Stoke Valley Holdings Limited

[2020] NZHC 430

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2019-442-77

[2020] NZHC 430

IN THE MATTER

AND

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

Law Act 2007

IN THE MATTER

of an application by STOKE VALLEY HOLDINGS LIMITED and SOLITAIRE

INVESTMENTS LIMITED for an order extinguishing easements

BETWEEN

STOKE VALLEY HOLDINGS LIMITED AND SOLITAIRE INVESTMENTS

LIMITED

Applicants

Teleconference:	7 February 2020
Counsel:	A M Halloran for Applicants
Judgment:	6 March 2020

JUDGMENT OF GRICE J

(Extinguishing easements)

[1]                 This is a matter due to be called at a case management conference on 20 March 2020. However, the applicant has asked the matter be dealt with earlier than that due to pressures in finalising the relevant subdivision.

[2]This originating application in so far as is relevant seeks orders:

(a)extinguishing three easements that are registered over the titles of land owned by the two applicants namely Stoke Valley Holdings Limited

APPLICATION BY STOKE VALLEY HOLDINGS LIMITED AND SOLITAIRE INVESTMENTS LIMITED [2020] NZHC 430 [6 March 2020]

(Stoke Valley) and Solitaire Investments Limited (Solitaire) pursuant to ss 316 and 317 of the PLA; and

(b)Directing the Registrar-General of Lands to extinguish wholly the easements granted by this judgment.

[3]                 These orders are sought as the land is in the process of being subdivided and the easements that were originally registered over the “parent” land are no longer required for the purpose of the easements. They prevent the vesting of land for road or reserve purposes required as a result of subdivision.

[4]                 The applicants have filed affidavit evidence in support of the application for extinguishing the easement, including from a surveyor and a lawyer expert who has been involved in the subdivision. The effect of the evidence is that the easements in question are now practically redundant and they prevent the progress of subdivision consents which have been granted.

[5]The affidavits in support of the application are from:

(a)Mr Stuart Andrew Calder – for Stoke Valley Holdings Ltd;

(b)Mr Paul Le Gros – for Solitaire Investments Ltd;

(c)Mr Steven Mark Reinier Odenton a Surveyor – a surveyor familiar with the subdivision;

(d)Ms Sian Rhiannon Holden – a solicitor experienced in subdivision matters.

[6]                 Sections 316 and 317 of the Property Law Act allow this Court to make an order extinguishing easements. In this case that procedure is considered the only available option to the applicants as there are a number of titles that now how hold the benefit of the easements in question and the evidence is that there would be substantial difficulty in obtaining consent from the relevant parties. Therefore, that course impractical.

[7]                 The Court’s permission is sought without notice to bring this application as an originating application pursuant to r 19.5 of the High Court Rules 2016.

[8]                 I granted leave for the application to be brought by way of originating application and directed that service of the application be effected on the Nelson City Council.1 The Council has now been served and further submissions and evidence on to the position of the Council has been provided.  A Nelson  City Council  officer,  Mr Louverdis confirmed that the Council consents to the extinguishment of the easements. He says they are now historic and their extinguishment will not prejudice nor harm the interests of any benefited party as there is appropriate infrastructure now in place which effects the services contemplated by the easements. This includes water reticulation, roads and the Chorus network (telecommunications and fibre).

[9]                 A private arrangement relating to the practical benefit of the water easement for the benefit of Solitaire’s land which burdens Stoke Valley land is the subject of a private arrangement between Stoke Valley and Solitaire, the applicants. Solitaire’s land is the only for which the water easement has any practical benefit now.

[10]            There is authority for these applications extinguishing easements to follow this process.2 I am satisfied that the easements can be extinguished under s 317 of the Property Law Act 2007 having regard to their now redundant nature and the lack of detriment to any party holding the benefit of the easements to be extinguished. The only exception to that is the practical benefit for land owned by Solitaire over land owned by Stoke Valley. However, both are applicants in this matter and have deposed to an arrangement that will be the subject of a private agreement between them. That is effective consent by Solitaire in the circumstances.

[11]            In this case the extinguishment of the easements by order of the Court is the most practical and cost effective method of doing so. It brings certainty of outcome allowing the new titles are about to be issued. The agreements for sale and purchase are dependent on the issue of the titles. No person will be detrimentally affected by

1      Stoke Valley Holdings Ltd and Solitaire Investments Limited, Minute of Grice J, 22 November 2019.

2      See: An Application by Spring Grove Ltd [2016] NZHC 2019.

the extinguishment of the easements. I am satisfied that in the circumstances the continuation in force of the relevant easements would impede the reasonable use of the land in a different way or to a different extent to that which could reasonably have been foreseen by the original parties to the easements at the time of their creation.3

[12]Therefore, I grant the orders in terms of the revised application accordingly:

(1)The following easements are extinguished:

(a)    Easement instrument 6620324.16;

(b)    Transfer 378423.11;

(c)    Transfer 378423.10.

(2)That the Registrar-General of Lands is directed to extinguish wholly the easements granted by this judgment.

[13]            As the matter has now been finally determined it may be removed from the list for 20 March 2020.

Grice J

Solicitors:

Pitt & Moore, Nelson

3      Property Law Act 2007, s 117,