Re Baigent

[2021] NZHC 2478

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2021-442-43

[2021] NZHC 2478

IN THE MATTER

of Parts 7 and 19 of the High Court Rules

2016 and Sections 316 and 317 of the Property Law Act 2007

AND

IN THE MATTER

of an application by PAUL NOEL BAIGENT, MARY NOEL BAIGENT and

BARBARA NOEL CAMERON for an order extinguishing easements

BETWEEN

PAUL NOEL BAIGENT, MARY NOEL BAIGENT and BARBARA NOEL CAMERON

Applicants

On the papers
Counsel:	A M Halloran for Applicants
Judgment:	21 September 2021

JUDGMENT OF SIMON FRANCE J

[1]                 The applicants plan a subdivision which has received consent. In order to be able to act on the consent, the applicants ask the Court to extinguish, on a without notice basis, an easement registered over the title. The easement benefits 28 other titles.

[2]                 The basis on which it is said the Court can confidently act on a without notice basis is that the evidence filed establishes:

RE APPLICATION BY BAIGENT [2021] NZHC 2478 [21 September 2021]

(a)the easement has not been used by any of the beneficiaries for at least 50 years;

(b)the easement is no longer of practical effect because the Wai-iti River has moved rendering right of way using the easement impractical; and

(c)the 28 titles are able to be accessed via the public highway.

[3]                 Section 316 of the Property Law Act allows for such applications. However, it provides that unless the Court directs otherwise, it must be served on the territorial authority. It is also to be served on any other person the Court directs.

[4]                 It would be unusual for a Court to extinguish a property right without notice to the beneficiary of that right. Counsel rely on two cases where it is said the Court did just that, but I do not consider they stand for that proposition.

[5]                 In Re Spring Grove Ltd1 the application for extinguishment was limited to those titles that were to be used for public purposes or utilities. The privately owned titles were to keep the benefit of the easement. In Re Yoursection Ltd2 it was a limited easement concerning maintenance of drains. As it happened the Council had already been maintaining the drains for some time and was accepting the ongoing task of doing so. The case bears little resemblance to the present.

[6]                 I am far from persuaded that it is appropriate to not direct service on the affected property owners. There is no sound reason advanced why it has not been done other than claimed inconvenience. The evidence filed, however, lists the titles and the current owners. It is suggested there is time pressure because some sale agreements have sunset clauses. However, the timing of the matter has been in the hands of the applicants and it is not a reason to dispense with service on the beneficiaries of the easement.

1      Re Spring Grove Ltd [2016] NZHC 2109.

2      Re Yoursection Ltd [2019] NZHC 1825.

Conclusion

[7]                 The application for the Court to deal with the matter on a without notice basis is declined.

Orders

(a)The matter may be commenced by way of originating application.

(b)Service on the Tasman District Council is dispensed with, although a copy of this Ruling should be provided.

(c)Service is to be made on all registered title holders of the beneficiary lands.

(d)The owners of those properties are to have three weeks to file a notice of opposition if they wish to.

Simon France J

Solicitors:

Pitt & Moore, Nelson for Applicants