. This was an understandable belief given Thorncroft at one stage made application for consent to a subdivision of Lot 2 into four sections, an application which it did not proceed with. She said that Mr Edwards showed her drawings and diagrams which proposed a single level log cabin type house with native planting surroundings at a maximum height of five to seven metres to screen the house from the Powers’ view. Mr and Mrs Powers were not aware at the time that the proposed placing of the building platform lower on the section was not permitted by the Rural Hills zoning. Mrs Powers said that she and her husband were not worried about trees being planted up to seven metres in height in excess of the five metre maximum allowed under the covenant. She said that Mr and Mrs Powers signed a document agreeing to what she described as “the relocation of the dwelling”. They were not given a copy of the document they signed.
[53] Mr Truckell and his wife purchased 335D Worsleys Road in June 2009. At the time, they were told that four houses were going to be built on the section below.
Mr Truckell said that, within a couple of months of purchasing their property, Mr Edwards of Thorncroft left some plans for a single log cabin to be built on the section below them. At the time, Mr Truckell did not know that the building of a home on the bottom half of Lot 2 was not permitted as a matter of right in the Rural Hills zone. Mr Truckell said that Mr Edwards showed the Truckells a sketch plan which portrayed a few scatterings of trees. Mr Truckell said he was not worried about what was shown as to the trees because he believed the existing covenants would prevent or limit the height of any trees on the section.
[54] In his affidavit, Mr Truckell said he did not recall signing any document for Mr Edwards but he also said “at the time I believed I was giving my consent to a provisional agreement for a log cabin to be built on the land”.
[55] Council records include a written approval from Mr and Mrs Powers of 20
September 2009. The proposal they consented to was described as a development:
… to establish a single dwelling on Lot 2, DP 410631, on a site less than 100 hectares in area with earth works (for the purposes of creating vehicle access and a building platform) in excess of that permitted by the city plan.
[56] The page they signed included the statement:
We understand that as we have given our written approval, the Council shall not take into account any effects that the proposal may have on us when considering the application. We can confirm that we have viewed the application for resource consent and signed each page of the plans.
[57] The Council produced a similar form signed by Mr Truckell dated 13 October
2009. Alongside his signed approval, in his handwriting, were the words “see attached proviso”. No such proviso has been produced by any of the parties. A Council witness has said, whatever the proviso was, the Council would not have treated Mr Truckell as having approved the application, if the proviso contradicted this.
[58] Thorncroft’s resource consent application was a two-page document prepared by Davie Lovell-Smith. Attached to it were some 33 pages. These included Davie Lovell-Smith’s “assessment of affects on the environment and a landscape assessment of amended application” by Mr Densem, a landscape architect. It was
apparent from these reports that the proposed planting would include exotic and native trees up to seven metres in height.
[59] I do not accept the respondents could be considered by their acts or omissions in connection with the resource consent application to have abandoned or waived their rights under the 2005 covenant or that their acts or omissions in this regard should prejudice them in any way in considering the present application.
[60] Neither the Council nor any of the other parties have been able to establish just what documents the Truckells or the Powers saw and signed when they indicated they were approving the application for a resource consent. If normal Council procedure was followed, it would have been necessary for them to have done more than sign the approval form but, even if they had seen and approved the reports and plans associated with the application, the planting plans incorporated in the 2010 resource consent were significantly different from those attached to the original application.
[61] Below is the development concept plan initially presented to the Council and likely to have been what was planned when Mr Edwards first discussed the application with Mr Truckell and the Powers.
[62] Below is the plan as approved by the Council and as appearing in marketing material prepared by Harcourts when Lot 2 was sold to the Purdies.
[63] There is no evidence that the appeal to the Environment Court was brought to the attention of the respondents or that they were made aware of the significant changes to the planting plan that was being discussed between the parties with regard to that appeal.
[64] In reports prepared as to the application when it was before the Council, Davie Lovell-Smith, Mr Densem, and a planner and landscape architect for the Council had all given careful consideration to the ways in which the proposed development on Lot 2 would impact on the views from properties adjoining Worsleys Road, including the respondents’ properties. The Council’s landscape architect had recommended that, as a condition of any consent, there should be a landscape plan approved by the Council’s landscape architect including areas of tree planting as proposed on the development concept plan. The Council’s planner had recommended all trees should have a minimum height at the time of planting of 1.5 metres, should be allowed to continuously grow until they reach a minimum height of seven metres and then be maintained at that height, and that no trees should be planted beyond 132 metres above sea level.
[65] None of the respondents could have anticipated that counsel for Mr Dorrance, counsel for the Council and counsel for Thorncroft would ultimately join in advising the Environment Court:
For the sake of completeness, the parties confirm that they are satisfied that the amendments are for the purpose of mitigating adverse affects, do not exacerbate any adverse affects, do not create any new or further non- compliances with the City Plan Rules, and no person who did not make a submission would have done so had they been made aware of the amendments now proposed.
[66] Ms Nikolaou may have been sent a copy of the application and associated reports and done nothing about it. Any omission in that regard could not have constituted an abandonment or waiver of her rights. She and the other respondents were entitled to proceed on the basis that a planning consent or resource consent from the Environment Court could not affect their legal rights and entitlements as provided for in the 2005 covenant.
[67] I accept the submission of Mr Lester that the threshold for establishing abandonment is high given the Torrens system and the sanctity of title. I agree with his submission that non-participation in a resource consent process cannot be equated with an intention to abandon the rights created by a registered covenant given the resource consent process could not, of itself, affect property rights.
[68] The respondents’ withdrawal of their recent application for the recall of the
2010 resource consent order did not involve an abandonment or waiver of their rights. Having seen the written submissions presented on behalf of the Purdies to the Environment Court, I accept that the recall application was withdrawn only in the context of an understandable concession from the Purdies that the granting of the resource consent could not alter the legal effect of the 2005 covenant.
Modification and substantial injury to people affected, s 317(1)(d)
[69] Mr Matthews submitted the proposed modification would not substantially injure the respondents.9 In that regard, he submitted this ground contemplates that
there may be modification where there is some detriment but that is less than
9 Property Law Act 2007, s 317(1)(d).
substantial. He submitted, through the resource consent process, account had been taken of the potential effects on the respondents and, with mitigation measures required by the 2010 covenant, the effects on the respondents would be no more than minor.
[70] On the evidence, Mr Lester submitted that the Court could not be satisfied that modification, in the way that is sought by the Purdies, would not substantially injure the respondents. In this regard, he submitted that allowing trees on the land over five metres would interfere with the respondents’ views in a way which would have a significant impact on them. In that regard, he submitted the Court should have no regard to the opinions of planners or the landscape architect as contained in reports provided to the Council and the Environment Court. He submitted that what those people said in the context of a planning application was hearsay. He submitted the absence of expert evidence before this Court, with regard to the impact of the planting which is now required, is significant, particularly so when there was no independent review in the reports provided to the Environment Court to ensure the settlement terms would not have an adverse impact on neighbours.
[71] In Plato v Ashton, the word “substantially” was said to mean “real”, considerable, significant, as against insignificant, unreal or “trifling”.10 In assessing whether an injury is substantial or not, the Court is not only to have regard to individual circumstances but also to the effect of those individual circumstances cumulatively.11 An injury may be substantial even though the value of the land in question is not affected.12
[72] I consider the planting of a substantial clump of trees adjacent to the proposed dwelling house, higher than the dwelling house and twice the limit allowed for under the covenant, will substantially affect the views from the respondents’ properties. The Purdies are not entitled to modification of the covenant on the
grounds provided for in s 317(1)(d).
10 Plato v Ashton (1984) 2 NZCPR 191 (CA). See also North Holdings Development Ltd v WGB Investments Ltd, above n 5.
11 Potter v Petersen [1993] DCR 1021 at 1030.
12 Mogensen v Portuland Developments Pty Ltd (1983) NSW ConvR 55,116 at 56,856.
Availability of compensation, s 317(2)
[73] Mr Matthews noted, through s 317(2), there is now jurisdiction for the Court to require a person to pay compensation on the modification or extinguishing of a covenant.
[74] I do not consider the legislative ability for me to require the Purdies to pay compensation in return for a modification of the 2005 covenant should be of any assistance to the Purdies. The respondents’ concern is, understandably, not with the way modification of the 2005 covenant might affect the value of their land but with how it might affect the enjoyment of their properties. Payment of compensation would not make modification of the covenant, in the way the Purdies seek, any more acceptable or palatable to the respondents.
(6) The Court’s residual discretion to make a s 317 order.
[75] Mr Matthews submitted that, if there could not be a dwelling on Lot 2, it:
· could not be used for residential purposes as must have been anticipated when it was created;
· would be a minimal rural holding without the potential for meaningful activity;
· its uses would be severely restricted; and
· its value would be minimal.
[76] With regard to this residual discretion, Mr Lester said it was significant the Purdies had purchased their property with knowledge of the conflict concerning tree heights between the 2005 caveat and the 2010 resource consent.
[77] Mr Lester accepted that the Purdies may have confirmed their contract, albeit with knowledge of the conflict, through inadequate advice from their solicitors. He submitted the consequences of such negligence should not fall on the respondents.
[78] Mr Lester said that allowing trees on Lot 2 over five metres would interfere with the respondents’ views in a way which would have a significant impact on them.
[79] In this regard, all parties have to deal with the present reality that a dwelling house can now be built on Lot 2 only in compliance with the conditions that require planting of the sort which the respondents object to. If the 2005 covenant is not varied, it will not be possible for a dwelling house to be built on Lot 2 without further proceedings before the Environment Court to vary the terms of the existing consent. Because the terms of the 2010 resource consent are also incorporated into the 2010 covenant for the benefit of the Dorrance property, there would also have to be a separate application to the High Court under the Property Law Act for the deletion or modification of the 2010 covenant. The taking of such steps would inevitably result in significant further expense for the owners of Lot 2 and the respondents or any future owners of the land. There would be considerable uncertainty as to what would be achieved through such proceedings. That expense and uncertainty is likely to deter both the Purdies and any future owner of Lot 2 from seeking to build a home on Lot 2.
[80] The respondents will however benefit from the 2010 covenant, preventing, as it does, the further subdivision or development of Lot 2. There is thus the potential for them to obtain some benefits from what has happened to mitigate the ways in which the 2010 resource consent might otherwise have detracted from their enjoyment of their properties, particularly their views.
[81] Without the present or future owners of Lot 2 initiating such proceedings, the reality is that, with the terms of the 2005 covenant remaining as they are, Lot 2 will not be subdivided and could not be used for any residential purpose but would remain a small uneconomic piece of land, largely part of the Living Hills B zone. There would be no incentive for the owner of that land to use, develop or improve it in a way that is sympathetic to the interests of adjoining landowners, including the respondents. As is already evident, it is likely that, with time, there would be a proliferation of scrub or tree vegetation, including wilding pines, which would have to be cleared or reduced in height only when such vegetation reached the height of
five metres to be in breach of the 2005 covenant. If the land is used to graze stock, it is likely that this would be with a minimum of investment in the land, in weed control or farming infrastructure such as fencing or water supply. It is likely the land would soon become rather unsightly.
[82] The respondents are all trying to ensure that there is no major detraction from their enjoyment of the view their properties have over Lot 2. There will be some interference with their view if trees are planted and allowed to grow to the height required by the 2010 covenant and consent. Requiring Lot 2 to remain as a small uneconomic lot of rural land, with the damage already done by excavation of the building platform, is likely to detract significantly from the outlook the respondents have over Lot 2.
[83] The respondents have all indicated they are agreeable to a dwelling house up to seven metres in height and associated garage being built on Lot 2 on the building platform for which a consent has been given. Neither the Purdies nor the respondents called any expert evidence from landscape architects to demonstrate to me and illustrate the way in which planting, in accordance with the 2010 consent, would impact on views from the homes or sections of the respondents. I have however visited the three lots concerned with counsel and have made the best assessment I can of this. The parties had erected on Lot 2 a pole near the proposed house site, with markers at various heights to give me some idea as to the way taller vegetation would impact on the views from the respondents’ properties.
[84] As is normal with hill properties, the view from each respondent’s property is different. The view also varies within their properties depending on one’s vantage point. It would appear to me that, with planting which accords with the 2010 consent, there would still be significant areas of Lot 2 on which there will be either no planting or planting which will have to comply with either the one metre or five metre limit referred to in the 2005 covenant. With the higher planting allowed for and required by the 2010 covenant, there would continue to be extensive views, not so much down to the valley immediately below Lot 2 but to the surrounding hills and northeast towards the city and beyond. Those are the most important views, particularly so from the Nikolaou and Powers’ homes and from that part of the
Truckell property on which they would build a home. From house sites, the views are not so much down Lot 2 as across and over it towards the surrounding hills or out to the city and beyond.
[85] The reports of Mr Densem, the landscape architect for Thorncroft in 2010, and of Ms Lewthwaite, the Council landscape architect, are hearsay. It is however my assessment that the impact of the proposed house on Lot 2 and associated planting higher than five metres will be lesser than the respondents envisage. As Me Densem’s landscaping assessment suggests, both the house at up to seven metres and the planting at more than five metres will be “low in the arc of view from the Worsleys Road houses and will not dominate their outlooks”. The planting of taller trees required by the 2010 consent on the southern boundary next to the Dorrance property will also have a lesser effect because it lies to the southern side of the main and expansive views from the respondents’ properties. The view from the respondents’ properties on that side of Lot 2 is already affected by some tall, poorly maintained trees on the Dorrance property.
[86] When Ms Nikolaou subdivided 335 Worsleys Road in 2005, she had anticipated subdividing Lot 2 into four residential lots. She said she contemplated that being done in a manner that would comply with the 2005 covenant. Had that happened in accordance with the zoning of Lot 2, there could have been four dwelling houses either on the uppermost portion of Lot 2 as a permitted use or lower down if permitted through a resource consent. Either way, it seems Ms Nikolaou was willing to accept that the erection of four dwelling houses and presumably other associated buildings such as garages, would not detrimentally affect the view from her property too greatly.
[87] Mrs Powers said that, when they were first approached by Mr Edwards of Thorncroft, they were agreeable to there being native trees between five to seven metres high to screen the proposed house from their view.
[88] When the Truckells purchased their property in June 2009, their understanding was that four houses were going to be built on the section below. They did not know then that a home could be built on the bottom half of Lot 2 only
with a resource consent. They obviously decided when they bought their section that the erection of four dwelling houses and associated buildings on the land below them would not too significantly detract from the view which their property enjoyed.
[89] Other conditions associated with the 2005 covenant reflect Ms Nikolaou’s wish to ensure that Lot 2 was not developed or used in a way that would detract from the neighbourhood generally and in a way that would detract from the special appeal, nature and value of the Worsleys Road properties which have the benefit of the covenant over Lot 2. If the present stalemate were to continue, it is my view that Lot
2 would be used or neglected in a manner such that the property would detract from the adjoining properties, including those of the respondents. I consider that, although there will have to be some compromise of existing rights, it is both possible and desirable for Lot 2 to be used in association with a home in a way that, to a significant extent, enhances the view of it from the respondents’ properties.
[90] Through modification of the 2005 covenant, the respondents’ views will not be protected to the full extent provided for by the 2005 covenant. This will be of significant value to the Purdies. It is reasonable for any modification of that covenant to be on terms that enhance the respondents’ views over Lot 2, to the extent this can be achieved. There were detailed conditions in the resource consent ensuring a particular type and timing of planting so as to best protect the views from the Dorrance property. There were not the same detailed provisions with regard to the planting which had been regarded as necessary to mitigate the impact on the respondents’ views. This was despite the importance of those measures to the landscape architects who reported on the resource consent application when it was before the Council.
[91] In the particular circumstances of this case, I consider it is appropriate to modify the 2005 covenant to avoid the conflict with the 2010 covenant, but on particular terms.
Deletion of prohibition against the erection of any building of “timber pole framed” construction
[92] The Purdies said they would like this prohibition removed as a pole-built shed is a reasonable use of rural land. They say that such a shed is necessary for storing implements and stock feed, would be in keeping with the tone of the surrounding rural area and would be unlikely to have any adverse affects on neighbouring properties.
[93] Ms Nikolaou, who was responsible for the drafting of the 2005 covenant, objected to this variation on the basis it would not constitute a reasonable use of rural land and would encourage more intensive livestock activity which had “the potential to be a nuisance and change the character of the neighbourhood”.
[94] Mr Truckell opposed the deletion on the basis construction of a pole-built building or shed would not be consistent with the character of the neighbourhood.
[95] I note the context in which there is a reference to a prohibition against timber pole-framed construction in clause 3 of the first schedule of the covenant and its association with clauses 4, 5 and 6 of the covenant. I consider the prohibition in the covenant against the erection of any building of timber pole-framed construction was not to limit the way in which the land was used but to ensure that buildings on the land were of a type and quality that would be in keeping with the value and design of homes that were likely to be built on the respondents’ properties.
[96] This objective could be achieved with a building of pole-type construction, but with cladding of a particular sort or colour in association with planting to screen it from the neighbours’ properties. That objective could be achieved through the erection of some form of implement shed, not necessarily of expensive design but of a design and appearance that would be sympathetic to the neighbours’ outlook over Lot 2.
[97] If Lot 2 is to be used and managed in a way that ensures it is kept tidy and the vegetation on it is controlled as it should be, it will be necessary for the Purdies or any future owners of Lot 2 to have machinery, tools, stock feed and the like on the
property. It will be better for all parties if such items can be put away in an appropriate shed rather than clutter up the view from the respondents’ properties. If this cannot be achieved through the erection of an appropriate building, the use or neglect of Lot 2 is likely to be an issue between the owners of Lot 2 and adjoining landowners, including the respondents, for many years.
[98] I do not consider the respondents can reasonably object to the erection of an implement shed associated with the likely use of rural land given the Living Hills zoning of Lot 2, provided that the design and siting of such a building takes account of its proximity to the respondents’ properties and the impact it could have on their views.
Deletion of the prohibition against the planting of poplar trees on Lot 2
[99] The planting plan which has been incorporated into the resource consent for Lot 2 requires nine poplars to be planted. They are within an area of tall trees, to be planted at a height of 1.5 metres and estimated to be approximately seven metres after five years. While the plan for tall tree planting provides for them to be ultimately 10 to 20 metres tall, there is a specific requirement in clause 15 of the conditions of consent that trees shall be maintained at no less than seven metres and no more than 10 metres in height. There is also a specific condition that no trees planted on the site shall be allowed to protrude through a horizontal plain with an elevation at 132 metres above sea level. The trees are to be grown in association with silver fir, copper beach, red beach and totara. Although I have not had the benefit of any expert evidence on this, I assume the poplars have been included because they grow more quickly and will initially provide screening for the benefit of the Dorrance property. It would also seem likely that the need for the poplars to remain, once they are at a height where they are likely to be in breach of the resource consent and the 2010 covenant, will be significantly reduced given the presence of the other trees.
[100] If the prohibition against the growing of poplars was to remain in the 2005 covenant, the Purdies’ development of a residential building on Lot 2 could proceed only with the consent of Mr Dorrance. He is not a party to the current proceedings.
Even if he were to consent, all affected parties would have to agree to a parallel variation to the resource consent. I cannot proceed on the basis that such consent would be forthcoming. None of the parties to these proceedings would benefit from uncertainty in this regard. It is accordingly appropriate to delete from the 2005 covenant the prohibition against the planting of poplars. The fixing of a maximum height for those trees may well mean those trees will be cut down when other trees planted nearby, in accordance with the resource consent, are at their maximum height.
Deletion of a prohibition against any subdivision of the land for 10 years from
11 October 2005
[101] Clause 16 of the 2005 covenant prohibited the owners of the land from
subdividing “the land for a period of 10 years from the date of this transfer [11
October 2005] provided however that this clause shall not apply to Lot 1 DP359607 until that lot is further subdivided into residential lots”. Lot 1 DP359607 was subdivided into Lots 1 and 2. The Purdies say they are seeking a minor modification to this clause to recognise the subdivision has already taken place. They acknowledge that the 2010 covenant prevents further subdivision and they do not wish to subdivide Lot 2 in any event.
[102] Lot 1 DP359607 was subdivided in 2008 when Lot 1 DP410631 was created and then sold to the Council. At the same time, Lot 2 was created. It is not clear to me that this subdivision of Lot 1 DP359607 would have constituted a “further subdivision into residential lots”, given only one of the lots created could have been for residential use and then, in the particular circumstances, only with the benefit of a resource consent. Deletion of this condition would not serve any useful purpose given the prohibition against further subdivision as a result of the 2010 covenant, registered for the benefit of the Dorrance land. No party is challenging the validity of the subdivision which took place in 2008 and the legality of that subdivision is now reflected in the titles which issued as a result of that subdivision. There is thus nothing to be achieved through modifying clause 16 of the covenant in the way the Purdies seek.
Deletion of reference to any construction or location on Lot 2 of “any caravan, hut or other similar structure for any kind of permanent or temporary use”
[103] The Purdies say this aspect of the 2005 covenant does not allow for glasshouses, garden sheds, animal shelters or similar structures which are reasonable uses of both residential and rural land. They suggest the structures are unlikely to have any adverse effects on the neighbouring properties.
[104] The Truckells have not commented on this particular aspect of the application other than to generally oppose it.
[105] Ms Powers said the Purdies had already placed huts and containers on their section in breach of the covenant and they had allowed rubbish to accumulate on their section in breach of the 2005 covenant.
[106] Ms Nikolaou acknowledged that it is not unreasonable for homeowners to expect to have a small garden shed or glasshouse but drew a distinction from structures such as barns or pole-built sheds that were primarily intended to support a farming operation.
[107] The respondents have a covenant over their lots on the same terms. The covenant requires landowners in this area to be sensitive to the impact which any such items could have on their neighbours. The Purdies purchased Lot 2 knowing that it was subject to this covenant. In wanting to establish a home on Lot 2, they are no different from the respondents and other landowners who have the benefit of this covenant.
[108] The Purdies have not established that it is necessary or appropriate to modify the covenant in this regard.
Ultimate result
[109] The Purdies have satisfied me that there are grounds on which the Court may modify the 2005 covenant. The Court has a residual discretion as to whether it should do so.
[110] In this regard, the sanctity of contract and the protection afforded to property rights, as registered on titles under the Torrens system, are important factors to be weighed in the balance. Nevertheless, as Katz J observed, the power to modify provided for in s 317 “should not be so restrictively applied so that the section ceases to have the remedial effect intended”.13
[111] It is also relevant that, in exercising my discretion, I can allow for modification of the covenant on terms which mitigate the potential detriment to the respondents. If there is to be modification for the benefit of the Purdies, that should be balanced to the extent that it is appropriate for the benefit of the respondents. The ability to modify a covenant in this way has been recognised by the High Court in other cases.14
Conclusion
[112] The Purdies’ application is denied in respect of the following modifications: deletion of the reference to any construction or location on Lot 2 of “any caravan, hut or other similar structure for any kind of permanent or temporary use”, and deletion of a prohibition against any subdivision of the land for ten years from 11
October 2005.
[113] The Purdies’ application for modification of the 2005 covenant, to allow the owners of Lot 2 to comply with the 2010 covenant, is granted but on terms to be finalised after further submissions if necessary. Such terms could include:
(a) the Purdies are, at their cost, to register over title to Lot 2 and over the titles to each of the respondents’ lots for the respondents’ benefit, a covenant in the same form as the 2010 covenant for the benefit of the
Dorrance property;
13 North Holdings Development Ltd & v WGB Investments Ltd, above n 5, at [56].
14 MSB & EB Harnden and PM Trustee Ltd v BJ Collins HC Whangarei CIV-2009-488-000571, 18
December 2009 per Randerson J; Rental Space Ltd v March (1999) 4 NZ ConvC 192,873 (HC) at 192,887 per Elias J; Organic Farming Ltd v Bryson & Ors (2007) 5 NZ ConvC 194,383 (HC) per Clifford J.
(b) before any home or other building is constructed on Lot 2, the owners are to erect a fence of a permanent nature (for example – post and wire), separating the buildings, associated curtilage, planting required by the
2010 resource consent, and the implement shed and planting permitted by this judgment (the fenced-off area) from the balance of Lot 2;
(c) before any building commences, the Purdies are to plant the trees required by the 2010 consent, including that planting required to screen the buildings and building platform from the respondents’ properties and planting associated with any implement shed allowed pursuant to this judgment. They are also to ensure all such planting is served by irrigation before building commences;
(d) the fencing will mark the boundaries of the planting required by the 2010 consent and the fenced-off area. Before the building commences, existing trees, including wilding pines outside the fenced-off area, are to be felled and cleared from Lot 2;
(e) the 2005 covenant is to be modified so that there is a prohibition against having any vegetation on Lot 2 outside the fenced-off area higher than one metre. The Purdies are to provide a plan which can be annexed to the varied covenant and the final judgment showing the area to which this prohibition will apply; and
(f) 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.
[114] There is to be a modification of the 2005 covenant to permit the erection of a shed, designed and built in accordance with a plan approved by all parties, with planting screening the building from the respondents’ properties as shown on an approved plan, the building and planting to be within the fenced-off area referred to earlier.
[115] The 2005 covenant is further modified by deletion of the prohibition against the planting of poplars on Lot 2.
[116] The parties should endeavour to reach agreement as to the terms on which the
2005 covenant can be modified to be consistent with the 2010 covenant. If there is no agreement, I will hear submissions. Leave is reserved accordingly. I will deal with costs when the judgment is finalised.
Solicitors:
White Fox & Jones, Christchurch
GCA Lawyers, Christchurch
Dale Lester, Barrister, Christchurch.
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