Aklander Investment Limited

[2017] NZHC 2939

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001223 [2017] NZHC 2939

IN THE MATTER

of Part 7 and 19 of the High Court Rules

and ss 316 and 317 of the Property Law
Act 2007

AND

IN THE MATTER

of an application by AKLANDER INVESTMENT LIMITED for an order extinguishing or modifying covenant

Hearing:	29 November 2017
Counsel:	DJ Neutze and CA Robertson for Applicant
Judgment:	29 November 2017

ORAL JUDGMENT OF DOWNS J

Solicitors:

Brookfields Lawyers, Auckland.

AKLANDER INVESTMENT LTD [2017] NZHC 2939 [29 November 2017]

[1]      Aklander Investment Ltd (Aklander) wants to develop land in Flat Bush.  It has obtained a resource consent from Auckland Council providing for the development  of  164  residential  lots,  associated  roads  and  infrastructure,  and

16 affordable housing developments.  But there is an obstacle.  A covenant prevents Aklander from erecting any building with an enclosed floor area of less than 150m2. Aklander applies to modify the covenant to enable the development to proceed.  The application is brought under s 317 of the Property Law Act 2007.

[2]      The application was initially opposed with a notice of opposition by eight affected owners.  However, seven of the eight now consent to the application.  The eighth  owners,  Mr  and  Mrs  Singh,  have  taken  no  step  beyond  the  notice  of opposition.  And, this morning I granted leave for their counsel, who also acted for the seven other affected parties, to withdraw; Mr Jiang had no instructions.

[3]      I am satisfied the application should be granted.   The covenant was first registered in 1996.   Auckland has changed—and grown significantly—since then. So too the area the subject of the application, with which I am familiar.   I am satisfied the covenant ought to be modified because of a change since the covenant’s creation to the character of the neighbourhood: what was once largely rural land is now very much a residential part of Auckland City.

[4]      An application of this nature may require reasonable compensation to be paid.  The evidence filed in support of the application satisfies me there will be no significant   deleterious   effects   if   the   covenant   is   modified   as   proposed. Consequently, I order land covenant D083110.1 is modified so it no longer applies to an  estate  in  fee  simple,  Lot 1,  deposited  plan  178443  as  comprised  in  unique identifier NA105B/641.

……………………………..

Downs J