Earlsbrook Residential Limited

[2025] NZHC 120

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2025-409-010

[2025] NZHC 120

UNDER

Sections 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an application for orders extinguishing an easement

BETWEEN

EARLSBROOK RESIDENTIAL LIMITED

Applicant

Hearing:	5 February 2025
Appearances:	A L Davidson for Applicant
11 February 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 11 February 2025 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE EARLSBROOK RESIDENTIAL LIMITED [2025] NZHC 120 [11 February 2025]

[1]        The applicant intends to commence a proceeding for an order extinguishing a deed of easement that burdens land it is in the process of developing. The applicant has applied for leave to commence its proceeding by way of originating application in accordance with r 19.5 of the High Court Rules 2016 and for directions as to service.

[2]        The applications for leave under r 19.5 and directions as to service were called in the Associate Judge’s List on 5 February 2025, and after hearing from the applicant’s counsel I indicated I would issue a decision in due course.

[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.

[5]        In relation to the application to proceed by way of originating application, the High Court Rules anticipate a proceeding for relief under ss 316 and 317 of the Property Law Act will be commenced by way of ordinary proceeding under pt 5. However, under r 19.5 the Court may in the interests of justice permit such a proceeding to be commenced by originating application. It is well established that interests of justice means the Court must secure the just, expedient and inexpensive

determination of the proceeding when considering an application under r 19.5.1 The Court’s permission may be sought without notice, as has occurred in this case.

[6]        There have been many cases where the Court has allowed applications under ss 316 and 317 to be brought by originating application and it is common for such orders to be made. In LMM Investments 2012 v Cumming I considered a similar application and discussed several of the authorities where the court has allowed applications under ss 316 and 317 to be brought by originating application.2

[7]        I consider the interests of justice will be served by granting leave to commence this proceeding by way of originating application in circumstances where:

(a)the proceeding concerns the application of statutory provisions;

(b)there is no need for particularised pleadings;

(c)the issues are discrete, few in number and not complex;

(d)given that I do not propose to direct service on anyone but the Council, there is unlikely to be any need for interlocutory applications or close case management required; and

(e)there are unlikely to be any significant disputes or uncertainty as to the facts upon which the application will turn.

[8]        In relation to service of the application, the applicant seeks that this be limited to service upon the Council and no other parties, there have been cases where the courts have dispensed with service in similar circumstances.

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].

2      LMM Investments 2012 v Cumming [2021] NZHC 2639, (2021) 22 NZCPR 584. See Re Marriner Property Ltd [2020] NZHC 1747 at [30]-[31]; Wang v Auckland Council [2021] NZHC 499; Fair v Fair [2019] NZHC 2349, (2019) 20 NZCPR 652.

[9]        In Re Greenstone Land Developments Ltd Cooke J dispensed with service of an application to extinguish easements and said:3

[18]      In the present case, I accept there is no need for service, or other form of notification of affected landowners. As I will explain in greater detail below, there has been diligence in seeking to find out the nature of the relevant easements, and it is now not possible to identify what the content of them actually is. Progress with the subdivision has a degree of urgency, and there is no apparent issues that could be raised in relation to the vesting of the land with the Council as part of the subdivision. I also accept that there is a risk that objection might be taken by the landowners which could delay the subdivision, but which ultimately have no merit.

[19]      For these reasons, I accept that the application can be dealt with without the need for any further directions for service or notification to the landowners.

[10]      Similarly in WFH Properties Ltd v Christchurch City Council I determined that service of a similar application should be dispensed with, which was recorded in the substantive decision of Dunningham J.4 My reasons were recorded as follows:

[3] In a minute issued on 8 August 2024 Associate Judge Paulsen also determined that there should be a direction dispensing with further service of the application. At that point, the application had been served on the Christchurch City Council which did not oppose the application. He also noted the difficulty and expense involved in having to identify the owners of each property affected by the easements, and their mortgagees, and then arranging for service upon them, particularly when there was no practical benefit to any of these persons given the easements did not currently protect, nor were they capable in the future of protecting, any rights of the owners of those properties to create water courses.

[11]      I am satisfied that service of the application except upon the Selwyn District Council is unnecessary for all of the following reasons:

(a)The easement was created in 1899 and has not been registered or noted on the current titles of any of the land that benefits from it from at least 1914.

(b)As the easement has not been registered on the titles of the benefitted land, the owners of that land have never had any notice of the existence or scope of the easement.

3      Re Greenstone Land Developments Ltd [2022] NZHC 1419, (2022) 23 NZCPR 142.

4      WFH Properties Ltd v Christchurch City Council [2024] NZHC 2797.

(c)The owners of the land intended to be benefitted by the easement will not be impacted by the application because they have the right to be, and are, serviced by infrastructure controlled and owned by the Council.

(d)The assessment of what land has the legal benefit of the easement is an exercise of interpretation based on the terms of the easement. Based on the Council’s interpretation, 398 land titles have the legal benefit of the easement and it would cause significant prejudice, and in the circumstances, unnecessary cost to locate and serve the owners of all 398 titles.

(e)I accept also there is a degree of urgency about progressing the subdivision.

Orders

[12]      There shall be orders that the applicant is granted leave to commence this proceeding under pt 19.

[13]      I direct that service of the application shall be limited to the Selwyn District Council. I note, however, that it will be open to the High Court Justice that ultimately determines the application to direct further service if he or she considers that is required.

[14]      The substantive application is to be listed to be called on the first available date before a Duty Judge.

[15]      The Selwyn District Council is to be served with the sealed judgment made on this application.

[16]There shall be no order as to costs.

O G Paulsen Associate Judge

Solicitors:
Anderson Lloyd, Christchurch