Purdie v Truckell - [2016] NZHC 1231

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 Respondents

Judgment:

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.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Purdie v Truckell

Details

AGLC: Purdie v Truckell [2016] NZHC 1231
Case: [2016] NZHC 1231
Decision Date: 9 June 2016

CaseChat Overview and Summary

Justin and Tracey Purdie (the Purdies) sought to modify a covenant over their land in order to enable them to build a home in accordance with a resource consent which they had been granted. The covenant, which was created in 2005, limited the height of trees on the land to five metres. The Purdies' resource consent required trees to be planted to a height of between seven and 10 metres. The respondents, owners of adjoining properties, opposed the application on the basis that it would substantially affect the views from their properties and the character of their neighbourhood. The Court found that the Purdies' application satisfied the grounds for modification set out in s 317 of the Property Law Act 2007. The Court found that the continued existence of the covenant would impede the reasonable use of the Purdies' land in a way that was not foreseeable at the time the covenant was created and that, although the Purdies had purchased the property knowing of the conflict, they had not purchased it with the intention of breaching the covenant. The Court found that the Purdies' proposed modifications would substantially injure the respondents and that the respondents would not agree to the proposed modifications if they were required to pay compensation. The Court found that the Purdies' application should be granted but that it should be subject to certain terms which would mitigate the impact of the modifications on the respondents. The Court found that the Purdies' application should be denied in so far as it sought to delete a 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 a prohibition against any subdivision of the land for ten years from 11 October 2005.

Orders