Cashmere Park Limited

[2024] NZHC 1343

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-32

[2024] NZHC 1343

UNDER

Sections 316 and 317 Property Law Act 2006 and Parts 7 and 19 of the High Court Rules 2019

IN THE MATTER

of an application for orders by CASHMERE PARK LIMITED that easements be modified or extinguished under s 317 of the Property Law Act 2007

Applicant

Hearing:	(On the papers)
Appearances:	H A Evans and V P Kenworthy for Applicant (2 February 2024) H A Evans (23 May 2024)
Judgment:	27 May 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

RE CASHMERE PARK LIMITED [2024] NZHC 1343 [27 May 2024]

[1]    Prior to 1912, open stormwater drains (both natural and constructed) existed on what was rural land on the then outskirts of Christchurch. Transfers made in 1913 and 1914 spelt out the maintenance obligations in relation to those drains referred to in the transfers as “water courses”. The transfers also dealt with access to the water courses for watering stock, associated fencing and so on. Now, many years later, Christchurch has expanded so that what was farmland is now being subdivided into residential lots. The open water courses will be replaced with modern underground pipe/stormwater systems. However, the old easements created by the old transfers remain on the titles of the land being subdivided and on lots already subdivided, meaning that now some 289 lots have the benefit and the burden of the old easements. Most of those lots are now in standard residential subdivisions which, as they have modern stormwater systems, never used and no longer have access to the existing water courses.

[2]    Under the easements mutual obligations exist to maintain the water courses, that is, those with the benefit as well as the burden of the easement have the same obligations. The water courses are now on land owned by the applicant, Cashmere Park Limited (Cashmere). It is continuing to subdivide its land and, in order to transfer land to the Christchurch City Council (the Council) as roads and to utility companies for water supply and electricity infrastructure, Cashmere needs to remove the old easements from the land to be used for those purposes.

[3]    Cashmere wishes to apply for an order extinguishing the old easements insofar as they relate to the land to vest in the Council and utility companies. That order is necessary as the Council will not accept land for roading which is subject to easements and nor will the relevant utility companies.

[4]    Cashmere seeks that service on the 289 land owners be dispensed with, save that it will advertise the application in the Christchurch Press. Cashmere proposes to serve the Local Authority and the utility companies involved. Cashmere also seeks leave to use the originating application procedure in its substantive application.

[5]    Cashmere does not seek an order extinguishing or modifying the easement from all 289 lots. What it seeks is an order extinguishing the easement only in respect of the land to vest in the Council and utility companies.

[6]    Because the easements create mutual obligations on both transferor and transferee, at least in theory, if the easement is extinguished from the land as sought by Cashmere, the remaining lot owners will (on paper) be prejudiced because they will lose the benefit of the burden of the easement being also borne by the owners of the lots to vest in the Council and the Local Authority. However, that theoretical detriment is just that, theoretical. I say that because the water courses to which the easement relates are going to be replaced by modern underground piped systems. Once created, maintenance of the new stormwater system rests with Cashmere for the first 12 months and then the Council. There will be no “water course” for which the remaining land owners will have any maintenance obligations (the old easements expressly apply to water courses) — the replacement stormwater system is to be maintained by the Local Authority.

[7]    No issue of the water courses not being available to water stock arises given the land will become residential lots.

[8]    The substantive orders sought seek the extinguishment of the easement from one particular lot to vest with an electricity supplier and modification of the easements so that they will cease to apply upon any survey plan relating to such land to be used for roads, reserves or utilities being approved as to survey and accepted for deposit by Land Information New Zealand. I consider it should be made express that the order sought at para 1.4 of the application should apply only to land owned by Cashmere.

[9]    I am satisfied this is an appropriate case for the use of the originating application procedure. The reasons for that view are linked to my conclusion that there is no need for this application to be served on the 289 landowners other than by way of the Christchurch Press advertisement, which should be tendered to the Court for approval.

[10]   I am satisfied the substantive orders sought can not prejudice any of the landowners on whose title the easement remains. This is because the modification sought is only in respect of the land that will vest in the Council or in utility companies. Mr Evans, counsel for the applicant, has confirmed that all the land which is still rural in character and adjacent to the water courses is owned by Cashmere or individuals or trusts associated with it. They all support the application.

[11]   Once the new residential lots are created, the new stormwater system will be in place replacing the water courses. The modification to the easement only takes effect on a new storm water system being in place. The existing owners of residential lots with the benefit (and burden) of the easements do not use the old water courses for stormwater as they have access to a modern stormwater system. The rural land adjacent to the water courses is going to be subdivided by Cashmere or its interests. No existing land owner can be adversely affected by the proposed orders.

[12]   In those circumstances, there is no need for formal pleadings and so the more truncated originating application process is appropriate. Cashmere has leave to commence this proceeding by way of originating application.

[13]   As noted, I am satisfied that the landowners who presently have the benefit of the old easement need not be served because they can not be affected by the terms of the orders sought — indeed, they are relieved of, what is on paper, an existing obligation to maintain the water courses and which will be replaced by a modern system to be maintained by the Council.

[14]   Accordingly, there is an order in terms of paras 1.3 and 1.4 of the application for directions as to service dated 22 January 2024. Mr Evans is to table the proposed advertisement to be placed in the Christchurch Press, for approval and file an affidavit of service of the proceeding as the parties directed to be served.

Associate Judge Lester

Solicitors:

Cameron & Co Lawyers, Christchurch (for Applicant)

Copy to counsel: H A Evans, Barrister, Christchurch (for Applicant)