When is a common boundary not a common boundary? This question has been raised recently in relation to a consent notice.
If you subdivide or develop a property council may sometimes require a consent notice to be registered on the new certificates of Title. The document will specify a condition that council want owners of a property and all future owners to be aware of.
Back in the 90’s council had a rule that there needed to be 6 metres separation between buildings on a property. So when a property was subdivided they still wanted the 6 metres to apply and so imposed a consent notice that spelt out the distances any building must be from the new common boundary between lots 1 and 2.
A typical consent notice condition may read …
The erection of buildings on Lots 1 and 2 shall be in accordance with the rules of the District Plan for multi-units as if the land was held in one allotment under one Certificate of Title, subject to the following conditions:
(i) That any dwelling on Lot 1 shall be erected no closer than 5.1 metres to the common boundary between Lots 1 and 2
(ii) That any dwelling on Lot 2 shall be erected no closer than 0.9 metres to the common boundary between Lots 1 and 2.
A question was raised by a solicitor in relation to a 2 lot subdivision where there may be a common boundary between the access to the rear site (lot 2) and the front lot 1 as well as a common boundary parallel to the road between the dwellings on lots 1 and 2.
Did the 5.1m separation relate to the common access boundary as well as the boundary between the dwellings? The literal reading of the condition may infer so even though it was not our interpretation and it has never enforced this way in the past. If you had to keep 5.1 metres from the access boundary you may not have enough space to construct a dwelling on Lot 1.
Clarification was sought from council and they agreed with our interpretation.
We therefore confirm that given that a consent notice was to ensure physical separation of buildings the 5.1m separation distance from the common Lot 1 and Lot 2 boundary only relates to that boundary which separates the two dwellings and not the common boundary of the access strip leading to Lot 2.
Phew glad that was sorted.
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