Baigent

[2021] NZHC 3081

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-43

[2021] NZHC 3081

IN THE MATTER

of Parts 7 and 19 of the High Court Rules 2016 and Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an application by Paul Noel Baigent, Mary Noel Baigent and Barbara Noel Cameron for an order extinguishing easements

BETWEEN

PAUL NOEL BAIGENT, MARY NOEL BAIGENT AND BARBARA NOEL CAMERON

Applicants

Hearing:	On the papers
Counsel:	A M Halloran for Applicants
Judgment:	15 November 2021

JUDGMENT OF ISAC J

Introduction

[1]This proceeding seeks orders extinguishing an easement.

[2]        The applicants own land subject to an easement that is now incapable of use by the owners of the properties who have the benefit of the easement. The applicants say the easement is therefore redundant. Their land is being subdivided, and the easement presents an obstacle to completion of the subdivision and sale process.

BAIGENT, BAIGENT AND CAMERON v [2021] NZHC 3081 [15 November 2021]

[3]        The applicants have filed an originating application seeking an order extinguishing the easement pursuant to ss 316 and 317 of the Property Law Act 2007 (the Act).

[4]Relevantly, s 316(3) provides:

(3) That application must be served on the territorial authority  in  accordance with the relevant rules of court, unless the court directs otherwise on an application for the purpose, and must be served on any other persons, and in any manner, the court directs on an application for the purpose.

[5]        The Court may then modify or extinguish an easement under s 317(1) if satisfied that:

…

(a)the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:

(i)the nature or extent of the use being made of the benefited land, the burdened land, or both:

(ii)the character of the neighbourhood:

(iii)any other circumstance the court considers relevant; or

(b)the continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation; or

(c)every person entitled who is of full age and capacity—

(i)has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or

(ii)may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part; or

(d)the proposed modification or extinguishment will not substantially injure any person entitled; or

(e)in the case of a covenant, the covenant is contrary to public policy or to any enactment or rule of law; or

(f)in the case of a covenant, for any other reason it is just and equitable to modify or extinguish the covenant, wholly or partly.

[6]        In a judgment of 21 September 2021, Simon France J granted leave to commence proceedings by way of originating application but declined to deal with the application on a without notice basis.1

[7]        An application to rescind his Honour’s decision came before me as Duty Judge. In a judgment of 12 October 2021, I declined that application and made directions for service of the application on the affected landowners.2

[8]        Service was affected in accordance with my directions on 13 October 2021. This is confirmed in an affidavit of service of Yasmin Barrington of 28 October 2021. In addition, on 15 October 2021, an advertisement giving notice of the application approved by the Court was published in the Nelson Mail newspaper.

[9]No opposition to the application has been filed.

Discussion

[10]The applicants have filed four affidavits in support of their application:

(a)from a surveyor, Mr Jacobsen;

(b)by Paul and Evan Baigent, who provide evidence about the area of land in question, the history and purpose of the original easement; and

(c)from a solicitor, Ms Bain, setting-out her opinion that the easement is now redundant.

[11]      The evidence reveals that the easement was registered on 15 September 1902 and was created by the will of the late Edward Baigent. Briefly, Mr Baigent’s will created a right of access over one parcel of land (referred to by the applicants as “section 93” — being the land the applicants wish to subdivide and sell) for the benefit of another parcel (referred to as “section 91”). The easement was originally intended

1      Re Baigent [2021] NZHC 2478, at [6].

2      Re Baigent [2021] NZHC 2729 at [15]–[17].

to enable the registered proprietors of section 91 to reach a third area of land (known as “section 96”) by crossing section 93.

[12]      The relationship between these three parcels of land, and the Wai-iti River, is identified in an overlay plan provided in evidence:

[13]Ms Bain records in her affidavit:

17.As shown on the Overlay Plan and the Post Accretion Plan, there is now no land deriving from Section 91 which adjoins the applicant's land.

18.I confirm to the Court that if I was advising any prospective purchaser of a Benefitting Title on how to secure access to their property, I would advise them that whilst the Benefitting Title has the benefit of the Easement, it is of no practical benefit or use to them. This is because access to all Benefitting Titles is provided by publicly vested road, and that the Benefitting Titles cannot now access the Easement, due to the subdivision of Section 91 and the movement of the Wai-iti River.

19.Accordingly, I confirm to the Court that in my opinion, it is clear that the Easement is now redundant.

[14]      I am satisfied the evidence establishes there is no way the parcels of land ostensibly carrying the benefit of the easement can use the easement for its intended

purpose. The easement is therefore — both legally and practically — redundant. Accordingly, I am satisfied the easement ought to be extinguished because of a change of circumstances since its creation pursuant to s 317(1)(a)(iii) of the Act.

[15]I make an order extinguishing conveyance 30220 (26D 184).

[16]Leave to apply is reserved should further orders be required.

Isac J

Solicitors:
Pitt & Moore, Nelson