When Andrea Waddell subdivided sections off her ten acre block at Tamahere near Hamilton, she specified purchasers needed her consent prior to any house construction. While this gave her some control over aesthetics of any planned dwelling, she could not unreasonably withhold consent, the High Court ruled, approving plans by the Hart family to continue their construction over Ms Waddell’s complaints their build was ‘too boxy.’
In 2015, Ms Waddell completed subdivision of what remained of the old family farm on Pencarrow Road. Registered on title to the two subdivided sections is a requirement that purchasers not construct any dwelling without first obtaining her written approval as to plans and exterior colours.
The High Court was told a dwelling built following sale of one section in 2017 went ahead with no difficulties. Ms Waddell approved what she called a ‘contemporary but still country’ design.
No such approval following the Harts’ 2022 purchase of the remaining section for $1.3 million.
Evidence was given of the Harts making enquiries before their purchase as to what style of architecture Ms Waddell was likely to approve. They learnt she preferred a ‘country style.’ She listed examples of nearby houses she did not like as being too ‘boxy,’ with everything at right angles. She particularly detested dwellings with a flat roof.
After their purchase, architects preparing drawings for the Harts provided Ms Waddell with their concept drawings; highlighting a front façade with roof pitches described as ‘a modern twist on the traditional gable roof.’
This design did not find favour with Ms Waddell. Attempts to negotiate an agreed compromise were not successful.
The Harts started construction regardless. Ms Waddell sued to stop work, demanding the site be cleared.
Three days evidence in the High Court heard conflicting professional evidence as to what an architect might consider to be ‘boxy.’
Justice Robinson said Ms Waddell had refused consent to the Harts’ plans essentially because she did not like the design. While she is entitled to her opinion, she cannot unreasonably withhold consent, he ruled.
The house has been carefully and skilfully designed, he said. It has architectural merit and will be constructed with high-quality materials.
Making a Property Law Act order permitting the Harts construction to continue in accordance with their plans, Justice Robinson said the construction may not be to Ms Waddell’s taste, but there is no suggestion it is inherently objectionable.
Separately, the Harts counter-claimed against Ms Waddell for $1.1 million damages; expected increased costs because of construction delays. Justice Robinson dismissed this counter-claim. There was insufficient evidence these losses had arisen.
Repotane Trust Ltd v. Hart – High Court (3.12.24)
25.043