7 July 2016
The status of open space covenants has once again been challenged and once again the Court has ruled decisively in favour of the QEII National Trust.
A ruling made this week in the Court of Appeal brings closure to a long legal battle between the National Trust and a property developer who has been challenging the status of an open space covenant he owns.
Spanning 4 years, the case has been taken as far as the High Court and on to the Court of Appeal by the property developer, who has been trying to overturn the 404ha forest covenant he owns on the Coromandel Peninsula. His intention was to have the covenant removed so the land could then be subdivided for lifestyle blocks, to the detriment of the protected area’s ecological values and the intentions of the original covenantor. The covenant agreement allows for the construction of one dwelling only.
The land in question was covenanted in 1997 to protect a block of lowland tawa-towai forest. The block sits within a network of other protected lands that together form a wildlife corridor, connecting the Coromandel Forest Park in the middle of the Coromandel Peninsula to the Peninsula’s eastern coast.
National Trust Legal Manager, Paul Kirby, said the latest ruling has further strengthened open space covenants as an excellent mechanism for protecting land.
‘This win exemplifies the purpose of the National Trust as the perpetual Trustee of covenants,’ Mr Kirby said.
‘With the ruling in favour of the National Trust, the intentions and wishes of the original covenantor, who is now deceased, have been honoured and upheld when he was not here to do that himself,’ he said.
Described as a ‘complex’ case by the Court, the decision has established new case law and corroborates existing case law from a previous High Court hearing on the same matter, confirming that open space covenants have the protection of 'indefeasibility' under the Land Transfer Act. It has been confirmed in law that, once registered on a land title, open space covenants bind current and future owners and are not susceptible to attack arising from defects or error.
The Court confirmed that the National Trust acted in the best interests of the original covenantor, Mr Russell, and fulfilled its statutory mandate for the benefit of the people of New Zealand. It also awarded the highest possible costs to the National Trust.
The National Trust’s Chief Executive, Mike Jebson is delighted with the outcome.
‘It has been a time-consuming and costly exercise but we now have excellent case law that should categorically put an end to any similar challenges on the status of open space covenants,’ he said.
‘We are a charity organisation with limited funds but this case was something that we could not afford to drop. It has diverted precious funds that would normally have been used for protecting land and supporting covenantors. We are hugely relieved, therefore, that some of our costs will be recovered with this decision,’ he said.
The National Trust was represented by Finn Collins from Gibson Sheat, with second counsel from Paul Kirby, Legal Manager for the National Trust, with help from members of the National Trust's in-house legal team.
QEII National Trust website
Chief Executive - Mike Jebson - Phone: (04) 472 6626 ext 805 Mobile: 021 499 759
The Queen Elizabeth Trust traces its origins back to the 1970s, when a group of farmers came together to investigate ways they could protect special natural and cultural sites on their land. They were worried about what might happen to these places after they were gone and wanted something that would secure enduring protection, but without surrendering ownership of the land.
These landowners were the driving force behind the establishment of the Queen Elizabeth II National Trust, which was set up in 1977 by an Act of Parliament to deliver on their aspirations. The Trust has the power to establish ‘open space covenants’ which will legally protect special sites in perpetuity. An open space covenant is a binding contract registered on the title to the land. It describes the area and values the landowner wants to protect. The covenant cannot be removed from the title, so its care is passed on to the new owners every time a property changes hands. The landowner owns the covenant and the National Trust operates as a perpetual trustee, ensuring the covenant agreement is respected by all owners.
The National Trust works in partnership with private landowners to help them establish open space covenants over the areas they want to protect. Since 1977, New Zealand landowners have established over 4,200 covenants around the country, protecting around 180,000 hectares, an area equivalent in size to Stewart Island/Rakiura.