Appeal court to rule on children’s camp
The Court of Appeal will decide whether a ‘‘children’s village’’ offends against a legal ban on commercial uses in a well-to-do Paraparaumu suburb.
Stand Children’s Services wants to replace its long-time Otaki Health Camp, and thinks it has the ideal site on 1.8 hectares of land with a house of more than 1100 square metres, a private lake, tennis court and swimming pool.
However, properties in the Milne Drive subdivision have a legal covenant banning ‘‘commercial’’ uses, and the owners of one nearby property say the children’s village falls within the commercial definition.
Several owners have already failed to convince a High Court judge, who said: ‘‘There is nothing commercial about all this.’’
The trust that owns one of the properties has taken the case to the Court of Appeal, which reserved its decision at a hearing on Monday.
Stand bought the property at 132 Milne Drive, and had resource consent granted with conditions. While court proceedings continued, it was still using its Otaki property.
In the High Court, Justice Simon France said Stand’s intended use was clearly not commercial as that term was usually understood. Stand was a charity giving temporary respite for children in need.
Groups of about 20 children aged 5 to 12 would spend five weeks at a time at the village if they needed help because of ’’a significant risk of harm to their wellbeing’’ due to the environment in which they are being raised and their own complex needs.
‘‘During the short period they live at the site, Stand will seek to give the children some life skills and a good time,’’ the judge said.
Any professional help that was needed would be given, but primarily the building would be a temporary home for the children.
It would have office and administrative space, up to 17 staff working for short periods when shifts changed, and was funded under a government contract.
It was not normal domestic use, but the restriction did not say only normal residential accommodation was allowed, the High Court had found.
‘‘The issue is whether it is a commercial use – and that seems the least likely of all the labels.’’
But in the Court of Appeal, lawyer John Maassen, for the neighbours, said the purpose of the no-commercial uses covenant was to preserve an intended character. People were encouraged to spend a lot of money on high-quality housing.
Stand was commercial in the sense that it sometimes had surpluses, one year in excess of $1 million, which was used to help achieve its purposes.
Stand’s lawyer, Paul Withnall, said there was no profit earned in the true sense, and the High Court judge had found it was virtually the opposite of ‘‘commercial’’.
The coming and going from the property would not be much different to what already happened in a residential area where people cared for children, Withnall said.
But Maassen said the property was proposed as Stand’s regional service centre, of a size and scale that took it outside what should be allowed in a residential area.