Reed v Waikato District Council
[2025] NZHC 3380
•7 November 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-000346
[2025] NZHC 3380
UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules IN THE MATTER
of an application for judicial review of decisions under the Resource Management Act 1991
BETWEEN
ANTHONY PRIVETT REED and REED
TRUSTEE 2018 LTD (as Trustees of the EAGLE TRUST)
Applicant/Counterclaim DefendantAND
WAIKATO DISTRICT COUNCIL
First Respondent
OCEANIA HELICOPTERS PUKEKOHE LTD
Second Respondent/First CounterclaimantRUBY & RATA LTD
Third Respondent/Second Counterclaimant
Hearing: 14 August 2025 Counsel:
D R Bigio KC and T M McGoldrick for Applicant K J Ridling for First Respondent
S J Ryan and S Thompson for Third Respondent
Judgment:
7 November 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 7 November 2025 at 12 noon pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
REED v WAIKATO DISTRICT COUNCIL & ORS [2025] NZHC 3380 [7 November 2025]
Introduction
[1] The applicant has brought an application for judicial review against the respondents. The counterclaimants argue that the applicant has no right to seek judicial review. Justice Lang determined that the counterclaim should be adjudicated first.1
[2] Justice Lang’s decision provides an introduction to the bringing of the counterclaim:
[1] In this proceeding the applicants, the trustees of the Eagle Trust (the trustees), seek judicial review of decisions made by the Waikato District Council. The decisions related to an application for a land use consent by the second respondent, Oceania Helicopters Pukekohe Ltd (Oceania). Oceania sought consent to build a helicopter depot and commence a commercial helicopter operation on land owned by the third respondent, Ruby & Rata Ltd (Ruby). Ruby’s land adjoins a property owned by the Trust.
[2] The Council granted the consent on a non-notified basis. The trustees contend the Council erred in numerous respects in deciding that the application did not need to be notified and erred in granting it. It therefore seeks orders quashing both decisions.
[3] The Council, Oceania and Ruby oppose the application for judicial review. Oceania and Ruby have also filed a counterclaim against the trustees seeking to enforce an encumbrance that was registered over the land now owned by the trustees before they acquired it. Oceania and Ruby contend that the encumbrance requires the owners of the trustees’ land to support Oceania’s application for consent. They say the trustees acted in breach of the encumbrance by filing the application for judicial review. They maintain the trustees will continue to breach it if they pursue the application further. Oceania and Ruby seek declaratory relief as to the effect of the encumbrance, together with a permanent injunction prohibiting the trustees from taking further steps in the judicial review proceeding. In addition, they seek liquidated damages calculated in accordance with a formula prescribed by the encumbrance.
Background
The counterclaimants
[3] The first counterclaimant, Oceania, was incorporated in 2008 with Mr Richard Stening as sole director and as a shareholder with Ms Kristen Russell. The second counterclaimant, Ruby, was incorporated in April 2021 with Mr Stening and
1 Reed v Waikato District Council [2025] NZHC 1438.
Ms Russell as directors. They are also the shareholders, along with Mr Graham Russell. Oceania and Ruby are said to be “business partners” in a commercial helicopter operation. Mr Stening deposes that the arrangement between them involves Ruby owning the relevant land and constructing and owning a helicopter pad and hangar. Oceania will then lease the land from Ruby and operate its helicopters from the hangar.
The properties
[4] Titles to 87 and 87A Reube Road were issued in November 2011, following the grant of subdivision consent in 2008 to Ruebe Park Ltd (owned by the Siemelink family).
[5] Ruby purchased 87A Ruebe Road from Ruebe Park Ltd and the title transferred on 7 May 2021. On that day, encumbrance instrument 12107930.4 (the encumbrance) was registered against the title of 87 Ruebe Road.
[6] The applicant (the Trust/the trustees) now owns 87 Ruebe Road. Mr Reed purchased the property in July 2021 from Ruebe Park Ltd and the title transferred to him in October 2021. The title transferred again in May 2022 from Mr Reed to the Trust.
Sale of 87A Ruebe Road
[7] The sale and purchase agreement between Ruebe Park Ltd and Ruby provided terms of sale including:
26.HELICOPTER LANDING
26.1Both parties acknowledge that the property being sold is a recent subdivision from which the Vendor continues to own the property known as 87 Ruebe Road, Buckland (Vendor’s property) which is immediately adjacent to the Property being sold under the terms of this agreement (Purchaser’s property).
26.2The Vendor agrees to do all things reasonably necessary to enable the purchaser to register a memorial or instrument on the title to the Vendor’s property with such instrument allowing the Purchaser to keep a helicopter pad on the Purchaser’s property with the terms of the instrument to be confirmed during the Purchaser’s due diligence period …
[8] Ms Russell deposes that, prior to the settlement of the 87A Ruebe Road purchase, she negotiated with the vendor over the terms of an encumbrance relating to the proposed helicopter use.
The encumbrance
[9] The encumbrance provides that “the Encumbrancer”, together with its successors and assigns, is the registered proprietor of 87 Ruebe Road (now, the Trust). “The Encumbrancee”, together with its successors and assigns, is the registered proprietor of “the Adjoining Land”, being 87A Ruebe Road (Ruby).
[10] The encumbrance, at recital C, recites the intention of the encumbrancee “to construct a helicopter landing pad and hangar on the Adjoining Land and to operate a commercial helicopter business from the landing pad and hangar”. The body of the encumbrance contains covenants designed to prevent the “emcumbrancer”, the owner of the land at 87 Ruebe Road, from doing anything, directly or indirectly, to thwart the encumbrancee’s intention. Those are known as “no complaints” covenants.
[11]The relevant parts of the encumbrance are:
BACKGROUND
AThe Encumbrancer together with as successors and assigns (“the Encumbrancer”) is registered as proprietor of an estate in fee simple in “the Land” as defined in Schedule 2.
BThe Encumbrancee together with its successors and assigns (“the Encumbrancee”) is the registered proprietor of the land currently known as:
(i)Lot 2 on Deposited Plan 443412 and contained in Computer Freehold Register 554382;
(“the Adjoining Land”).
CThe Encumbrancee intends to construct a helicopter landing pad and hangar on the Adjoining Land and to operate a commercial helicopter business from the landing pad and hangar (“the Development and Operations”).
DThe Encumbrancer has agreed to encumber the Land and enter into this Encumbrance Instrument to be registered against the Land to secure compliance by the Encumbrancer with the covenants in this Encumbrance Instrument.
COVENANTS
1The Encumbrancer will support the Encumbrancee’s undertaking of its construction of a helicopter pad and hangar on the Adjoining Land and allow the Encumbrancee and its business partners to undertake the Development and Operations on the Adjoining Land without interference, objection, opposition, or restraint from the Encumbrancer.
2The Encumbrancer will not make or support any objection to or submission opposing any application for resource consent, district plan provision or change, or other authorisation for or facilitating the Encumbrancee’s Development and Operations on the Adjoining Land under the Resource Management Act 1991; nor will the Encumbrancer take issue against or cause any delay to any such application, district plan provision or change.
3The Encumbrancer will bring no proceedings for damages, nuisance, or interference arising from the Encumbrancee’s the Development and Operations on the Adjoining Land, and neither will the Encumbrancer support, finance, or contribute to the cost of any such proceedings.
4The Encumbrancer will not encourage or assist any other party to undertake any of the actions which the Encumbrancer has agreed not to undertake under this Encumbrance Instrument and will not procure any other party to do so.
5The Encumbrancee shall have the right of discretion to assign to any person, persons or organisations the Encumbrancee’s powers of approval and rights of enforcement in respect of the covenants herein and the decision of such person, persons or organisation shall be binding on the Encumbrancer as if made by the Encumbrancee.
6If there is any breach or non-observation of the covenants the Encumbrancer will upon written demand being made by the Encumbrancee, any other registered proprietor of any other benefiting lots in the development on the Adjoining Land or any person appointed by the Encumbrancee pursuant to clause 2 above, pay the person making such demand as liquidated damages the sum of
$350.00 per day per breach for every day that such breach of non- observation continues after the date on which written notice and demand has been made.
7The term of this Encumbrance commences on the date of this Encumbrance and terminates 99 years from the 7th day of May 2021.
8(a) Notwithstanding clause 7 above the Encumbrancee shall release this Encumbrance over the land which shall have no further effect in the event that the Encumbrancee’s application for a resource consent to develop and build a helicopter pad and operate a helicopter on the adjoining land has not been granted by the 31st day of December 2023.
…
Resource consent
[12] In June 2023, Mr Russell applied on behalf of Oceania for resource consent to “construct and operate a rural aviation depot at 87a Ruebe Road.” Consent was granted on a non-notified basis on 18 August 2023. The decisions to grant consent and to do so on a non-notified basis are the subject of the Trust’s judicial review application.
Application for judicial review
[13] The Trust’s statement of claim, filed on 31 October 2024, pleads seven grounds of review. The counterclaimants filed a statement of defence with an affirmative defence and counterclaim on 9 December 2024. The crux of their counterclaim is that the Trust’s application for judicial review is in breach of relevant covenants of the encumbrance as it is an attempt to interfere, object, oppose, and restrain them from undertaking the helicopter business.
The counterclaim
[14] The counterclaimants “seek to enforce the covenants in the encumbrance”, pleading that, by applying for judicial review, the Trust is in breach of its secured obligations under the encumbrance as the application is, as mentioned, “an attempt to interfere, object, oppose, and restrain” the counterclaimants from undertaking the helicopter business. They say two issues arise for determination:
(a)has the Trust breached the secured obligations under the encumbrance; and
(b)if yes, what relief should be granted?
[15] The counterclaimants seek a declaration that the obligations in the encumbrance are enforceable and that the Trust is in breach of its obligations. They also seek orders pursuant to s 313 of the Property Law Act 2007 (PLA), a permanent injunction restraining the Trust from continuing the judicial review proceedings or a strike out of those proceedings, and damages and costs.
[16] The Trust did not file a formal statement of defence to the counterclaim,2 but submits that, correctly interpreted, the encumbrance would not have prohibited the Trust from opposing Oceania’s resource consent application and, even if it did, the judicial review application is not in breach of the covenants of the encumbrance as it does not amount to an “objection to or submission opposing resource consent” or “interference, objection, opposition, or restraint” of the Development Operations.
[17] As will be discussed, the counterclaim hinges on issues of contractual interpretation. The counterclaimants suggest that a “contextual and purposive” approach to the interpretation of the covenants should be taken. The Trust advocates a more literal approach.
The law
Contractual interpretation generally
[18] It is well settled that covenants are contractual terms that must be construed in accordance with contractual interpretation principles.3 The basic approach to contractual interpretation was set out in Firm PI 1 Ltd v Zurich Australian Insurance Ltd, which provides that contractual interpretation requires an objective approach with aim being to ascertain the:4
… meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
The contract is to be taken as a whole and viewed within its overall context.5
Interpreting covenants
[19]While the Firm PI approach remains good law, the Supreme Court noted in
Green Growth No 2 Ltd v Queen Elizabeth Second National Trust that that approach
2 While the Trust did not file a statement of defence, it was of the view that the document it filed denying the allegations in the counterclaim constituted a statement of defence in accordance with the High Court Rules 2016. No point is taken about this, and I will not address it.
3 Elizabeth Toomey New Zealand Land Law (3rd ed, Thomson Reuters, Wellington, 2017) at 1096.
4 Firm PI 1 Ltd v Zurich Australian Insurance Ltd [2014] NZSC 147, [2015] 1 NZLR 432 at [60], citing Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 (HL) at 912 per Lord Hoffmann.
5 Firm PI 1 Ltd v Zurich Australian Insurance Ltd, above n 4, at [60] and [63].
to contractual interpretation is appropriate where there is an “ordinary contract”.6 The Court emphasised that, as it had acknowledged in Firm PI, where an instrument affects the rights of third parties, other considerations apply:7
(a)Generally, registered documents should be construed without regard to extrinsic evidence which is particular to the original parties and is not apparent on the face of the register.
(b)This does not limit rights to apply for rectification, a topic which we address in the next section of these reasons.
(c)We would not exclude reference to facts which a reasonable future reader of the document could be expected to be aware of and would recognise as relevant and which they have access to, such as the configuration of land, any physical features to which the document relates or refers and any material referred to in the document.
While this approach has been adopted, the Courts have varied in their application of it and the extent to which recourse to extrinsic evidence is permitted is not settled.8
[20] In Kaimai Properties Ltd v Queen Elizabeth the Second National Trust, the Court of Appeal declined to admit on appeal extrinsic evidence to aid interpretation as “the objective meaning of the provisions [were] crystal clear”.9 The Court inferred that there may be cases where something in the extrinsic evidence justifies departure from the clear meaning, but that was not such a case and nothing further was said. This Court has also excluded extrinsic evidence where the plaintiff was not a party to the execution of the relevant instrument and therefore had “no direct knowledge of such extrinsic matters as may have existed at the time” the relevant instrument was entered into.10
Interpreting public documents
[21] There is a general rule that extrinsic evidence should not be used to aid interpretation of public documents,11 but there may be a basis for extrinsic evidence
6 Green Growth No 2 Ltd v Queen Elizabeth Second National Trust [2018] NZSC 75, [2019] 1 NZLR 161 at [60].
7 At [74].
8 Gibbs (ato RV and PJ Gibbs Family Trust) v First Gas Ltd [2022] NZCA 627 at n 18.
9 Kaimai Properties Ltd v Queen Elizabeth Second National Trust [2021] NZCA 10 at [46], citing
Lakes International Golf Management Ltd v Vincent [2017] NZSC 99, [2017] 1 NZLR 935 at [28].
10 Austin v Rentrezi 2 Ltd [2021] NZHC 1027 at [41].
11 Opua Ferries Ltd v Fullers Bay of Islands Ltd [2003] UKPC 19, [2003] 3 NZLR 740.
to be admitted where the public document refers to a thing or place that is not set out in the document.12 This Court in Art Deco Society (Auckland) Inc v Auckland City Council held that “It is necessary to consider the meaning of a public document in the context of its statutory framework.”13 The relevant statutory framework in this case is the Resource Management Act 1991 (RMA); in particular, s 134, which provides that land use consents attach to the land. Mr Ryan placed considerable emphasis on this latter point.
“No complaints” covenants
[22] As mentioned, the covenants in the encumbrance are “no complaints” covenants. This Court in South Pacific Tyres NZ Ltd v Powerland (NZ) Ltd noted that “no complaints” covenants are “now commonplace” in New Zealand. In that case, the Court held that certain public participation rights may be waived by express agreement, provided they are not “rights which should be regarded as incapable of surrender for reasons of public policy.”14
Issue — does an application for judicial review constitute an “opposition” prohibited by the encumbrance?
[23] I will set out the issues, as I see them, and summarise the relevant submissions of the parties, before discussing them.
Submissions
[24] The counterclaimants contend that the application for judicial review breaches covenants 1–4 as it constitutes “interference, objection, opposition, or restraint” of the Development and Operations, an objection to resource consent and, in relation to covenant 4, the members of the Trust have variously encouraged, assisted, or procured another party (being another member of the Trust group) to undertake actions the encumbrancer has agreed not to undertake. They say a “no complaints” covenant is consistent with a general rule that a person can renounce statutory rights, such as
12 Slough Estates Ltd v Slough Borough Council [1970] 2 All ER 216, [1971] AC 958.
13 Art Deco Society (Auckland) Inc v Auckland City Council [2006] NZRMA (HC) at [90].
14 South Pacific Tyres NZ Ltd v Powerland (NZ) Ltd [2009] NZRMA 58 at [58]–[67] and [82], citing
Christchurch International Airport Ltd v Christchurch City Council [1997] 1 NZLR 573.
judicial review, if no public interest is involved. Further, they submit that, under the principles of contractual interpretation, the parties must have intended that a judicial review proceeding falls within the scope of “no complaints” as, otherwise, the covenants prohibiting objection would be ineffective.
[25] The Trust submits that the application for judicial review is not a form of “opposition” or “objection” that is prohibited by the encumbrance. First, the term “objection” in covenant 2, construed in context, refers to a submission in opposition to an application (which a judicial review application is not) and, second, the prohibition relates to post-consent activities, namely construction, development and operation (the latter being distinct from the term defined in the encumbrance). Further, the Trust submits the “no complaints” covenants cannot constitute a surrender of the “fundamental right” of judicial review, but if it could, such surrender would need to be explicit.
Issue — does an objection to Oceania’s application for resource consent constitute a breach of the encumbrance?
[26] The counterclaimants say it does not matter that Oceania, rather than Ruby, made the application for resource consent. The Trust says that distinction is of fundamental importance.
Submissions
[27] Mr Bigio KC, for the Trust, refers to recital B and covenants 5 and 9 of the encumbrance, submitting that these provisions make it clear who the “Encumbrancee” is for the purpose of the obligation to refrain from opposition. Recital B defines the encumbrancee, “together with its successors and assigns”, as the registered proprietor of 87A Reube Road. Covenant 9 is couched in similar terms. Covenant 5 refers to the encumbrancee’s right of discretion “to assign … the Encumbrancee’s powers of approval and rights of enforcement in respect of the covenants …”, which Mr Bigio says does not extend a right to assign authority to make resource consent applications.
[28] The counterclaimants would have me interpret these covenants somewhat more creatively. Directly addressing the Trust’s submission, they say that, given
covenant 1, the encumbrance envisages the performance of covenanted activities, such as applying for resource consent, by both the encumbrancee and its “business partners”:
The Encumbrancer will support the Encumbrancee’s undertaking of its construction of a helicopter pad and hangar on the Adjoining Land and allow the Encumbrancee and its business partners to undertake the Development and Operations on the Adjoining Land without interference, objection, opposition, or restraint from the Encumbrancer.
[29] The counterclaimant contends that “Development and Operations” includes resource consent applications and, as the definition of “Development and Operations” in recital C is “nearly identical” to the description of what resource consent would be for, as provided in covenant 8(a), it is clear the covenants are to be read together and Oceania, as Ruby’s business partner, was authorised to obtain resource consent.
[30] A challenge arises as, in addition to the Trust disputing that anyone other than the named encumbrancee can apply for consent, the Trust does not accept that Oceania and Ruby are “business partners”, but rather are in “an arms-length landlord-tenant relationship” and, in any event, the definition of “Encumbrancee” does not include “business partners”. The counterclaimants submit that there is no need for “business partners” to be defined, nor for the Trust to have been aware of the relationship between them, nor for any extrinsic evidence to be admitted to ascertain the meaning of “business partners”. What matters, they say, is that the Trust knew (or a reasonable person would have known) Ruby had business partners which would “undertake the Development and Operations” and that the parties can have both a landlord-tenant and a business relationship.
[31] Mr Ryan submits that, if extrinsic evidence is required to identify Oceania as a “business partner”, the evidence set out in the affidavit of Mr Stening, which supports the submission that Oceania is a business partner of Ruby, should be admitted because a reasonable person could be expected to be aware of their relationship and the information was readily available. As the term “business partners” is included in the encumbrance, which is a public document, it is open to the Court to admit extrinsic evidence.
[32] In any event, the counterclaimants submit it does not matter who applied for the resource consent as land use consents run with the land. They say that, taking a purposive approach15 and reading the encumbrance in the statutory context of s 134 of the RMA, the consent did not need to be obtained by anyone in particular — it just needed to be obtained in relation to the land. As such, covenant 8(a) is not triggered as resource consent was granted by the required date. Accordingly, the encumbrance is enforceable and has been breached.
Issue — if a breach is made out, what relief is appropriate?
[33] The counterclaimants seek a declaration that the encumbrance is enforceable and that the Trust has breached the encumbrance. They also seek a declaration under s 313 of the PLA.
[34] The parties dispute whether injunctive relief is appropriate in this case. Mr Ryan assures me that Court can and has exercised its inherent jurisdiction to order an injunction where it is in the interests of justice to do so. The counterclaimants say it is in the interests of justice to order a permanent injunction to prevent the Trust from “further breaching the encumbrance”.
[35] The Trust submits that injunctive relief is inappropriate as the encumbrance specifically provides for liquidated damages in covenant 6. Mr Bigio refers to Fitzgerald J’s decision in Methanex New Zealand v Nova Energy Ltd16 to submit that an injunction should not be ordered where damages are the proper remedy. Mr Ryan says Methanex does not stand for that proposition, and emphasises the full quote from which Mr Bigio extracted the basis for his submission:
[117] It is plain from the reasoning in those two cases [Nicholl v ANZ Banking Group New Zealand Ltd and Kettelwell v Mobil Oil New Zealand Ltd17] that they do not stand as authority for the bald proposition that specific performance will not be available where a contract contains a liquidated damages clause. Rather, they stand for the proposition that a liquidated damages clause will be relevant to the overall assessment of whether damages would be an adequate remedy for a defendant’s breach of contract, which is one factor, among others, for the Court to take into account when deciding
15 Big River Paradise Ltd v Congreve [2008] NZCA 78, [2008] 2 NZLR 402.
16 Methanex New Zealand Ltd v Nova Energy Ltd [2024] NZHC 1604, [2024] 3 NZLR 167.
17 Nicholl v ANZ Banking Group New Zealand Ltd (1995) 3 NZConvC 192,197 (HC); and Kettelwell v Mobil Oil New Zealand Ltd HC Auckland CP529-im00, 16 August 2001.
whether to exercise its discretion to grant an order for specific performance or an injunction.
[36] Mr Ryan says there is nothing in the encumbrance to suggest damages were the only remedy available for a breach. He submits that, without an injunction, relief is essentially meaningless as the Trust would be able to continue breaching the encumbrance.
Issue — is there a basis to strike out the judicial review proceedings?
[37] The counterclaimants apply for strike out of the judicial review proceedings on the basis that the judicial review discloses no reasonably arguable cause of action as (depending on the outcome of the overall counterclaim) the applicants are barred from bringing a claim of judicial review. The proceedings are likely to cause prejudice and delay as, if successful, the loss of land use consent would be highly prejudicial to the counterclaimants. They say the application is vexatious as the claim has prevented the counterclaimants from proceeding with implementing the helicopter consent. Finally, the counterclaimants say the application is an abuse of process as it is a collateral attack on the encumbrance and an attempt to circumvent it.
[38] The Trust submits the grounds under r 15.1 of the High Court Rules 2016 are not met because the encumbrance does not protect Oceania’s resource consent application but, if it does, an application for judicial review is not prohibited by the encumbrance. The Trust says it has a legitimate and reasonably arguable cause of action in judicial review and the application is not vexatious as there is no impropriety in the Trust seeking to review the Council’s exercise of a public power.
Discussion
[39] The encumbrance is to be interpreted on its plain meaning. The trustees were not a party to its creation and bought their land at 87A Reube Road after the encumbrance was registered against its title.
[40] So, what did the encumbrance tell the trustees? First, and obviously, it told them that the encumbrancee — the owner for the time being of the adjoining land at
87 Reube Road — intended to build a helicopter pad and hangar on the adjoining land and to operate a commercial helicopter business therefrom.18
[41] Second, and equally obviously, it told them that they had a positive obligation to support that undertaking and allow “the Encumbrancee and its business partners” to do it “without interference, objection, opposition or restraint”.19
[42] The second, third and fourth covenants made it plain to the trustees that they could not get around their obligations in the first covenant by injecting themselves into the resource consent process, directly or indirectly. Neither could they seek to stymie the encumbrancee’s undertaking by legal action in respect of the encumbrancee’s development and use of the adjoining land, directly or indirectly.
[43] The trustees would also have noted the eighth covenant which provides for the release of their land from the encumbrance “in the event that the Encumbrancee’s application for a resource consent to develop and build a helicopter pad and operate a helicopter on the adjoining land has not been granted by the 31st day of December 2023”.
[44] On its face, the trustees’ application for judicial review breaches their first covenant obligation to support the encumbrancee’s undertaking. It breaches also their first covenant obligation to allow the encumbrancee and its business partners to get on with the undertaking without interference or opposition.
[45] I have considered the argument that the encumbrance cannot constrain the trustees’ right to seek judicial review because that would mean contracting out of a fundamental right not to be subject to unlawful decisions. I do not accept the argument in this case:
(a)The encumbrance means that the trustees bought their land knowing that their neighbour intended to seek resource consent to develop and operate a commercial helicopter business on its land.
18 Recital C.
19 Covenant 1.
(b)The encumbrance means that the trustees have to support their neighbour in that regard.
(c)While judicial review in this context is about the process by which the resource consent was gained, not whether or not there should be a resource consent, the application for judicial review was clearly an attempt to prevent the counterclaimants from proceeding with the consented development. The encumbrance prevents the trustees from raising any opposition or objection to the granting of the resource consent. Given the intended outcome of the judicial review application, being the withdrawal of resource consent, a reasonable person would interpret the encumbrance as prohibiting such an application. Any other interpretation would considerably weaken the efficacy of the “no complaints” covenants.
(d)The right to seek judicial review in this context does not raise any issue of public policy which should override the operation of the encumbrance.
[46] I do not accept the trustees’ argument that because the resource consent was gained by Oceania and not by Ruby as registered proprietor, the eighth covenant means that the encumbrance is now of no effect. The obligation on the encumbrancee to apply for, and gain, a resource consent is not a personal obligation. The resource consent runs with the encumbrancee’s land, not with Oceania. In any event, the resource consent was obtained, in a real sense, by the encumbrancee. Oceania acted on behalf of the encumbrancee and itself. It would be unduly restrictive to adopt a more constrained interpretation.
[47]I find for the counterclaimants.
[48] The issue becomes one of remedy. In essence, I have found that the trustees have brought a proceeding which they are legally bound not to bring. I cannot, therefore, allow it to proceed. I do not favour an injunction for that purpose because the proceeding has been filed and responded to. It is in being.
[49] In my view, where a party brings a proceeding which cannot succeed because the bringing of it is against the party’s legal obligations and to pursue it would compound the transgression, then the inherent jurisdiction of the Court to prevent its process from being abused is engaged. I will strike out the trustees’ application for judicial review.
[50]I will not, therefore, give the other forms of relief sought.
Decision
[51]I enter judgment on the counterclaim for the counterclaimants.
[52]I strike out the applicant’s application for judicial review.
[53] There remains the issues of costs and whether the sixth covenant applies and, if so, to what extent. The counterclaimants are to file their memorandum by 19 December 2025. The applicant is to file their memorandum no later than 30 January 2026. Memoranda shall not be longer than five pages.
Brewer J
Solicitors:
Langford Law (Wellington) for Applicant
Waikato District Council (Hamilton) for First Respondent Graham & Co (Auckland) for Third Respondent
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