PURDIE v TRUCKELL & ORS [2016] NZHC 1231

PURDIE v TRUCKELL & ORS [2016] NZHC 1231

The Court held the sale to the Council, subsequent zoning/consent regime and physical excavation of a building platform constituted a change to Lot 2 and/or circumstances that would impede reasonable use such that s317(1)(a) and (b) jurisdiction exists; beneficiaries had not abandoned rights and modification would substantially injure them if unconstrained, so the Court exercised its residual discretion to grant a limited, conditional modification to the 2005 covenant to resolve the irreconcilable conflict with the 2010 consent while imposing specific protective measures (fencing, planting, screening, height caps and reciprocal protections) and denying other proposed deletions.

Citation
(2016) 17 NZCPR 499
Parties
Applicant: Justin Euan Purdie; Applicant: Traceyanne Purdie; First Respondent: Neil Adrian Truckell; Second Respondent: Susan Lucy Nikolaou; Third Respondent: Karen Maree Powers; Third Respondent: Terrance John Powers; Fourth Respondent: Christchurch City Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 June 2016
Procedural Posture
Application Under Property Law Act 2007 to Modify Restrictive Covenant Affecting Land / High Court Hearing and Judgment (application Granted in Part)
Outcome
Application granted in part and denied in part; Court ordered limited modification of the 2005 covenant to resolve conflict with 2010 covenant subject to detailed terms and denied other requested deletions
Legal Topics
Modification of Restrictive Covenant, Section 317 Property Law Act 2007, Conflict Between Covenant and Resource Consent, Abandonment and Waiver of Covenant Rights, Substantial Injury Test, Compensation Under S317
Property Law Real Property Restrictive Covenants Resource Management Law Planning Law Easements Modification of Restrictive Covenant Section 317 Property Law Act 2007 +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 8 Party arguments 2 Amounts and remedies 4
Sign in to unlock

Parties

Justin Euan Purdie

Applicant

Traceyanne Purdie

Applicant

Neil Adrian Truckell

First Respondent

Susan Lucy Nikolaou

Second Respondent

Karen Maree Powers

Third Respondent

Terrance John Powers

Third Respondent

Christchurch City Council

Fourth Respondent

Procedural Posture

Application Under Property Law Act 2007 to Modify Restrictive Covenant Affecting Land / High Court Hearing and Judgment (application Granted in Part)

Legal Issues

  1. 1 Whether there has been a change in the nature or extent of use of the burdened land since creation of the covenant (s317(1)(a)(i))
  2. 2 Whether continuation of the covenant in its existing form would impede reasonable use of the burdened land in a way not reasonably foreseen by original parties (s317(1)(b))
  3. 3 Whether beneficiaries have abandoned or waived covenant rights by acts or omissions (s317(1)(c)(ii))

Ratio Decidendi

The Court held the sale to the Council, subsequent zoning/consent regime and physical excavation of a building platform constituted a change to Lot 2 and/or circumstances that would impede reasonable use such that s317(1)(a) and (b) jurisdiction exists; beneficiaries had not abandoned rights and modification would substantially injure them if unconstrained, so the Court exercised its residual discretion to grant a limited, conditional modification to the 2005 covenant to resolve the irreconcilable conflict with the 2010 consent while imposing specific protective measures (fencing, planting, screening, height caps and reciprocal protections) and denying other proposed deletions.

Court Disposition

Application granted in part and denied in part; Court ordered limited modification of the 2005 covenant to resolve conflict with 2010 covenant subject to detailed terms and denied other requested deletions

Orders

  • Application denied as to deletion of prohibition on 'any caravan, hut or other similar structure for any kind of permanent or temporary use'
  • Application denied as to deletion of clause prohibiting subdivision for ten years from 11 October 2005