Re Orewa Developments Ltd [2019] NZHC 575

Re Orewa Developments Ltd [2019] NZHC 575

The Court granted the application because the covenants had been mistakenly extended to land that will vest as roads or reserves and their continuation would impede reasonable use of the burdened land contrary to s 317(1)(b), and because all relevant persons had consented so s 317(1)(c) applied; consequently the covenants were modified to cease and automatically surrender as to any Lot which vests or is dedicated as road or reserve, effective upon deposit of the subdivision plan and vesting or dedication.

Citation
[2019] NZHC 575
Parties
Applicant: Orewa Developments Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 March 2019
Procedural Posture
Application Under Property Law Act 2007 to Modify Covenants (s 317) / On the Papers; Judgment Delivered
Outcome
Application granted; covenants modified.
Legal Topics
Modification of Covenants, Easements, Title Issuance, Vesting and Dedication of Roads and Reserves, Section 317 Property Law Act 2007
Property Law Land Law Covenants Civil Procedure Modification of Covenants Easements Title Issuance Vesting and Dedication of Roads and Reserves +1 more

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Parties

Orewa Developments Ltd

Applicant

Procedural Posture

Application Under Property Law Act 2007 to Modify Covenants (s 317) / On the Papers; Judgment Delivered

Legal Issues

  1. 1 Whether continuation of the covenants would impede reasonable use of the burdened land contrary to s 317(1)(b)
  2. 2 Whether all persons entitled had agreed or were to be treated as having abandoned rights under s 317(1)(c)
  3. 3 Whether covenants were mistakenly applied to a residue title that includes land to vest or be dedicated as roads or reserves

Ratio Decidendi

The Court granted the application because the covenants had been mistakenly extended to land that will vest as roads or reserves and their continuation would impede reasonable use of the burdened land contrary to s 317(1)(b), and because all relevant persons had consented so s 317(1)(c) applied; consequently the covenants were modified to cease and automatically surrender as to any Lot which vests or is dedicated as road or reserve, effective upon deposit of the subdivision plan and vesting or dedication.

Court Disposition

Application granted; covenants modified.

Orders

  • That the land covenant in Easement Instrument 11116850.5 be modified by adding: "Notwithstanding any provision herein contained, the within covenants shall cease to have any effect (and shall automatically surrender) as to any Lot which shall vest or be dedicated as road or reserve at any time (including, by way of...
  • That the land covenant in Easement Instrument 11116850.6 be modified by adding: "Notwithstanding any provision herein contained, the within covenants shall cease to have any effect (and shall automatically surrender) as to any Lot which shall vest or be dedicated as road or reserve at any time (including, by way of...