JOHNS ROAD HORTICULTURAL LTD v GAVIN [2022] NZHC 1747

JOHNS ROAD HORTICULTURAL LTD v GAVIN [2022] NZHC 1747

The court found that material change in use and neighbourhood character since the covenant's creation (rezoning and shift from orchard to medium-density residential/commercial use), combined with the redundancy of the architectural approval requirement and updated statutory building controls, satisfied s317 grounds; the agreed replacement covenants addressed amenity, fencing and security concerns and would not substantially injure persons entitled, so it was just and equitable to modify the covenant and order contemporaneous registration of replacement covenants with specified timing amendments.

Citation
[2022] NZHC 1747
Parties
First Applicant: Johns Road Horticultural Limited; Second Applicants: Stuart John Vincent Fox and Susan Joy Fox; Third Applicants: Derek John Craze and Robert Averill Fitzhardinge Kingscote; Fourth Applicants: Anita Teofila Bateman; Stephen Noel Bateman; Ronald David Williams; First Respondent: Charlotte Teresa Gavin; Second Respondent: Investment Southland Limited; Third Respondents: John and Lynda Powell; Fourth Respondent: Devondale Nurseries Limited; Party Directed to Be Served: Jurgen Suppan
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 July 2022
Procedural Posture
Application Under Property Law Act 2007 Ss 316 and 317 for Modification of a Restrictive Land Covenant / Final Judgment (application Decided on the Papers)
Outcome
Application granted in part; covenant modified as agreed by applicants and first respondents and replacement covenants ordered to be registered contemporaneously; hearing vacated and judgment entered on the papers.
Legal Topics
Modification and Extinguishment of Restrictive Covenants, S316 and S317 Property Law Act 2007, Originating Application Under High Court Rules R19.5, Replacement Covenants, Fencing and Building Restriction Enforcement
Property Law Restrictive Covenants Civil Procedure Modification and Extinguishment of Restrictive Covenants S316 and S317 Property Law Act 2007 Originating Application Under High Court Rules R19.5 Replacement Covenants Fencing and Building Restriction Enforcement

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Parties

Johns Road Horticultural Limited

First Applicant

Stuart John Vincent Fox and Susan Joy Fox

Second Applicants

Derek John Craze and Robert Averill Fitzhardinge Kingscote

Third Applicants

Anita Teofila Bateman; Stephen Noel Bateman; Ronald David Williams

Fourth Applicants

Charlotte Teresa Gavin

First Respondent

Investment Southland Limited

Second Respondent

John and Lynda Powell

Third Respondents

Devondale Nurseries Limited

Fourth Respondent

Jurgen Suppan

Party Directed to Be Served

Procedural Posture

Application Under Property Law Act 2007 Ss 316 and 317 for Modification of a Restrictive Land Covenant / Final Judgment (application Decided on the Papers)

Legal Issues

  1. 1 Whether grounds in s317(1) are satisfied due to change in use or neighbourhood character since covenant creation
  2. 2 Whether continuation of covenant would impede reasonable use of burdened land
  3. 3 Whether proposed modification would substantially injure any person entitled

Ratio Decidendi

The court found that material change in use and neighbourhood character since the covenant's creation (rezoning and shift from orchard to medium-density residential/commercial use), combined with the redundancy of the architectural approval requirement and updated statutory building controls, satisfied s317 grounds; the agreed replacement covenants addressed amenity, fencing and security concerns and would not substantially injure persons entitled, so it was just and equitable to modify the covenant and order contemporaneous registration of replacement covenants with specified timing amendments.

Court Disposition

Application granted in part; covenant modified as agreed by applicants and first respondents and replacement covenants ordered to be registered contemporaneously; hearing vacated and judgment entered on the papers.

Orders

  • Modification of the existing covenant in accordance with the agreed replacement covenants and contemporaneous registration of those replacement covenants against affected titles
  • Paragraph 5 of draft order amended: registered owners to confirm in writing to the Registrar-General of Land their agreement to registration of Replacement Covenants within 20 working days