Burberry Developments Limited v Auckland Council

[2022] NZHC 3614

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1820

[2022] NZHC 3614

IN THE MATTER

of s 316 of the Property Law Act 2007

BETWEEN

BURBERRY DEVELOPMENTS LIMITED

Applicant

AND

AUCKLAND COUNCIL

First Respondent

WATERCARE SERVICES LIMITED
Second Respondent

HOUSING NEW ZEALAND BUILD LIMITED

Third Respondent

BARFILON INVESTMENT LIMITED

Fourth Respondent

Hearing:

28 November 2022

Counsel:

D K Wilson for Applicant

No appearance for Respondents

Judgment:

22 December 2022

JUDGMENT OF HARVEY J

This judgment is delivered by me on 22 December 2022 at 3pm pursuant to r 11.5 of the High Court Rules.

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

Registrar / Deputy Registrar

Solicitors:           Loo & Koo, Auckland

BURBERRY DEVELOPMENTS LTD v AUCKLAND COUNCIL [2022] NZHC 3614 [22 December 2022]

[1]    On 7 December 2022, Burberry Developments Limited’s application by way of formal proof for orders under ss 316 and 317 of the Property Law Act 2007 to partially extinguish an easement was granted.1

[2]Orders were made on the terms as sought in the applicant’s draft order:

[20]     Orders are now issued that Easement Certificate C878364.7 is partially extinguished by:

(a)deletion of rights to convey water over parts marked “F”, “E” and “D” on DP 569241 (formerly specified as HH, Q and II on DP 166291 and Easement Certificate C878364.7 (as contained in Burdened Record of Title 1025838, North Auckland Land Registration District); and

(b)Extinguishment of Easement Certificate C878364.7 on the Benefitting Records of Title in the annexure attached to the application labelled “List of Benefitting Lots.”

[3]    Leave was reserved for the applicant to apply to vary the orders in the event any unforeseen circumstances arose.2

Amendment of orders sought

[4]    Following the issue of the decision, by memorandum dated 8 December 2022, Mr Wilson, for the applicant, has sought an amendment to the wording of the above orders, on the basis that the change is required to ensure the orders will be accepted by LINZ for registration.

[5]    In short, Mr Wilson submitted that the advice the applicant has received from the land registration adviser is that:

LINZ prefers registration of extinguishment to apply equally or in the same terms to the relevant dominant and servient titles. They should correspond because otherwise there could be titles that do not balance with another dominant or servient title in respect of the same easement. It reflects the dual nature of easements. Consequently, if the present order is sealed there would be doubt as to whether it would be accepted by LINZ for registration.

1      Burberry Developments Ltd v Auckland Council [2022] NZHC 3273.

2 At [21].

[6]    Mr Wilson contended that the solution is to amend the previously two part order into an order “in one part only” to express the same impact on the dominant and servient titles. He requests the order be amended to read:

Easement certificate C878364.7 is partially extinguished by deletion of rights to convey water over parts marked F, E and D on DP 569241 (formerly specified as HH, Q and II on DP 166291 in Easement Certificate C878364.7) as contained in Burdened Record of Title 1025838, and Benefitting Records of Title defined in the attached Annexure labelled “List of benefiting lots”

[7]    Counsel explained that the dominant/servient connections are effectively theoretical only, as the evidence demonstrated that the benefitting owners no longer have the means to receive the water conveyed through the applicant’s property and the other servient titles between the applicant’s land and the water source. Counsel attached an easement certificate setting out the complex easement structure. Mr Wilson submitted further that an amendment to the wording would not prejudice any party as it is a reduction in the effect on the dominant titles, and accordingly it would not be appropriate to re-serve any parties.

[8]    Mr Wilson apologised for the change in terms and submits that the proposed wording is a more neatly expressed and registrable provision.

Decision

[9] For the reasons expressed in Mr Wilson’s submissions, I am satisfied that the proposed amendment to the wording of the order, as set out at [6] above, is appropriate. I also agree that it is not necessary to re-serve any parties.

[10]There are orders accordingly.

Harvey J