RCL Henley Downs Ltd v Hanson - [2018] NZHC 2714

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002014

[2018] NZHC 2714

UNDER Part 7 of the High Court Rules and sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

Of an application for an order modifying land covenants

BETWEEN

RCL HENLEY DOWNS LIMITED
Applicant

AND

EMMA KELSEY HANSON and OTHERS

First Respondents

AND

CONEBURN WATER LAND LIMITED and JACK’S POINT RESIDENTS & OWNERS ASSOCIATION

INCORPORATED
Second Respondents

AND

QUEENSTOWN LAKES DISTRICT COUNCIL

Third Respondent

Hearing: 18 October 2018 (Determined on the papers)

Counsel:

P J Wright and L Green for Applicant

Judgment:

19 October 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The applicant, RCL Henley Downs Limited (Henley) is the owner of a large area of land between Lake Wakatipu and The Remarkables mountain range, south of Frankton. Henley is in the process of undertaking a multi-stage residential

RCL HENLEY DOWNS LTD v HANSON and OTHERS [2018] NZHC 2714 [19 October 2018]

development of this land which will ultimately produce approximately 1,500 residential sections. Sections at each stage are being released for sale prior to deposit of development plans and issue of titles. The first stage was a development of a large part of one of four allotments intended for development, and 88 residential allotments together with attendant reserves, roadways and services for a residential area have been built. All 88 sections have been sold, titles have been issued, and the first respondents are the persons who have bought these sections. They have settled their purchases and received title.

[2] On the deposit of that plan certain allotments within this stage of the development vested in the third respondent, the Queenstown Lakes District Council as reserves. That plan also shows areas of roadway.

[3] A further stage of development is now at a point where the plan is ready to be lodged with Land Information New Zealand (LINZ). This will create a further 20 sections, all of which are sold. There will also be a drainage reserve, and roads. All these, along with the roads in the first stage, are to vest in the QLDC. This will also be the position with further stages as they are progressively developed.

[4] There is a land covenant registered against all the land which Henley is to develop, including the areas in the first and second stages, together with two other titles which Henley does not own. These are owned by the second respondents, respectively. Summarised, the covenant provides that properties developed on land which is subject to the covenant will not use potable water other than in accordance with a private water scheme. The covenant cannot remain on titles which are to vest in QLDC as roads and reserves. It could be extinguished by documents signed by every registered proprietor of each title over which it is registered, the number of which has now significantly increased by the issue of titles for the first stage.

[5] The…

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 RCL Henley Downs Ltd v Hanson

Details

AGLC: RCL Henley Downs Ltd v Hanson [2018] NZHC 2714
Case: [2018] NZHC 2714
Decision Date: 19 October 2018

CaseChat Overview and Summary

RCL Henley Downs Limited applied to the High Court for an order to modify land covenants that restrict the use of potable water on certain sections of their land. The respondents were the purchasers of the first stage of the subdivision, the owner of a portion of the land, and the Queenstown Lakes District Council, who would receive certain portions of the land as reserves. The covenant in question restricted the use of potable water on the land to a private water scheme. The applicant proposed to extinguish the covenant from titles that would vest in the council as reserves and roads. The issue was whether the court should grant the applicant's request to modify the covenant to facilitate the extinguishment process. The court found that the covenant could be extinguished from the titles that would vest in the council, and that it was in the best interests of all parties for the covenant to be extinguished. The court also found that the application could be brought by way of originating application and that no other party needed to be served. The court made orders to modify the covenant and extinguish it from the relevant titles, and to allow the applicant to apply for further orders in the future if necessary.

Orders