Asmussen v Hajnal
[2014] NZHC 587
•27 March 2014
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CIV-2004-442-148 [2014] NZHC 587
UNDER the Property Law Act 1952 BETWEEN
JONAS R EINHOLD ASMUSSEN Plaintiff
AND
LAZLO HAJNAL and MILA RELICH First Defendants
GLENYS ANN S CHOFIELD Second Defendant
PAUL DONALD GALLOWAY and ZAHANE RUTH GALLOWAY Third Defendants
ADRIAN HEINZ STUDER Fourth Defendant
NELSON CITY COUNCIL Fifth Defendant
On papers Judgment:
27 March 2014
JUDGMENT OF DOBSON J
Introduction
[1] This judgment determines, for a second time, the terms on which a right of way in favour of the plaintiff’s property is to be registered over a part of the first defendants’ property.
[2] The precise form of the right of way was defined in my judgment of 8 June
2012 (the 2012 decision). The parties were unable to agree on certain issues, and a further minute was required on 28 November 2013 (the November minute). The first
ASMUSSEN v HAJNAL [2014] NZHC 587 [27 March 2014]
defendants have subsequently sought to dispute the basis for the November minute and seek to re-open argument on matters claimed to be relevant to the form of right of way that I have ordered is to be registered.
Background
[3] The plaintiff lives at 142 Cleveland Terrace, Nelson (142). The first defendants own the next door property, 136 Cleveland Terrace (136). From about
1948, the plaintiff’s property has enjoyed vehicular access along a driveway from
Cleveland Terrace across the front of 136.
[4] In his judgment of 5 August 2009, Wild J granted the plaintiff a right of way over the area of the “existing driveway” that crosses the first defendants’ land. This right was conditional on the plaintiff obtaining the permission of the Nelson City Council (the Council) pursuant to s 348(1) Local Government Act 1974. Wild J set compensation to the first defendants at $35,000.
[5] In order to effect the terms of Wild J’s judgment, it was necessary to determine the area that constituted the “existing driveway” as at 6 August 2009. The submissions of the parties and accompanying affidavits and exhibits contemplated four possible areas. In the 2012 decision, I ordered that:
(a) the right of way be that based on the Cotton & Light plan (width of
2.55 metres);
(b) a condition of the easement was that the first defendants and their successors in title did not constrain the passage of vehicles by placing obstructions on either boundary of the right of way;
(c) the solicitors for the plaintiff instruct a surveyor to complete a plan for the right of way;
(d) the plaintiff obtain any necessary local authority consents to registration of the right of way prior to presenting the necessary documents to the first defendants for signature;
(e) the Registrar of the High Court be authorised to sign documentation in the place of the first defendants, if the first defendants refused to sign the documents required for the right of way to be registered over the first defendants’ certificate of title.
[6] The plaintiff undertook the steps as described. Council permission was obtained pursuant to s 348. But matters did not end there. The first defendants refused to sign the documentation. The problem cited by the first defendants was that their verandah juts out over the right of way. There is some dispute over the extent of the overhang. The plaintiff says it is between 120 and 150 millimetres. The first defendants say that the balustrade splays outwards and overhangs the driveway by 200 millimetres. They say the right of way would need to be re-aligned by 400 millimetres to account for the verandah. The overhang occurs at a height above the right of way greater than would obstruct normal traffic using the right of way.
[7] On 6 August 2013, the plaintiff filed a memorandum requesting the Registrar to complete the appropriate documentation. Two further memoranda were filed by the plaintiff and one memorandum in reply was filed by the first defendants. The issues raised could not be resolved by the Registrar and the matter was referred back to me for further directions.
[8] In the November minute, I dealt with the issue of the verandah in the following way:
I am not persuaded that the modest extent by which the first defendants’ verandah protrudes above the extremity of the right of way is sufficient to require its boundaries to be redrawn. Nor do I accept that the approval granted by the Nelson City Council under s 348 of the Local Government Act 1974 is in any way vitiated by the existence of that overhang.
[I]t is appropriate that the plaintiff … acknowledges that the existing verandah structure does not constitute an obstruction to enjoyment of the Court-ordered right of way.
…
It follows that I am not persuaded any alteration to the location or extent of the right of way is justified.
[9] On 18 December 2013, the first defendants filed a further memorandum, complaining about the Council permission process and the way in which the November minute dealt with substantive matters without the benefit of further submissions. The plaintiff’s substantive response was filed on 17 February 2014.
The first issue: The November minute
[10] In terms of the matters dealt with by the November minute, the first defendants have subsequently claimed that they expected that either the Registrar or the Court would determine the matter. In the latter case, they expected that the parties would have the opportunity to make supplementary submissions to the Court.
[11] The plaintiff’s response is that all relevant information is now before the Court, and a decision should now be made without any further submissions. I agree with the position of the plaintiff. The first defendants and the plaintiff have filed extensive memoranda on the issue of what impact, if any, the verandah should have on the alignment of the right of way. In particular, I have evidence of the nature and extent of the verandah in relation to the right of way. It is appropriate to deal with the issues raised now.
[12] The first defendants also submit that the November minute dismissing the overhang as an issue contradicts [26] of the 2012 decision, which states:
[I]t is to be a condition of that easement that the first defendants and their successors in title not constrain the passage of vehicles by placing obstructions on either boundary of the right of way.
[13] The first defendants argue that, under the plan adopted, the verandah provides such an obstruction. However, the condition referred to above was ordered in response to the plaintiff ’s concern that the first defendants would place a barrier at the precise boundary of the designated right of way. The order did not relate to the verandah. In any case, as will be seen below, the plaintiff has agreed to a condition in the easement certificate, which provides that the verandah will not be construed as an obstruction.
Second issue: the Council s 348 permission process
[14] The first defendants complain that:
(a) they were excluded from the s 348 permission process; and
(b) the plaintiff did not disclose to the Council the existence of the first defendants’ verandah and its position in relation to the right of way.
[15] The plaintiff does not know whether the Council was aware of the intrusion but points to two documents that it submitted to the Council:
(a) A sketch of the driveway and the first defendants’ property. The verandah is labelled on the sketch, although there are no measurements.
(b) The Cotton & Light plan. The verandah is labelled “CNRDECK” on the plan.
[16] I have considered the further submissions provided by counsel and an additional memorandum filed by Mr Hajnal on 27 February 2014. Nothing I have reviewed has caused me to alter my original view that there are no substantial impediments to completing the easement certificate on the terms previously ordered.
[17] Frequently throughout this extraordinarily protracted proceeding, Mr Hajnal has obstructed steps that would lead to a resolution. In the light of all the background, it is credible to be concerned that Mr Hajnal wants the boundaries of the right of way to be redrawn to accommodate the verandah and for a fresh s 348 application to be made by the plaintiff to the Council. Mr Hajnal could then argue that the right of way no longer constitutes an “existing” driveway and must comply with current standards, thereby re-opening the entire issue of the right of way. Such a tactical course is suggested in email correspondence between Mr Hajnal and a Council planner dated 30 July 2013. Mr Hajnal states:
If the Council were to … provide clearance of more than the current 2.5m then a realignment of the existing driveway becomes the only solution.
We have argued that this means compliance with NRMP standards…
The driveway would need to be moved about .5 metres to the north to clear the building. If so then Council’s argument that the new driveway merely formalises the existing situation falters.
[18] There are numerous examples of statements of a similar nature by Mr Hajnal contained in the documentation provided to the Court.
[19] I do not consider that the existence of the verandah requires the boundaries of the right of way to be redrawn. The impact of the overhang is minimal. It does not cause a substantial interference with the easement. There is no evidence that the right of way will impact the first defendants’ ability to obtain house insurance or that the existence of the verandah over the right of way will diminish the value of the first defendants’ property.
[20] I also have not changed my view that the procedural concerns raised by the first defendants about the Council permission process do not justify the first defendants’ refusal to sign the documentation. The 2012 decision was subject to Council permission under s 348. The terms of that judgment should not have influenced the Council’s decision as to whether to grant such permission. The plaintiff still had to apply for, and obtain, s 348 permission pursuant to the usual Council procedures. That permission is, on its face, valid. The plaintiff is entitled to rely on it.
[21] It would not be appropriate for the Court in these proceedings to review the extent to which the Council consulted the first defendants or the enquiries made by the Council in relation to the s 348 permission.
The easement certificate
[22] To resolve all aspects of this dispute and remove any impediment to the enforcement of the 2012 decision, I have also to address the terms of the easement certificate, upon which the parties have been unable to agree. The first defendants seek five disputed additions to the standard form easement certificate, namely:
(a) Clause 7: The plaintiff acknowledges that the right of way may not comply with compliance standards. If the Council requires compliance, the plaintiff is liable for any consequent expenses.
(b) Clause 8: The plaintiff acknowledges that at the time the verandah was constructed the legal right of way did not exist. If the Council requires the verandah to comply with current standards of construction, the plaintiff is liable for any consequent expenses.
(c) Clause 9: The plaintiff acknowledges that it does not have permission from the Council to use the road reserve that connects the right of way to Cleveland Terrace.
(d) Clause 10: The plaintiff indemnifies the first defendants against all losses arising from the imposition and enforcement of Council compliance standards.
(e) Clause 11: in granting the right of way, the first defendants have not waived any other rights against the plaintiff.
[23] The first defendants also altered cl 6, in which the plaintiff acknowledged that the verandah would not be considered an obstruction to the right of way. The first defendants sought to include the specific measurements of the verandah in the clause.
[24] The plaintiff does not agree to these alterations, saying he wishes to obtain a conventional right of way, and to avoid the potential for on-going disputes with the first defendants.
[25] I agree with the plaintiff. There have been two High Court decisions dealing with the matter of the easement. The 2012 decision ordered the plaintiff to obtain the necessary permission from the Council and submit the documentation to the first defendants to sign. The first defendants were ordered to sign the documentation, and
if they refused to do so, the Registrar was empowered to sign on the first defendants’
behalf.
[26] Any additions to the easement certificate ought to have been argued and determined before the Court during those two prior hearings. There is no justification for the first defendants to delay the process further by seeking these additions. I confirm the provision previously made to cover the contingency of the first defendants continued refusal to sign the documents. If the first defendants decline, for a period of 14 days, to sign the appropriate documents that conform both with my prior orders and with this latest judgment, then the Registrar is directed to sign such documents on behalf of the first defendants to enable registration of the right of way to proceed.
Dobson J
Solicitors:
Rout Milner Fitchett, Nelson for plaintiff
Smythes, Nelson for first defendants
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