Warwick Francis v Nora Chu Young
[2003] NZCA 191
•11 August 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA208/02
BETWEENWARWICK FRANCIS WRIGHT AND CHRISTINE ANNE WRIGHT
Appellant
ANDERIN SYLVAN MARY TAN AND CHIN WAH TAN
First RespondentANDMIAO KEE YOUNG AND NORA CHU YOUNG
Second Respondent
ANDTHE AUCKLAND CITY COUNCIL
Third Respondent
Hearing:17 July 2003
Coram:Gault P
Blanchard J
Anderson JAppearances: R J Katz QC for Appellants
D G Hurd for First Respondents
D R Bigio for Second Respondents
G D Palmer for Third Respondent
Judgment:11 August 2003
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
[1] The dispute in this proceeding concerns whether the first respondents, Mr and Mrs Tan, are able to build a house on their property at 20B Omana Avenue, Epsom to which vehicular access has to be obtained via a right of way over the property of their neighbours, the appellants, Mr and Mrs Wright. The question is whether the erection of a building, a dwelling house, is prevented by a condition imposed by the third respondent, the Auckland City Council, in 1939 and notified on the land transfer title. The condition is that “no buildings be erected having a frontage wholly to the right of way” shown on the subdivision plan to which the Council was giving approval.
[2] The second respondents, Mr and Mrs Young, who had been the owners of two lots of the subdivision, sold one of them to the Tans in 1999, advertised as a building site. The appeal concerns the interpretation of the condition and its application to the situation which now exists on the ground following efforts by the Tans and the Youngs to comply with the condition by adjusting the boundary between their properties and creating a direct connection between the Tans’ property and the road, but suitable for pedestrian access only.
[3] As will be seen, very similar conditions imposed long ago by the Auckland City Council have troubled the courts on at least three occasions in the recent past. Such conditions may be thought to reflect an attitude towards the use of rights of way, also seen in the legislation of that time, which is no longer current.
[4] The problem is best explained by reference to the first of the plans annexed to this judgment (Schedule A). It shows the situation in 1939. Following approval of the subdivision and the right of way, respectively under ss332 and 184 of the Municipal Corporations Act 1933, Lots 1 and 4 (now belonging to the Wrights) were held in one title. Predecessors of the Youngs held Lots 2 and 3 (under separate titles) but a house, although primarily built on Lot 3, extended over the boundary between the two lots. (The house has recently been demolished.) The “Public Road”, known as Savannah Street, was in fact unformed and did not provide a practical means of access to either Lot 1 or Lot 2, being somewhat below the level of those properties.
[5] The Council’s resolution endorsed on the plan of subdivision was as follows:
In pursuance of a resolution of the Auckland City Council passed on the 22nd day of June 1939 approving under section 332 of the Municipal Corporations Act 1933 the subdivision; and under section 184 the right of way subject to the following conditions:
(1)That the right of way be formed, metalled and maintained to the satisfaction of the council;
(2)That a gate be erected and maintained at the entrance of the right of way;
(3)That no buildings be erected having a frontage wholly to the right of way shown on the plan.
[6] At the time when it endorsed the resolution on the plan the Council wrote to the subdividing owner advising that no undertaking was given as to when Savannah Street would be formed. In fact, in 1981 the part of Savannah Street adjacent to Lots 1 and 2 was closed as a result of action taken by the Commissioner of Crown Lands and it became part of the Eden Gardens recreation reserve. The area closed can be seen (to the south of the crooked line) on the second of the annexed plans (Schedule B).
[7] That plan also shows a narrow (1.01 metre wide) strip from the Tans’ property, Lot 2, to Omana Avenue. That strip was transferred by the Youngs to the Tans when the present dispute arose, in an attempt to meet the requirements of Condition 3. The Youngs have reserved to themselves rights to use the strip but subject to the Tans’ overriding right of pedestrian access. By an accompanying deed it has also been agreed that the strip will be re-transferred to the Youngs if it is no longer required for compliance with the condition.
The High Court judgment
[8] In the High Court, in a judgment delivered at Auckland on 17 September 2002, and now reported at [2002] 3 NZLR 703, Paterson J made a declaration that the transfer of the strip satisfies the condition registered against the title to the Tans’ property and therefore allows them to build on their property. Mr and Mrs Wright appeal against that declaration and also challenge a costs order in favour of the Youngs and the Council, both of whom were separately represented in the High Court and again in this Court.
[9] In his judgment Paterson J said that the condition was imposed under s184(1) of the Municipal Corporations Act 1933:
184(1) No person shall lay out or make any private street or private way, or grant or reserve a right of way over any private way in any borough, except by permission of the Council; and, subject to the provisions of this Act as to minimum of width in the case of private streets, the Council in granting any such permission may impose such conditions as to width, levels, entrances, course, formation of footways, cost of formation, maximum number of buildings to be erected fronting any such private street or private way, minimum distance between any two buildings if dwellinghouses, position of building-line, and otherwise in all respects whatsoever as the Council thinks fit.
The Judge said that the Court should not infer that the Council had any objectives in mind in imposing the condition other than complying with its obligations under s184. The conditions which the Council was entitled to impose were obviously those relevant to the formation and use of a right of way. A condition could legitimately impose some type of “density control” because it could relate to the “maximum number of buildings to be erected fronting any such private street or private way”. If the condition was imposed under the general catch-all at the end of the subsection (“otherwise in all respects whatsoever as the Council thinks fit”), it must still relate to the provision of access and the use of the right of way.
[10] At that time s125 of the Public Works Act 1928 prevented the sale of any part of the land if that part did not have “a frontage to an existing road, street or private street”. It followed, the Judge said, that when the condition was imposed, sections subdivided from other land for the purposes of sale had to have a road frontage:
The fact that many also had appurtenant thereto rights of way indicated that rights of way were either alternative means of practical access to such sections, or in some cases, the only means of access if the legal frontage to the street did not give practical access. The type of conditions which could be imposed under the provisions of s184 was designed to ensure that the local authority ensured there was adequate practical access to any building on the section. This was particularly necessary in those cases where the legal access was not the practical access (unformed roads are an example).
[11] The Judge considered what the Council may have had in mind. One possibility, he said, was that, knowing Savannah Street might never be formed, the Council might have contemplated a future closing of it. To comply with the spirit of s125 of the Public Works Act, an alternative frontage to a street was to be provided. Another possibility was that perceived problems of subdividing off a right of way should be protected against by requiring alternative frontage: “These types of conditions which could be imposed under s184 were concerned with frontage to land rather than to frontage of buildings”. The Judge considered that the Council had not intended to prevent the subject property being built on. If that had been the intent, it would not have consented to the subdivision. It must be inferred that the situation which existed in 1939 was acceptable to the Council. The practical access to any building was to be by way of the right of way with legal frontage to a street to comply with the legal requirement of the time.
[12] The Judge did not accept the view that “frontage” in the condition meant contiguous frontage of a side of a house to a street uninterrupted by any other building in between. The condition, he said, was meant to preclude the erection of a building which had the right of way as its only frontage. He preferred the view that “frontage” as used in the condition applied to access to a public street. “It is a legal and not a practical concept”. He did not accept that it was an amenities condition. It did not refer to vehicular access and did not provide what length of frontage was required. There was no reason to read down the meaning of legal access to incorporate a minimum width or to include vehicular access. “Frontage” in its usual dictionary meaning was “land abutting on a street…”. That common meaning was consistent with its use both in s125 of the Public Works Act and in the condition. Reference to “wholly” meant that the condition only applied if the only legal boundary of the section which abutted a street was through the right of way.
[13] It was therefore Paterson J’s view that the condition prevented any house being built on the Tan property if that property did not have a portion of its boundary contiguous with a public street. In other words, it must have “frontage” to a public street. That access need only be legal access and not practical vehicular access. It followed from that finding of the meaning of the condition that the access strip in this case was sufficient frontage for the purposes of the condition. It did not matter that it was not practical vehicular access. Nor did it matter that Mr and Mrs Tan had granted a right of way over it in favour of Mr and Mrs Young. The strip was part of the fee simple estate of the Tan property which did give legal access to Omana Avenue. The rights of Mr and Mrs Young in relation to the strip were subject to the prime right of Mr and Mrs Tan to use it for access purposes.
Submissions for the appellants
[14] Mr Katz QC submitted that when the Council imposed the condition it would have had in mind s125 of the Public Works Act 1928:
125Where land sold, road or street to give access to be dedicated to public use – (1) Except as otherwise provided in this section, where the owner of any land sells any part thereof not having a frontage to an existing road, street, or private street, he shall provide and dedicate as a public road or street a strip of land of not less than sixty-six feet in width which will give access to such part from some existing road, street, or private street:
Provided that this subsection shall not apply with respect to the sale of land to the owner of adjoining land or to the sale of land in any case where the local authority in whose district the land is situated, having first satisfied itself that the land sold or intended to be sold is not intended to be used as a site for a dwellinghouse, resolves on that ground that the requirements of this subsection shall not apply.
and also its own bylaws:
187No person shall erect any building intended wholly or in part for residential purposes, or alter any building not erected therefor, so as to make the same fit therefore, unless such building shall have a frontage for its full width to some public or private street.
188No person shall erect any building on any land owned or occupied within the City whereby any dwellinghouse or other building used wholly or in part for residential purposes already existing thereon shall be deprived for the whole or any part of its width of its frontage to any public or private street.
[15] Inferentially, counsel said, the condition addressed amenity issues. He supported this argument by reference to a selection of Council resolutions concerning building frontages and rights of way from the 1880s onwards, saying that they showed a consistent concern to control the position of buildings in relation to rights of way. The earliest of the conditions ante-dated the first of the public works statutes, which was an indication that they were not concerned with land frontages. The condition in this case was being imposed not in relation to the subdivision but in relation to the right of way. In imposing conditions under the catch-all words in s184 the Council was perfectly entitled to look to its bylaws and reinforce them. Section 125 already covered the requirement for frontage to a road so the condition must have been intended to go further. The object, Mr Katz said, must have been to ensure that “true practical frontage access” would be provided if a dwelling were to be erected. Counsel’s argument was therefore that no building would have been able to be erected on Lot 2 in 1939 because Savannah Street was unformed and did not provide practical access. But, whatever the position before 1981, even if until then the availability of a legal road abutting Lot 2 was enough, from that time on “the condition bit”.
[16] It was submitted that the Judge had been wrong to say that the conditions which could be imposed under s184 were concerned with frontage to land rather than frontage of buildings. Frontage to land was governed by s125, not s184. That was why in the condition itself the word “frontage” was qualified by reference to buildings. After traversing numerous cases concerning the meaning of “frontage” as it applies to buildings, Mr Katz said that the frontage was the face or side fronting the right of way which comprised the boundary. As the building was separated from the street it could not be said also to have a frontage to the street. The 1.01 metre entrance strip which has now been created does not suffice because “no whole of a side of the proposed building will be towards Omana Avenue”. If any limited form of access of that kind were good enough, the condition really would serve no purpose.
Submissions for the respondents
[17] For the Tans, Mr Hurd, supported by Mr Bigio for the Youngs, said that in the condition the term “frontage” referred to a connection or contiguous link (other than via the right of way) between the Tans’ property and a street, providing at least a means of access, a requirement which the strip of land transferred from the Youngs satisfied. The condition must have been intended to be readily construed and objectively applied. Counsel said it was about the frontage of the land. The reference to buildings was simply to the context which triggered the operation of the condition. It was unlikely that it would have been intended that there must be an assessment of the quality of the access. The word “wholly” indicated that any degree of usable frontage, other than to the right of way, would suffice. It need not be the primary access nor provide access equivalent in quality to the right of way.
[18] It was submitted that if a frontage did in fact relate to a building, the condition did not require that the entire side of a building should be facing the street. Mr Hurd distinguished English cases concerning taxation or rates fixed in relation to frontage where the word plainly did refer to the whole of the street boundary of the land. He said that concerns about the orientation of buildings had already been dealt with in the bylaws. They are no longer in force.
[19] As to the purpose of the condition in 1939, Mr Hurd suggested that it would have ensured compliance with s125 of the Public Works Act so that no sale could take place without a new street connection if Savannah Street were closed.
[20] In submissions for the Council, Mr Palmer said that it is necessary to differentiate between the various regulatory powers of the Council in 1939 and that, when this is done, it can be seen that the condition was directed solely at amenity issues arising out of the right of way and its potential use, not at subdivisional issues such as density or at amenity issues relating to buildings, which were already addressed in the bylaws and elsewhere. The condition was concerned with access and its purpose was to ensure that a right of way access was not the only access. It should therefore be properly interpreted as referring to the frontage of the subdivisional lots rather than to the frontage of buildings. Counsel pointed out that the only way of accessing a building, which must in a residential area be set back from the road, is through the land around it. It is the land, he said, which has a frontage and it is that frontage which provides access, not the frontage of any building. The condition therefore relates to title, not to user. It was submitted, further, that “frontage” had the meaning given to it in the Public Works Act. The condition reflected s125 and may even have been intended to preserve the same position if that section were repealed, as has now happened.
[21] Mr Palmer submitted that the condition is satisfied so long as the allotment also has a frontage to a road to some extent, accepting that the width of the frontage would have to be sufficiently wide to enable at least pedestrian access. But even this meant legal access; it would not be necessary for there to be practical pedestrian access. Counsel said that it cannot have been intended in 1939 that Lot 2 could not be built upon – because Savannah Street was unformed – if other regulatory requirements were met. All the condition was intended to do, therefore, was to ensure that the right of way was not the only legal means of access. It regulated the potential use of the right of way by ensuring that the lots served by the right of way could not be built upon unless they had an additional frontage other than to the right of way.
Discussion
[22] “Frontage”, according to the Oxford English Dictionary (2ed) means land which abuts on a river or piece of water or a road; the land between the front of a building and the road; and the front face or part of a building. Black’s Law Dictionary (7ed) defines the word to mean the part of land abutting a street or highway or lying between a building’s front and a street or highway.
[23] What then does “frontage” mean in a condition that “no buildings be erected having a frontage wholly to the right of way”? Three points can be made immediately. On a literal reading the word is related to buildings. Secondly, the condition speaks of “a” frontage, not “the” or “its” frontage. This suggests that the condition is contemplating the existence of more than one frontage, namely a frontage to the right of way and a frontage elsewhere. That situation in fact existed in 1939 when Lot 2 was bounded by a road. Thirdly, the word “wholly” seems to be synonymous with “only”, for it would make no sense to read it as meaning “entirely”.
[24] Taking these points into account, can the condition be given a sensible meaning in the physical context of 1939? Our preliminary view, looking only at the words themselves as applied to the situation of Lot 2 at that time, is that the condition has the meaning that no buildings are to be erected with a frontage only to the right of way. In other words, any building which is erected must have a second frontage, namely to the road. The further question then arises: whether it can be said that a building on Lot 2, being a lot which now has no road connection other than a 1.01 metre wide strip joining the property at its north west corner, has a second frontage to the road? The answer to that question is in the negative because on its Omana Road side the building, instead of facing the road, faces the boundary of Lot 3. Indeed, because the access strip enters Lot 2 at its corner and, in accordance with normal planning requirements, any residential building must be set back from the boundaries of Lot 2, that face of the building will not be opposite any part of the access strip. So, even if it were enough for part of that face to be opposite the access strip, the building would not comply.
[25] Accordingly, if, as appears, the condition must be taken to be referring to the frontage of the building (whether the face of the building or the land between that face and a boundary), the transfer of the access strip does not bring the proposed building into compliance.
[26] But is that the meaning that the Council must be taken, in context, to have intended in 1939? And how have similar conditions imposed by the Council been interpreted in other cases?
[27] Our approach to the collection of resolutions attached to the affidavit submitted to this Court by Mr Wright, and therefore not seen by the Judge, must be cautious, largely because we know nothing of the circumstances in which the particular conditions were being imposed. We were prepared to admit this material for what it might be worth. The impression we gain from it, and it is no more than an impression, is that over the 50 or 60 years before the present condition was imposed the Council was often concerned with access to buildings from rights of way, although at times it dealt separately in the same resolution with the frontage of the building and the entrance to it. For instance, in December 1888 a condition was imposed “that no house or building be erected having a frontage to the Right of Way; or, the sole entrance to any house from the Right of Way…”.
[28] We gain a great deal more assistance from three High Court decisions on Auckland City Council conditions. The first is English v Auckland City Council (1990) 1 NZ ConvC 190,354. A property was being developed for three units. Two of them had been built on the front and middle portions of the land. The owners of those buildings had exclusive occupation rights which would prevent anyone building on the rear portion from accessing their building through the front and middle portions. But access was available over a right of way on the adjacent land of the plaintiff appurtenant to the whole of the property. A condition of the Council’s consent to the right of way was
That no building be erected having a frontage to such right-of-way only.
We see no distinction between that condition and the condition affecting Lot 2 in the present case.
[29] The owners of the rear portion claimed that they would not be in breach of the condition because the building they planned to erect would have a frontage to the road since they held a one-third share in the fee simple of the entire property, including the front and middle portions. Gault J rejected their argument. He said that the frontage to which the condition was directed was of a building, not of the land. While the land fronted the road, it could not be said that the proposed building would have such a frontage. Gault J agreed with the definition of “frontage” given by Prendergast CJ in Doyle v Bishop (1898) 17 NZLR 574, construing a by-law of the City of Wellington requiring all buildings erected for residential purposes to have a frontage to a street or right of way. Prendergast CJ had said that by “frontage” was meant “a side towards the street, such side having no other erection between it or any part of it and the street; that a ‘frontage’ in that sense means the whole of the side which is towards the street”, or, as Gault J added, towards the right of way.
[30] Gault J rejected an argument that the proposed dwelling would also have a frontage to other properties. He said that the argument “misconceives the nature of frontage in the context which embodies the notion of contiguous means of ingress and egress [to the building] without the need to cross private land”. He rejected also a submission that it had been ultra vires the Council to impose such a condition in 1905 under s227 of the Municipal Corporations Act 1900 (which was identical to s184 of the 1933 Act), saying that it was quite within the power of the Council to regulate the increased use of the right of way by houses to be erected having no frontage other than to the right of way. In the present case the Tans and the Youngs have not asserted that the condition was not one which the Council could lawfully impose.
[31] The second authority is the decision of Hammond J in Bailey v Nicholls (1996) 3 NZ ConvC 192,389. The only practical vehicular access to the defendants’ property was over a right of way which had been approved in 1928 subject to a condition that “no buildings be erected having a frontage to the Right of Way”. Their property also had a frontage to an unformed street. Hammond J appreciated that the condition could not be read literally and had to be read as “no building be erected having a frontage [only] to the Right of Way”. He referred to evidence before him demonstrating that over the period 1880 to 1942 the Council had imposed usual or standard conditions on subdivisions but utilising “four main twentieth century variants” relating to the frontage of buildings:
(a) No building be erected having a frontage to the right of way only (as in English).
(b) No buildings be erected having a frontage to the right of way, as in Bailey itself.
(c) No building be erected having the right of way as its frontage.
(d) No buildings be erected having a frontage wholly to the right of way, as in the present case.
[32] The Judge declined to make a finding that what the Council really intended in all instances was to achieve the condition as it had been read in the English case. He said it would be quite dangerous for the Court on the occasion of a particular case to conflate all of the four versions into one standard, and judicially approved, condition. The fact was that different forms and words had been used in particular instances and, in Hammond J’s view, the Court must proceed on a case by case basis.
[33] As a literal construction would have meant that no house could ever have been erected on the property, and neither side contended for that proposition, the Judge said that there were left only two possible constructions. The first was that the condition was meant to preclude the erection of a building which had the right of way as its only frontage. The second was that the condition prohibited a building which actually fronted upon the right of way (as the building proposed to be erected by the defendants would do).
[34] The Judge observed that the condition was one variant of several which grew out of late nineteenth century subdivision practices, at a time when there were very few limits on building controls. Relatively high intensity building line, line of sight, and other controls did not then exist. The local authority was clearly restricting the creation of back lots and permitting the creation of rights of way only where buildings on the other lots had full road frontage. The Judge thought it was correct to say that the conditions were therefore “a rather crude form of density control”. In light of this he adopted a purposive approach “to the clear intent which underlay this condition”. The argument that the condition affected anything which actually fronted upon the right of way would read it as amounting to a form of building line restriction which, the Judge said, did not accord with the natural and ordinary meaning of the word frontage. Secondly, it raised difficult – if not insurmountable – “consequentialist concerns for law enforcement purposes.” The very point of a building line restriction was that it must be precise, controlling precisely where buildings could be placed. But on the plaintiff’s construction it would be impossible to know precisely where a building could be placed on the property. For these reasons, the Judge construed the condition as meant to preclude the erection of a building which had the right of way as its only frontage. That was not the position because the building would have a frontage to the unformed road.
[35] The third decision was that of Elias J in Rental Space Ltd v March (1999) 4 NZ ConvC 192,873. The defendants’ land had its only practical access over a right of way. It also had a panhandle connecting to a paper road. The defendants subdivided their land and sold the portion with the panhandle, thereby cutting off the connection. The issue was whether a condition identical to that in the present case (“that no buildings be erected having a frontage wholly to the right-of-way”), imposed by the Council in 1935-6, prevented the erection of a building on the portion retained by the defendants. Elias J held that it did. She said she could discern no material variation from the conditions in English and Bailey. She agreed with Gault J’s conclusion in English that the restriction was concerned with ensuring ingress and egress by means other than the right of way. She said that “frontage” was concerned with access to a public street or right of way; that was the sense in which it had been used in cases such as Doyle v Bishop and other cases which she listed.
[36] Elias J then commented that Gault J had not been called upon to consider application of the condition in the circumstances which applied in Bailey where the other “frontage” was an unformed road. That had been the position in the case before her when the right of way in favour of the land had been created. Elias J said that she agreed with Hammond J in Bailey that in those circumstances, as a matter of common usage of language, the lots (i.e those connected to the paper road) had frontages both to the right of way and to the road, irrespective of the practicability of access by the road, at least for vehicles. Any other interpretation would have meant that at the time the easement was granted no buildings could have been erected on the lots transferred. This passage in the judgment may be controversial as the Judge does not seem to have considered whether a building erected on the panhandle lot could be said to have a frontage to the road, as distinct from the proposition that the lot itself had such a frontage, which it undoubtedly did, and as Lot 2 now does in the present case. In Bailey the subject land abutted the paper road along one entire boundary, as Lot 2 abutted Savannah Street in 1939.
[37] Elias J was of course aware of the distinction between frontages of buildings and of properties. She mentioned it in her very next paragraph where she said that contiguity was considered essential to the notion of the frontage of a building in English. She said that the requirement of contiguity meant that in English and Doyle v Bishop it had been held necessary that a building, to have a frontage to a street or right of way, must not be behind another building even if located on land which was contiguous to and which therefore could be said to have frontage to the street. She then stated:
It is unnecessary for the purposes of this case to express any concluded view on the correctness of that interpretation, which may well here have made the construction of dwellings on the earlier subdivided lots which preserved access strips to [the unformed road] in breach of Condition 3. Since the defendants’ property has no access to [the unformed road], it is not necessary to decide whether, had some such access been preserved, the dwellings to the north of the defendants’ site would have prevented the new building from having frontage to [the unformed road]. I would have been reluctant to come to that conclusion. Although such interpretation of “frontage” in relation to a building may serve to control density of buildings on a site, that does not seem to me to be the purpose of Condition 3. In my view, it was intended to require additional access so that back lots were not wholly dependent on right of way access. (p192,883)
[38] This was a passage which was naturally relied upon by the present respondents, but in focusing on whether there is already a building between the land and the road, Elias J may not have fully considered whether, even if the front lot is presently vacant, it can truly be said that a building on a panhandle lot will have a frontage to the road, as could be said in Bailey and was the position in the present case in 1939.
[39] It has to be said that the reason for the condition is something of a mystery. It is not mentioned in the correspondence between the subdivider and the Council. It obviously was one of the Council’s standard conditions and there is an appearance that it may have been imposed, in this and other cases, without any real thought for how it would actually affect a particular situation.
[40] Section 184 of the Municipal Corporations Act gave the Council a wide power to impose conditions upon granting permission for a private street or way or for a right of way over any private way. The conditions could relate to the layout and construction of the street or way and also to the number and placement of dwellings, which was a matter directly relevant to the usage and appearance of the street or way. One means of controlling the number of buildings fronting the street or way was by prescribing that they had to have another frontage, to a road. Just why this should be thought to be fulfilled if the road was in fact unformed, and even if it was physically impassable, is not clear to us, but perhaps it was thought necessary for consistency with s125 which did not require that the existing road, street or private street fronting the land actually be formed. Section 125 controlled sale of subdivided lots but not building upon them by the subdivider. The condition may even, as Mr Palmer suggested, have been intended to control the situation if an adjacent street were closed, as has happened in the case of Savannah Street.
[41] However that may be, and however inappropriate the condition may today seem to be in its application to the particular situation of the Tans’ property, it must be taken to have been validly imposed. Our preliminary view, formed on the basis of a reading of the words of the condition, has been confirmed by reference to the earlier High Court decisions and the authorising statute. There is no proper basis for departing from the meaning which the words appear to have when applied to the situation on the ground at the time of the Council approval in 1939. The restriction imposed by the condition is expressly related to the frontage of any building, not to the frontage of the allotment. Therefore, for the reasons already given, it prevents the erection of the residence on Lot 2. The Tans’ remedy, unless the Council has power to revoke or amend the condition – a proposition not canvassed before us – must be by way of an application under s126G of the Property Law Act 1952. Such an application failed in Rental Space but the position there was a good deal more complex and some at least of the concerns raised before Elias J will not be present; those for example, relating to the increased burden on the right of way and the precedent for other owners with rights of user.
[42] We have accordingly, and with reluctance, been brought to the view that the appeal must be allowed and the High Court’s declaration and costs orders set aside. It will now be for the High Court to fix costs in favour of the Wrights, who are to have costs in this Court in the sum of $6,000, together with their reasonable disbursements, including travel and accommodation expenses of counsel, to be fixed if necessary by the Registrar and paid equally by the Tans and the Council.
Solicitors:
Kirkby Law, Auckland, Appellant
Minter Ellison Rudd Watts, Auckland, for First Respondents
Ellis Gould, Auckland, for Second Respondents
Simpson Grierson, Auckland for Third Respondent
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