Court pro­tec­tion wel­comed

Coastal News - - News - By ALI­SON SMITH news@coastal­news.co.nz

A “hugely sig­nif­i­cant” Supreme Court rul­ing on a ru­ral Tairua block guar­an­tees that covenanted land can never be carved up by sub­se­quent own­ers.

A 404ha bush block north of Tairua proved the test case for all QEII covenanted land, and up­holds the wishes of a man who died 15 years ago.

QEII is an in­de­pen­dent char­i­ta­ble trust that part­ners with pri­vate landown­ers to use covenants to pro­tect nat­u­ral and cul­tural her­itage sites on their land. The landowner con­tin­ues to own and man­age the covenanted land, and the covenant and pro­tec­tion re­mains when the prop­erty is sold to a new owner.

The late Mal­lyon Rus­sell reg­is­tered a covenant on his Tairua prop­erty in 1997 prior to his death in 2003. He owned two blocks in­clud­ing the 404ha block at the end of Paul Rd near Tairua and an­other 207ha. A covenant on the sec­ond block of land al­lowed for some de­vel­op­ment to make it more saleable, so that the age­ing owner could pay for his mount­ing Tairua rest home fees.

How­ever would-be devel­oper An­drew Davis con­tested the va­lid­ity of the covenant that pre­vented him sub­di­vid­ing the 404ha of land through his com­pany Green Growth No.2 Limited.

Ac­cord­ing to court doc­u­ments, Green Growth holds the prop­erty on trust for ABD Prop­er­ties Ltd which wishes to develop, or at least se­cure per­mis­sion to develop some of the land. An ap­proach was made to the Trust for per­mis­sion to do so. The Trust de­clined, prompt­ing lit­i­ga­tion.

Both the High Court and Court of Ap­peal sided with the trust that the covenant was valid — and now the Supreme Court has fur­ther con­firmed the de­ci­sion.

“This is a re­ally im­por­tant de­ci­sion for us be­cause it means covenants can­not be re­moved by sub­se­quent landown­ers even af­ter they’ve sold land or passed on,” says QEII Trust Deputy Chief Ex­ec­u­tive Paul Kirby.

“When I drive around the Coro­man­del with our re­gional rep, I can say that I think the Coro­man­del land­scape has ben­e­fited hugely from th­ese pro­tec­tive covenants which pro­tect the land­scape and nat­u­ral char­ac­ter of the place. For us this de­ci­sion is very sig­nif­i­cant. It de­fends that char­ac­ter that is dis­tinctly Coro­man­del.”

The prop­erty is at the end of Paul Rd north of Tairua and is near sev­eral other large blocks also pro­tected by QEII Trust covenants, and close to a suc­cess­ful kiwi sanc­tu­ary at When­u­akite.

Mr Rus­sell was in­tro­duced to the idea of covenant­ing his land by the late Tim Wyn-har­ris, who es­tab­lished Te Moata Retreat upon the 344ha of land which he bought for the pur­pose of cre­at­ing a bud­dhist cen­tre.

Te Moata co-man­ager Dave Saun­ders says the cen­tre was ‘de­lighted’ with the news. Its 344ha is also un­der a sim­i­lar covenant, while on the other side of them is Sil­ver­stream Falls which is also covenanted.

“We were pretty hor­ri­fied at the prospect of that 400ha po­ten­tially hav­ing its pro­tec­tion over­turned,” he says.

“A great deal of work has gone into pro­tect­ing kiwi and other rare species in this area, and the thought of hav­ing lots more houses, sil­ta­tion of the streams, dogs and cats etc could have done a huge amount of dam­age.

“The won­der­ful thing is it’s been tested in court and de­clared in­de­fea­si­ble and that will dis­cour­age other peo­ple from test­ing covenants.”

An­other lo­cal en­vi­ron­men­tal­ist in­volved in pro­tect­ing the area was the late Derek Boyd, who — ac­cord­ing to Tairua En­vi­ron­ment So­ci­ety Chair John Drum­mond — was deeply con­cerned that a new owner could re­move the covenant and sub­di­vide.

“We wel­come the re­sult and con­grat­u­late QEII on the win, which pre­vents sub­di­vi­sion and de­vel­op­ment in a re­mote bush block ad­ja­cent to the DOC es­tate, helps the wildlife in­clud­ing kiwi to flour­ish and strength­ens the moun­tain to the sea cor­ri­dor,” he says.

“It also gives faith in the QEII as a pro­tec­tive covenant for peo­ple who wish to pre­serve bush on their prop­er­ties for fu­ture gen­er­a­tions. We say kia kaha.”

PHO­TOS /SUP­PLIED

LAND on a ru­ral Tairua block can never be carved .

PHOTO / SUP­PLIED

Fresh eggs are col­lected by Peter Millen who has been catch­ing rats and pos­sums to pro­tect na­tive birds on the Pauanui-tairua Cy­cle Trail.

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