Avlis Ltd [2022] NZHC 1440

Avlis Ltd [2022] NZHC 1440

The court found that since creation of the covenants the character and use of the benefited and burdened land changed materially (rural to dense residential subdivision) so that continuation of the covenants would impede reasonable use; no substantial injury to persons entitled was shown and the court exercised its discretion under s317 to insert clauses allowing the covenants to cease to apply to land in Lot 400 DP 550232 intended to vest as road upon approval and deposit of the survey plan.

Citation
[2022] NZHC 1440
Parties
Applicant: Avlis Limited; Interested Party: Mackenzie District Council
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 June 2022
Procedural Posture
Application to Modify Covenants Under the Property Law Act 2007 / Final Judgment (orders Made)
Outcome
Application granted; covenants modified as specified
Legal Topics
Modification of Covenants, Section 317 PLA 2007, Vesting of Roads, Dedication and Transfer, Auto‑extinguishment on Vesting
Property Law Easements and Covenants Land Subdivision Resource Management Act 1991 Modification of Covenants Section 317 PLA 2007 Vesting of Roads Dedication and Transfer +1 more

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Parties

Avlis Limited

Applicant

Mackenzie District Council

Interested Party

Procedural Posture

Application to Modify Covenants Under the Property Law Act 2007 / Final Judgment (orders Made)

Legal Issues

  1. 1 Whether the covenants should be modified or extinguished under s317 PLA 2007
  2. 2 Whether change in nature or extent of land use justifies modification
  3. 3 Whether continuation of covenants would impede reasonable use of the burdened land

Ratio Decidendi

The court found that since creation of the covenants the character and use of the benefited and burdened land changed materially (rural to dense residential subdivision) so that continuation of the covenants would impede reasonable use; no substantial injury to persons entitled was shown and the court exercised its discretion under s317 to insert clauses allowing the covenants to cease to apply to land in Lot 400 DP 550232 intended to vest as road upon approval and deposit of the survey plan.

Court Disposition

Application granted; covenants modified as specified

Orders

  • Insert into Covenant 5420545.4 (insofar as it burdens Lot 400 DP 550232 (RT 947911)) a clause that the covenant will immediately cease to apply to any land within Lot 400 DP 550232 (RT 947911) which is intended to vest in the Crown or any local authority or territorial authority as road, upon any survey plan...
  • Insert into Covenant 5420545.5 (insofar as it burdens Lot 400 DP 550232 (RT 947911)) a clause that the covenant will immediately cease to apply to any land within Lot 400 DP 550232 (RT 947911), apart from area "A" on DP 550232, which is intended to vest in the Crown or any local authority or territorial authority as...