Earlsbrook Residential Limited

[2025] NZHC 536

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-10

[2025] NZHC 536

UNDER

Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER OF

an application for orders extinguishing an easement

AND

EARLSBROOK RESIDENTIAL LIMITED

Applicant

Hearing:	On the papers
Appearances:	S D Munro for Applicant
Judgment:	17 March 2025

JUDGMENT OF MANDER J

This judgment was delivered by me on 17 March 2025 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

RE EARLSBROOK RESIDENTIAL LIMITED [2025] NZHC 536 [17 March 2025]

[1]                 The applicant, Earlsbrook Residential Ltd (Earlsbrook), seeks orders pursuant to ss 316 and 317 of the Property Law Act 2007 (the Act), extinguishing an easement in order that properties owned by Earlsbrook are no longer subject to it.

[2]                 The background to Earlsbrook’s application was set out by Associate Judge Paulsen in his judgment granting leave for the proceeding to commence by way of originating application and directions as to service:1

[3]                   The background is that the applicant is a development company that owns land at Lincoln. It has obtained a subdivision consent for the development of its land from the Selwyn District Council (the Council). The development will result in a large number of residential lots, and the subdivision also permits the creation of a large commercial lot and primary school. The applicant is working towards completing its development with titles issuing in or around September 2025.

[4]                   The applicant’s property is subject to a deed of easement YEC 95263, which appears to be correctly described by counsel as a “relic of the 19th century”, registered on 22 November 1899. The easement gives other benefitted properties the right to drain water, albeit the exact location of stormwater drainage pipes associated with the easement do not appear to have been formally surveyed. In addition, the land that the easement was originally intended to benefit has been subject to development since 1899 and the easement is not registered or noted on the title of any properties that may now benefit from it. The evidence is that the applicant’s lawyers have investigated the matter and believe that from at least 1914 the easement has not been registered on titles to the benefitted land, now comprising 398 titles.

[3]                 After granting leave to commence the proceeding by way of originating application, the Associate Judge further ordered that service of the application was only required on the Council. That has now been effected and the Council, which has taken no steps in relation to the proceeding, has advised in writing that it does not intend to oppose the application.

[4]Section 317 of the Act provides that:

(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:

1      Re Earlsbrook Residential Limited [2025] NZHC 120.

(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.

(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.

[5]                 Earlsbrook submits that the Court can be satisfied a number of the statutory grounds for the extinguishment of the easement have been established. In summary, it says:

(a)there has been a change since the creation of the easement in:

(i)the nature and extent of the use being made of the land intended to benefit from the easement, and the burdened land; and

(ii)the character of the neighbourhood; and

(iii)the zoning and planning framework and permissions applicable to the burdened land;

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

(c)the proposed extinguishment will not substantially injure any person entitled.

Changes in use, neighbourhood and the applicable planning framework (s 317(1)(a)(i)–(iii))

[6]                 The easement  was  registered  to  Earlsbrook’s  properties  (being  Lot  4,  DP 576868 and Lots 1–2 DP 5095 in Record of Title 1062769) on 22 November 1899. At the time of registration of the easement, these properties were rurally zoned, as were the properties that were intended to have the benefit of the easement.

[7]                 Since 1899 Lincoln, where the properties are located, has developed from a rural township to an urban centre with significant residential and commercial development including numerous residential subdivisions with many thousands of residents. Earlsbrook’s properties are now zoned medium density residential, pursuant to the partially operative Selwyn District Plan. That zoning is now beyond challenge and is therefore binding on Earlsbrook’s properties. Similarly, the properties intended to be benefited by the easement are also now zoned medium density residential pursuant to the same District Plan.

[8]                 I accept the submission made on behalf of Earlsbrook that since the easement was first registered in 1899, there have been significant changes in the nature and use of both Earlsbrook’s properties and the properties originally intended to be benefited by the easement. The neighbourhood generally has been the subject of significant changes, as has the applicable planning framework. Having regard to the age of the easement, it is apparent such changes were not reasonably anticipated or contemplated by the original parties to its making. Such planning changes and associated changes

to the character of the neighbourhood from rural land to residential development can appropriately be taken into account when assessing the relevant circumstances that now pertain to both the benefit and burdened land as provided for in s 317(1)(a) of the Act.2

Impeding the reasonable use of Earlsbrook’s land (s 317(1)(b))

[9]                 Earlsbrook has undertaken a comprehensive development of its properties in accordance with its consent to develop a residential subdivision. This consent requires the vesting of specified roads in the Council. These will not be able to be completed until the land intended to be vested is free of all interests, as a result of ss 224(b), 238 and 239 of the Resource Management Act 1991. Earlsbrook will be unable to complete its residential development in accordance with the consent until such time as the easement is extinguished from its properties. I accept such a consequence would result in Earlsbrook’s reasonable use of its land being impeded in a different way and/or to a different extent from that which could reasonably have been foreseen by the original parties at the time the easement was created.3 In 1899 the burdened land was rurally zoned and situated within a rural township of approximately 500 people. At that time it could not have been reasonably foreseen the burdened land would be utilized for a medium density residential subdivision as part of a larger urban area.

No substantial injury (s 317(1)(d))

[10]            I also accept Earlsbrook’s submission that the extinguishment of the easement will not substantially injure any person. The easement, which provides for a right to drain water is now redundant. The owners of the land that were intended to be benefited by the easement are now able to discharge stormwater into infrastructure owned and maintained by the Council in accordance with comparatively recent subdivision and regional stormwater consents and the drainage of that land is now provided for by modern infrastructure. The Council’s ability to provide drainage to the effected land and discharge stormwater into the local river is provided by a modern

2      Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657 at [151]; and North Holdings Development Ltd v WGB Investments Ltd [2014] NZHC 670 at [25(c)].

3      Property Law Act 2007, s 317(1)(b); and see also Potter v Peterson [1993] DCR 1021 at 1029– 1030.

easement that will be unaffected by the extinguishment of the old easement the subject of this application.

[11]            As noted this easement has never been registered to the titles of the land intended to be benefited by it, at least not since 1914, and the owners of those titles have never had notice of the easement nor place any reliance on its existence.

Decision

[12]            Being satisfied that these grounds have been made out and that no land owner or other party will be prejudiced by the extinguishment of the easement, in the exercise of my discretion, I grant the application to extinguish the easement in the terms sought by Earlsbrook.

Order

[13]            An order is made extinguishing the easement created by deed of easement YEC 95263 pursuant to ss 316 and 317 of the Act in respect of the burdened land at Lot 4, DP 576868 and Lots 1–2 DP 5095 in Record of Title 1062769.

Solicitors:
Anderson Lloyd, Christchurch