Duncan and Ors v Robin Eric Taylor and Ors
| Jurisdiction | New Zealand |
| Judge | Rodney Hansen J |
| Judgment Date | 31 May 2010 |
| Neutral Citation | [2010] NZHC 895 |
| Docket Number | CIV 2007-404-296 |
| Court | High Court |
| Date | 31 May 2010 |
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[2010] NZHC 895
CIV 2007-404-296
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application for orders under the Property Law Act 2007 – Duncan and the defendants were owners of flats on a cross-lease — Duncan constructed a new building and retaining wall against the wishes of the owners which encroached on common land — application for relief under ss321 – 323 Property Law Act 2007 for a wrongly placed structure — application for an order for the creation of new plan that reflected the actual structure of the flats — application for contribution for a retaining wall to be repaired — the defendants applied for the removal of the encroaching parts of Duncan's building and compensation under s325 Property Law Act 2007 for unlawful occupation and damages for trespass.
KF Gould for Plaintiffs
SA Grant and K Dawson for First — Third Defendants (17–19 August)
AF Grant and EA James for First — Third Defendants (6 November) No appearance for Fourth and Fifth Defendants
This judgment was delivered by me on 31 May 2010 at 3.30 p.m.,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy Registrar
Date: ………………………….
TABLE OF CONTENTS
| Introduction | [1] |
| Background facts | [6] |
| Relevant history | [11] |
| Encroachment | [15] |
| Right to relief – wrongly placed structures | [18] |
| Just and equitable relief | [27] |
| Compensation | [33] |
| Additional land | [35] |
| Loss of amenity | [46] |
| Encroachments on common area | [47] |
| Just and equitable compensation | [54] |
| Encroachment by defendants | [57] |
| Conclusion on compensation | [61] |
| Retaining walls and gardens | [62] |
| Trespass | [72] |
| Relief | [84] |
The plaintiffs and the first, second and third defendants are the owners of flats on land at Baddeley Avenue, Kohimaramara. Each has an interest in the fee simple of the land and is party to a registered cross-lease. (I will refer to the first, second and third defendants as the owner defendants in order to distinguish them from the fourth and fifth defendants who took no active part in the proceeding.
The owner defendants' flats are in a multi-level structure built in the 1950s which was converted into flats in the 1970s. The plaintiffs' flat (Flat 4) is a substantial stand-alone, two-level residence with carport built on an elevated site at the rear of the main building. It was built without the consent of the remaining owners in 1985 to replace a small one-bedroom cottage. The new structure exceeds the footprint of the existing flats plan (the plan) and, in two areas, encroaches on common property.
Flats 1 and 3 (owned by the second defendants and first defendant respectively) also encroach on common property. The original plan did not accurately depict their structure and subsequent alterations have led to the encroachment.
In this proceeding, the plaintiffs seek orders under the Property Law Act 2007 (the Act) for the creation of a new plan that accurately reflects the structures of the flats which exceed the existing footprint. They also seek a contribution from the first, second and third defendants to the cost of repairing a failed retaining wall on common property.
The owner defendants oppose the plaintiffs' claim to relief. They seek removal of the encroaching parts of the plaintiffs' building and compensation for their unlawful occupation. If there are to be amendments to the plan to recognise the encroachments, the defendants seek compensation and costs from the plaintiffs. They also seek damages for trespass to common property.
The land on which the structures are built lies between Baddeley Avenue and Siota Crescent. The land slopes upward from east to west from its frontage on Baddeley Avenue. When the cross-lease development occurred in 1976, there were two buildings on the land. At the eastern, or Baddeley Avenue end, there was a two— storied house built in the 1950s. Behind, and sited in about the middle of the property, there was a small cottage, originally built in 1961 as a storeroom and workshop and later converted for residential use. The cross-lease development involved partitioning the house into three flats (Flats 1 – 3) and designating the cottage as a fourth flat. Flat 1 is a studio flat, Flat 2 has two bedrooms and Flat 3 has one bedroom.
There is a common area surrounding the house and a common right-of-way along the southern boundary which, prior to the re-development of Flat 4, permitted access by the occupiers of Flats 1, 2 and 3 to the Siota Crescent end of the property. The evidence is that on occasions the occupiers would use that area of the land for picnics. It was grassed and permitted pleasant views of the Hauraki Gulf and Rangitoto.
As required under the Unit Titles Act 1972, which permitted the cross-lease form of ownership, the fee simple in the land is owned by the occupants of the flats as tenants in common (the owner of Flat 2 as to two-fifths and the others as to one— fifth each) and all tenants join in leasing each flat to its occupant for a period of 999 years. Clause 9 of the Memorandum of Lease of each flat prohibits structural alterations to the flat without the consent in writing of a majority of the lessors. It provides:
(1) The lessee shall not (without the consent in writing of the lessors or a majority of them for that purpose on every occasion first had and obtained) make any structural alternations to the flat or to any partition walls therein or to any passageway or stairways leading thereto nor take any action which might constitute danger or risk to the said building.
Clause 11 of the leases makes provision for each lessee to have the right of exclusive occupation of the flat and for each to have use of common property. It reads as follows:
The lessee performing and observing all and singular the covenants and conditions on his part herein contained and implied shall quietly hold and enjoy the flat without any interruption by the lessors or any person claiming under them together with the use in common with the other lessees of flats in the said building of the drives, paths, and grounds on the said land and of any stairways, balconies, and verandahs in the said building for access only from such flats.
All owners are required to pay one-quarter of the cost of repairs, maintenance and other charges in respect of common property.
To the rear of Flat 4 is an area of land, designated Area B, to which the lessee of Flat 4 has exclusive access. This is achieved by cl 13(a) in Schedule C of the lease of Flat 4 which provides as follows:
The Lessor doth hereby convenant and agree with the lessee that the Lessor throughout the term of this lease shall not use or occupy nor shall the lessor permit any lessee of the said land (other than the Lessee hereunder) to use or occupy for any purpose whatsoever that part of the said land marked ?B? on Deposited Plan 80295 to the intent that this restrictive covenant shall for forever appurtenant to the estate and interest of the Lessee under this lease.
The lessee of Flat 4 is required to pay all expenses relating to Area B.
Mr Duncan bought Flat 4 as a single man in 1981. At this time Flats 1, 2 and 3 were all owned and occupied by single older women. To begin with all four owners enjoyed an amicable relationship.
In 1984 Mr Duncan married. He and his wife wished to extend the cottage to effectively create a new dwelling. The owners of Flats 1 – 3 would not consent to the structural alterations. Mr and Mrs Duncan, nevertheless, applied for consent (by way of a specified departure) to the development. Their application was actively opposed by the other owners. The grounds of their opposition included:
"Their refusal of consent under the cross-lease.
"The proposed dwelling was inappropriate for the site, too large and too close to the boundaries and would affect their privacy and enjoyment of their homes.
"Extensive earthworks would be required which would jeopardise the stability of the land and destroy an existing retaining wall.
"The building would reduce the amount of open space to an unacceptable extent.
"The building would infringe on common areas.
Notwithstanding the opposition of the other occupants and other objections, the Auckland City Council granted consent in March 1985. An appeal was lodged but later withdrawn, apparently due to lack of resources.
The Duncans proceeded to build a large house and carport and to demolish part of the cottage on the Flat 4 footprint. Its footprint expanded from the 32 square metres occupied by the cottage to approximately 200 square metres. Most of it extended over Area B (the area to which Flat 4 had exclusive access). As part of the Council's requirements on the grant of resource consent, a retaining wall was built on the southern side of the house. The common area between the house and the southern boundary was also terraced with timber retaining walls and gardens. As a result of these developments, the occupants of Flats 1 – 3 no longer enjoyed effective access along the southern boundary and to the elevated area at the western end of the property.
It is not disputed that the house and carport built by the Duncans exceeds the footprint on the plan and encroaches on both Area B and, in two areas, on common property. There...
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