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The standard ADLS 2008 5th Edition Lease and standard Property Council Retail Lease (2001) require retail premises to be kept open during usual trading hours.  The Property Council form includes strict penalties for non-compliance, imposing liquidated damages of $1,000 for the first hour of each day and $100 for each subsequent hour. 

The Property Law Act 2007 implies qualified consent to all covenants of the lessee not to do a thing without the lessor’s consent (i.e. the lessor’s consent is not to be unreasonably withheld or delayed), unless the context otherwise requires. 

So it is possible for the lessor to contract out of qualified consent where decisions over trading hours, signage, alterations and additions are concerned. You will recall if the matter falls within section 225 (i.e. assignment, transfer, subletting, change of use, parting with possession, creating a mortgage over the lease) then the Property Law Act 2007 allows a lessor to absolutely prohibit or include qualified consent only (refer The Reasonable Landlord)

There is an old High Court case (1988) concerned with a lessee being refused consent to change their trading hours.  Brandy’s Bar (1987) Limited sought a declaration from the High Court that this refusal was unreasonable and that consent should not be withheld.  Brandy’s Bar had a sublease and operated a BYO restaurant.  They wanted to extend their trading hours to Sundays and to open at 9am instead of 11am.  The lease gave the lessor an unqualified right to prevent any modification in trading hours.  The Court said that therefore the lessor’s refusal could not be challenged. Neither did the lessor have to justify its decision, based on the normal rules of interpretation of leases. 

This case would still be good law today if the lease made clear that a decision about changing trading hours was a matter for the lessor’s sole discretion, contracting out of the requirement for qualified consent.

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Not so fast.  Case law earlier this year shows the changes to the legislation may not work quite how many people expected them to. 

“Specifically Identified” – What does it mean? The Environment Court’s Interpretation

The case considered specific provisions of the district plans for both North Shore City and Waitakere City that protected trees.  For example the court looked at a rule giving protection to any native tree that was more than 6 metres in height or 600mm in girth and at another protecting exotic trees of 8 metres height and 800mm in girth. 

In October 2009 changes were made to the Resource Management Act they made it clear that a rule in a district plan must not prohibit felling any tree or group of trees unless that tree or group of trees is specifically identified in the plan.  The changes to the legislation dealt with other issues too and only relates to urban living. 

Council sought clarity on the meaning of the legislative change and went to the Environment Court for a declaration.  They wanted to know what it meant to refer to a “tree or group of trees specifically identified in a plan” and to understand which of the existing rules fell within the ambit of the legislative changes. 

The court decided that the reference to a “group of trees” could be a reference to a number of trees which are physically close to each other.  But it could also be a reference to trees which share some common characteristics.  When you think about a group of trees in this sense it would be possible to identify a tree according to its genus and species or maybe its height and girth. 

The court said that the language used in legislation may include trees of named species in a defined area, trees in a class of defined characteristics or trees in a named ecosystem or habitat.

As a result it was decided that a rule that controls trimming or felling of “exotic trees over x metres high” in a defined zone may well be legitimate.  The judge reasoned that if Parliament had intended to restrict things further, the law would have referred to trees that had been identified in a plan by botanical name and precise location.

So take care if you are thinking of doing some significant gardening in the Christmas holidays.  Despite the views of a great many citizens, the law change will definitely not mean you are automatically free to cut down trees in your own garden.  Many of the rules relating to the felling of trees will continue to apply. 

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Where land is concerned, the agreement does need to be in writing to be enforceable.  The Property Law Act 2007 requires that a full written record of the terms of the contract is made, and the contract is signed. 

To enforce a contract for the sale of land, one would have to generally produce a signed, written agreement or a written note of the terms between the parties, subject to limited exceptions. 

Prior to the Property Law Act 2007 a wider variety of dealings could create a sufficient memorandum of an agreement, e.g. a letter from a purchaser to a third party which contained an admission of the existence of a contract and description of its essential terms was enforceable against the purchaser.  Now the wording does not seem to allow for anything less than a full record of all the terms of the contract, although that may be in more than one document.

The writing and signatures can all be in electronic form, provided the Electronic Transactions Act 2002 is complied with.  That is contemplated by the standard form of agreement for sale and purchase which permits the sending of counterpart copies by e-mail to create the contract.

So, if you are tempted to buy a bach, make sure your agreement is conditional on a full due diligence being completed when you return as that agreement on the back of an envelope may well be enforceable.

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