Three years after Geoff and Aria Small built equestrian facilities on their South Auckland lifestyle block, neighbours turned on them. The High Court dismissed complaints the utilitarian facilities were out of character for the area and refused an injunction for their breach of a restrictive covenant over the land.
The Smalls’ problems have their genesis in a 1994 subdivision of the Taylor family farm on Ingram Road at Ramarama near the southern boundaries of Auckland City. In 2013, the Smalls purchased a 17.5 hectare lot from the Taylors. They in turn subdivided their block into seven lots. Restrictive covenants forming part of the Taylor subdivision passed on down into the Smalls’ subdivision. They restrict owners to a single dwelling together with a farm outbuilding which must be ‘usual and reasonable for … rural use [and of] a pleasing and aesthetically compatible appearance’. When building, owners are required to build a home costing not less than $300,000.
Neighbours are unhappy with the Smalls development. The Smalls have built a 300 square metre stable and barn with accommodation on two levels together with an attached machinery shed. They allege the equestrian facilities are being used as if it were a home, in breach of the restrictive covenant. The Smalls have been living there since December 2014. Neighbours also claim the Smalls’ seven subdivided lots cannot each have a home on them, hampering the Smalls attempts to sell. By the time their dispute got to court, the Smalls had sold two of their six lots up for sale.
Justice Gordon ruled the Taylors’ restrictive covenant controlled the quality and character of buildings, not their density. A single dwelling could be built on each of the lots being sold by the Smalls. There was evidence the Smalls equestrian facilities fit within the spectrum of other facilities in the district. The building is usual and reasonable for those keeping horses in a rural area, Justice Gordon ruled.
Neighbours say the equestrian facility should be taken down; the restrictive covenant allows farm outbuildings in conjunction with a dwelling, but there is no dwelling on site. The equestrian facilities have been used since 2014 as ‘temporary living quarters’. Justice Gordon ruled the stand-alone equestrian facilities were in breach of the restrictive covenant in the absence of an adjoining home. No injunction was granted because the Smalls say they intend building a house. Cooking facilities will then be removed from the equestrian centre, they said. Cash from the sale of lots in their subdivision is needed to fund their house construction, the Smalls said.
Taylor v. Small – High Court (29.10.18)
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