Greenstone Land Developments Limited - [2022] NZHC 1419

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-34

[2022] NZHC 1419

UNDER the Property Law Act 2007

IN THE MATTER

of Parts 7 and 19 of the High Court Rules 2016 and ss 316 and 317 of the Property

Law Act 2007

AND

IN THE MATTER

of an application by Greenstone Land Developments Limited for an order

extinguishing easements

BETWEEN

GREENSTONE LAND DEVELOPMENTS LIMITED

Applicant

Hearing: On the papers

Appearances:

A McEwan for the Applicant

Judgment:

16 June 2022

JUDGMENT OF COOKE J

[1] Greenstone Land Developments Limited seeks orders under ss 316 and 317 of the Property Law Act 2007 (the Act) to partially extinguish two easements which are affecting a subdivision that it is in the process of completing. The application is supported by affidavits from Timothy Wilkins, a Director and Shareholder of the applicant, Adam Jones an engineer involved in the subdivision, and Stuart McLauchlan a legal advisor to the applicant.

RE GREENSTONE LAND DEVELOPMENTS LIMITED [2022] NZHC 1419 [16 June 2022)

[2] By minute dated 27 May 2022 I granted leave for the application to be brought by way of originating application under Pt 19 of the High Court Rules 2016. I also directed that the application be served on Hastings District Council (the Council) in accordance with s 316(3) of the Act. When doing so I indicated that it might well be unnecessary for any other persons to be served, but that the Council should be given the opportunity to be heard on that question.

[3] Service has been affected, and the Council has since filed a memorandum advising that it abides by the decision of the Court.

Background

[4] The applicant is a land development company based in Hawkes Bay. In 2020 it purchased rezoned farmland adjacent to the coastal settlement of Te Awanga for the purposes of subdivision. It was duly granted subdivision resource consent from the Council. The subdivision earthworks and civil works are now complete.

[5] The applicant is seeking approval of a survey plan under the Resource Management Act 1991 (RMA) so that it can obtain titles for stage one of the development. In order to do so there are lots that need to vest to Council for roads and general reserves. This is required under the conditions of the resource consent.

[6] The title to the land has two memorials for easements registered on it, which are the subject of the application. The two memorials are Conveyance 56404 which relates to water and pipeline rights, and Deed 39985 which relates to drainage rights (together “the easements”).

[7] Under ss 238 and 239 of the RMA vesting a road or a reserve has the effect of freeing the land from any encumbrance or interest that it is subject to.1 Both provisions are enabled by the Registrar-General of Land depositing a survey plan. However, under s 224 there are restrictions upon the deposit of a survey plan. Section 224 relevantly provides:

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 Greenstone Land Developments Limited

Details

AGLC: Greenstone Land Developments Limited [2022] NZHC 1419
Case: [2022] NZHC 1419
Decision Date: 16 June 2022

CaseChat Overview and Summary

Greenstone Land Developments Limited applied to the High Court of New Zealand for an order to partially extinguish two easements affecting a subdivision it was completing. The easements, registered under Conveyance 56404 and Deed 39985, pertained to water and pipeline rights and drainage rights, respectively. The applicant argued that the easements could not be defined as the original documents were destroyed, likely during the 1931 Napier earthquake and fire. Consequently, the easements could not be communicated to the relevant landowners, making it impractical to seek their consent for the subdivision. The application was brought under sections 316 and 317 of the Property Law Act 2007. The court had to determine whether further service on affected landowners was necessary and whether the easements should be partially extinguished.

The court considered the procedural aspect of whether further service on affected landowners was necessary. Two lines of authority were identified: one suggested that further service was not required due to the impracticality and potential for obstruction, while the other emphasised the importance of serving affected property owners to respect their rights under natural justice. The court found that in this case, further service was unnecessary because the nature of the easements was undefined, progress with the subdivision was urgent, and there were no apparent issues with the vesting of land with the Council. The court also noted the risk of potential objections from landowners that would likely be without merit.

On the substantive application, the court examined whether the easements should be partially extinguished. Section 317 of the Property Law Act 2007 allows for the modification or extinguishment of an easement if the court is satisfied that the easement should be modified or extinguished due to certain circumstances, including a change in relevant circumstances since its creation. The applicant argued that the easements were likely destroyed in the 1931 Napier earthquake and fire, and their nature was now unknown. Given that the easements appeared to be of no significance and that the applicant only sought to remove them for a small part of the land to establish roadways and reserves, the court found that the circumstances warranted the partial extinguishment of the easements as sought by the applicant.

In conclusion, the court granted the application to partially extinguish the easements in the terms sought by the applicant, considering the circumstances where the nature of the easements was undefined and their significance appeared to be lost.

Orders