Johns Road Horticultural Limited v Powell - [2023] NZHC 511

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-288

[2023] NZHC 511

BETWEEN JOHNS ROAD HORTICULTURAL LIMITED
Applicant

AND

JOHN WILLIAM POWELL

First Respondent

AND

DEVONDALE NURSERIES LIMITED

Second Respondent

AND

BELFAST VILLAGE CENTRE LIMITED

Interested Party

AND

ATTORNEY-GENERAL

Party directed to be served

Hearing: 21 February 2023

Appearances:

A L Davidson and S D Munro for Applicant S P Rennie for First and Second Respondents M K Prendergast for Interested Party

A Hill for Attorney-General

Judgment:

15 March 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 15 March 2023 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

JOHNS ROAD HORTICULTURAL LIMITED v POWELL [2023] NZHC 511 [15 March 2023]

[1] This is an application by Johns Road Horticultural Ltd (JRHL) under ss 316 and 317 of the Property Law Act 2007 (the Act) to modify easement instruments 704856.5 and 6863907.5 (the Easements) so that, to the extent the Easements affect JRHL’s land, they are extinguished.

[2] Easement 704856.5 (the First Easement) was registered on or about 30 September 1987 and provides the benefited properties with the right to drain water over the burdened properties.

[3] Easement 6863907.5 (the Second Easement) was registered on or about 4 May 2006 and provides the benefited properties with a right of way, right to drain water and sewage, right to convey water, electric power and telephonic communication over the burdened properties.

The parties to the application

[4] The application was served on all parties with the benefit of the Easements, along with the Christchurch City Council. Responses to the application were filed by the following parties:

(a)the Attorney-General;

(b)Devondale Nurseries Ltd (DNL) and John William Powell;

(c)Perpetual Trust Ltd as trustee of the Belfast Community Trust;

(d)Belfast Village Centre Ltd (BVCL).

[5] The Attorney-General abides the decision of the High Court, as does Belfast Community Trust.

[6] DNL and Mr Powell opposed the application, initially on broad grounds but, by 14 February 2023, on the limited basis that “the purpose of the Easements, drainage of water, remains” and “is a circumstance relevant to the application”, and the proposed modification would “substantially injure” Mr Powell and DNL.

[7] BVCL did not oppose the application but, in the event the Court granted JRHL’s application, it sought the extinguishment of the First Easement as it relates to BVCL’s property as well. It asked the Court, in the particular circumstances of the case, to dispense with the need to serve all affected parties.

[8] A hearing of JRHL’s application commenced on 21 February 2023. However, after hearing from Mr Munro, counsel for JRHL, the parties sought an adjournment to see if agreement could be reached. In due course, agreement was reached permitting the application to proceed unopposed. At that point I also heard from counsel for BVCL, and I was satisfied it was appropriate to extinguish the Easements as sought by both JRHL and BVCL. I confirmed…

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.

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Details

Case: [2023] NZHC 511
Decision Date: 15 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Johns Road Horticultural Limited (JRHL) applied for the modification of two easements to extinguish them as they affected JRHL's land. The first easement, registered in 1987, provided the benefited properties with the right to drain water over the burdened properties. The second easement, registered in 2006, provided the benefited properties with a right of way, right to drain water and sewage, right to convey water, electric power, and telephonic communication over the burdened properties. The application was opposed by Devondale Nurseries Limited (DNL) and John William Powell, who argued that the purpose of the easements, drainage of water, remained and that the proposed modification would substantially injure them. Belfast Village Centre Limited (BVCL) did not oppose the application but sought the extinguishment of the first easement as it related to BVCL's property as well. The court found that the nature and extent of the use of the JRHL land had changed significantly, and in a way not contemplated by the original parties when the easements were registered. The court also found that the easements impeded the reasonable use of the JRHL properties in a different manner and extent from that which could have been reasonably foreseen by the original parties to the easements. The court further found that modifying the easements would not cause any injury, let alone substantial injury to the respondents. The court exercised its discretion to grant the orders sought by JRHL and BVCL, and the easements were modified so that specified parts of the easements were extinguished over the applicant's land and BVCL's land.

The court found that the nature and extent of the use of the JRHL land had changed significantly since the easements were registered. The court also found that the easements impeded the reasonable use of the JRHL properties in a different manner and extent from that which could have been reasonably foreseen by the original parties to the easements. The court found that modifying the easements would not cause any injury, let alone substantial injury to the respondents. The court exercised its discretion to grant the orders sought by JRHL and BVCL, and the easements were modified so that specified parts of the easements were extinguished over the applicant's land and BVCL's land. The court found that BVCL's application could be considered as part of JRHL's application, and it was appropriate to do so. The court also found that there was no need for BVCL to separately serve its application for the reasons set out above. The court made orders in accordance with the draft order and the attached plan prepared by Graham Surveying. The Registrar-General of Land was directed to extinguish the easements from the burdened allotments, and the registered proprietors of the relevant benefitted or burdened land were directed to sign all documents and do all things required to give effect to the orders.

Orders