SINGH AND BOURCHIER AS TRUSTEES OF SHEAN SINGH FAMILY TRUST v POTTERS PARK PROPERTY LIMITED CA604/2014 [2015] NZCA 146

SINGH AND BOURCHIER AS TRUSTEES OF SHEAN SINGH FAMILY TRUST v POTTERS PARK PROPERTY LIMITED CA604/2014 [2015] NZCA 146 [4 May 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA604/2014[2015] NZCA 146BETWEEN MAHENDRA SINGH AND GEOFFREYHUGH BOURCHIER AS TRUSTEES OFSHEAN SINGH FAMILY TRUSTAppellantsAND POTTERS PARK PROPERTY LIMITEDRespondentHearing: 15 April 2015Court: Randerson, Wild and French JJCounsel: D G Collecutt for AppellantsE St John for RespondentJudgment: 4 May 2015 at 3:00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants must pay costs to the respondent for a standard appeal on a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Randerson J)Table of ContentsPara NoIntroductionThe facts in more detailThe High Court judgmentWhat were the obligations of the parties under the ROWagreement?Did Potters breach any obligation on its part and, if so, didthat have any causative effect?Was the Trust entitled to waive the condition requiring it toapply for a resource consent for the additional parking at therear and, if so, did it waive that condition in fact?Result[1][7][27][36][45][49][56]Introduction[1] The parties to this appeal own adjoining properties on Dominion Road, Auckland. Each is zoned residential in the Auckland Council's district plan. Theparties wished to develop their respective properties for commercial purposes. The appellants as trustees of the Shean Singh Family Trust wished to extend an existing residential building for use as law offices while the respondent company intended to establish a pharmacy to be operated in conjunction with a third property used as adoctors' surgery. We will refer to the appellants as the Trust, the respondent asPotters, and the owners of the doctors' surgery as the Doctors. Although potentiallyaffected, the Doctors were not party to the proceeding at issue.1[2] The Trust and Potters entered into a written agreement on 23 August 2010. The essence of the agreement was that the parties would assist each other in developing their properties in two main ways. The first was that they would each support an application by the other to the Council for the consents necessary to enable the projects to proceed. The second was an agreement by Potters to create aright of way (ROW) in favour of the Trust over part of Potters' land. The purpose ofthe ROW was to enable the Trust to gain access to the rear of their property where they intended to provide additional carparking. The agreement was referred to in the1 The desirability of joining directly affected parties was emphasised in Minister of Education v De Luxe Motor Services (1972) Ltd [1990] 1 NZLR 27 (CA).High Court and before us as the ROW agreement. Its full terms along with three plans forming part of the agreement are attached to this judgment.[3] Importantly, the ROW agreement was conditional on each party obtaining the necessary consents from the Council within two years of the date of the agreement: that is, by 23 August 2012. Potters obtained resource consent for its development within the two year period but the Trust delayed its application. When the Trust did lodge its resource consent application, it did not seek consent for additional parking at the rear of their property. Resource consent was granted to the Trust within the two year period to extend the existing building on their property but not for any additional parking at the rear. After the two year period expired, Potters advised the Trust that the agreement was at an end and refused to grant the ROW. The Trust sued the Potters in the High Court alleging it had breached the ROW agreement.[4] Fogarty J found in favour of Potters in a judgment delivered on 1 October 2014.2 The Trust now appeals. Mr Collecutt submitted on its behalf that the Judge had erred in finding that:(a) Potters had not breached express or implied obligations to assist the Trust by applying for a resource consent without disclosing to the Council the existence of the ROW agreement and by seeking approval for a one-way traffic flow system on Potters' land that did not recognise the Trust's rights under the ROW agreement.(b) The Trust was not entitled to waive the condition in the ROW agreement requiring it to apply for a resource consent for additional parking at the rear of their property.(c) The conditions of the ROW agreement were not satisfied and Potters was not obliged to create the ROW.2 Singh v Potters Park Property Ltd [2014] NZHC 2392 [High Court judgment].[5] For Potters, Mr St John's response was:(a) There was no breach of any contractual obligation and, even if there were, the breach had no causative effect because the Trust had changed its plans and had decided not to apply for a resource consent for additional parking at the rear of its property.(b) The Trust was not entitled to unilaterally waive the condition requiring it to apply for a resource consent for the additional parking and did not in fact waive the condition or consent to any variation of the ROW agreement.[6] The main issues for determination are therefore:(a) What were the obligations on the parties under the ROW agreement?(b) Did Potters breach any obligation on its part and, if so, did that have any causative effect?(c) Was the Trust entitled to waive the condition requiring it to apply for a resource consent for the additional parking at the rear and, if so, did it waive that condition in fact?The facts in more detail[7] Dominion Road is a busy arterial route on which the three affected parties owned adjoining properties. These are depicted in the following simplified plan:33 Not to scale and indicative only.NMt. Pleasant RdEntranceDominionRdProposed ROW Ramp downExitLow wallDoctors(502)Potters(504)Trustees(506)[8] The Doctors own the property at the corner of Dominion Road and Mt Pleasant Road (502 Dominion Road). Entrance to that property is from Mt Pleasant Road with parking on the eastern boundary. Potters owns the property immediately to the south (504 Dominion Road).[9] The Trust owns the land at 506 Dominion Road, immediately to the south ofPotters' land. The proposed ROW at issue is shown hatched on Potters' land. At thetime of the ROW agreement, the Trust's intention was to seek resource consent notonly for an extension of the existing building on their land but also for parking at the rear (eastern) part of its land. The ROW was to enable vehicles to move from 506 Dominion Road onto the proposed ROW on Potters' land and then to the rear of the Trust's property (and vice versa).[10] It is common ground that there is insufficient width in the proposed ROW for two vehicles to pass and that use by the Trust of the ROW to access the rear of their property would be in the opposite direction to the traffic flow envisaged by the Doctors and Potters. In order to reduce the risk of conflict in the use of the ROW, the Trust agreed to restrict vehicle movements to a maximum of 15 return vehicle passes per day and further agreed to give way at all times to customers or other invitees of Potters with the intention that those customers and invitees would haveprecedence of entry to and exit from Potters' land.4[11] The ROW agreement was signed on 23 August 2010. On the same day, theTrust signed the plans for Potters' development of the property confirming that itunderstood and supported that proposal.[12] On 14 October 2010 Potters entered into a separate ROW agreement with the Doctors. This allowed for vehicles attending at the Doctors' surgery to use Potters'land in order to exit onto Dominion Road. The agreement with the Doctors does not mention the ROW agreement with the Trust. However, there is evidence that the Doctors were at least aware of the arrangement that Potters had entered into with the Trust and had not raised any concerns over it.[13] On 1 November 2010, the Council received Potters' resource consentapplication for the development of its site. The plans submitted with the application did not show the proposed ROW in favour of the Trust and no mention was made of it. The existence of the ROW agreement between Potters and the Doctors was disclosed and the supporting documentation stated that traffic flow on the sites owned by the Doctors and Potters would be a one-way flow with entrance from Mt Pleasant Road and exit onto Dominion Road. The Potters' land slopesdownwards towards Dominion Road so the development required a ramp in the area of the ROW proposed for the Trust. The traffic consultants engaged by Pottersproposed that the surface of the ramp on Potters' property be marked with an arrowindicating that it was for one-way traffic. This was to be reinforced by signage at the top of the ramp and a no-entry sign at the bottom.4 Right of Way Agreement [ROW], cl 4(b).[14] Resource consent was granted to Potters on 13 January 2011. A condition ofthe consent was that a sign was to be placed on the western elevation of Potters' newpharmacy building advising that no entry was permitted onto the ROW/vehicularramp on Potters' land. Unless that condition were later varied, this was a prima facie difficulty facing the Trust if it wished to continue to gain access over Potters' land.Another condition of the resource consent required Potters to register the ROW agreement with the Doctors on the titles to 502 and 504 Dominion Road.[15] By August 2011, Mr Kelly as director of Potters was becoming concerned that the Trust had not lodged an application for resource consent with the Council for its development. Mr Kelly arranged a meeting with Mr Shean Singh5 on 16 August2011 but the Trust's plans were not then finalised. There was a discussion about theROW agreement and the possibility of the Trust putting a caveat on the title toPotters' land. Mr Singh's evidence was that his major concern was gaining hisresource consent and it was unnecessary to include in the Trust's application anyreference to the proposed ROW access.[16] In October 2011 a series of emails was exchanged between Messrs Kelly and Singh. On 27 October 2011 Mr Kelly informed Mr Singh that his legal advice was that the ROW agreement would not become unconditional because the Council had prohibited traffic going up the ramp as a condition of the resource consent granted to Potters. Mr Kelly said his legal advice was that putting a caveat on Potters' title would not be "a good thing". He did not wish Mr Singh to do anything that would compromise Potters' resource consent or contravene the condition set by the Council.[17] On 1 November 2011 Mr Kelly sent a further email to Mr Singh reiterating his concerns. Mr Kelly said:We are happy to sign off your Drawings for Council in respect of your Resource Consent application. However, we do not wish to do this if there is any risk that it might be interpreted by Council that we are not meeting the obligations in respect of our Resource Consent conditions – so we just want to be sure of that.5 One of the beneficiaries of the Trust who conducted a legal practice in the Trust's premises.This is where we are at: Right of Way agreement we signed last August will not now become unconditional, for at least one of the conditions put on that agreement, namely that it would contravene the condition set by Council on our Resource Consent that vehicles cannot enter the rear of the property by entering from the western driveway entrance. Therefore, this agreement is null and void in our opinion. The route of placing a caveat on our title will not lead anywhere since there would be no grounds for placing such a caveat. The other alternative, of putting a Covenant in place, will not work either as we will not enter into any agreement which specifically contravenes our Resource Consent conditions.We are happy to work with you to come up with some other agreement or solution, so long as what we do is within any requirements set by Council.I'm happy to meet up again as soon as is convenient to discuss all this further.[18] In response, Mr Singh sent an email to Mr Kelly to this effect on 3 November 2011:Lets do one thing at a time.I need the consent for my development which will not require me to go to the back of my property, accordingly there is no issue as far as counsel [sic] is concerned that re eithier [sic] your development or mine[19] On 10 November 2011 Potters signed a letter from the Trust's consultants agreeing to allow the Trust's development in accordance with drawings attached. Itis not in dispute that the Trust's plans presented to the Council for resource consent contained no reference to a ROW over Potters' land and did not seek resource consent for parking at the rear of the Trust's property.[20] In the meantime the Council issued a building consent to Potters to enable its development to proceed.6 During November 2011 there was another exchange of emails between Mr Kelly and Mr Singh. For present purposes, there are four significant points to emerge from these emails: Potters continued to express a willingness to support the Trust'sdevelopment but warned that the ROW agreement would become null and void if either party did not obtain the necessary consents.6 On 1 November 2011. The Trust's priority was to obtain resource consent for its development with the issue of parking at the rear of their propertybeing deferred to "a later date". Both parties agreed they would work towards an acceptable solution with the Council over the ROW issue. Potters offered to extend the time for fulfilment of the conditions beyond 23 August 2012 if this would assist the Trust.[21] Importantly, in an email of 28 November 2011 Mr Kelly advised Mr Singh that:The whole purpose of the right of way is to grant access to the back of your property so that you can park there. If Council approve this purpose in such a way that our Resource Consent and customer traffic flow is not adversely affected, then we support you. If Council do not approve of this purpose, then of course there is no agreement.[22] Mr Singh responded in an email sent the same day. He disagreed with Mr Kelly's interpretation. He expressed confidence that the Council would be ableto be convinced and concluded:We should proceed with the purpose and intent of the agreement for now and deal with Council should it become necessary.[23] Thereafter, it became necessary for the Trust to have the plans for their development redrawn as a result of objections by another neighbour. A letter of 8 February 2012 to Potters from the Trust's consultants advised that the Trust'sproposal breached the height-in-relation-to-boundary control in the district plan and the approval of Potters was required for this. Potters signed these plans on 24 February 2012 as soon as they were ready for signature. The revised plan showeda new parking area at the front of the Trust's property (adjoining Dominion Road).There was no provision for a carpark at the rear as contemplated by the ROW agreement.7 The supporting material said the rear of the property would be landscaped and would be a staff amenity. On 24 April 2012 the Council granted theTrust a resource consent for its development. Consistently with the Trust's7 In the High Court judgment, above n 2, Fogarty J said at [66] that the drawing showed provision for a new parking area at the rear on gobi blocks. This appears to have been an error.application, the resource consent provided for parking only at the front of the Trust'sproperty adjoining Dominion Road.[24] The Trust subsequently sought a building consent, the plans showing for thefirst time an area at the rear of the Trust's property with the notation "new gobi blocks".[25] On 25 July 2012, the Trust lodged a caveat on Potters' land to protect the ROW. The two year period from the date of the ROW agreement expired on 23 August 2012 and on 31 August 2012 Potters advised the Trust that it considered the agreement was at an end.[26] In September 2013 a dispute arose between the parties when the Trust commenced construction work. Potters alleged that contractors engaged by the Trusthad blocked the driveway on Potters' land with a digger and truck. Potters issued atrespass notice. Another issue raised by the Trust was that Potters had altered the ground levels along the common boundary and constructed a low retaining wallwhich prevented access by the Trust onto Potters' land. These matters formed part ofthe dispute heard in the High Court but, for reasons we set out below, it is unnecessary to consider them further.The High Court judgment[27] Fogarty J noted that the Trust sought an order that Potters specifically perform the ROW agreement by registering an easement; an order that Potters remove the minor retaining wall along the common boundary at its cost; and damages in consequence of the failure to provide the ROW as agreed. Potters counter-claimed seeking a declaration that the ROW agreement was at an end and anorder removing the Trust's caveat.[28] The Judge noted that there were no significant factual disputes. Credibility was not an issue because, after the ROW agreement was entered into, the parties tended to communicate by email.[29] He noted that it was not in dispute that at the time the ROW agreement was signed, the parties intended that there be two-way traffic over the proposed ROW. It was striking, the Judge said, that achievement of this goal was not more particularly expressed in the ROW agreement.[30] The Judge accepted expert evidence from Mr Deeney (a resource management consultant called by Potters) that Council consent is required before the ROW could be registered under the Land Transfer Act 1952 and that, under the Resource Management Act 1991, either Potters or the Trust could apply for the relevant consent.[31] Fogarty J found that the ROW agreement did not expressly require Potters to obtain the ROW for the Trust. Nor did it require Potters to notify the Council that an application would be made for a ROW in the future. He accepted arguments advanced for Potters that cl 3 of the ROW agreement were pre-conditions which had to be satisfied before the general condition in cl 4 applied, including condition 4(d) which required each party to do all things necessary to enable lodgement of the easement recording the terms of the agreement.[32] The Judge then dealt with implied obligations. He reviewed authorities cited on behalf of the Trust, to support an implied obligation to assist the Trust or that suggested there was a positive rule of law that conduct bringing about impossibility of performance would constitute a breach.8 He found neither proposition could be sustained on the facts. His Honour said:9[37] It is plain, and expressed in Recital E, that there was a mutual self-interest, between Potters and the Trust for their separate developments not to be publicly notified for consent. Each neighbour would consent to theother's applications. That was the core of the bargain. Potters' applicationswere ready to go. The RMA application was consented to by the Trust on the same day. The detailed design had been done as shown by the attachments. In the nature of things, the building permit application wouldcome later. The Trust's application or applications was not in the same stateof readiness, where it could be consented to by Potters on the same day. Hadthe Trust's application also been ready to go, in conflict with the right-of-8 Firestone Tire & Rubber Co of NZ Ltd v Harvard Construction Ltd (1997) 3 NZ ConvC 192,665 (HC) at 192,671 – 672; Southern Foundries (1926) Ltd v Shirlaw [1940] AC 701 (HL); Stirling v Maitland (1864) 5 B & S 840 (QB) at 852.9 High Court judgment, above n 2.way design in Potters' application, the terms of the agreement would nothave been the same.[38] It must have been plain to the parties when they signed the agreement, that the provision of countervailing traffic on the exit lane would be a major problem in the way of the Trust acquiring RMA consent to a right-of-way over the lane to enable cars to be driven from the front part of the Trust property to the rear. In the absence of an express term as to who should bear this risk, there is no necessary implication that it was being assumed by Potters.[39] For these reasons, it is not possible to imply additional obligations on Potters from the express terms of the right-of-way agreement. Rather, I think the agreement reflects what the parties were able to agree and no more, as at 23 August 2010. The terms have been carefully chosen. It is in that respect a sophisticated agreement. But its contents cannot hide the awkward fact that in respect of the right-of-way it is a rather lame instrument. The Doctors are not a party to it. Yet their agreement or disagreement was likelyto be fateful for the course of the Trust's application for a right-of-way in due course. Second, it is both a matter of law and fact that local authorities endeavour to maintain the level of traffic service or quality on roads and for that reason RMA plans and decision making processes address and examine carefully activities which generate traffic movements including vehicles moving onto and off roads, particularly arterial roads.[40] For these reasons, in the context of this agreement, I do not find anywhere in the agreement an obligation on the part of Potters to have made or to make an application on behalf of the Trust for two-way traffic on the lane taking the cars from the Doctors and the pharmacy out to Dominion Road. It follows, I do not find that the application that Potters lodged, consented to by the Trust on the very day of signing this agreement, was inconsistent with the obligations assumed by this right-of-way agreement.[33] On the issue of waiver, the Judge accepted argument on behalf of Potters that condition 3(d) of the ROW agreement was not inserted solely for the benefit of the Trust. The Judge considered it was to the advantage of Potters that the Trust had to get its resource consent within 24 months from the date of the agreement. If it did not, then Potters was released from obligations to provide the "awkward" ROW.[34] Finally, the Judge rejected the Trust's submission that Potters was stillobliged to create the ROW for occasional carparking at the rear of their property despite the Trust abandoning the intention to create permanent carparking there. The Trust had contended that intermittent and occasional use of the rear of the property for carparking purposes did not require a resource consent. The Judge found that the natural meaning of the ROW agreement was that at least some of the permanent carparking required by the Trust would be provided at the rear of their property. Heaccepted Mr Deeney's expert evidence that resource consent would be required evenfor temporary carparking. The Judge concluded:10[57] The context also reveals that it is because of what was seen as an inevitable or very likely requirement for the provision of additional permanent car parking to the rear of the property that drove the need for a right-of-way to benefit the Trust. When the Trust abandoned that objective in August 2011, cooperation from Potters was no longer required.[35] The Judge went on to consider other issues raised but it is unnecessary for us to traverse his findings on them since it is accepted the case turned on whether the agreement remained on foot after 23 August 2012. The result in the High Court wasthat the Trust's claim for specific performance and damages failed. A declaration was made on Potters' counter-claim that the ROW agreement was unenforceable and an order was made for removal of the Trust's caveat.What were the obligations of the parties under the ROW agreement?[36] The purposes of the ROW agreement are straightforward. Both parties wished to develop their respective properties. Each required resource consent to do so and agreed to assist each other in applying for those consents and by Pottersproviding a ROW in favour of the Trust over Potters' land. The agreement wasconditional on each party obtaining the necessary resource consents within two years from the date of the agreement. The agreement recorded that both the obtaining of the resource consents and the creation of the ROW was for mutual benefit.11[37] The nature of the resource consent required by the Trust is defined by Recital C and the condition in cl 3(d) of the ROW agreement. For convenience we set these out:Recital CThe Trust wishes to develop the Trust property by way of extension to the rear of the existing building and the provision of additional car parking at therear of the Trust's property.10 High Court judgment, above n 2.11 Recital E and cl 2.Clause 3(d)This agreement is conditional upon the Trust obtaining consent from the territorial authority for compliance of existing use (if any) and construction of works referred to in Recital C, such consent to be obtained with 24 months of the date of this agreement.[38] We agree with the Judge that the reference to "construction of works referred to in Recital C" includes the resource consent necessary to establish the additional carparking at the rear of the Trust's property. The Trust's obligation was to take allreasonable steps to fulfil condition 3(d) by obtaining a resource consent within the two year period for the proposed extension to its property and for the additional carparking. As the Judge said, the ROW agreement envisaged the carparking would be of a permanent nature. This was what the Trust envisaged, at least until October or November 2011 when Mr Singh began referring to temporary parking.[39] The nature of the parking (whether it was to be permanent or temporary) is not determinative since the Judge accepted Mr Deeney's expert evidence that aresource consent was required whether the proposal was for permanent or temporaryparking. Mr Deeney's evidence was that office parking in a residential zone is anon-complying activity. As well, the resource consent application lodged by theTrust envisaged a grassed landscaped area at the rear of the Trust's property.Mr Deeney said that the use of gobi blocks in that area would infringe the Council'slimit on the permitted percentage of paved area. Mr Deeney added that consentwould also be required from the Council for access to the rear from Potters' site.[40] Mr Collecutt submitted that the use of the rear of the Trust site for occasional parking would not require a resource consent. However, in the light of Mr Deeney'sevidence, we are unable to accept that submission. The only concession Mr Deeney made in evidence was that a resource consent would not be needed for access byemergency vehicles or tradesmen's vehicles during the construction process. Weaccept Mr Deeney's evidence. Mr Collecutt did not dispute that if a resource consentwere required then this would not be satisfied by the issue of a building consentapproving the use of gobi blocks at the rear of the Trust's property. A resourceconsent and a building consent would both be necessary.[41] As to Potters' obligations under the ROW agreement, we take a differentview from the Judge. Potters agreed to assist the Trust in obtaining consent for its development and the additional carparking at the rear of its property. The agreement to provide the ROW was essential to enable the Trust to gain access to the additional parking area at the rear. We are satisfied that Potters had an express obligation to assist the Trust in obtaining the Council consent and an implied obligation not to do anything that would impede the Trust from obtaining that consent.[42] The express obligation to assist stems from the Recitals and the terms of the ROW agreement as a whole including cl 4(d) which we are satisfied is sufficiently wide to require each party to assist with the resource consent applications at least so far as they related to the ROW. The implied obligation not to impede the Trust in fulfilling the condition arises from the authorities cited by the Judge and the well-established implied obligations in contracts for the sale and purchase of land, including the obligation to take reasonable steps to fulfil a conditional contract.12 In a case where a party is seeking a consent in order to fulfil a contractual condition, the other party assumes an implied obligation not to impede the party that is applying from achieving that goal.13[43] A party who is in breach of an obligation of this character may not rely on that breach to support the proposition that the contract is at an end through non-fulfilment of the condition. That would be to permit a party to benefit from its own breach.14[44] We accept Mr St John's point that an implied obligation of this type was notspecifically pleaded and that the argument in the High Court proceeded on a differentbasis but Potters' approach to the Council was canvassed in evidence and we preferto deal with this argument on the merits.12 John Burrows, Jeremy Finn and Stephen Todd Law of Contract in New Zealand (4th ed, Lexis Nexis, Wellington, 2012) at [8.2.5] and Steele v Serepisos [2006] NZSC 67, [2007] 1 NZLR 1 per Elias CJ at [4] and [5]; Blanchard J at [13]; Tipping J at [22] to [25]; McGrath J at [91]; and Anderson J at [133].13 See the discussion in Bethell v Bethell [2014] NZCA 442 at [64], leave to appeal ref'd in Bethell v Bethell [2014] NZSC 177.14 See above n 12 and New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France[1919] AC 1 (HL).Did Potters breach any obligation on its part and, if so, did that have any causative effect?[45] We agree with the Judge that Potters was not itself obliged to apply for a resource consent for the ROW. The Resource Management Act permits a non-ownerto seek resource consent on someone else's land.15 Potters was entitled to rely on the Trust making the necessary application to the Council when it was ready to do so within the two year period contemplated under the ROW agreement. But we find, contrary to the view taken by the Judge, that Potters breached its obligation to assist the Trust and not to impede its application for a resource consent. Potters did so by failing to disclose the existence of the ROW agreement to the Council when applying for its own resource consent and by proposing one-way traffic down the ramp on its property as well as signage to ensure that happened. This proposal wasthen incorporated as a condition of Potters' resource consent. This condition would have to be varied before the Trust proposal for access over Potters' land couldproceed. The Judge considered that Council consent for countervailing traffic was likely to be difficult but the steps taken by Potters did nothing to assist the Trust in achieving its objectives. Rather, Potters put a potential obstacle in the way of theTrust. Mr Deeney's view was that there was a reasonable prospect of obtaining consent to two-way access for the Trust but Potters' approach clearly did not assistthe Trust.[46] Despite our finding that Potters was in breach of its obligations, we accept Mr St John's submission that this did not result in the ROW agreement coming to an end through non-fulfilment of the conditions. We are satisfied that the Trust decided from about August 2011 that its priority lay in obtaining a resource consent for the extension of its building and that the issue of carparking at the rear of the property would be deferred until a later time. We agree with the Judge that the Trust abandoned its initial intention to establish permanent additional parking at the rear of its property and decided instead to use that area for temporary parking on an intermittent or occasional basis. Mr Singh said in evidence that the intention was to off-load or on-load passengers or materials. It is evident that Mr Singh believed that no resource consent was required for such activity and that he would have no15 Resource Management Act 1991, s 88; Derek Nolan (ed) Environmental & Resource Management Law (4th ed, Lexis Nexis, Wellington, 2011) at [4.46].difficulty in convincing the Council to approve the Trust proposals if required. There is no evidence that Mr Singh expressed any concern to Potters when he became aware of the condition for one-way traffic on Potters' resource consent.[47] In consequence, the Trust did not apply for a resource consent for additional parking at the rear of its property or for access via the proposed ROW at any time during the two year period under the ROW agreement. It did not do so despite repeated warnings from Potters that if the condition were not fulfilled, the agreement would be at an end.[48] Unless the Trust is able to persuade us that it was entitled to waive the condition and that it did in fact do so, it must follow that the ROW agreement came to an end at the expiry of the two year period for non-fulfilment of the condition in cl 3(d).16Was the Trust entitled to waive the condition requiring it to apply for a resource consent for the additional parking at the rear and, if so, did it waive that condition in fact?[49] There is no dispute that a condition of a contract may be varied unilaterallyby a party if the condition is inserted for that party's sole benefit. Any such waivermust be communicated to the opposite party before the time for fulfilment of the condition. Whether a condition is inserted for the sole benefit of a party is a question of construction of the document in the light of the surrounding circumstances.17[50] We do not accept Mr Collecutt's submission that the Judge erred in finding that the condition in cl 3(d) was not inserted for the sole benefit of the Trust. First, as noted earlier, the obligations under the ROW agreement were expressly stated to be for the benefit of both parties. Second, this was a composite agreement providing for each party to assist the other in obtaining their respective resource consents andfor the grant of a ROW on Potters' land. While the ROW was for the benefit of theTrust, it was important for Potters to know within a reasonable time period whether it would be obliged to provide the ROW over its land. If Potters were obliged to create16 Mr Collecutt submitted in his written material that the conditions were conditions subsequent but did not advance that submission in oral argument. We are satisfied the conditions were conditions precedent as Mr Singh himself accepted in evidence.17 Law of Contract in New Zealand, above n 12, at [8.3].a ROW, there was at least the potential for conflict with its own activities on the siteas well as those associated with the Doctors' surgery.[51] Mr Collecutt referred us to the decision of this Court in Globe Holdings Ltd v Floratos in which the ability of a purchaser to waive a condition under an agreement for sale and purchase was discussed.18 The contract in that case was subject to a condition that the purchaser would obtain a resource consent for a subdivision within 60 days. The purchaser waived the condition before the 60 day time limit had expired and its right to do so was upheld. The Court drew a distinction between the benefit of the substance of the condition and the benefit of the time limit for its fulfilment. The condition was to be construed as signifying that the contract was subject to it becoming unconditional in respect of the substantive matter dealt with by the condition either by fulfilment or waiver by the time specified.[52] Mr Collecutt submitted that the Trust was entitled to waive the condition requiring a resource consent for the additional carparking with the result that the contract became unconditional and the Trust could apply after the two year period for any resource consent needed for the additional carparking.[53] We do not accept that submission. If accepted, it would mean that the Trust could choose unilaterally to vary the contract. Instead of being obliged to obtain the resource consent for parking within the two year period the parties had agreed upon, the Trust could do so at some later time. It is fundamental that a contract may only be varied by consent.19[54] In any event, we are satisfied on the facts that the Trust did not waive the condition for a resource consent. To the contrary, Mr Singh informed Mr Kelly that the carparking issue would be dealt with at a later (unspecified) time. Mr Kellyadvised he would support the Trust's pursuit of that issue with the Council but took care to warn Mr Singh that Potters would regard the agreement as at an end if the consent for the additional carparking were not obtained within the two year period. Even after Potters had formally advised the Trust the ROW agreement was at an end, Potters advised the Trust by letter of 6 December 2012 that it would be willing to18 Globe Holdings Ltd v Floratos [1998] 3 NZLR 331 (CA) at 339.19 Law of Contract in New Zealand, above n 12, at [19.3.1].extend the period for it to apply for a resource consent for a reasonable period and to apply to the Council for a two way system so the Trust could get access from Dominion Road over Potters' land. The offer was never taken up.[55] In his written submissions, Mr Collecutt briefly advanced an argument that Potters had agreed to vary the ROW agreement by not requiring the Trust to apply for a resource consent for the rear carparking. It was pleaded that Potters agreed to vary the ROW agreement when it signed the second set of plans for the Trust in February 2012. Counsel did not press that submission in oral argument. We are satisfied largely for the reasons given in respect of the waiver issue that this submission is untenable on the facts. The documents show that Potters was asked to consent at that time to an infringement of the height-in-relation-to-boundary control.Given Mr Singh's earlier advice that the ROW issue would be dealt with later, we are satisfied Potters did not agree to vary the ROW agreement.Result[56] We conclude that the Judge was right to find that the ROW agreement came to an end at the expiry of the two year period for non-fulfilment by the Trust of the condition requiring it to obtain a resource consent for the additional parking at the rear of its property.[57] The appeal is dismissed.[58] The appellants must pay costs to the respondent for a standard appeal on a band A basis with usual disbursements.Solicitors:A Kashyap, Solicitor, Auckland for AppellantsD G Law, Solicitor, Auckland for Respondent