Exclusive Developments Limited v Winter

[2024] NZHC 1331

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-120

[2024] NZHC 1331

UNDER

the Property Law Act 2007

IN THE MATTER

of an application under section 316 of the Act

BETWEEN

EXCLUSIVE DEVELOPMENTS LIMITED

Applicant

AND

ANNA CHRISTINE WINTER & OTHERS

First Respondents

QUEENSTOWN LAKES DISTRICT COUNCIL

Second Respondent

Hearing:	(On the papers)
Counsel:	M R Walker and B B Gresson for Applicant
Judgment:	24 May 2024

JUDGMENT ASSOCIATE JUDGE LESTER

(in respect of directions as to service)

EXCLUSIVE DEVELOPMENTS LIMITED v WINTER [2024] NZHC 1331 [24 May 2024]

[1]                 The applicant applies to extinguish two easements; one dated April 1979 and the other dated July 1980. Both easements create the right to instal a pipe through  the burdened land to convey water from the Clutha River to the benefitted land. The applicant seeks directions that it need not serve the landowners with the benefit of the easements and a direction that it serve the Queenstown Lakes District Council (the Council).

[2]                 The evidence is that neither pipeline was in fact installed. I note the easement dated July 1980 provided that installation of the pipeline and the consequential restoration of the land was to be completed by 30 August 1979 (how that date reconciles with the dating of the easement is not explained).

[3]                 Land with the part of the burden of the easements is being subdivided by the applicant, Excusive Developments Limited (EDL). EDL is creating residential allotments which will result in roads vesting in the Council. The named first respondents are the individual landowners of lots created through EDL’s subdivision or through other subdivisions.

[4]                 The extinguishment of the easements is sought because their presence precludes a road created as part of the subdivision vesting in the Council because of s 224(b)(i) of the Resource Management Act 1991. EDL says obtaining consent from the owners of the 18 lots with the benefit of the easements is impracticable. However, EDL proposes that the application be served on the Council.

[5]                 EDL seeks leave to bring its application by way of originating application and in addition, seeks an order dispensing with service on the first respondents — the 18 landowners with the benefit of the easements.

[6]                 EDL says the easements should be extinguished because of a change in the nature of the use of the land and that the easements are no longer being used (if indeed they ever were used). The benefitted land now obtains water through a Council reticulated water supply scheme.

[7]                 Cancellation of the easement in respect of the land to vest in the Council as road will mean the easement insofar as it exists on properties downstream of the new road will be rendered unusable. Those landowners could not, if they wanted, install the pipeline to the Clutha River, because they will no longer be able to run the pipeline along the land that has vested in the Council as road. Therefore, EDL seeks that the easement be cancelled in respect of all properties with the benefit of the easement.

[8]                 A telephone conference was held with counsel on 28 February 2024 to discuss the various maps and diagrams produced in support of the application.

[9]                 Mr Gresson, counsel for the EDL, has filed a further memorandum confirming that the correct location of the easement is on an existing Aubrey Road (previously called Anderson Road). This clarification was sought as at least some of the diagrams suggested that the easement may be located other than on the road.

[10]              I have already noted that the evidence is no pipeline was in fact installed. Excavation work undertaken where the road is to vest in the Council discloses no pipeline. No pumphouse, which would be required for the pipeline to operate, exists. Further, Mr Gresson advises that in order for the pipeline to have been installed on the exiting road, the Council would normally grant a licence to occupy for the pipeline. No record of such a licence exists. Further, should any landowner with the benefit of the easement want to  now install such a pipeline, they would need to obtain such     a licence to occupy from the Council.

[11]              Even if some informal agreement with the Council was obtained at the time the easement was registered, it was never formalised and no existing right granted by the Council to instal a pipeline has been identified.

[12]              The fact is that the 18 properties with the benefit of the easement are now all residential or relatively small lifestyle blocks serviced by mains water. The landowners with the benefit of the easement are all in the general location of the subdivision works being carried out by EDL. The road to vest in the Council that is the reason for EDL’s application is formed. If any of the landowners with the benefit of the easement were aware of the easement, they would have likely seen that the

works undertaken in the area of land to vest in the Council as road was inconsistent with the easement being used. That is not to say that EDL, through forming the road, could deprive the landowners of the benefit of the easement, but the fact that none of them have voiced any concern about the formation of the road is some support for EDL’s primary submission that the easements have become entirely redundant.

[13]              Whether the landowners with the benefit of easements 539330.2 could in fact now seek to activate it seems unlikely given the easement required that the installation of the pipeline “…shall be concluded by the 30th day of August 1979”. There is no time limit in easement 521335.1.

[14]In short, EDL says it is not necessary to serve the landowners because:

(i)the pipeline was never installed;

(ii)installing the pipeline would now require the consent of the Council, the implication being that would not be forthcoming;

(iii)the affected lots now have the benefit of mains water;

(iv)the lots are now residential lots rather than rural lots — a rural lot without mains water could be expected to want to preserve the ability to access;

(v)there has been no attempt to take advantage of the rights created by the easements since they were registered in 1980;

(vi)the time for the pipeline to be installed under one easement has long passed;

(vii)the general character of the neighbourhood has changed from rural to residential subdivision; and

(viii)the ongoing subdivision works and the formation of the road in question is inconsistent with the continued existence of the easements

and it is likely that the local landowners, if they were aware of the easements, would be aware those works were inconsistent with the easement but no protest has been raised.

[15]              In short, EDL submits there is no reasonable basis for considering that any of the landowners with the benefit of the easement would be affected by it being cancelled. I agree.

Orders

[16]There is an order dispensing with service on the first respondents.

[17]There is an order that the second respondent is to be served.

[18]              There is an order giving leave for the application to be commenced as an originating application.

Associate Judge Lester

Solicitors:

Todd & Walker Law, Queenstown (for Applicant)