ROUND v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 302

ROUND v PALMERSTON NORTH CITY COUNCIL [2022] NZHC 302

The Court was satisfied that the statutory requirements of PLA s317 were met: there has been a material change in the nature and extent of use and the character of the neighbourhood since creation of the covenants, extinguishment is necessary to enable reasonable use (vesting of road and reserve) which could not...

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Citation
[2022] NZHC 302
Parties
Applicant: Diane Round; Applicant: Phillip Arthur Round; Applicant: McKenzie Holmes Trustee Limited; First Respondent: Palmerston North City Council; Second Respondents: Registered proprietors of land with the benefit of a covenant
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 February 2022
Procedural Posture
Application to Modify/extinguish Land Covenants Under Property Law Act 2007 / High Court Judgment (final)
Outcome
Application granted in part: covenants extinguished from those parts of Lot 1 DP 560192 to be vested in the Council as road and/or reserve; ancillary orders made.
Legal Topics
Covenants, Extinguishment of Easements/covenants, Vesting of Roads and Reserves, S224 Survey Plan Consent, S316 S317 Property Law Act, S238 S239 Resource Management Act
Property Law Land Law Resource Management Act Procedure Civil Procedure Covenants Extinguishment of Easements/covenants Vesting of Roads and Reserves S224 Survey Plan Consent +2 more

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Parties

Diane Round

Applicant

Phillip Arthur Round

Applicant

McKenzie Holmes Trustee Limited

Applicant

Palmerston North City Council

First Respondent

Registered proprietors of land with the benefit of a covenant

Second Respondents

Procedural Posture

Application to Modify/extinguish Land Covenants Under Property Law Act 2007 / High Court Judgment (final)

Legal Issues

  1. 1 Whether the Court should extinguish covenants over parts of land to be vested as road and reserve under PLA s317
  2. 2 Whether there has been a change in use or neighbourhood such that the covenant ought to be extinguished
  3. 3 Whether continuation of the covenant would impede reasonable use of the burdened land

Ratio Decidendi

The Court was satisfied that the statutory requirements of PLA s317 were met: there has been a material change in the nature and extent of use and the character of the neighbourhood since creation of the covenants, extinguishment is necessary to enable reasonable use (vesting of road and reserve) which could not reasonably have been foreseen by the original parties, extinguishment will not substantially injure any person entitled, and it is just and equitable; accordingly the covenants are extinguished as to the parts of the land to be vested as road and reserve, with ancillary orders and directions that the orders lie in Court until a s224 RMA certificate is presented.

Court Disposition

Application granted in part: covenants extinguished from those parts of Lot 1 DP 560192 to be vested in the Council as road and/or reserve; ancillary orders made.

Orders

  • The land covenants created by Schedules 1 and 2 of Instrument No B083686.3 TE be extinguished from that part of Lot 1 DP 560192 that is to be vested in the First Respondent as a road and/or as reserve as part of the subdivision.
  • The Registrar-General of Land shall make entries under s 318 of the Property Law Act 2007 on the record of title to record that the Covenants are extinguished by order of the Court.