You’ve got resource consent for your new build, subdivision or extension. The council has signed off, the plans are ready, and then someone mentions a covenant on the title. Can you still go ahead?
The short answer: a resource consent doesn’t give you a free pass. If a covenant says no, the covenant still applies.
Two separate regimes
Planning rules and covenants are different legal tools, and they run side by side.
Resource consent is a public law matter. The council assesses your proposal against the district plan and relevant legislation, looking at things like effects on the environment, neighbours and infrastructure.
A covenant is a private law matter. It’s an obligation registered on the title, usually imposed by a developer, a previous owner or a neighbour, and it binds current and future owners of the land.
Because they come from different places, one doesn’t automatically cancel the other. It’s often said that covenants “supersede” planning consents. More precisely, they operate independently, so in practice the more restrictive of the two will limit what you can do.
Councils don’t check covenants for you
A common misconception is that if the council approved your plans, they must be fine. In reality, councils generally don’t consider private covenants when deciding a resource consent application. Their job is to assess the proposal under planning law, not to police private agreements on your title.
So a consent can be granted for something that a covenant prohibits. The consent doesn’t validate the project; it only means the council has no planning objection.
What this means for owners
You need to comply with both sets of restrictions. A few examples of where this bites:
A consent allows a two-storey home, but a covenant limits dwellings to a single storey.
A subdivision is approved, but a covenant prohibits further subdivision of the land.
A consent permits a particular building material or colour, but a covenant requires something different.
If you build in breach of a covenant, the party who benefits from it, such as a neighbour or a developer, may be able to seek an injunction, damages or an order requiring the work to be undone. That’s an expensive outcome after you’ve already spent money on consent and construction.
Check the title first
The practical lesson is to review the title before you finalise your plans, ideally before you buy. Get a current copy of the record of title, read every registered instrument (not just the summary), and ask your lawyer to explain what each covenant means for your plans. Do this before lodging a consent application, not after.
Can a covenant be removed?
Sometimes, yes. Under the Property Law Act 2007, the High Court has the power to modify or extinguish covenants in appropriate cases. For example, a covenant may be out of date, no longer serve its original purpose, or unreasonably restrict the use of the land without delivering a real benefit to anyone.
This isn’t a quick or guaranteed route. It involves court proceedings, evidence and usually the input of the people who benefit from the covenant. Often the more practical path is to negotiate with the benefitting party and get a formal variation or release agreed.
