13 Dec 2021
Leave to appeal was dismissed because the contested issues primarily involved factual assessments about change in neighbourhood character and contextual circumstances already considered in Synlait; no novel question of law or matter of general/public importance or commercial significance was demonstrated, and no miscarriage of justice was shown to justify leave.
16 Aug 2019
The High Court upheld the District Court's exercise of discretion under s317(1)(d): the covenant's protective purpose is visual appearance; the proposed relocation of the Waiau homestead would not substantially injure entitled persons because most lots already have dwellings, the relocation would present a largely new exterior, the proposal is unusual so precedent risk is low, the dwellings are distant and screening reduces visual impact, and almost all other owners consented; however the variation must be narrowly tailored to permit only the specific relocation and limited use of pre-used ex…
19 Dec 2013
Windmill House is a dwelling in ordinary meaning and the easement as written limits use to servicing only one dwelling on the dominant land and naturally related ancillary purposes; the easement should be modified under s317(1) to operate in favour of both Lot 1 DP 387905 and Lot 2 DP 387905 with terms reflecting that limitation; compensation under s317(2) is to be assessed on a willing buyer/willing seller basis and, applying that test and the facts, reasonable compensation is $100,000 plus sealing and reasonable registration/legal costs; High Court compensation and 50% costs uplift were qua…
10 Aug 2011
The easement and encumbrance are properly susceptible to extinguishment under s317 given the changed circumstances (alternative access via Lot 52); s317(2) permits but does not mandate compensation and is silent on methodology; the respondent is entitled to recover identifiable out-of-pocket costs directly arising from extinguishment (vehicle crossing $5,600 and services relocation $31,700 totalling $37,300 exclusive of GST); the respondent's valuation of $230,000 was rejected as flawed because it ignored the respondent's contractual ability to require surrender and equated compensation with…