Re Auckland Council

[2018] NZHC 275

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-3023

[2018] NZHC 275

UNDER

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

Law Act 2007

IN THE MATTER

of the extinguishment of a land covenant

EX PARTE

AUCKLAND COUNCIL and THE QUEEN

Applicants

Hearing:	12 February 2018
Appearances:	B Voutier and M Singh for Applicants
Judgment:	1 March 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 1 March 2018 at 2.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Auckland Council and Her Majesty the Queen [2018] NZHC 275 [1 March 2018]

[1]                 The applicants are adjacent developers of “brownfields” development sites at Hobsonville Point, Auckland, which previously formed part of the Hobsonville Airforce Base.

[2]                 The properties that are the subject of the application are affected by a land covenant which established strict rules on the creation and operation of a boat yard within the then operational Airforce Base. The land underlying the former Base has now been re-purposed from "Defence" to "State Housing" and accordingly it is agreed that the land covenant is no longer required.

[3]                 It is necessary for the applicants to apply to the Court for appropriate orders, however, because while there is no detriment to anybody arising from the extinguishment of the covenant, the surrender of a covenant requires the consent of the servient and dominant tenements and their mortgagees which, because there are currently 488 separate titles issued for land within the dominant tenement, is no longer a practical procedure. Active development and subdivision of the land continues and further titles will be issued. There is no requirement nor incentive on the registered proprietors or their mortgagees to co-operate and provide that consent, and it only needs one of those proprietors or their mortgagees to fail to respond or co-operate for the whole surrender process to be brought to a halt. This Court has the jurisdiction to provide a remedy under s 317 of the Property Law Act 2007.

[4]I am satisfied on the affidavit evidence that it is appropriate that:

(a)the proceeding be commenced by way of Originating Application without notice;

(b)appropriate orders extinguishing the land covenant should be made; and

(c)an order should be made directing the Registrar-General of Land to act in compliance with the Court's order.

[5]                 I am satisfied that the registered proprietors may well be unaware of the existence of the land covenant and, more significantly, that extinguishment would not detrimentally affect them in any way.

[6]Accordingly, by consent, I make the orders sought in the draft filed by counsel.

....................................................

Toogood J