Orewa Developments Limited

[2019] NZHC 575

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-360

[2019] NZHC 575

IN THE MATTER

of ss 316 and 317 Property Law Act 2007

AND

IN THE MATTER

of an application by OREWA DEVELOPMENTS LIMITED for an Order Modifying Covenants

Hearing:	On the papers
Judgment:	26 March 2019

JUDGMENT OF GORDON J

This judgment was delivered by me

on 26 March 2019 at 12.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Dawsons, Howick
Counsel:            S Robertson QC, Auckland

Re Orewa Developments Ltd [2019] NZHC 575 [26 March 2019]

[1]                 The applicant, Orewa Developments Ltd, has made an on-notice application dated 1 March 2019 for orders modifying land covenants under s 317 of the Property Law Act 2007 (the Act).

[2]                 In an affidavit sworn in support of the application, solicitor William Endean, who has acted for the applicant since 2013, deposes that an error occurred on the issue of titles in Stage 1D of the subdivision concerned, in that mutual building and fencing covenants applicable to the Stage 1D titles were also brought down on the residue title. The residue title includes land that will vest as roads and reserves. LINZ will not progress the issue of titles for Stage 3 of the development with the covenant applying to land that will vest as roads and reserves.

[3]                 An application is accordingly made to modify the building and fencing covenants so that they do not apply to any land that will become road or reserves.

[4]Section 317 of the Act provides in relevant part:

317     Court may modify or extinguish easement or covenant

(1)On an application (made and served in accordance with section 316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—

(a)the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:

(i)the nature or extent of the use being made of the benefited land, the burdened land, or both:

(ii)the character of the neighbourhood:

(iii)any other circumstance the court considers relevant; or

(b)the continuation in force of the easement or covenant in its existing form would impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties to the easement or covenant at the time of its creation; or

(c)every person entitled who is of full age and capacity—

(i)has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or

(ii)may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part;

…

[5]The application as filed relies on s 317(1)(b) of the Act.

[6]                 In addition, all relevant parties have since been served with the application and associated documents, and each of those parties has filed a memorandum consenting to the order as sought. Ms Robertson QC for the applicant submits that s 317(1)(c) also now applies.

[7]                 This Court has a discretionary jurisdiction to modify or to wholly or partly extinguish any land covenant pursuant to s 317 of the Act.1

[8]                 In terms of s 317(1)(b), I am satisfied on the evidence of Mr Endean that the continuation in force of the land covenants in the two easement instruments in their existing form would impede the reasonable use of the burdened land in a different way or to a different extent from that which could reasonably have been foreseen by the original parties to the covenant at the time of its creation.

[9]                 I am also satisfied in terms of s 317(1)(c) that all relevant persons have agreed that the covenants should be modified as sought in the application.

[10]I make the following orders:

(a)That the land covenant in Easement Instrument 11116850.5 be modified by adding and including the following:

Notwithstanding any provision herein contained, the within covenants shall cease to have any effect (and shall automatically surrender) as to any Lot which shall vest or be dedicated as road or reserve at any time

1      Re Spring Grove Land Ltd [2016] NZHC 2109; and Re Belfast Business Park Ltd [2018] NZHC 554.

(including, by way of example but not limitation, where a Lot vests as road or is dedicated as road in respect of any subsequent stages of the Subdivision of Lot 800-801 DP 523423 including the subdivision pursuant to LT Plan 528791). Such cessation and surrender shall be effective automatically upon the deposit of the subdivision plan and vesting or dedication or any lot as road or reserve.

(b)That the land covenant in Easement Instrument 11116850.6 be modified by adding and including the following:

Notwithstanding any provision herein contained, the within covenants shall cease to have any effect (and shall automatically surrender) as to any Lot which shall vest or be dedicated as road or reserve at any time (including, by way of example but not limitation, where a Lot vests as road or is dedicated as road in respect of any subsequent stages of the Subdivision of Lot 800-801 DP 523423 including the subdivision pursuant to LT Plan 528791). Such cessation and surrender shall be effective automatically upon the deposit of the subdivision plan and vesting or dedication of any Lot as road or reserve.

Gordon J