Taylor v Small
[2020] NZHC 2023
•11 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-864
[2020] NZHC 2023
UNDER the Declaratory Judgments Act 1908 IN THE MATTER
of an application for a Declaratory Judgment
BETWEEN
WILLIAM PETER TAYLOR AND SUSAN MARY TAYLOR
First Plaintiffs (Discontinued)
SCOTT KERRY JACKSON AND SARAH ANNE JACKSON
Second PlaintiffsRICHARD DONALD JOHNSTON AND RACHEL ELIZABETH JOHNSTON
Third Plaintiffs (Discontinued)TREVOR FRANK SAVORY AND SALLIE ANN RENWICK
Fourth Plaintiffs
AND
GEOFFREY CLEMENT SMALL AND ARIA SMALL
First Defendants
BOMBAY INVESTMENTS LIMITED
Second Defendant
Hearing: 27-28 July 2020 Appearances:
R B Brabant for the Plaintiffs
C B Wilkinson-Smith for First Defendants
Judgment:
11 August 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 11 August 2020 at 11.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TAYLOR v SMALL [2020] NZHC 2023 [11 August 2020]
Introduction
[1] The first to fourth plaintiffs and the first defendants, Geoffrey and Aria Small (the Smalls), own rural lifestyle blocks south of Auckland between Ramarama and Bombay.
[2] The Smalls have constructed an equestrian facilities building on their land which they purchased from the first plaintiffs, William and Susan Taylor (the Taylors), in 2013.
[3] The second and fourth plaintiffs (together the plaintiffs), now the only active plaintiffs in the proceeding, say that the equestrian facilities building is in breach of restrictive covenants. They seek a declaration to that effect. They also seek injunctive relief directing the Smalls to alter the equestrian facilities building to the extent necessary to meet the requirements of the covenants; or failing completion of those alterations that they pull down and remove the building. They seek further injunctive relief restraining the Smalls from erecting any farm outbuilding or ancillary building which does not meet the requirements of the restrictive covenants.
[4] In response the Smalls say that the equestrian facilities building is not in breach of the restrictive covenants. A counterclaim seeking an order modifying the restrictive covenants was abandoned at the commencement of the hearing.
Factual background
[5] My judgment of 29 October 2018 (the original High Court judgment) sets out a comprehensive history of the various subdivisions and boundary changes since the first subdivision by the Taylors.1 That background was also summarised by the Court of Appeal in its decision on the appeal from the original High Court judgment.2 I mention only what is necessary background for the purpose of the remaining issues before the Court.
1 Taylor v Small [2018] NZHC 2785 at [7]-[29].
2 Taylor v Small [2019] NZCA 152 at [6]-[15].
[6] In 1994, the Taylors, who at that time owned approximately 73 hectares of farm land at 202 Ingram Road, obtained approval from the then Franklin District Council to subdivide 40 hectares (the Taylor subdivision). By deed dated 15 July 1998 between the Taylors and the then owners of one of the lots in the Taylor subdivision, the parties agreed to restrictive covenants in favour of that lot over the balance of the land in the Taylor subdivision (covenant 3). In 2004, the Taylors further subdivided their land. By deed dated 24 June 2004 between the Taylors and the second plaintiffs, Scott and Sarah Jackson (the Jacksons), a covenant was created in favour of the Jackson land over part of the land in the (original) Taylor subdivision still owned by the Taylors and over a further two titles owned by the Taylors3 (covenant 4).
[7] In April 2013, the Smalls purchased 17.5 hectares in a single lot from the Taylors (the Smalls’ land). The Smalls’ land contains parts of some of the lots from the Taylor subdivision and the whole of one of those lots. The Smalls’ land, as part of the servient land, was subject to covenants 3 and 4. The particular parts of the two covenants relevant to this appeal are identical and are as follows:
(i)That the Covenantors shall not erect or permit to be erected or placed on the servient lands or any part thereof any building or erection other than a new (not being an existing building previously occupied or used and removed from another locality) single dwelling house and such farm outbuilding or ancillary buildings as are usual and reasonable for the type of rural use of the land in the subdivision (of which the dominant land and the servient lands form part) and of a nature design or style (including that of the garden or landscaping aspects and fencing of surrounding grounds) in keeping with each other such that the dwelling house and any additional buildings and the surrounding grounds thereof blend in with the rural nature of the surrounding area to ensure that a pleasing and aesthetically compatible appearance is maintained for the benefit of the dominant land and all the servient lands.
[8] In 2014, the Smalls obtained a building consent and constructed the equestrian facilities building. Part of the works undertaken in 2014 involved the preparation of a building site for a dwelling-house the Smalls intend to live in but which has yet to be constructed.
3 Those two further titles were not part of the 1994 Taylor subdivision. The two titles are now owned by Peter O’Meara who was served with the proceedings but who has not taken part.
[9] In 2015, the Smalls applied to the Auckland Council which was, as a result of amalgamations, successor to the Franklin District Council, for consent to subdivide the land they had bought from the Taylors into seven lots (the Small subdivision). Approval was given. The Smalls’ intention was to sell six lots and use the proceeds of the sales to build a home for themselves on Lot 7, where they continue to live temporarily in the equestrian facilities building. This litigation has delayed the building of their home on Lot 7.
[10] By the time of this hearing, houses had been built on two of the lots in the Small subdivision and a house is under construction on a third lot. The Smalls have now commissioned plans for a house they propose to build for themselves on Lot 7.
Procedural background
[11] In May 2018, the first to fourth plaintiffs brought an application in this Court under the Declaratory Judgments Act 1908 seeking declarations that:
(a)only three dwelling-houses may be built on the Smalls’ land;
(b)the equestrian facilities building was in breach of the terms of restrictive covenants.
[12] The first to fourth plaintiffs further sought injunctions restraining the Smalls (or subsequent purchasers from them) from constructing any more than three dwelling-houses on the Smalls’ land and ordering that the Smalls remove the equestrian facilities building.
[13] The application by the first to fourth plaintiffs was opposed by the Smalls and by the second defendant, Bombay Investments Ltd, which had purchased one of the lots in the Small subdivision. It filed a notice of appearance reserving rights but took no further part in the proceeding.
[14] As well as opposing the application, the Smalls said that the first to fourth plaintiffs were estopped from asserting their interpretation of the restrictive covenants, both in respect of the number of new dwelling-houses that may be built on the Smalls’
land and whether the covenants permitted the construction of the equestrian facilities building.
[15] In the original High Court judgment, I considered there were three issues for me to determine:4
(a)How many new single dwelling-houses may be built on the Smalls’ land;
(b)Did the restrictive covenants permit the equestrian facilities building constructed by the Smalls; and
(c)Were the first to fourth plaintiffs estopped from asserting their interpretation of the covenants, both in respect of the number of new dwelling-houses that may be built on the Smalls’ land and whether the covenants permitted the construction of the equestrian facilities building.
[16] On the first issue I found against the first to fourth plaintiffs who had submitted that the number of new dwelling-houses that may be built on the Smalls’ land was restricted to three. I determined that a single dwelling-house may be built on any part of the Smalls’ land.5 The first to fourth plaintiffs therefore failed in their application for a declaration restricting the number of new dwelling-houses that could be built on the lots in the Small subdivision.
[17] On the second issue, I determined that in the absence of a dwelling-house, the equestrian facilities building could not be said to be an outbuilding or ancillary building.6 I concluded that the building did not comply with the covenants but only in two respects. First there was not (yet) a dwelling-house associated with the equestrian facilities building. Second, as a result, the equestrian facilities building could not be said to be “in keeping” with the dwelling-house.7 However, I found that
4 Taylor v Small, above n 4, at [7]-[29].
5 At [67].
6 At [99].
7 At [125].
the building complied with the terms of the restrictive covenants in all other respects. Although I made a declaration as sought, I did not grant an injunction as I did not consider it would be equitable to require the equestrian facilities building to be taken down and removed only to have it restored once a new dwelling-house was constructed on Lot 7 (the Smalls’ property).8
[18] Finally, on the third issue, I held that the defence of estoppel raised by the Smalls failed.
[19] All four plaintiffs appealed my decision to the Court of Appeal and the Smalls cross-appealed. The Court of Appeal upheld my decision that the restrictive covenants allowed a dwelling-house to be built on each of the seven lots of land in the Small subdivision.9
[20] On the second issue the Court of Appeal held that I had erred in the way I interpreted the requirement of the restrictive covenants in relation to an outbuilding or ancillary building. The Court of Appeal said this Court needed to consider the evidence concerning the various buildings within the Taylor subdivision. The Court of Appeal noted that that exercise would require an appraisal of competing evidence which was likely to require cross-examination. It dismissed the Smalls’ cross-appeal in relation to estoppel.
[21] The Court of Appeal remitted the issues under the second ground of appeal back to the High Court for determination in accordance with the terms of its judgment.
[22] The Taylors and the third plaintiffs, Richard and Rachel Johnston (the Johnstons), have since filed a notice of discontinuance dated 2 September 2019. The Johnstons have sold their property but throughout the proceeding it has been referred to as the Johnston property. I will refer to it in that way in this judgment. Although the Taylors and the Johnstons have discontinued, there was no issue over the affidavits filed by them remaining as part of the evidence for the plaintiffs.
8 At [172].
9 Taylor v Small, above n 2, at [6]-[15].
[23] The Smalls were represented by counsel in the first hearing in this Court and in the Court of Appeal. By memorandum dated 6 May 2020, the Court was advised that the Smalls were acting for themselves. In the week prior to the hearing they instructed Mr Wilkinson-Smith, whose brief was limited to assisting with cross- examination of Christopher Hume, the architect called for the plaintiffs, leading Mr Small’s evidence and presenting oral submissions.
Issue
[24] The issue is now a narrow one. Does the equestrian facilities building comply with the terms of the restrictive covenants? If it does not, the Court needs to consider whether injunctive relief should be granted.
[25] The restrictive covenants require that a farm outbuilding or ancillary building be:
… usual and reasonable for the type of rural use of the land in the subdivision
… and of a nature design or style … in keeping with each other such that the dwelling house and any additional buildings and the surrounding grounds thereof blend in with the rural nature of the surrounding area to ensure that a pleasing and aesthetically compatible appearance is maintained for the benefit of the dominant land and all the servient lands.
The Court of Appeal judgment sets out how this is to be interpreted:
[59] In our assessment, the relevant parts of the covenants are best read as meaning that any dwelling house and outbuilding must:
(a)be usual and reasonable for the type of rural use of the land in the subdivision; and
(b)be of a nature, design or style in keeping with each other.
[60] These two requirements are distinct but are designed to achieve the same overall purpose of ensuring that the subdivision blends in with the rural nature of the surrounding area. In other words, the last portion of cl (i) of the covenants, beginning from “such that”, expresses the purpose of the two requirements we have outlined at [59]. The first requirement is aimed at ensuring the buildings are not unusual for a rural property. The second requirement is aimed at maintaining consistency between the buildings within the subdivision.
[61] The first requirement is concerned with assessing whether a building is “usual and reasonable” for rural use. In other words, there needs to be an assessment of the type of land use that is being carried out, including on the
dominant and servient lots, and whether, when viewed objectively, the building in question is reasonable.
[62] The second requirement acts to ensure a level of consistency between the designs and styles of the various buildings within the subdivision. Gordon J and the parties have treated this as limited to consistency between the dwelling house and outbuilding. If, however, the “a” in the phrase “a new … single dwelling house” is interpreted as meaning “any”, as Gordon J correctly concluded, there is no basis to limit the phrase “in keeping with each other” to just a dwelling house and its outbuilding. The “each other” must refer to all other dwelling houses and outbuildings within the subdivision. This interpretation is consistent with the purpose of the covenants to ensure that the buildings “blend in” and “that a pleasing and aesthetically compatible appearance is maintained for the benefit of the dominant land and all the servient lands”.
[27] Before undertaking an analysis of the evidence in relation to the two requirements, I note that I am proceeding on the basis that, because the Smalls have yet to build a house on their property, the equestrian facilities building fails to comply with the restrictive covenants. In the absence of a dwelling-house it cannot be said to be an “outbuilding” or an “ancillary building”. That finding in the original High Court judgment10 was not challenged in the Court of Appeal.11
The second requirement
[28] It is convenient to consider the second requirement first. That is because one of the rural uses of the land in the Taylor subdivision is rural-residential. Although each of the two requirements is distinct, and must be considered separately, consideration of the second requirement helps inform a determination of what is usual and reasonable for the type of rural use of the land, including its scale, in the Taylor subdivision.
[29] In considering the second requirement, I bear in mind the direction of the Court of Appeal that the required comparison is to all dwelling-houses and outbuildings within the Taylor subdivision. This will require a consideration of the nature, design and style of the Smalls’ equestrian facilities building by reference to dwelling-houses and other farm outbuildings or ancillary buildings within the subdivision.
10 At [98]-[99].
11 Taylor v Small, above n 2, at [50]-[52].
[30] Mr Brabant says that comparison has been undertaken by Mr Hume. Based on Mr Hume’s evidence, Mr Brabant submits:
(a)The equestrian facilities building does not reflect a customised design and is more akin to buildings found in urban industrial areas;
(b)No attempt has been made to moderate the building form or functions to reflect the surrounding environment and context;
(c)The scale of the building does not relate to the function of the building or the surrounding environment;
(d)The landscape treatment of the grounds is not well-developed. Little, if any, post-2014 landscaping can be observed;
(e)The “design” does not result in a balanced or creative solution in the context of the subdivision and does not result in a development that is pleasing, compatible or appropriate to its overall context;
(f)The “style” of the building yard and infrastructure is industrial, which is at odds with the existing buildings and landscape within the subdivision;
(g)The orientation, form, scale and materiality of the building and its surrounds bears no relationship to any of the existing typology or character of the existing built form, including outbuildings and implement sheds on adjoining properties; and
(h)In summary, the equestrian facilities building is not of a nature, design or style of the subdivision at 202 Ingram Road. It does not display any of the basic or inherent features, character or qualities of the existing buildings at the time of its construction.
[31] Mr Brabant submits that the Court has not received any expert evidence, or indeed any evidence, on behalf of the Smalls that challenges Mr Hume’s expert evidence.
[32] Mr Brabant refers to the amended pleading by the Smalls that any building or building feature that is not readily visible is “irrelevant” (I take the pleading to mean that if a building or building feature is not visible then it is not within the scope of the covenants). In response, Mr Brabant submits that this pleading introduces a qualification into the wording of the covenants which is not permissible.12 He says even if it were, its application is too uncertain to be acceptable, as what is readily visible at one point in time may not continue to be readily visible over time, or may not be readily visible but may become so.
[33] Mr Wilkinson-Smith submits that there is no consistent nature, design or style across the dwelling-houses in the Taylor subdivision. He describes the original farmhouse, which Mr Wilkinson-Smith says is on its own, as in the style of a villa. The other house on the Taylor property, built in 1974, is very much in the style of its era. Mr Wilkinson-Smith submits that the fourth plaintiffs’ house (the Savory/Renwicks) is of no particular design or style. The Johnston residence, Mr Wilkinson-Smith submits, is an “outlier” in terms of its scale. Mr Wilkinson-Smith describes the Jackson residence as architecturally modern and bespoke. Mr Wilkinson-Smith submits it is a “stark departure” from the other dwelling-houses.
[34] Mr Wilkinson-Smith submits there have been attempts by the Smalls to “fit in”. In that regard Mr Wilkinson-Smith says the Smalls used an architect to design the equestrian facilities building. He also submits there has been an attempt by the Smalls to soften the equestrian facilities building and make it aesthetically pleasing by way of planting along the driveway and at the gate. There have, moreover, been efforts to plant on the boundary with the Taylors’ property.
[35] Notwithstanding the pleading referred to in [32] above, Mr Wilkinson-Smith acknowledges that visibility is not to be considered in determining compliance with the restrictive covenants. However, he submits this factor may be relevant to any
12 Relying on McGoldrick v Lawson [2018] NZHC 2643 at [31]-[33].
remedy should the Court find the equestrian facilities building does not comply with the restrictive covenants.
[36] As to the sheds on the Taylor, Savory/Renwick and Johnston properties, Mr Wilkinson-Smith submits that the equestrian facilities building has some similarity to the sheds on the latter two properties, in that part of the equestrian facilities building is constructed in dark coloured long run steel.
[37] Mr Wilkinson-Smith accepts that the equestrian facilities building is much larger than the three sheds on other properties in the subdivision but he says it is not disproportionate to the size of the Smalls’ property. Further, in relation to size, Mr Wilkinson-Smith submits that the height of the equestrian facilities building, at six metres, is in fact less than the height of some of the houses, which also have larger footprints than the equestrian facilities building.
[38] Mr Wilkinson-Smith submits the Court should consider what the Smalls’ property would look like once the house is built and the planting is completed. He refers to Mr Hume’s acceptance that the Smalls’ proposed house would be within the terms of the restrictive covenants.
Expert evidence
[39] Mr Hume undertook a site visit in October 2019 and he reviewed the Auckland Council property files for each of the properties in the Taylor subdivision at 202 Ingram Road. Mr Hume conducted an assessment of the properties and built form in the Taylor subdivision and expressed an opinion as to how the equestrian facilities building relates to them in terms of the covenants (following the way in which the Court of Appeal stated the covenants are to be interpreted).
[40] Mr Hume has practised as an architect for 34 years, and is a Fellow and past Auckland Branch Chairman of the New Zealand Institute of Architects. He has experience in all architectural disciplines including experience in designing and constructing a number of residential dwellings and associated buildings in a rural environment. He has also completed a number of assessments of environmental and visual effects for council hearings and Environment Court proceedings.
[41] Mr Hume is familiar with the area to which the proceeding relates and has been involved in projects in rural areas involving equestrian facilities.
[42] I accept that Mr Hume has the necessary expertise to give opinions on the issues the Court needs to determine and the evidence is substantially helpful. His opinion evidence is admissible under s 25(1) of the Evidence Act 2006.
[43] I start with Mr Hume’s assessment of each of the other properties in the Taylor subdivision, before turning to his assessment of the equestrian facilities building.
The Taylor property
[44] There are two dwelling-houses on the Taylor property which were both in existence at the time of the Taylor subdivision. The original dwelling, dating from around 1908, is described by Mr Hume as typical of single storey villas of the era, consisting of high ceilings, higher pitched gable and hipped roof to the main form with a lower pitched wrap around veranda opening to the landscape. The scale of the built form is single storey and relates to ground level and the surrounding landscape. Window and door fenestration, and the veranda, provide a human scale and relationship. The villa is clad in horizontal timber weatherboard, and it has timber window joinery and a corrugated iron roof of typical villa style. It is painted white. Its gross floor area is approximately 177 m2.
[45] The dwelling is north facing to a lawn with rural views and mature trees providing privacy and structure to the property. The driveway approach is tree lined. The house is integrated with the landscape.
[46] The second dwelling was originally constructed in 1974, with further additions and alterations in 2003 in the style of the original construction. It is accessed off the same driveway with gates adjacent to the original villa. The form of the dwelling is single level with pitched hipped roofs of a variety of geometry reflecting the irregular rectangular plan forms which allow a variety of relationships and external orientations. The house presents a human scale to its layout, fenestration and materials.
[47] It is clad mainly in a split Hinuera stone brick that gives a scale and intimacy of detail that reflects a solidity and permanence. Details such as lintels over glazed areas are clad in shiplap boarding. Windows and doors are dark coloured aluminium and painted timber joinery. Roofing is corrugated iron. Its gross floor area is approximately 342 m2. There is a separate garage adjacent to the house of approximately 62 m2.
[48] The house is oriented to the north east and the property is extensively planted with mature trees that shape and structure the landscape to activities, outlook and views.
[49] There is an implement shed on the Taylor property. It measures approximately 12 m by six metres and is a pole structured, single level board and baton clad building with corrugated iron roofing. It has two open bays for machinery, presently storing a tractor, mower, small digger and quadbike, with the end bay enclosed. Mr Hume describes its position as being discreetly located at the entrance to the Taylor property.
[50] The shed is of small scale and has naturally weathered and aged. Adjacent mature trees integrate it into the landscape.
Savory/Renwick property
[51] The Savory/Renwick property consists of 4.75 ha of extensively landscaped grounds. The dwelling was constructed in 1998 with a stand-alone garage. The form of the dwelling is single storey with a stepped plan form expressing individual rooms and spaces. The plan form generates variety in the pitched hipped roof enclosing the spaces. The entire north side of the house is wrapped in a bull-nosed veranda which reflects a Victorian colonial cottage influence in the design intention. The house is clad in natural stained horizontal cedar weatherboards, light coloured aluminium joinery and corrugated iron roof.
[52] The stand-alone garage is in the same style as the house, including a similar corner veranda. The scale of the built form is moderated by the roof form and lower roofed veranda. The stand-alone garage gives a more intimate human scale to the overall development.
[53] Mr Hume describes this property as the most intensely planted and landscaped property in the Taylor subdivision. A tree-lined curving driveway with mature trees and lawns each side leads to the house, which is not visible from the Taylor subdivision access road. An avocado orchard occupies the northern part of the property.
[54] There is an outbuilding or shed located towards the rear of the property behind the dwelling. It measures approximately nine metres by six metres and has three bays. It is clad in a dark charcoal coloured long run metal. There is a banana palm in front of the middle bay. Mr Hume accepted the colour of the shed is consistent with the colour of the long run metal on the equestrian facilities building.
The Johnston property
[55] The Johnston residence was constructed in 2001 and Mr Hume describes it as a “substantial dwelling” consisting of six bedrooms, four car garaging and various service and living areas totalling approximately 600 m2. It includes a main residence and a “granny flat” both in the one structure. It is located centrally on the site approximately 68 m from the Taylor subdivision access road.
[56] The form of the dwelling is single level and angled in plan with connected hipped concrete tile roof form providing variation and integrating the overall form of the house. Mr Hume says that while the scale and footprint of the house is generous, the various elements are identified and articulated to provide a sense of human scale in a reasonably expansive landscape setting. It is clad in cut Hinuera stone veneer with powder coated aluminium joinery and a concrete tile roof. Mature trees line the post and rail fence to the Taylor subdivision access road with mature macrocarpas defining the driveway.
[57] There is an implement shed which Mr Hume describes as being “discreetly located” in the far north west corner of the property. It is of a standard rectangular plan form of 90 m2 measuring approximately 15 m by six metres with three open bays housing farm equipment and a utility truck. Two further bays are enclosed with garage doors. It is a lean-to form approximately four metres high with pole structure and clad in long-run metal. Under cross-examination Mr Hume agreed the colour was broadly consistent with the colour steel cladding on the equestrian facilities building. He also
accepted that if you were looking for the shed you could see it from some locations on part of the Taylor subdivision access road.
The Jackson property
[58] The Jackson residence is situated centrally on a 2.2 ha rectangular site. It was constructed in 2006 and is described by Mr Hume as being of contemporary architectural design customised to the site. The house is arranged around a central concrete spine wall. The form of the building is long and narrow with angled ends defining individual functions of main bedrooms and garaging. The scale of the house is defined by specific spatial articulation of individual areas and functions with gabled roof forms, glazed areas and porticos and terraces.
[59] The house cladding is a balance of pre-cast concrete and stained horizontal cedar weatherboards. A traditional corrugated iron roof of varying gables provides, in Mr Hume’s opinion, interest and complexity to the overall form. Under cross- examination Mr Hume was asked about the large square concrete surfaces on the south face (looking towards the driveway) and it was suggested to him that those parts of the structure have a “somewhat industrial” quality to them. Mr Hume responded that the “overall architecture becomes what the house is, as opposed to one blank wall”.
[60] The landscaping and planting are established and provide a framework and structure relating to access, pasture, boundaries and rural views. A tree lined post and rail fence winding driveway links the landscape treatment to that of the surrounding properties.
[61]There are no outbuildings on the Jackson property.
Wang/Qi property
[62] Fei Wang and Yao Feng Qi (the Wang Qis) filed a notice of opposition for the first hearing but took no part in the proceeding. Mr Hume did not go on the property to make his assessment.
[63] The house was constructed in 2011. It is a large, custom designed house with generous living areas, five bedrooms and a four car garage. It could be considered similar in style to the Johnston residence. The form of the dwelling is single storey with hipped roof forms of varying heights, defining functions of the spaces below. The roof is accented with chimneys which express the residential nature of the functions within. As with the Johnston residence, various elements are identified and articulated to provide human scale in the form of roof shape, windows and doors, porticos and terraces. It is clad in brick veneer with power-coated aluminium joinery and a metal tiled roof. These materials are all consistent with a residential style.
[64]There are no significant outbuildings on the property.
[65] I accept Mr Hume’s descriptions of each of the above properties in the Taylor subdivision. There is no reason why I should not do so.
The Smalls’ equestrian facilities building
[66] I now set out Mr Hume’s description and assessment of the Smalls’ equestrian facilities building.
[67] The Smalls’ property is 15.0661 ha in area and is a pan-handle shape. The equestrian facilities building is in the handle, the southern part of the property, and consists of what Mr Hume describes as a “large shed-type building” and associated horse training facilities. There are large above ground water tanks and a gravelled yard and hard stand/parking area.
[68] The equestrian facilities building itself consists of a rectangular portal framed shed structure six metres in height across the entire structure and measuring approximately 33 m by 12 m with an enclosed truck bay measuring 17 m by five metres with a floor area of 481 m2.13 The internal layout consists of eight horse stalls, five grooming bays, a storage area and a truck bay. Temporary accommodation facilities occupy the northern end of the building and occupy two storeys – the ground floor and a floor above.
13 A floor plan produced by Mr Hume indicates the floor area of the equestrian facilities building is approximately 473m2. The difference is not material.
[69] To the west of the building there is a covered octagonal horse walker and a horse arena measuring approximately 3,400 m2. To the immediate east of the building are three large water tanks and a large gravelled yard and hard stand. The various functions from the arena on one side to the hard stand on the other effectively span boundary to boundary across the site.
[70] Mr Hume’s evidence was that, in addition to the bulk of the building itself, three large water tanks, a pump shed, various items of machinery and materials, horse floats, large trucks and a dilapidated modified shipping container combine to present an ad hoc industrial character to the yard.
[71] Mr Small’s evidence was that while the plans for the equestrian facilities building bear the logo of Superior Sheds, which was the company that constructed the building, an architect was involved in its design, evidenced by the name of the architect on the plans. Mr Hume’s response was however that the overall form of the building appears to be a “one size fits all” solution allowing for the maximum sized function throughout, when most of the functions, other than the truck bay, do not normally require the volume or height provided by the building. Mr Hume’s opinion is that the resulting form of the building does not reflect a customised design. It is more akin to buildings found in urban industrial areas. He is of the view that no attempt had been made to moderate the building form or functions to reflect the surrounding environment and context.
[72] He further says that the scale of the building does not relate to its function or the surrounding environment. He says there are few elements that provide a human relationship to the rural residential nature of the subdivision.
[73] As to the form of the building, Mr Hume says it provides no relationship to the landscape or surrounding subdivision. It is industrial in style with large roller shutter doors that do not contribute to any articulation of what are otherwise featureless facades.
[74] It is constructed mostly with long run industrial profiled metal cladding on the walls and roof. The roof is punctuated by translucent roof sheeting which provides light to the interior. Mr Hume describes this as more typical of industrial buildings.
[75] The part of the building that has two levels, and which houses the temporary accommodation, is clad in stained plywood with wide spaced battens covering the joins. Photographs attached to Mr Taylor’s affidavit show the plywood as a brownish colour in two photographs and as having an orange hue in another photograph. Mr Hume’s evidence was that, from his observations standing on the Taylors’ property, the colour of the cladding appeared closer to the orange hue as represented in one of Mr Taylor’s photographs. Mr Hume’s description is that in an aesthetic sense, the cladding is utilitarian compared to the surrounding environment.
[76] Under cross-examination Mr Hume was asked about the height of buildings in the subdivision. He agreed that aspects of the roof of the Johnston house as well as the chimneys, were over six metres; and, the central form of the Jacksons’ roof would be above six metres.
[77] Also under cross-examination, Mr Hume was asked about screening from the other properties in the Taylor subdivision. He described the trees running north-south on the eastern boundary with the Taylor property across from the lawn in front of the Taylors’ house as “quite spindly at the bottom”. Accordingly, at that level they did not provide a screen. Part of the east-west boundary to the south of the Smalls’ property has hedging which provides a screen. Mr Hume accepted that along the eastern boundary with the subdivision access road, the line of fir trees running north-south would for the most part screen the equestrian facilities building from the road. It is visible from the Jackson property.
Discussion
[78] The difficulty for the Smalls is that despite having the opportunity to file further evidence after the Court of Appeal decision, they did not do so. As a consequence, on these issues, the Court is left with the expert evidence of Mr Hume which I accept. Mr Wilkinson-Smith did his best to challenge Mr Hume in cross- examination but Mr Hume maintained his position and opinions on various issues as
expressed in evidence-in-chief. In my view he did not cling to his expressed views in an unreasonable way.
[79] Mr Wilkinson-Smith submits this Court should put little weight on Mr Hume’s evidence and opinions, because, Mr Wilkinson-Smith submits, there are a large number of architectural styles in the buildings in the subdivision. He submits there is no uniform style.
[80] He says that because there is no commonality of architectural style across the dwelling-houses, the Court should be cautious in accepting Mr Hume’s opinion that the equestrian facilities building is different in style from the dwelling-houses. He also questions how it is that Mr Hume can say the Jacksons’ more modern style residence complies with the restrictive covenants but on the other hand express the view that the two houses now built in the Small subdivision do not.
[81] Addressing the last point first, the answer is that Mr Hume based his opinion on the houses in the Small subdivision largely on the size of the sections. He considered they do not have the same relationship to the land, due to section size or scale of development, that the other dwellings have. He also says the new houses do not exhibit the scale, quality of design and relationship to the site and landscape that typifies the rest of the subdivision.
[82] As to the submission regarding a lack of commonality in architectural “style”, that begs the question as to the level of generality to be applied to the word “style” in the restrictive covenants.
[83]Mr Hume expresses the opinion that:
[Style] … is, in an architectural or design sense, a descriptor of type, and of time. It can be a basic description of building typology such as residential, industrial, commercial, urban, rural etc. It can have a material dimension to it. For example, weather-board, stone, brick etc. It can have a time dimension to it, for example, Victorian, Colonial, Villa, Cottage, Contemporary, Modernist, etc.
In the context of the Covenant I consider style is the quality and typology of the existing buildings and landscape within the subdivision.
[84] The Shorter Oxford English Dictionary definition includes: a “type, kind, or sort, especially with reference to appearance or form”.
[85] In my view the word “style” in the covenants is used in a general sense and does not require a uniform architectural style. In other words, rather than “style” requiring the building to be of a particular material or period, I accept Mr Hume’s opinion that style is a more general reference to quality and type of buildings. This interpretation is underlined by the requirement in the covenants that the buildings be “in keeping” with each other in terms of their nature, design or style. “In keeping” does not require the same architectural style.
[86] Adopting that approach, if a comparison is made between the main structures on each of the other properties and the equestrian facilities building, this results in a comparison being made between buildings which are residential in style and a building which is industrial in style. As Mr Hume says, while the dwelling-houses have different “styles” of architecture, they reflect the time of construction and respect the rural residential nature of the subdivision. In its form, the equestrian facilities building does not. There is also Mr Hume’s evidence that the dwelling-houses have a sense of human scale which is absent in the equestrian facilities building. The equestrian facilities building is therefore not of the quality and typology of the dwelling-houses within the Taylor subdivision.
[87] The fact that parts of the roofs of two of the houses are over six foot, does not undermine my assessment. The dwelling-houses are all single storey with roof forms that reflect residential elements. I accept Mr Hume’s evidence that the approach needs to be a holistic one. In other words, while parts of the houses may be higher than the equestrian facilities building they have a residential form in terms of hips and gables and a variation that determines them to be residential.
[88] I am conscious that the assessment I have made involves a comparison between dwelling-houses and a building which does not purport to be a dwelling-house. However, the wording of the covenants requires such a comparison and it is possible to make a comparison at the level of generality that Mr Hume adopted and that I have accepted.
[89] Turning to a comparison with the three sheds on other properties in the Taylor subdivision, this involves an examination of the “nature” of those sheds and the equestrian facilities building.
[90] Mr Hume expresses the opinion that “nature” is the basic or inherent features, character or qualities of something. The Shorter Oxford English Dictionary definitions are similar. For example: the “inherent or essential quality or constitution of a thing”. Or, “a thing or person of a particular quality or character”.
[91] Mr Hume refers to the three sheds on the other properties as being discreetly located, of a small scale and subservient and subordinate to the rural residential nature of the sites and houses. By contrast the Smalls’ proposed house will have a floor area of 378 m2 compared to the equestrian facilities building which has a floor area of 481 m2 (or 473 m2). It is also not discreetly located.
[92] Further, by contrast, in relation to the essential character of the equestrian facilities building, Mr Hume says its orientation, form, scale and the materiality of the building and its surrounds bear no relation to any of the existing typology or character of the existing built form, including outbuildings and implement sheds.
[93] I accept Mr Hume’s evidence on this issue. The Smalls’ equestrian facilities building is different in nature to the existing sheds (as well as to the existing houses) in the Taylor subdivision.
[94] Finally as to “design”, Mr Hume expresses the opinion that in the context of the covenants:
… design is the organisation of practical, environmental, physical, emotional and aspirational elements and generators into a cohesive whole that is pleasing, compatible and appropriate to its overall context.
[95] One of the definitions in the Shorter Oxford English Dictionary is the “action or art of planning and creating in accordance with appropriate functional or aesthetic criteria”.
[96] I accept Mr Hume’s opinion that the equestrian facilities building has not been “designed” in the sense that it does not result in a balanced or creative solution in the context of the other buildings in the Taylor subdivision and does not result in a development that is pleasing, compatible or appropriate to its overall context.
[97] I refer to Mr Wilkinson-Smith’s submission that some planting has been undertaken, and more is planned. But planting does not moderate the form of the building. And, in any event, “plans” for future planting were vague at best. There was no landscape plan for example.
[98] As to visibility of the building, I accept Mr Brabant’s submission that this does not form part of the assessment by reference to the terms of the restrictive covenants.
[99] And finally, I refer to Mr Wilkinson-Smith’s submission as to the size of the equestrian facilities building, in proportion to the size of the Small’s property. That does not form part of the required analysis either.
[100] In conclusion, then, on the second requirement, the equestrian facilities building is not of a nature, design or style in keeping with the dwelling-houses and outbuildings or ancillary buildings in Taylor subdivision. It does not display any of the basic or inherent features, character or qualities of the existing built form.
The first requirement
[101] Following the direction of the Court of Appeal this Court needs to make an assessment of:
(a)the type of land use being carried out, including on the dominant and servient lots in the Taylor subdivision; and
(b)whether, when viewed objectively, the building in question is usual and reasonable.
[102] Mr Brabant submits that the terms of the restrictive covenants (as interpreted by the Court of Appeal) preclude reliance on evidence as to land use in the broader
Franklin region or evidence of uses in the Ingram Road neighbourhood beyond the Taylor subdivision.
[103] He submits an assessment of the type of rural land use being carried out means assessing information as to historic (but post 1998 when covenant 3 was created) and current land use in the subdivision. He submits the terms of the covenants do not permit “rural use” to be assessed generically so as to conclude that keeping livestock would include horses, and that keeping livestock falls within the definition of farming.
[104] Mr Brabant refers to the type of farming use of the land in the subdivision: the Taylors, Johnstons and Jacksons all have some cattle on their land; the Wang/Qis have some pet cows and part of the Savory/Renwicks’ land is in an avocado orchard.
[105] Mr Brabant also submits the assessment of what type of rural use is being carried out on the land in the subdivision must include an assessment of rural- residential use, since rural-residential activity is a rural use or activity in the subdivision. In other words, the assessment is not confined to a consideration of farming use. Relying on the evidence of Mr Hume, Mr Brabant submits that rural- residential use in the subdivision is the dominant rural use of the land, with farming use an ancillary use.
[106] In response to the pleading that the Smalls’ shed is usual and reasonable for the type of rural use of land in the subdivision, Mr Brabant submits that, as the Court of Appeal said, there needs to be an appraisal of competing evidence. There has been no evidence filed by the first defendant to support that assertion. The evidence of Mr Small and Glen Beale, a director in an accountancy practice in the Franklin District, is about farming and equestrian activities outside the boundaries of the dominant and servient lots. Finally, he submits the reference in the Smalls’ pleadings to two large sheds on the O’Meara land is irrelevant. It is not within the Taylor subdivision.
[107] Mr Wilkinson-Smith submits that the Court of Appeal did not find error in this Court’s assessment in the original High Court judgment that the equestrian facilities building was usual and reasonable for the type of rural use of the land in the
subdivision. He submits that the Court of Appeal did not disturb this Court’s approach of making an assessment in the context of the surrounding area beyond the Taylor subdivision. He submits that, in considering the surrounding area, even if the Court were to confine itself to buildings in Ingram Road beyond the Taylor subdivision, and otherwise nearby, there is an equestrian facilities building on a property in Ingram Road, chicken sheds to the north of the Jackson property and sheds on the O’Meara property to the north east.
[108] Mr Wilkinson-Smith further submits that the location of the equestrian facilities building is the most reasonable location on the property. It is less visible to the neighbours than it would be if sited further to the north.
[109] He says the building itself is of a reasonable scale having regard to the facilities within it, which in themselves are reasonable.
Discussion
[110] What is required is an assessment, first, of the type of land use that is being carried out on the dominant and servient lots in the Taylor subdivision and, second, whether, when viewed objectively, the equestrian facilities building is usual and reasonable. Mr Wilkinson-Smith is incorrect when he submits the assessment permits a consideration of buildings beyond the Taylor subdivision. Although the purpose of the two requirements is to ensure buildings blend in with the rural nature of the surrounding area, the assessments the Court makes in both the first and second requirements involves comparisons within the Taylor subdivision.14
[111] As to the O’Meara land, although that formed part of the 2004 Taylor subdivision, it is not part of the subdivision of which the Smalls’ land is part. The Smalls’ land is subject to the provisions of covenant 3 which makes no reference to the O’Meara land.
[112] The type of land uses in the Taylor subdivision include rural residential uses, an avocado orchard and the farming of cattle. In other words the rural use includes
14 Taylor v Small, above n 2, at [60].
farming use, the development of buildings (single dwellings and outbuildings) and landscaping. I accept Mr Brabant’s submission that rural use in the subdivision encompasses both the type of use and its scale. As is apparent from the discussion in relation to the second requirement, the main type of rural use in the Taylor subdivision is rural residential.
[113] The Court needs to make an assessment of whether the equestrian facilities building is usual and reasonable by reference to the existing rural use in the Taylor subdivision.
[114] The two words “usual” and “reasonable” have distinct meanings. Usual means something that is ordinarily to be found or common to a thing. Reasonable connotes fitting or appropriate.
[115] While the Smalls are not precluded from keeping horses on their land, I do not consider the equestrian facilities building is objectively usual or reasonable in the context of the other rural uses in the subdivision. It is not “usual” because its form, scale and materiality bear no relationship to any of the existing typology or character of the existing built form. In short, it is different from the existing built form in all the ways described by Mr Hume and referred to in my consideration of the second requirement.
[116] It is not objectively reasonable. It is not “fitting” or “appropriate”, again for all the reasons discussed in relation to the second requirement. The reasonableness of the location of the building on the Smalls’ property is not relevant in considering the reasonableness of the building itself. Nor does the asserted reasonableness of the facilities within the building form part of the assessment.
Conclusion on compliance with restrictive covenants
[117] For the above reasons the equestrian facilities building does not comply with either the first requirement or second requirement of the restrictive covenants.
[118]Having reached that conclusion, it is necessary to consider the relief sought.
Relief
[119] Mr Brabant submits that injunctive relief is appropriate. He refers to the scope of the Court’s discretion when considering whether or not to grant injunctive relief. Mr Brabant submits this is not a case where the effects of the breach of covenants can be compensated in damages (which have not been sought by the plaintiffs).
[120] He submits relevant factors are the adverse effects resulting from the breach of the restrictive covenants: the sheer size and design of the equestrian facilities building which is not reflective of residential country living; that it is visually intrusive and does nothing to fit in with the landscape or to enhance the feeling of rural living.
[121] Mr Brabant notes there was no attempt on the part of the Smalls to consult or discuss the equestrian facilities building with other landowners within the subdivision. It follows, Mr Brabant submits, there can be no question of consent having been given by the plaintiffs.
[122] Mr Brabant also notes that since the judgment of the Court of Appeal and the filing and service of Mr Hume’s expert evidence, the Smalls have not made any proposal for modification or removal of the building to the plaintiffs. The only response following the judgment of the Court of Appeal was the filing of a counterclaim seeking a modification of the restrictive covenants.
[123] Mr Brabant says that the principal factor weighing against injunctive relief in this case is the outcome, namely the requirement to modify or remove the equestrian facilities building. However, Mr Brabant submits that the Smalls have been the authors of their own misfortune. He submits their attitude in proceeding with the building was cavalier and dismissive of their neighbours and the existing rural residential environment into which they were introducing a large and utilitarian commercial/industrial structure.
[124] Mr Brabant submits that any lack of complaint by the plaintiffs is not a basis for exercising a discretion against injunctive relief. The breach of the covenants arose on completion of the equestrian facilities building and the estoppel arguments raised
by the Smalls were rejected by the High Court in the original High Court judgment and again by the Court of Appeal on appeal.
[125] Finally, Mr Brabant submits that the cost of removal can be mitigated by a sale or relocation of the building to another property.
[126] Mr Wilkinson-Smith responds that this is not a case where the Smalls have been authors of their own misfortune. He submits that this was not a case where the Smalls deliberately chose to proceed with the construction of the equestrian facilities building with an awareness that it would breach the restrictive covenants. The terms of the restrictive covenants were simply overlooked. There was no profit motive involved. Mr Wilkinson-Smith contrasts this case with other cases where the party in breach failed to get the requisite permission or failed to follow a prescribed process.
[127] Mr Wilkinson-Smith submits that while the equestrian facilities building was completed in 2014, it was not until early or mid-2017 that the neighbours raised their concerns. Mr Wilkinson-Smith submits that the initial and real concern that was raised was in relation to the number of dwelling-houses that could be built on the Smalls’ land and, further, the initial complaints about the equestrian facilities building was not about its form, but rather whether it was being operated as a commercial facility.
[128] He submits that, in terms of the overall justice, the Court needs to take into account that the equestrian facilities building is only visible from the far end of the lawn at the front of the Taylor house and from the front entrance to the Jackson house, in circumstances where the living spaces are all on the opposite side of the house. It cannot be seen from the Savory/Renwick property or from the Johnston property.
Legal principles
[129] The law relating to the enforcement of restrictive covenants in New Zealand in relation to both positive and negative covenants created on or after 1 January 2008, is governed by the Property Law Act 2007.
[130] Section 313 of the Property Law Act codifies the Court’s equitable jurisdiction to determine a dispute concerning a covenant. That section sets out a number of orders
the Court can make. Additionally the Court has inherent jurisdiction to grant injunctive relief. An injunction is usually the most appropriate way of enforcing a restrictive covenant as a plaintiff is more likely to seek to prevent a breach than to recover damages.15
[131] A mandatory injunction can be sought to undo the consequences of a breach of a negative covenant, for example, the modification or demolition of a building erected in breach of a negative covenant.16
[132] In New Zealand Industrial Park Ltd v Stonehill Trustee Ltd, the Court of Appeal discussed the nature of restrictive covenants as follows:17
A covenant is a promise made by deed, as opposed to a contractual term contained in a document not amounting to a deed. A restrictive covenant is a covenant “to refrain from doing something in relation to the covenantor’s land which, if done, would detrimentally affect the value of the covenantee’s land or the enjoyment of that land by any person occupying it”. It is a promise by the owner of the servient land to the owner of the dominant land that he or she will refrain from some action on or in relation to the servient land that he or she would otherwise be entitled to undertake.
(citations omitted)
[133] The Court of Appeal observed that restrictive covenants can play a significant role in the preservation of environmental amenities; that they are often found in a residential context; that aesthetic matters, such as house design, building height, house colour, landscaping and the like can be readily controlled by restrictive covenants and that restrictive covenants can also provide an important means of protecting incompatible land uses.18
[134] The Court of Appeal also observed that restrictive covenants retain an important role notwithstanding the development of environmental law. Covenants are contractual promises and damages are an available remedy in the event of a breach, as is an injunction.19
15 Bonnar v Summerland Property Development Ltd (2002) 8 NZCPR 616 (HC) at [30].
16 See, for example, Omaha Beach Residents’ Society Inc v Ocean Management Ltd (2007) 8 NZCPR 796 (HC) and McGoldrick v Lawson, above n 12, at [39]-[45].
17 New Zealand Industrial Park Ltd v Stonehill Trustee Ltd [2019] NZCA 147 at [52].
18 At [53].
19 At [54].
[135] In this case the plaintiffs seek injunctions rather than damages. As was said by Gendall J in In McGoldrick v Lawson, it has long been accepted that the granting of relief is a discretionary matter and this Court is entitled to take into account a wide range of factors in considering the exercise of its discretion, including the conduct of the parties.20
[136]The factors weighing in favour of injunctive relief are as follows:
(a)As the Court of Appeal said, the covenants are concerned with the quality of buildings.21 That is emphasised by another clause in both covenants which is concerned with ensuring covenantors adhere to high standards of building practice by prohibiting the erection of certain structures on the servient land.22 This is not a situation where damages would be an appropriate form of relief;
(b)Mr Small accepted under cross-examination that he and his wife were legally represented at the time of the purchase of the land from the Taylors and that he asked the solicitors acting for him at the time for advice before they committed to purchasing the property. He accepted they would have been made aware of the restrictive covenants;
(c)The Smalls did not seek to engage with the plaintiffs or the Taylors or the Johnstons before constructing the equestrian facilities building;
(d)Mr Small accepted that before he consulted with the architect, he did not get any advice from his then solicitors on information he should give the architect about the way in which the equestrian facilities building should be designed;
(e)Mr Small was not able to say whether he gave the architect a copy of the restrictive covenants; and
20 McGoldrick v Lawson, above n 12, at [41].
21 Taylor v Small, above n 2 at [42].
22 At [42](d).
(f)The Smalls have not attempted to engage with the plaintiffs since the Court of Appeal decision.
[137] Although there was a delay before the plaintiffs and the Taylors and the Johnstons complained, and I take that into account, the fact remains that the building was in breach from the moment it was constructed.
[138] The principal factor weighing against injunctive relief is the effect that the relief will have. It will require the Smalls to either remediate or demolish the equestrian facilities building. However, this is a case where the Smalls have been the authors of their own misfortune. They took no steps to ensure that the equestrian facilities building complied with the terms of the restrictive covenants before its construction.
[139] Answering Mr Wilkinson-Smith’s submission regarding visibility of the equestrian facilities building, the restrictive covenants do not contemplate the visibility of buildings as an exception to the restrictions. Even if I were to take visibility into account as a factor in the exercise of my discretion, the equestrian facilities building is visible from the Jackson property and from parts of the Taylor property.
[140]The relevant factors overall weigh in favour of granting injunctive relief.
Form of order
[141] In the second amended statement of claim, the plaintiffs sought two orders, in the form of injunctive relief. I expressed a view at the hearing that the first part of the first order was drafted in such a way which could well create difficulties for the Smalls to know whether they had in fact complied with the terms of the order. I gave the plaintiffs leave to file an amended draft order with the defendants having the opportunity to file submissions on the amended order.
[142]The first order sought is now expressed (in four parts) as follows:
1.An order that within 3 months of the date of this order (time being of the essence) the second and fourth plaintiffs and the first defendants
may file a Consent Memorandum advising the Court they agree to plans and specifications (which are to be attached to that Consent Memorandum) of agreed modifications to the existing equestrian facilities building (Agreed Modifications).
2.In the event of the parties filing the Agreed Modifications, the first defendants shall (time being of the essence):
a.Effect and complete the Agreed Modifications, and
b.Obtain a code compliance certificate in respect of the Agreed Modifications, and
c.File the code compliance certificate, attached to a memorandum, in this Court,
all within 9 months of the date of this order.
3.In the event that either order 1 or 2 are not complied with (time being of the essence), this Court orders that no later than 9 months from the date of this order, the first defendants shall:
a.Pull down and remove the equestrian facilities building from the first defendants’ property, and
b.Reinstate the first defendants’ land where the equestrian facilities building and associated hard stand area was located to the same condition and appearance it was prior to commencement of earthworks for the equestrian facilities building and associated yard.
4.For the purposes of this order the first defendants’ land means the land comprised and described as 202K Ingram Road, Ramarama, and legally described as Lot 7 DP 500592 and being identifier 745034.
[143] The plaintiffs exclude the horse-walker and the arena from the injunctive relief sought.
[144]The second order sought is:
An injunction restraining the defendants, whether by themselves, their service agents or agents from erecting any farm outbuilding or ancillary building on CT 745034 which does not meet the requirements of the covenant.
[145] Mr Wilkinson-Smith advises the Court that the Smalls intend to instruct a qualified architect or architectural designer to prepare modifications to comply with the restrictive covenant in the event the Court declares that the equestrian facilities building is infringing. But the Smalls oppose the order which gives the plaintiffs the
right to veto the modifications and therefore require demolition, if a consensus on modification is not able to be reached.
[146] As to timeframes, Mr Wilkinson-Smith suggests a 14 month period, rather than the nine month period proposed by the plaintiffs, for the completion of modifications. He submits that three months would be an appropriate period for the Smalls to obtain modification plans. He says the design would be provided to all owners in the Taylor subdivision, and then filed a month later. This would then allow approximately nine months to complete the modifications and obtain code compliance which would then be filed with the Court.
[147] He submits that the injunctive relief should be limited to the equestrian facility building. Having regard to the wording of the covenants the Smalls oppose any order to remove the hard stand, noting that it serves the cattle yard and cattle loading ramp. Mr Wilkinson-Smith proposes orders in the following terms:
1.An order that the first defendants, within 14 months of the date of the order complete alterations to the existing equestrian facilities building to the extent necessary to meet the covenant requirements in respect of outbuildings or ancillary buildings.
2.The alternations to be designed by a registered Architect or Architectural designer with reference to the restrictive covenant and this judgement [sic].
3.An application for building consent and any associated planting and landscaping plans to be provided to all the owners in the subdivision no later than 3 months after the decision.
4.The application for building consent filed no later than 4 months after the decisions [sic].
[5]Filing of the code of compliance [sic] within 14 months of the decision or failing completion of alterations, pull down and remove the equestrian facilities building.
[148] I accept Mr Wilkinson-Smith’s submission that orders proposed by the plaintiffs inappropriately give the plaintiffs a right of veto. There is no requirement, as is the case with some restrictive covenants, for pre-approval by a design group appointed for the neighbours.
[149] Equally, however, I do not consider the orders proposed on behalf of the Smalls provide the answer. Although the proposal is that the plans be provided to the other owners, there is no mechanism to deal with any disagreement. Given the history of this proceeding, I consider it is desirable for such a mechanism to be built into the orders.
[150] I consider an order which allows for input from the plaintiffs but does not give them a right of veto is appropriate. It will involve a two-step process if agreement cannot be reached. I therefore will not order injunctive relief requiring demolition and removal at this stage.
[151] On one view, the second order sought (as set out in [144] above) might be thought to be unnecessary, as it simply repeats the prohibition in the restrictive covenants. On the other hand, additional remedies may be available for any breach of a Court order. I will therefore make the second order sought.
Declaration and orders
[152] I make a declaration that the equestrian facilities building is in breach of the restrictive covenants in paragraph (i) of the schedule to covenants 3 and 4.
[153]I make the following orders:
(a)Within three months of the date of this judgment, the Smalls are to provide to the plaintiffs plans of alterations to the equestrian facilities building prepared by a registered architect or architectural designer with reference to the restrictive covenants and this judgment;
(b)Within five months of the date of this judgment, the plaintiffs and the Smalls may file a consent memorandum advising the Court that they agree to plans and specifications of agreed modifications to the existing equestrian facilities building (agreed modifications). Such plans are to be attached to the consent memorandum;
(c)In the event of the parties filing the agreed modifications, the Smalls shall:
(i)effect and complete the agreed modifications;
(ii)obtain the code compliance certificate in respect of the agreed modifications;
(iii)file the code compliance certificate attached to a memorandum in this Court;
all within 14 months of the date of this judgment;
(d)In the event that the parties cannot agree on modifications to the existing equestrian facilities building, they have leave to apply to the Court for directions or further orders. Any such application shall be made promptly after the expiry of the five month period referred to in
(b) above; and
(e)The parties also have leave to apply for directions if any issues arise in relation to the implementation of these orders.
[154] For the avoidance of doubt, the equestrian facilities building does not include the horse walker, arena, or yards and vehicle access, including the truck turning bay or hard stand.
[155] I further make an order restraining the Smalls, whether by themselves, their service agents or agents from erecting any farm building or ancillary building on CT 745034 which does not meet the requirements of restrictive covenants 3 and 4.
Costs
[156] I reserve costs as I did not hear from the parties on costs. In the event that the parties are able to agree costs, a consent memorandum should be filed within 20 working days of the date of this judgment. In the event that agreement cannot be
reached, the plaintiffs may file and serve a memorandum within 10 working days of the date for the joint memorandum. The Smalls may file and serve a reply within a further 10 working days. Memoranda should not exceed four pages, excluding any attachments. I will determine costs on the papers.
Gordon J
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