Belfast Business Park Limited

[2018] NZHC 554

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2017-409-000964

[2018] NZHC 554

IN THE MATTER OF

THE PROPERTY LAW ACT 2007

IN THE MATTER OF

AN APPLICATION BY BELFAST BUSINESS PARK LIMITED

Applicant

Hearing:	26 March 2018
Appearances:	K M McMullen for Applicant
Judgment:	26 March 2018

ORAL JUDGMENT OF GENDALL J

[1]    The applicant Belfast Business Park Limited applies for orders effectively seeking to modify land covenants created by an easement instrument. The applicant alleges that the continuation and force of the land covenants in their existing form is impeding the development of a road on a proposed subdivision. This was not, it is said, foreseen by the applicant or any parties when the covenant was first registered in 2012 when the applicant purchased the land in question.

[2]    The application before me is one brought pursuant to s 317 of the Property Law Act 2007 which states:

317     Court may modify or extinguish easement or covenant

(1)On an application (made and served in accordance with section 316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) 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:

RE: BELFAST BUSINESS PARK LIMITED [2018] NZHC 554 [26 March 2018]

(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.

(2)An order under this section modifying or extinguishing the easement or covenant may require any person who made an application for the order to pay to any person specified in the order reasonable compensation as determined by the court.

[3]    All affected parties in this matter have been served. It is clear that no parties have opposed the present application and indeed a number of parties have supported it. The order now sought by the applicant is in the following terms, that the land covenants created by Easement Instrument No. 9213826.2 be modified to include in Annexure Schedule 2 of the easement instrument the following:

The Covenants in this instrument will immediately cease to apply to the part of the servient land which is intended to vest in the Crown or any territorial authority as a road or reserve (in accordance with the annexed plan), upon any survey plan relating to such vesting being approved as to survey and being accepted for deposit for Land Information New Zealand.

[4]    It is clear that this Court has a discretionary jurisdiction to modify or to wholly or partially extinguish any land covenant pursuant to s 317 of the Act. This is clear

from Sutherland v McAlister.1 As I note above, the dominant landowners with respect to these land covenants have all been served, some have indicated their support of the present application and all others have not in any way opposed the present application.

[5]    What seems clear from the application and the affidavit evidence supporting it is that the continuation in force of the covenants in question in their existing form is impeding the development of a road known as the Stage 2B Road within the Belfast Business Park, a continuing development of the applicant, and this is occurring in a way which was not foreseen by the applicant or indeed by any other parties when the covenant was first registered on the applicant’s purchase of the land in 2012.

[6]    That said, I am satisfied that in terms of s 317 of the Act, and given there is no opposition from any party to this application that this application should succeed and the order sought be made.

[7]    An order is now made that the land covenants created by Easement Instrument No. 9213826.2 be and are modified to include an Annexure Schedule 2 of the Easement Instrument the following:

The Covenants in this instrument will immediately cease to apply to the part of the servient land which is intended to vest in the Crown or any territorial authority as a road or reserve (in accordance with the annexed plan), upon any survey plan relating to such vesting being approved as to survey and being accepted for deposit for Land Information New Zealand.

[8]    By way of additional comment, I note at this point that I am also satisfied the proposed modification will not cause detriment or substantial injury to the benefitted land and in fact would seem to provide some additional positive benefit to that land.

[9]This now disposes of the present application which has succeeded.

...................................................

Gendall J

Solicitors:
Cavell Leitch, Christchurch

1      Sutherland v McAlister [2010] 11 NZCPR 723.