AKLANDER INVESTMENT LTD [2017] NZHC 2939

AKLANDER INVESTMENT LTD [2017] NZHC 2939

The covenant was modified because the neighbourhood's character materially changed since the covenant's 1996 registration—from rural to residential—there was majority consent and evidence demonstrated no significant deleterious effects, permitting the court under s317 Property Law Act 2007 to modify covenant D083110.1 so it no longer applies to Lot 1 DP 178443 (NA105B/641).

Citation
[2017] NZHC 2939
Parties
Applicant: Aklander Investment Ltd; Affected Owners (consenting): Seven affected owners; Affected Owners (opposing): Mr and Mrs Singh; Interested Party (consent Authority): Auckland Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 November 2017
Procedural Posture
Application to Modify or Extinguish a Covenant Under the Property Law Act 2007 / Hearing and Final Judgment
Outcome
Application granted; covenant modified
Legal Topics
Modification of Restrictive Covenants, Compensation for Covenant Modification, Change of Neighbourhood Character
Property Law Real Property Civil Procedure Modification of Restrictive Covenants Compensation for Covenant Modification Change of Neighbourhood Character

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Parties

Aklander Investment Ltd

Applicant

Seven affected owners

Affected Owners (consenting)

Mr and Mrs Singh

Affected Owners (opposing)

Auckland Council

Interested Party (consent Authority)

Procedural Posture

Application to Modify or Extinguish a Covenant Under the Property Law Act 2007 / Hearing and Final Judgment

Legal Issues

  1. 1 Whether the court should modify or extinguish the restrictive covenant under s317 Property Law Act 2007
  2. 2 Whether there has been a change in the character of the neighbourhood since the covenant's creation sufficient to justify modification
  3. 3 Whether reasonable compensation is payable and whether modification would cause deleterious effects

Ratio Decidendi

The covenant was modified because the neighbourhood's character materially changed since the covenant's 1996 registration—from rural to residential—there was majority consent and evidence demonstrated no significant deleterious effects, permitting the court under s317 Property Law Act 2007 to modify covenant D083110.1 so it no longer applies to Lot 1 DP 178443 (NA105B/641).

Court Disposition

Application granted; covenant modified

Orders

  • Covenant D083110.1 is modified so it no longer applies to the estate in fee simple Lot 1 deposited plan 178443 comprised in unique identifier NA105B/641
  • No compensation ordered on the evidence before the court