Te Manuao Developments Limited

[2022] NZHC 981

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2022-454-017

[2022] NZHC 981

BETWEEN

TE MANUAO DEVELOPMENTS LIMITED

AND

COUNTY HEIGHTS LIMITED

Applicants

Hearing:

9 May 2022

Counsel:

M Leggat and L R Griffin for Applicants

D Laing and D Hurley for Kapiti Coast District Council (appearance excused)

Judgment:

10 May 2022

JUDGMENT OF CHURCHMAN J

Introduction

[1]                  Te Manuao Developments Ltd and County Heights Ltd (the applicants) have made two applications to the Court. Firstly, an application for orders granting permission to bring proceedings by way of originating application; and secondly, a without notice originating application to extinguish easements pursuant to ss 316 and 317 of the Property Law Act 2007 (the Act). Their second application is in respect of particular riparian rights required to be extinguished, in order for the applicants to be able to register roads for subdivisions they are developing in the Kapiti-Horowhenua region.

[2]                  The without notice nature of the application means that the applicants are seeking to extinguish registered interests without notifying all of the registered interest

TE MANUAO DEVELOPMENTS LIMITED & COUNTY HEIGHTS LIMITED [2022] NZHC 981 [10 May 2022]

holders. The application was served on the Kapiti Coast District Council, to whom the applicants were required to give notice pursuant to s 316 of the Act.

Background

[3]                  The applicants both have subdivisions which they have been engaged in developing for a number of years. Construction work has already begun. An obstacle has arisen pending the deposit of two survey plans and the issue of new records of title for both of the applicant’s subdivisions. The parcels of land which the two applicants are developing subdivisions on adjoin one another and are located near Otaki.

[4]                  Land Information New Zealand requires consent of any registered interest holders where allotments are to vest as road upon the deposit of a survey plan.1 There are riparian rights which have been registered since the early 1900s on the land which is being developed, in respect of which it is impracticable to investigate and seek consent from the holders, because of the multitude of residential subdivisions that have been undertaken since the original registration. The 29 lots which originally benefitted from the rights, have been subdivided into more than 250 lots. Further, the riparian rights are no longer relevant for what they were intended to provide for in the 1900s.

[5]                  The rights burdening Te Manuao Developments’ land were created by Transfer 61574 registered on 21 March 1907. The rights burdening County Heights’ land were created by Transfer 64068 registered on 6 September 1907. These instruments stand to prevent the vesting of land as roads within the two proposed subdivisions. The two easements were intended to support a ‘Historic Watercourse’ comprising of ditches to support rural land use through water supply from the Waitou Stream. Over time, the watercourse has disappeared. There is little evidence to show where it may have been. It is Mr Robert Longley’s2 evidence that:

Around the time when these riparian rights were created, it was not uncommon for country councils (in this case the Horowhenua County Council) or private individuals to develop a system of water races from the nearest water source specifically to service rural properties. Generally, these were for stock watering purposes. Over time, with urbanisation and closer development, the water races became redundant. This is what has happened in this case.

1      Pursuant to s 238 of the Resource Management Act 1993.

2      Registered Surveyor of Otaki, of 50 years’ experience.

[6]                  The land in question has been zoned as residential by the Kapiti Coast District Council, and resource consents have been provided to Te Manuao and County Heights for their subdivisions. The riparian rights are no longer in use, and the connection from the applicant’s land and the watercourse to the Waitohu Stream has been physically and legally disconnected.

Kapiti Coast District Council

[7]                  Counsel for the District Council have filed a memorandum which states that they are not opposed to the extinguishment of the relevant easements, and they have been excused from attending the hearing on 9 May 2022.

[8]                  A memorandum filed on behalf of the Council submitted that the Council apprehends that its role, when served with an application to extinguish easements, is broadly to represent the public interest and assist the Court in providing commentary on whether extinguishment (in part or in whole) may give rise to any:

(a)infrastructure or operational issues for the Council in its capacity as a territorial authority; and

(b)wider impacts on the rights of neighbouring property owners or the surrounding community as a whole.

[9]                  Having considered the application and supporting documentation, the Council has formed the view that the extinguishment of the easements would not raise any infrastructure or operational issues for the Council or raise any issues of a wider landowner or community interest nature in terms of their extinguishment. The Council, however, wishes to emphasise that the giving of this consent does not limit its regulatory responsibilities in respect of the applicant’s subdivisions.

Relevant law

[10]Sections 316 and 317 of the Act provide that:

(a)a person bound by an easement, a positive covenant, or a restrictive covenant (including a covenant expressed or implied in an easement) may make an application to a court for an order modifying or extinguishing that easement or covenant;

(b)that application must be served on the territorial authority in accordance with the relevant rules of court;

(c)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 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

(iv)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.

Analysis

[11]              In relation to the application seeking permission to bring these proceedings by way of an originating application, I am satisfied that such an order is appropriate. This is because:

(a)the proceeding does not require detailed pleadings or interlocutory processes for its just determination;

(b)the issues for consideration are defined;

(c)there is no party who would likely oppose the substantive proceeding (nor any person who would have just grounds for opposing the orders sought);

(d)the relevant District Council affected by the application has given its consent.

[12]              I am satisfied that the interests of justice are best served by this matter proceeding by way of without notice originating application.

[13]              In relation to the substantive application for an order extinguishing easements, I am satisfied that grounds exist for the making of such an order. The affidavit evidence filed in support of the application confirms that there has been a change since the creation in the nature or extent of the use being made of the benefitted land and the burden of the land as well as a change in the character of the neighbour. The easements have ceased to serve any useful purpose and impede the reasonable use of the applicants’ land in a way that could not reasonably have been foreseen by the original parties to the easements at the time of their creation.

[14]              I am satisfied that the proposed extinguishment would not substantially injure any person entitled to the benefit of the easements.

[15]              Shortly before the hearing in this matter, counsel for the applicants filed a draft order. In addition to the matters set out in the draft order, Mr Leggat sought a further condition namely the reservation of leave for the applicants to apply to the Court to vary the order should any unforeseen developments occur.

Outcome

[16]              Two applications are granted for the reasons set out above. The draft order filed is approved with the addition of the following clause:

Leave is reserved to the applicants to apply to vary these orders should unforeseen developments require that.

[17]There is no order as to costs.

Churchman J

Solicitors:

Wakefield Lawyers Ltd, Wellington for Applicants

Simpson Grierson, Wellington for Kapiti Coast District Council