MCA 29 Limited v Western Bay of Plenty District Council

[2025] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2025-470-74

[2025] NZHC 1304

UNDER

Parts 7 and 19 of the High Court Rules and s 317 of the Property Law Act 2007

IN THE MATTER

of an application under s 317 of the Property Law Act 2007 to modify Easement 10879715.8

BETWEEN

MCA 29 LIMITED

Applicant

AND

WESTERN BAY OF PLENTY DISTRICT COUNCIL

Respondent

Hearing:	On the papers
Appearances:	T J Condor and J McNally for the Applicant
Judgment:	23 May 2025

JUDGMENT OF GAULT J

This judgment was delivered by me on 23 May 2025 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr T J Condor and Mr J McNally, Holland Beckett, Tauranga Copy to:

Ms K M Stubbing (counsel for Western Bay of Plenty District Council, Cooney Lees Morgan), Tauranga

MCA 29 LTD v WESTERN BAY OF PLENTY DISTRICT COUNCIL [2025] NZHC 1304 [23 May 2025]

[1]    MCA 29 Ltd (MCA) is developing a property at Ōmokoroa near Tauranga.1 MCA seeks, by way of originating application,2 an order modifying the easements contained in instrument 10879715.8 that permit the conveyance of water, electricity, telecommunications and computer media services and the drainage of water and sewage (the Services), by removing those rights from Area A on DP 509984 and replacing them with easements in identical terms in favour only of Lots 13, 15, 18, 19 and 20 on DP 514467 and Lots 14 and 16 on DP 509984 (the neighbouring lots) over the area marked D on LT 6008502.

[2]MCA seeks to proceed with the application without notice.

[3]    Section 316 of the Property Law Act 2007 (PLA) provides for an application to be made to the Court for an order modifying or extinguishing an easement or a covenant. It provides that an application must be served on the territorial authority unless the Court otherwise directs, and must be served on any other persons and in any manner the Court directs, on an application made to the Court for that purpose. In this case, the territorial authority (Western Bay of Plenty District Council) has provided its consent to the application proceeding without being served on it and does not oppose the application.

[4]    MCA applies for an order that the application not be served on other persons on the basis that no party is adversely affected by the order sought and that there is a degree of urgency such that requiring it to proceed on notice would cause undue delay or prejudice. Mr Condor advised that there are approximately 20 owners of titles with the benefit of the easement.

[5]    When the matter was first referred to me, I indicated that the degree of urgency was unclear. A further memorandum of counsel for MCA and a telephone conference helpfully clarified that the applicant is not facing a deadline – its reference to urgency simply reflects the fact that delay comes at a real cost – and Mr Condor submitted that grounds  to  be heard without  notice are made  out  without  reference to  urgency.    I therefore focus on the submission that the evidence establishes that the application

1      Lot 17 of DP509984.

2      I granted permission to proceed by way of originating application in my minute of 16 May 2025.

will not have any practical effect on the owners of other properties. As Mr Condor submitted, this coincides with one of the bases for modification of an easement under s 317 of the PLA, namely that the Court may modify an easement if satisfied that the proposed modification “will not substantially injure any person entitled”.3

[6]    Care is required when the basis for proceeding without notice relates to the merit of the case on review of the applicant’s evidence. Inherently that involves consideration of the applicant’s evidence without giving others an opportunity to contradict it or otherwise be heard. But Mr Condor referred me to cases where the Court has dealt with applications to modify or extinguish covenants without notice on the basis that no party is affected.4 I accept that is appropriate in clear cases.

[7]    Here, the evidence indicates that the purpose of the easements was to provide access both to the Services, and (by way of the right-of-way) access to Ōmokoroa Road, which is the main road in the area. The rights granted by the easements, in particular the right-of-way, were intended to be temporary – until separate road access to Ōmokoroa Road was completed. This is why the easements record that the rights “shall be granted until such time as the Western Bay of Plenty District Council’s … structure plan road becomes operative providing permanent road access to the dominant tenements”.

[8]    The road has now been operative for some time. However, due to the framing of the easements, surrendering in full would have resulted in the loss of right-of-way for the small number of titles that still require it. For this reason, MCA applied to the Court to have the easement varied, and orders varying the right-of-way were granted on 22 June 2023, and a correction to those orders made on 29 August 2024.

[9]    Meanwhile, the rights granted by the easement have been superseded. First, the majority of the benefited land does not have any boundary with the property.  Nor do they have easements that run through adjacent properties to access the Services. Rather, they all access the Services from the public road. For these owners,

3      Property Law Act 2007, s 317(1)(d).

4      Re Horncastle Homes Ltd [2015] NZHC 987; Re Spring Grove Land Ltd (2016) 18 NZCPR 212 (HC); Re Auckland Council [2018] NZHC 275; and RCL Henley Downs Ltd v RCL Jack’s Point Ltd [2020] NZHC 3020.

they have no practical way to benefit from the easement as their supply of the Services is from the source, not from the property.

[10]   To the extent that the Services that ultimately reach their property are provided from utilities that run underneath the property, the individual titles do not benefit from having easements that ensure those rights. Rather, the usual position is that the service providers themselves have those rights.

[11]   For this reason, MCA have also now reached agreements with the service providers, Chorus Ltd,  Powerco Ltd and Western  Bay of Plenty District  Council,  to register easements to provide for the Services that run through the Property and supply the public road (where they are then available to the owners of the benefited land). This is the usual way these services are provided. The service providers have consented to this.

[12]   For those handful of titles that will access the Services directly at the boundary of Lot 17, their rights will be preserved by the modified easements, which will enable them to access the Services. Accordingly, their use of the Services and their ability to maintain their connection will be unaffected.

[13]   Having considered the affidavits and memoranda in support, I am satisfied that no person is injured or affected in any substantive way and that it is appropriate for the application to be determined without notice, and for the modification order sought to be granted.

[14]Orders accordingly as sought.

Gault J