Three Angels Holdings (2010) Limited v Quiatchon

[2024] NZHC 3397

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-471 [2024] NZHC 3397

UNDER

ss 316 and 317 of the Property Law Act 2007

IN THE MATTER

of an application to extinguish easements

BETWEEN

THREE ANGELS HOLDINGS (2010) LIMITED

Applicant

AND

CARLITO JR FUENTES QUIATCHON and LUZ MUSICO QUIATCHON

First Respondents

JULIE ANN VILLAMOR CAMAY and HAYDEN CHARLES SHIVAS

Second Respondents

JUBULANI NDEBELE and KUDZAI MELISSA PIRENI

Third Respondents

YUPING YANG

Fourth Respondent

continued…

Hearing:	On the papers
Appearances:	A Foote and M Hamid for Applicant
Judgment:	14 November 2024

JUDGMENT OF BOLDT J

THREE ANGELS HOLDINGS (2010) LIMITED v QUIATCHON [2024] NZHC 3397 [14 November 2024]

Continued..

AND

TSUE KIM TAN and ZHI CHENG TAN

Fifth Respondents

HAN XIN LOW and RONALD VAN HAMELSVELD

Sixth Respondents

SAURABH KUMAR SHARMA and USHA SHARMA

Seventh Respondents

HIRENBHAI DHIRAJLAL PATEL and SAPNA HIRENBHAI PATEL

Eighth Respondents

ROSHAN SHRESTHNA and ROSHANI SHRESTHA

Ninth Respondents

RIPPLE SNEHAL KAKADIA and SNEHAL GHANSHYAMBHAI KAKADIA

Tenth Respondents

[1]    This is an application by Three Angels Holdings (2010) Limited (“Three Angels”) to extinguish an easement pursuant to s 317 of the Property Law Act 2007. The easement is registered over a parcel of land at 305 Wigram Road, Christchurch (the burdened land).

[2]    The easement was registered on 27 November 2013. It granted rights of way and utility services to a single, then-undeveloped, title (the dominant land). On 9 July 2015, the dominant land was subdivided. The easement now benefits ten residential properties in Deerwood Lane and Four Peaks Drive (the benefited properties).

[3]    Three Angels wishes to subdivide the burdened land and an adjoining property into nineteen new residential titles. Resource consent for the development has been granted, though that consent is contingent upon the easement being removed.

[4]    Three Angels says the easement no longer serves any practical purpose. The benefited properties can now be reached by Four Peaks Drive and Deerwood Road, and services to the properties now come via those roads as well.

[5]    The respondents are the owners of the ten benefited properties. All have been served with the application. Only the second and sixth respondents took any steps. The second respondents initially indicated they wished to retain their rights under the easement, but later agreed not to oppose the application. The sixth respondents provided written consent to the extinguishment.

[6]Section 317 of the Property Law Act 2007 relevantly provides:

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

…

(d) the proposed modification or extinguishment will not substantially injure any person entitled;

…

[7]    There has been a significant change in the use of the benefited properties since the easement was created. The properties are now fully-serviced residential homes

which can be accessed via Deerwood Lane and Four Peaks drive, neither of which existed when the easement was created. There is no ongoing need for access of any kind across the burdened land. Accordingly, s 317(1)(a) is satisfied.

[8]    It is also clear the proposed extinguishment will not substantially injure the respondents. The benefited properties no longer rely on the burdened land either for access or services, meaning s 317(1)(d) is satisfied.

[9]    If necessary, it  is likely I would have  found in Three Angels’ favour under   s 317(1)(b) too, but given my clear conclusion the easement should be extinguished on other grounds it is not necessary to consider what could reasonably have been foreseen at the time it was created.

Orders

[10]   The easement registered on 27 November 2013 on the title of burdened land under Easement Instrument 9584265.1 is extinguished.

[11]   Leave is reserved for Three Angels to seek any further directions that may be required.

[12]I make no order for costs.

[13] [13]

Boldt J

Solicitors:

Duncan Cotterill, Christchurch for Applicant