Crying over spilt milk? the Synlait decision and land covenants
Author – Thomas Gibbons, Thomas Gibbons Law
Zoning changes, but covenants are forever.
That is a pithy summary of the intersection between the Resource Management Act 1991 (RMA) and property law (more specifically, private land covenants), but it is a summary with elements of both truth and untruth.
The intersection between the RMA and property law is of course a subject of considerable interest, and indications from the courts are that more attention is needed to the degree of disparity and overlap between these fields.
Covenants exist independently of zoning and do not always last forever, but they run with the land, bind successors in title and can last much longer than planning provisions.
Taking this further, resource management is sometimes considered a subset of public law; conversely, we often talk of private property, but even private property has important public law aspects. Land law in New Zealand – at least as it is taught in law schools – is often seen to rest on the Land Transfer Act 2017, which rests heavily on the role of the state in guaranteeing title.
While other aspects of land law (such as the Property Law Act 2007 (PLA)), common law issues of contract and tort and the more opaque topic of equity may be seen to reflect a more private law orientation, there remains a considerable degree of public law in private land law issues.
In the present context, the Synlait decision (Synlait Milk Ltd v New Zealand Industrial Park Ltd  NZSC 157) contains a useful analysis of how land covenants may be modified or extinguished because of RMA-based changes, including zoning.
The relationship between the RMA and property law deserves more attention, and this article continues a theme I developed earlier (for example, “Private Land Use Arrangements in the Environment Court: Recent Decisions” (April 2019) RMJ at 15).
While Synlait is nominally a decision on private land covenants, it also has broader resource management implications. For that reason, this article examines PLA issues with a particular focus on commentary on zoning within the decision.