G W Wilfield Limited - [2022] NZHC 3212

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000526

[2022] NZHC 3212

UNDER the Property Law Act 2007

IN THE MATTER OF

an application by G W WILFIELD

LIMITED for an order that a covenant be extinguished

Hearing: On the papers

Judgment:

2 December 2022

JUDGMENT OF NATION J

[1] The applicant (Wilfield) seeks to bring a without notice originating application for orders under the Property Law Act 2007 removing a covenant from land which is to be vested in the Council for road and reserves for a subdivision.

Background

[2] The application relates to a residential subdivision in West Melton. The subdivision has 189 residential lots to date, with a further 92 sold and currently under construction. Wilfield has also recently acquired 10.5 ha of land for further stages of the subdivision.

[3] The land for the subdivision is subject to a covenant. I refer to the land which has the benefit of the covenant as “dominant land”.

[4]In substance, the covenant requires the owner of the affected land to:

RE G W WILFIELD LTD [2022] NZHC 3212 [2 December 2022]

(a) provide written approval to, and support, any application (including any application for resource consent or regulatory permission) for subdivision of the dominant land;

(b) otherwise not inhibit such subdivision; and

(c) design, construct and operate chicken sheds in accordance with good trade practice using tunnel ventilation and use best endeavours to minimise discharge of air over the dominant land.

[5] In order to subdivide parts of the affected land into residential lots, it is inevitable that part of the land will need to vest in the local authority (the Selwyn District Council) or the Crown as road or reserve.

[6]Section 238 of the Resource Management Act 1991 (RMA) provides:

238 Vesting of roads

(1) When the Registrar-General of Land deposits a survey plan, or a Chief Surveyor approves a survey plan to which section 228 applies, the land shown on the survey plan as road to be vested in a local authority or the Crown vests, free from all interests in land including any encumbrances (without the necessity of any instrument of release or discharge or otherwise),—

(a)in the case of a regional road, in the territorial authority or regional council, as the case may be:

(b)in the case of a Government road declared as such under any Act, in the Crown:

(c)in the case of a State highway, in the Crown or the territorial authority, as the case may be:

(d)in the case of any other road, in the territorial authority.

[7]Section 239(1) of the RMA provides:

239 Vesting of reserves or other land

(1) When the Registrar-General of Land deposits a survey plan, or a Chief Surveyor approves a survey plan to which section 228 applies,—

(a)any land shown on the survey plan as reserve to be vested in the territorial authority or the Crown, vests in the territorial authority or the Crown, as the case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading G W Wilfield Limited

Details

AGLC: G W Wilfield Limited [2022] NZHC 3212
Case: [2022] NZHC 3212
Decision Date: 2 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, G W Wilfield Limited applied for an order to extinguish a covenant in order to allow for the subdivision of land into residential lots. The covenant required the owner of the affected land to provide written approval for any application for subdivision of the dominant land, not inhibit such subdivision, and design, construct and operate chicken sheds in accordance with good trade practice using tunnel ventilation and using best endeavours to minimise discharge of air over the dominant land. The court was required to decide whether it was just and equitable to extinguish the covenant to allow for the subdivision. The court found that the extinguishment of the covenant was necessary to effect the vesting of the road and reserve in the Selwyn District Council or the Crown and for Wilfield to undertake the subdivision of the affected land. The extinguishment of the covenants for the land to be vested as road or reserve would not substantially injure the proprietors of the dominant land. The court granted Wilfield’s application for orders extinguishing the covenant in terms as sought. Any costs for registering the orders granted against the records of title for lots within the dominant land are to be paid by Wilfield.

Orders