Wang v Auckland Council - [2021] NZHC 499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-22

[2021] NZHC 499

UNDER Part 19 High Court Rules and ss 316 and 317 of the Property Law Act 2007

IN THE MATTER OF

an application to modify or extinguish a restrictive covenant

BETWEEN

XIA WANG

Applicant

AND

AUCKLAND COUNCIL

First Respondent

WEIXIONG TANG and XIAOHUA HUANG & ORS

(2nd to 116th Respondents)

Hearing: 4 March 2021

Counsel:

Y A Shao for applicant

Judgment:

12 March 2021

JUDGMENT OF TOOGOOD J

Solicitors:
Chen Legal, Auckland for applicant

WANG v AUCKLAND COUNCIL [2021] NZHC 499 [12 March 2021]

Introduction

[1] The applicant, Xia Wang, is the registered proprietor of a property at 77 Kennedy Avenue, Forest Hill on Auckland’s north shore that is part of a subdivision undertaken over 40 years ago. At the time of the subdivision, the zoning for the site permitted only a single dwelling to be erected. There are 115 other properties in the original subdivision, each of which is a dominant tenement of a restrictive covenant on the title to Ms Wang’s property that limits the erection of any building on the land “other than a single detached residential building designed for and occupied exclusively as one household unit …”.

[2] Ms Wang has applied under s 317(1)(b), (d) and (e) of the Property Law Act 2007 for an order modifying or extinguishing the covenant on the grounds that:

(a)the continuation in force of the covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation; or

(b)the proposed modification will not substantially injure any person entitled; or

(c)the covenant is contrary to public policy or to any enactment or rule of law.

[3] The applicant also seeks the leave of the Court to commence the proceeding for modification or extinguishment by way of an originating application under Part 19 of the High Court Rules 2016. She has also applied for orders for substituted service rather than personal service on the other landowners.

Background

[4] The factual background for the order for modification or extinguishment is that, at the time of the subdivision, the zoning for the site under the relevant district

plan permitted only a single dwelling to be erected. The covenant was consistent, therefore, with the zoning restrictions imposed by the then local authority. Under the current Auckland unitary plan, however, the land is now zoned “Residential – Mixed Housing Suburban”, which permits up to three dwellings to be erected on the site as of right, subject to compliance with applicable standards.

[5] The change in zoning reflects the Auckland Council’s move to greater intensification. Consistently with that policy objective, Ms Wang wishes to replace the existing single detached dwelling with three residential dwellings complying with the zoning requirements.

Submissions

[6] Counsel…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wang v Auckland Council

Details

AGLC: Wang v Auckland Council [2021] NZHC 499
Case: [2021] NZHC 499
Decision Date: 12 March 2021

CaseChat Overview and Summary

Xia Wang, the registered proprietor of a property in Forest Hill, Auckland, has applied to the High Court for an order modifying or extinguishing a restrictive covenant on her land that limits the erection of any building other than a single detached residential building. Wang seeks to replace the existing single detached dwelling with three residential dwellings. The Auckland Council, as the first respondent, and the owners of the other 115 properties in the subdivision, which are dominant tenements of the covenant, are the other respondents. The legal issues in the case include whether the court should grant Wang's application to commence the proceeding by way of an originating application and whether the court should allow substituted service on the other landowners. The court granted Wang's application to commence the proceeding by way of an originating application, finding that it was more efficient and appropriate in this type of case than a proceeding brought by way of statement of claim. The court also granted Wang's application for substituted service, finding that it would be unduly onerous and unnecessary for Wang to undertake personal service on each one of the owners of the properties that have properly been identified as the respondents in the proceeding. The court directed Wang to publish an advertisement of her application in the local classified public notices section of the North Shore Times and to deliver by "track and trace" courier a service copy of the originating application and this judgment to the addresses of the other landowners. The court made an order dispensing with service of the application on the registered proprietors of certain properties described in the Land Covenant in Transfer 489672.1. There were no issues as to costs in the proceeding.

Orders