BURBERRY DEVELOPMENTS LIMITED v AUCKLAND COUNCIL [2022] NZHC 3273

BURBERRY DEVELOPMENTS LIMITED v AUCKLAND COUNCIL [2022] NZHC 3273

The Court was satisfied on the evidence that since creation the land and water supply arrangements changed materially (residential subdivision, Watercare supply, removal of pipes) so that continuation of the easement in its existing form is obsolete and would impede reasonable use of the burdened land; statutory service requirements were met and no substantial injury was identified, therefore a partial extinguishment under s317 is justified and granted as specified.

Citation
[2022] NZHC 3273
Parties
Applicant: Burberry Developments Limited; First Respondent: Auckland Council; Second Respondent: Watercare Services Limited; Third Respondent: Housing New Zealand Build Limited; Fourth Respondent: Barfilon Investment Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 December 2022
Procedural Posture
Application Under Property Law Act 2007 S316 317 for Modification/extinguishment of Easement / Final Judgment/decision on Application (high Court)
Outcome
Application granted in part; easement partially extinguished pursuant to s317 Property Law Act 2007.
Legal Topics
Extinguishment of Easement, Section 317 Property Law Act 2007, Service of Proceedings, Obsolescence of Easements
Property Law Easements Land Law Civil Procedure Extinguishment of Easement Section 317 Property Law Act 2007 Service of Proceedings Obsolescence of Easements

Case Brief

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Parties

Burberry Developments Limited

Applicant

Auckland Council

First Respondent

Watercare Services Limited

Second Respondent

Housing New Zealand Build Limited

Third Respondent

Barfilon Investment Limited

Fourth Respondent

Procedural Posture

Application Under Property Law Act 2007 S316 317 for Modification/extinguishment of Easement / Final Judgment/decision on Application (high Court)

Legal Issues

  1. 1 Whether changes in use and neighbourhood since creation of the easement satisfy s317 grounds for modification/extinguishment
  2. 2 Whether continuation of the easement in existing form would impede reasonable use of the burdened land compared with original parties' expectations
  3. 3 Whether the proposed partial extinguishment would substantially injure any person

Ratio Decidendi

The Court was satisfied on the evidence that since creation the land and water supply arrangements changed materially (residential subdivision, Watercare supply, removal of pipes) so that continuation of the easement in its existing form is obsolete and would impede reasonable use of the burdened land; statutory service requirements were met and no substantial injury was identified, therefore a partial extinguishment under s317 is justified and granted as specified.

Court Disposition

Application granted in part; easement partially extinguished pursuant to s317 Property Law Act 2007.

Orders

  • Easement Certificate C878364.7 is partially extinguished by deletion of rights to convey water over parts marked "F", "E" and "D" on DP 569241 (formerly specified as HH, Q and II on DP 166291 and Easement Certificate C878364.7) as contained in Burdened Record of Title 1025838, North Auckland Land Registration District.
  • Easement Certificate C878364.7 is extinguished on the Benefitting Records of Title in the annexure attached to the application labelled "List of Benefitting Lots".