Do I need neighbour consent for my subdivision or second dwelling?

[Green Fish]

Great advice by Xav. The only problem might be that the council planners don't know as much about the law as Xav does.

Easements usually involve a "dominant tenement" and a "servient tenement". The dominant tenement is the land that gets the benefit of the easement, while the servient tenement is the land that suffers the burden of the easement. If the easement is a 'right of way', then the dominant tenement is the site that gets the benefit of the right of way, while the servient tenement is the land over which the right of way runs.

To the best of my knowledge, and which is Xav's point, the dominant tenement is that which existed at the time of the creation of the right of way. In other words, a subsequent subdivision of the dominant tenement does not change the situation. Both of the new sites resulting from the subdivision are entitled to use the right of way.

So your new site has "legal access", in my opinion. Most district plans have rules on the number of sites that can share an access strip, but as long as you are within those rules, you should be able to apply on a "non-notified" basis. In that event, you do not need the neighbour's consent.

In this situation, I would suggest engaging a specialist planning lawyer, rather than a surveyor.

[Markseb]

Hi. SOrry to ignite such an old thread, but its very pertinent to my situation.

As this is old, can anyone confirm what Xav has said.... that if I am a dominant tenant, can I subdivide without the permission of my oh so not nice servient tenant neighbour, and still utilise the ROW.

Thanks,
Mark

[John the builder]

My understanding if you can sudivide within the district plan rules then no resource consent is

dont be frightened by the neighbour even if it goes to RC as the council have to judge effects not his approval or not?
(edit;sorry didnt realise this was old thread)

[Markseb]

My understanding if you can sudivide within the district plan rules then no resource consent is

dont be frightened by the neighbour even if it goes to RC as the council have to judge effects not his approval or not?
(edit;sorry didnt realise this was old thread)

Yes. This worries me though, as council has already given resource consent to my neighbour to subdivide , who is the Servient Tenement. In their wisdom, they have decided it did not need to be notified, even though they have allowed her to increase lots up our drive from 3 (closest dwelling to dwelling distance around 350m), to 8, with a &^%$&% house site 20m from my front gate (onto R.O.W).

I am somehow an unaffected party? No body that knows me is of that opinion..... actually they're avoiding me. Im gutted.

The reason I asked, is I am considering a judicial review (yes... realise to some degree the ramifications cost wise), but she has already cost me 50+ k in rural amenity value by doing what shes doing. And by allowing her to increase the lots up our drive to 8, and more lots and our 750m driveway has to meet road standards.

So put it this way, I would never get her permission to use her [my] R.O.W, but was wondering if I went to court and won, could I maybe still be able to subdivide and use her driveway.

[Shalodge]

My understanding if you can sudivide within the district plan rules then no resource consent is (required).

No .. subdivision will always require resource consent but it may be a controlled activity meaning that it cannot be refused if it meets District Plan performance standards. However controls may be imposed to mitigate effects (to a degree).

That is not to say that the application must be notified. That decision is usually made by planners under delegation and is the area that causes a lot of concern (to me anyway) as the only challenge is via Judicial review. There is no doubt that subdivision does cause effects on neighbours that are more than minor but if the plan anticipates those effects than they cant be considered hence no notification. The larger picture is that communities encourage subdivision and that flows through to the plan except that no one wants their neighbour to subdivide!

[Easymac]

a subsequent subdivision of the dominant tenement does not change the situation. Both of the new sites resulting from the subdivision are entitled to use the right of way.

Hi, where would I find the ruling/regulation that confirms the above statement is true?

Has anyone here successfully challenged a subdivision resource consent?

Thanks.

[OnTheMove]

Is this a single story minor dwelling not a seperate title? ie the new school Cross Lease. I wish the council would just stick to 1 ruling. Anything under 1200sqm can not be sub divided or have a minor dwelling on it (ie resulting in 2x600sqm blocks). Going back to pre super cities every council had different rules it appears.

We have just had a PRICK add another 2 story home joined to his current 2 story home.

He did ask myself and my neighbour who share a drive if he could use our drive to drop off supplies for what was said a single story dwelling.

So this PRICK not only has had heavy truck running over the edges of our driveway destroying about 30 metres worth, he has put a 2nd story up which has blocked our view from 3 windows of the nature reserve.

All of which the council agreed to without consulting us, my neighbour is now towered over by a 2.5 story behemoth and they can look through my double glazing sections near my front door to see me on my couch, no more nudies in my house. The clear sections were just architectural design, but functionally as to see who is at the door, now I just see an ugly HUGE house.

I don't see allowing a house to look into the neighbours house and into mine, block my view of the reserve and the neihgbours view of the water as being ok. Not to mention them requiring our drive to build it and crushing the drive. But I suspect it has something to do with them being a construction company and have mates at council.

Pretty filthy over it, I assumed things like views and blocking of sun as being a concern to the council but it seems not. Enjoy your view now, as a 3 story house might pop up in front of you and block it going on what seems allowable now. Or he had mates at council. Or the guy at council just did a rank job of it.