What was the outcome of Tenancy Tribunal case 9050684?

The tribunal order states: that the Body Corporate’s resolution relating to trimming the hedge passed on

How much money was awarded in case 9050684?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050684?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9050684?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12317849-UTA_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 9050684?

The tribunal order states: that the Body Corporate’s resolution relating to trimming the hedge passed on

How much money was awarded in case 9050684?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 9050684?

The primary dispute was Unit Titles.

Where can I read the official tribunal order for case 9050684?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12317849-UTA_Tribunal_Order.pdf.

Mount Eden, Auckland Tenancy Tribunal Case 9050684 — Unit Titles

Order

The Tribunal declares:

that the Body Corporate’s resolution relating to trimming the hedge passed on 16 February 2024 is invalid and of no effect.
The Body Corporate must not trim its hedge adjacent to Unit 3 to a height lower than 1m above the ground level of Unit 3’s patio.
The Body Corporate must maintain the hedge, including: a. remediating any gaps in the hedge; b. ensuring the hedge is free from disease and pests are controlled; and c. consider planting low border herbaceous or grasses and standardised bushes as set out in drawings RC-03 Rev J and RC-80 Rev A of the Chambers & Station resource consent approved by Auckland Council on 30 May 2014.
Ms Graham must permit the Body Corporate to carry out maintenance of the hedge and permit the Body Corporate or its agents to enter onto the patio of the unit for that purpose pursuant upon the Body Corporate give her notice under s 80(1)(a)(iii) of the Unit Titles Act 2010.

Reasons

1 Introduction

This is a case about the height of a hedge.
Ms Graham, the apartment owner, wants the hedge to be kept at no less than 2.4m for her privacy, security, and outlook. The body corporate wants the hedge to be kept at about 0.8m because Auckland Council's resource consent for the apartment development stipulated the lower hedge height to preserve the community's ability to see and enjoy the heritage building the apartment is situated in. Background and issues for determination
Ms Graham’s apartment is situated in a boutique residential apartment building comprising six apartments. The apartments were built within two important heritage buildings: the old Mt Eden Borough Council Building and the old Mt Eden Fire Station. The original buildings were built at the beginning of the 20 th century. They were two- storied, and built solidly in brick and concrete, with huge arched windows. Their style is iconic of New Zealand public buildings of that era. The creators of the development have skilfully converted the original buildings to modern residential apartments by inserting modern elements while conserving the original buildings’ architectural integrity.
Ms Graham’s unit occupies the ground floor of north-eastern corner of the development in the old Council Chambers; not the old Fire Station which is joined to the Council Chambers by a glass-clad atrium. The building remains two-storeyed and there is another unit above this unit. There is also a ground floor unit situated immediately to this unit’s west. The unit is on the right-angle corner of Valley Road where it runs laterally across and then vertically down a valley on the western slopes Mt Eden (Maungawhau).
Ms Graham’s unit is set back only a couple of metres from the public footpath, grass verge, and road. The hedge in question runs along the boundary and surrounds the east and north sides of Ms Graham’s unit (but not the other ground floor unit). The hedge is on common property. That being so, all the development’s six unit owners own and control the hedge.
The ground level of the eastern wall of Ms Graham’s unit is about level with the footpath and road. However, on the northern wall the footpath and the road slope down to the west so the ground level of the unit at its western wall is perhaps about 1.5m above the footpath and the road.
The unit also has a small (approximately 4m wide) patio that juts about 1.5m north from the unit’s northern wall. The patio is about only about 0.5m from northern boundary immediately next to the footpath. The 0.5m strip of land beyond the patio and all the surrounding exterior land is common property, which comprises landscaped garden and lawn. The patio is Ms Graham’s apartment’s only outdoor space, although there is also shared outdoor area in another part of the development. 1 Ms Graham attended for herself. Harrison Sutcliffe, counsel of Clendon Webb Lawyers, attended for the Body Corporate. 1
Valley road is a busy arterial road linking Mt Eden Road and Dominion Road. It is on a bus route. Bus passengers in buses traveling northwest on Valley Road could probably see into Ms Graham’s apartment if the hedge were lower than about 2.4m. Valley Road is a main thoroughfare for the public travelling to and from events at Auckland’s main sports stadium, Eden Park, which is about 800m down the road.
Mt Eden Normal Primary School is located just across the road to the north of Ms Graham’s unit. The northern view from her apartment will be out to the school, including the school car park, netball courts, more distant single storey classrooms, and mature trees and shrubs withing the school grounds. The school’s ground levels are about two metres lower than Ms Graham’s apartment. There is a spindly Titoki tree on the adjacent grass verge to the north of the unit. Sherbourne Road to the north and Valley Road to the east contain suburban houses including Villas and Bungalows. The surrounding streets are lined with trees.
Ms Graham wants the hedge to be kept at about 2.4m. At that height, the hedge provides her, among other things, with privacy, a pleasant outlook, security, and noise reduction. If the hedge at this height was a permanent feature of the unit the unit’s resale value would be greatly enhanced.
The Body Corporate wants to trim the hedge back to a height of 0.8m. The resource consent’s Landscape Planting plan that was approved for the redevelopment mentions that the hedge would be trimmed 0.8m high and the overall height of the rock wall and hedge at least 1.8m above the public footpath’s ground level. The Body Corporate submits that the buildings’ heritage value should benefit the whole community not just Ms Graham. If the Body Corporate permitted the buildings to be shrouded by a high hedge, it would be in breach of the resource consent and short-change the wider community for the heritage value it is owed.
Ms Graham argued that the Body Corporate’s resolution for trimming the hedge back should be struck down for being an interference with her quiet enjoyment of her unit, in breach of the Body Corporate’s fiduciary duties, inconsistent with the development’s resource consent which requires the hedge to be 1.8m, and that trimming the hedge to
8m would amount to nuisance.
Ms Graham seeks orders that the Body Corporate’s 16 February 2024 resolution for trimming the hedge be declared invalid and that the Body Corporate be required to maintain the hedge at a height of 2.4m, restore lost hedging, treat the hedge for pest infestation, and install a gate where a gap has been cut into the hedge.
The Body Corporate disputes Ms Graham’s contentions and argues the resolution was valid, it has a duty to maintain the hedge, the developments resource consent obliges the Body Corporate to time the hedge to about 0.8m, and Ms Graham must permit the hedge to be trimmed.
The Body Corporate seeks declarations that its resolution is valid, that the Body Corporate’s contractors may trim the hedge, and that Ms Graham must permit the Body Corporate’s contractors to trim the hedge.
The issues the Tribunal must decide are: a. Does the resource consent require the hedge to be at least 1.8m? b. Is the Body Corporate’s resolution valid? c. Is the body corporate’s trimming of the hedge to 0.8m (or 1m) an interference with Ms Graham’s quiet enjoyment? d. Is it a breach of fiduciary duty? e. Is it nuisance? f. Is the resolution unjust or inequitable for the minority under s 210 of the Unit

Titles Act 2010?

g. What orders should the Tribunal make? Does the resource consent require the hedge to be at least 1.8m?

Ms Graham submits the development’s resource consent required that the hedge be kept at 1800mm. However, while it is true that the resource consent refers to a “minimum” of 1800mm at Section L3 of Drawing No RC-03 Rev J the 1800mm height includes the height of the “existing stone wall” which retains the landscaped garden from the public footpath’s ground level. The drawing of the Section L3 suggests the stone wall is about 800mm and the hedge is about 1m.
A second set of drawings, RC-41 Rev G, states the hedge height is an “Average height of screen planting from footpath level to give privacy to outdoor living space”. The drawings show the hedge being lower than Ms Graham’s apartment’s windowsills which suggests the landscape design was only intended to provide privacy for the patio.
A third resource consent drawing, RC-80 Rev A, sets out planting “Specific to Street Boundary Interface” indicates the boundary hedge for Ms Graham’s unit is to be “clipped 800mm high”.
It follows, the resource consent does not require the body corporate to maintain the hedge at 1.8m or more. Rather the resource consent contemplates the hedge being kept at a least 1.8m above the footpath along the ground level of Ms Graham’s patio.
The Body Corporate might however consider the hedge should not be trimmed to any lower than one metre’s height because one metre is the usual height for balcony balustrade’s for safety reasons. Is the Body Corporate’s resolution valid?
On 16 February 2024, the Body Corporate passed a resolution conducted by postal ballot (four in favour, one abstention, one against) that included ensuring that “the hedges or plantings will not grow beyond the height specified in” the resource consent and: To give effect to the above provision any hedge any plantings shall be cut or trimmed to ensure that such hedge or plantings will not exceed 800mm in height.
However, the resolution is, with respect, based on a misinterpretation of the resource consent. While the landscaping plan RC-80 Rev A refers to the hedge being clipped to 800mm it is not mandatory for the hedge to always be clipped to that height. That height is indicative. It can be regarded as a directory rather than mandatory rule. Similarly, the current planting bears little resemblance to what the resource consent stipulated. The hedge varieties were meant to be Camelia, European Box, Corokia, or Frosted Chocolate. None of these varieties is present. Nor are there any “Standardised species” along the boundary, which were supposed to be clipped topiary trees that punctuated the hedge. Also the “Accent colour herbaceous, or grass plants” that were to be planted under the hedge are not present. That non-compliance demonstrates that the landscaping design approved int eh resource consent does not necessarily have to be slavishly followed.
Thus, the Body Corporate is not straightjacketed on the height issue as it thought it was. The advice it gave to the unit owners was therefore inaccurate and this resolution should be struck down and an amended proposed resolution considered.
The Body Corporate might propose a resolution about the hedge height that is consistent with the spirit of the resource consent, and it need not keep the hedge at exactly 800mm and indeed for safety (as the Tribunal will declare) the hedge should be kept no lower than one metre. The Body Corporate might conceivably also consider that the hedge could be higher than one metre if it the height would not compromise the community’s visual appreciation of the old Council Building. For example, if the hedge height were trimmed to 1.5m in Autumn and permitted to grow to as high as
4m (which would be perhaps about one-quarter of the height of the building’s façade) before being trimmed to 1.5m again the next Autumn, the Body Corporate might consider it has reasonably complied with the resource consent. The decision on height is of course a matter for the Body Corporate, however. It is not the Tribunal’s intention to tell it what it must do, but rather to suggest that it may consider it may keep the hedge a little higher than 800mm. Is the body corporate’s trimming of the hedge an interference with quiet enjoyment?
Ms Graham argues that the Body Corporate’s proposed trimming of the hedge breached other legal rules and would amount to an interference with her quiet enjoyment.
Under s 79(d) of the Unit Titles Act 2010 (UTA) Ms Graham, as a unit owner, is “entitled to have quiet enjoyment of...her unit without interruption by...the body corporate or its agents”.
Ms Graham submits: 2 I can’t have quiet enjoyment of my unit if passers-by can look in all my windows. Privacy is a key component of quiet enjoyment. The hedge, at 2.4m gives me privacy, security, a beautiful outlook, a noise and dust barrier and supports local bird life. It provides me a peaceful and calm living environment consistent with the rest of the Body Corporate members and consistent with the green, leafy environment of the Mt Eden neighbourhood. 2 Page 14 Evidence Update, August 2025. I want to be able to have my blinds open and enjoy my surroundings, I am not causing any harm to my neighbours by enjoying this peaceful existence. I love the huge windows I have with the light and warmth they provide to my apartment; this is the main feature of my apartment and one of the main reasons I purchased. Having to have blinds closed or partially closed takes away from that enjoyment significantly.
However, under s 138(1)(a) of the UTA provides that the Body Corporate must “repair and maintain...the common property”.
The resource consent clearly indicates the hedge being trimmed to a height below Ms Graham’s unit’s windowsills, a height in the vicinity of about 800m above the patio’s ground level.
If the hedge were on Ms Graham’s unit’s land, trimming the hedge would probably be an interference with Ms Graham’s quiet enjoyment; but it is not on her land.
I find the Body Corporate resolving to trim the hedge to 800mm (or 1m for safety reasons) will not amount to an interference with Ms Graham’s quiet enjoyment.

A breach of fiduciary duty?

Ms Graham submitted that the Body Corporate will breach a fiduciary duty it owes to her if it trims the hedge to the level it proposes. She relies on an extract from the Court of Appeal case of Jewett Investments Limited v Body Corporate 204096, in which the Court said: 3 [15] The body corporate, it goes without saying, had to be even handed. It could not prefer some owners to others unless that was what the Act or the rules called for. In that sense the body corporate was under a fiduciary duty.
There was no evidence that demonstrates that by trimming the hedge to a lower height that the body corporate would be behaving in an uneven handed way. The other units have hedges which are kept at the higher height of 1.8m but those hedges are not along the sides of the building that the community can see from the public footpath and street and the resource consent stipulates a 1.8m hedge height for those units. Therefore, there is no evidence of different treatment in comparable circumstances.
I do not find that the Body Corporate is in breach of a fiduciary duty by wishing to trim the hedge back.

A private nuisance?

In Body Corporate 366611 v Wu 4 the Court of Appeal found that the building manager of the development had perpetrated a private nuisance by requiring the unit owners to agree to Security and Access protocols which interfered with some owners access to their own units.
There might perhaps be the making of a nuisance claim if the Body Corporate failed to maintain the hedge to the point where it affected Ms Graham’s unit. However, in this case the Body Corporate only wishes to maintain the hedge at the height that the resource consent permits. 3 [2011] NZCA 232 at [15]. 4 [2012] NZCA 614.
The Body Corporate does not have a duty to allow the hedge to remain at a height that would most benefit Ms Graham. Ms Graham has not provided any authority that a neighbour’s reduction of their own hedge can be a nuisance.
I have not been referred to and am not aware of any rule or principle that suggests the Body Corporate has a duty under the tort of nuisance to refrain from maintaining the hedge in accordance with the resource consent.

Is there a breach of minority rights?

Under s 210 of the UTA a person who has voted against a resolution may apply for relief on the “grounds that the effect of the resolution would be unjust or inequitable for the minority”.
If the hedge were trimmed only as envisaged by the resource consent, it would be in accordance with law and therefore not unjust. That is only what can be expected.
“Inequitable” means “unfair; unjust”. 5 A broad range of circumstances are to be taken into account and the Tribunal has a discretionary role in apply s 210. 6 In Spencer-Inight v Johnstone 7 , the Court observed: While the focus of the section is undoubtedly upon the effect of the act proposed upon the minority unit holder or holders and whether it would be inequitable for that minority, the inquiry is not confined solely to the interests of the minority. All the circumstances of the case are to be taken into account and, in my view, that enables consideration of a broad range of circumstances including the position of the majority unit holder of holders...the task of the Court is to assess the effects of the proposed ant on an objective basis having regard to the established facts.
In my view, the Tribunal should not apply s 210 in a way that it micromanages a Body Corporate’s affairs based on its own opinion as to what is most just and fair. It cannot know and understand the circumstances in the same way that the unit owners do. The issue is one upon which reasonable minds might properly differ. That being so, it would be inappropriate to find a breach of the section. Here, even though trimming the hedge back to the levels contemplated the resource consent will be to Ms Graham’s detriment, I would not find that the Body Corporate’s proposed trimming would be “inequitable”.
I find that s 210 is not engaged in the circumstances.

What orders should the Tribunal make?

Ms Graham provided evidence that the hedge is in poor condition. The photographs bear that out. The hedge was intended to provide privacy for the unit’s patio. It is appropriate to make an order that the hedge is treated for pests and fill any gaps that are compromising Ms Graham’s privacy when sitting on the patio. 5 The New Oxford Dictionary of English (Clarendon Press, Oxford, 1998). 6 Thomas Gibbons Unit Titles Law and Practice (LexisNexis NZ Limited, Wellington, 2015) at 7.2. 7 [1999] 3 NZLR 103 at 106.
Ms Graham wanted the Tribunal to order a small gap on the eastern side of the hedge be filled and a gate installed. The Tribunal declines to make these orders because the hedge was never intended to provide security to that extent.
The Body Corporate seeks orders that the Tribunal declare the hedge may be trimmed to 800mm and that Ms Graham must refrain from preventing the Body Corporate carry out this work. That duty is a fundamental one that arises from the Body Corporate’s duty under s 138(1)(a) of the UTA which (relevantly) simply states: The body corporate...must repair and maintain the common property.
Possibly, the contractors that trim the hedge will need to enter onto Ms Graham’s patio. For that, the Body Corporate should give notice under s 138(1)(a)(iii) of the UTA, in which case Ms Graham has a duty “to permit the body corporate (or its agents) to enter the unit”. Further under s 138(1)(a)(iv) of the UTA Ms Graham is obliged to “do all things necessary to give effect to decisions of the body corporate”.
For clarity, I am going to make orders declaring the Body Corporate may trim the hedge to one metre (this higher height being for the patio’s users’ safety), that Ms Graham must permit such trimming and that she must permit contractors onto the unit property if the Body Corporate give notice or that purpose. Costs
The parties may apply to the Tribunal for a costs order if they cannot agree.

Tenancy Tribunal case 9050684 — Unit Titles in Mount Eden, Auckland

At a glance

Tenancy Tribunal case 9050684 — Unit Titles in Mount Eden, Auckland

At a glance

Claims & awards

Order

Reasons

Titles Act 2010?

A breach of fiduciary duty?

A private nuisance?

Is there a breach of minority rights?

What orders should the Tribunal make?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Titles Act 2010?

A breach of fiduciary duty?

A private nuisance?

Is there a breach of minority rights?

What orders should the Tribunal make?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions