Town and Country

December 08 2014

Not always a good mix

The popularity of ‘lifestyle’ and ‘farm park’ type subdivisions is ever increasing as city dwellers look to the fresh air and open spaces of country living. There is, however, the possibility of a clash between a city dweller’s desire for a peaceful quiet existence in the countryside and a farmer’s need to continue to farm their property as they have always done.

The thought of moving to the country brings visions of the rural idyll. Sometimes, however, it’s not until the city dweller actually lives in the country that they realise that it’s not as peaceful as they thought and they may have to cope with:

  • Birdscarers, wind machines and low-flying helicopters at 4am
  • Stock movements at any time of the day (or night), weekends included
  • Truck movements – both stock, milk and other carting such as hay
  • Insecticide and herbicide spraying, seven days a week
  • Armies of pickers turning up, and
  • Dust.

Local authority consent notice

As a condition of a subdivision consent in rural areas for lifestyle-type developments, local authorities will often impose a requirement that a ‘no objection’ consent notice is registered on a title to a property. This notifies a purchaser that the property is in a rural area and the property owner will not object to normal rural activities taking place.

Where a local authority doesn’t impose this consent notice (or even when they do), it’s prudent for rural subdividers to register a specific covenant on the title forbidding a purchaser or future owner of the property objecting to the rural activities carried on the adjacent land. This type of covenant can have more practical force than the council consent notice as it’s a direct covenant between landowners.

Testing the case

It’s also important to ensure that the balance of your farm property is protected in its use of access-ways, water and other services. An example is the case¹ where a farmer subdivided off a farm cottage and sold the cottage as a ‘lifestyle block’, reserving to itself a right-of-way (RoW) for the main farm. The RoW was much wider than a standard RoW because it was the principal access to the farm’s woolshed and cattle yards and there was room for mobs of cattle and sheep to be held and assembled and for stock trucks to turn, etc. There was a formed track going through the RoW, but the RoW itself was significantly wider and of a different shape than the track.

A subsequent purchaser of the lifestyle cottage objected to the use of the RoW by the farm and went to court for an order that the RoW, notwithstanding its legally surveyed width, should be limited to the formed track and that there should be no access to and egress from the track other than at the beginning and end of it. The stock movements across the full RoW and comings and goings of trucks were causing annoyance to the lifestyler who saw the RoW as a simple right of access only.

The court had little hesitation in finding the farmer had the absolute right to use the full surveyed width of the RoW for stock movement and assembly, and to access it where they liked.

The terms of the easement of the RoW were the usual terms applied in RoW easements under the Property Law Act. So while in this case the farmer was successful, the court did note that the lifestyle cottage purchaser simply didn’t appreciate why the RoW was specifically designed and created.

The case shows that if you’re thinking of subdividing and creating lifestyle blocks, you need to consider carefully about what rights your farm needs to retain. In this case it was access, but it could just as easily have been rights to water, or the right to spray, create dust, or any number of activities that might seem the norm to a lifetime farmer, but which a city dweller may never have encountered before.

Careful thought needs to be given to the wording of easements and land covenants to protect your right to farm and also alert a purchaser to what living in the country actually means.

¹ Handforth v Koko Farms (2010) 11NZCPR 171

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