Koko Ridge Limited - [2023] NZHC 1187

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-24

[2023] NZHC 1187

In the matter of Part 19 of the High Court Rules 2016 and ss 316-317 of the Property Law Act 2007

And

In the matter of an application by

Koko Ridge Limited

Hearing: On the papers

Judgment:

18 May 2023

JUDGMENT OF HARLAND J

Introduction

[1] The applicant, Koko Ridge Ltd (Koko Ridge), seeks to bring a without notice originating application for orders under ss 316 and 317 of the Property Law Act 2007 (PLA) removing several easements and covenants from land which is to be vested in the Queenstown Lakes District Council (the Council) as a public road for a subdivision.

Background

[2] Koko Ridge is undertaking a two-stage residential subdivision of land in Queenstown. It is the registered proprietor of the land contained within RT 522182, described as Lot 1 DP 431492 (East title), and RT 103217, described as Lot 2 DP 325561 (West title). The land contained in the titles abut one another.

KOKO RIDGE LTD [2023] NZHC 1187 [18 May 2023]

[3] The subdivision has made considerable progress. Consents have been granted, physical works have largely been completed including installation of services and some roading, and several lots have been pre-sold with some owners beginning construction of residences.

[4] A portion of the land will dedicate or vest in the Council as a public road; the eastern portion to be named Kahiwi Drive and the western portion to be named Miro Place.

[5] The land is, however, subject to several easements and covenants addressing matters such as water, reverse sensitivity in respect of the airport and parameters for certain construction.

[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 may be, free from all interests…

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 Koko Ridge Limited

Details

AGLC: Koko Ridge Limited [2023] NZHC 1187
Case: [2023] NZHC 1187
Decision Date: 18 May 2023

CaseChat Overview and Summary

Koko Ridge Limited, an applicant, sought to have certain easements and covenants removed from land intended to be vested in the Queenstown Lakes District Council as a public road for a subdivision. The court had to decide whether the application could proceed without notice, and if the easements and covenants could be removed as sought by Koko Ridge. The court granted leave for the application to proceed as an originating application without notice. It found that the extinguishment of the easements and covenants would not substantially injure any entitled person and was in the interests of justice. The court granted the orders sought by Koko Ridge, extinguishing specific easements and covenants from the land intended to vest in the Council as a public road.

Orders