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The finite supply of water

Published: 16th December 2020

Author: Neil Dent, Gifford Devine

Published in: Rural eSpeaking

Water easements
Water is an absolute necessity for any type of farming or horticultural activity. Historically viewed as an infinite and expendable resource, water is now seen as having a finite supply and must be dealt with as a commodity. The right to access water from a source, such as a spring or well, and the right to use that water are different, but related, issues.

Throughout New Zealand there are thousands of water easements that create a legal right for one or more landowners to take water from a source on another landowner’s property and to convey it to their own property. Many of these easements have been in place for years, often decades. As such, they were put in place in a different time and well before some of the issues now facing us.

The use of water from sources on private land for domestic and stock watering has always been a right that did not need a resource consent. Its use for irrigation, however, has required a consent.

These days, consents are more difficult to obtain. In some areas of the country, there are moratoriums on the issue of new consents; these are being issued for shorter periods or with more conditions attached. In several regions, water is regarded as an ‘over-allocated resource.’

Easements
To take and use water for irrigation two things are often required – an easement to get water from its source, and a resource consent to use that water.

Some easements contain restrictions on the use to which water can be put; a typical restriction is ‘domestic or stock use only.’

For those people with no such restriction, problems can arise where different users of the same source apply for new or renewed water consents. The owner of the land on which the water source is situated could find themselves competing against an adjoining owner who has an easement right relating to the same source for what is now regarded as a finite and increasingly scarce resource.

Another issue arises where more users than originally intended have the right to take water from the same source.

Explaining the problem
A typical example is where a large farm may have been subdivided and the water source was on only one of the blocks. Usually in that situation, the property that didn’t have the water source would, as part of the subdivision process, have been granted a water easement to take water from the source on the other block.

Where one or other of the blocks is further subdivided, particularly for a lifestyle subdivision, the number of users of that particular source of supply can increase substantially. The landowner on whose land the supply is situated may have little or no control over this.

Once again, historical easements didn’t tend to limit the number of users, it simply gave one party the right to take water from another. As a matter of law, when a ‘dominant’ tenement, that is the party with the right to take and convey water from other land is subdivided, then the right to take and convey goes with the other titles that are created out of the original title.

Both of the above issues can be addressed when new easements are created. The first can be dealt with by either limiting the amount of water that the dominant tenement can take, or to put an order of priority of the right to take water or apply for resource consent. In the second instance, there can be a restriction on the number of users that the dominant tenement can supply.

As you can see, both the above situations are relatively easy to address on the creation of new easements — but what of the 50, 60 or 100-year-old easement?

Dealing with longstanding easements
The only way to vary these longstanding easements is by the mutual agreement of all parties with rights under the easement or by application under s317 of the Property Law Act 2007. This section allows an easement or covenant to be modified or extinguished because of a change since its creation in all or any of the following (our italics) depending on:

• The nature or extent of the use being made of the benefited land, the burdened land, or both
• The character of the neighbourhood
• Any other circumstance the court considers relevant, and
• 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.

S317 does, however, require an application to the court. This is an expensive process and the outcome is uncertain, particularly where some parties to the easement are being affected and oppose the application.

There is no guarantee of supply of water under an easement or the right to use that water for your preferred use. Talk with us early on if you are acquiring or subdividing land where water is an issue.

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