Exclusive Developments Limited v Winter

[2024] NZHC 2244

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-120

[2024] NZHC 2244

UNDER

the Property Law Act 2007

IN THE MATTER

of an application under s 316 of the Act

BETWEEN

EXCLUSIVE DEVELOPMENTS LIMITED

Applicant

AND

ANNA CHRISTINE WINTER AND OTHERS

First Respondents

QUEENSTOWN LAKES DISTRICT COUNCIL

Second Respondent

Appearances:	M R Walker and B B Gresson for Applicant No appearance for Respondent
Judgment:	9 August 2024
(Determined on the papers)

JUDGMENT OF OSBORNE J

Introduction

[1]                  The applicant, Exclusive Developments Ltd (Exclusive), is undertaking on a staged basis a substantial residential subdivision styled “Hikuwai Development” in Wanaka. Ultimately, approximately 200 residential lots will be created.

[2]                  Exclusive seeks an order extinguishing easements created and transferred by registered Memoranda.

EXCLUSIVE DEVELOPMENTS LIMITED v WINTER [2024] NZHC 2244 [9 August 2024]

[3]Exclusive owns the land that is burdened by the easements.

[4]                  As part of the development Exclusive is undertaking, it is proposed to vest the burdened land as a road. The continuation in force of the easements would preclude the burdened land from vesting as road or reserve unless each party to the easement provided written consent.1

Procedural matters

[5]Exclusive obtained interlocutory directions:

(a)granting leave to Exclusive to commence the application as an originating application;

(b)dispensing with service on the first respondents; and

(c)requiring QLDC to be served.2

[6]                  QLDC, following service of the proceeding on 30 May 2024, has not taken a step in the proceeding.

The nature of the easements

[7]                  The easements provide a right to convey water from the Clutha River to the benefited land through the burdened land, and a right to install a pipe from the burdened land for the purpose of conveying water. They were created in 1979 to provide a route by which water could be conveyed from the Clutha River to the area containing the properties now owned by the first respondents (being now 19 sets of registered proprietors). The history and current situation is described in an affidavit of Vergne Wilson, a licensed cadastral surveyor who has been involved in Exclusive’s subdivision.

1      Resource Management Act 1991, s 224(b)(i).

2      Exclusive Developments Ltd v Winter [2024] NZHC 1331.

[8]                  The easements allowed the owners of the dominant tenement to lay, place and maintain a 38 mm pipe for the purpose of conveying the water and to enter onto the servient tenement for the purpose of laying, placing and maintaining the pipe. It appears no pipes have ever been laid. No infrastructure (of the nature of a pump shed and related improvements) have been created as would be required were water to be extracted from the river for the benefit of the dominant tenements.

[9]                  Mr Wilson deposes that all the dominant tenements are now served by QLDC’s reticulated water supply, a fact evidenced by a GIS mapping service map that Mr Wilson has exhibited.

[10]              Mr Wilson states he believes the easements are redundant. He identifies that the road area needs to be vested in QLDC for the purpose of creating the subdivision but cannot be while the easements remain on the title to Exclusive’s property.

The basis of the application

[11]              The depositing of the survey plan for the subdivision is precluded by the provisions of s 224 Resource Management Act 1991 unless there is endorsed on the survey plan or deposited with the Registrar-General the written consent to the subdivision given by the registered owner of each of the dominant tenements.

[12]              Section 316 Property Law Act 2007 provides for applications by persons bound by easements and other instruments to apply to a court for an order modifying or extinguishing the easement or covenant:

316Application for order under section 317

(1)A person bound by an easement, a positive covenant, or a restrictive covenant (including a covenant expressed or implied in an easement) may make an application to a court for an order under section 317 modifying or extinguishing that easement or covenant.

(2)That application may be made in a proceeding brought by that person for the purpose, or in a proceeding brought by any person in relation to, or in relation to land burdened by, that easement or covenant.

(3)That application must be served on the territorial authority in accordance with the relevant rules of court, unless the court directs otherwise on an application for the purpose, and must be served on

any other persons, and in any manner, the court directs on an application for the purpose.

[13]Section 317 of the Property Law Act empowers the Court to make such orders:

317Court 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:

(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.

[14]                This Court has exercised the power in similar situations. The decisions in Nova Scotia River Estates Ltd v Whangarei District Court3 and in Woodcocks Property Ltd v Auckland Council4 involved parallel situations, with land forming part of a development required to be vested in the councils to provide roads and reserves.

Discussion

[15]              I am satisfied the continuation of the easements would impede subdivision of the land because of the need to vest relevant portions in the QLDC. The evidence establishes that, by reason of the QLDC’s water reticulation scheme, the easements are redundant. There can be no detriment to the first respondents through the making of the order.

Order

[16]              I order that the easements created by memorandum of transfer 539330.2 and memorandum of transfer of grant of easement 521335.1 are extinguished.

[17]There is no order as to costs or disbursements.

Osborne J

Solicitors:
Todd & Walker Law, Queenstown (for Applicant)

3      Nova Scotia River Estates Ltd v Whangarei District Court [2017] NZHC 196.

4      Woodcocks Property Ltd v Auckland Council [2021] NZHC 1600.