BA Trustees Limited v Ma'a Limited
[2014] NZHC 935
•26 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4045 [2014] NZHC 935
BETWEEN BA TRUSTEES LIMITED AND FUEGO
LIMITED Plaintiffs
AND
MA'A LIMITED AND JOHN MAALAULI VAIGAFA
First Defendants
IVAN DRUSKOVICH AND VESNA DRUSKOVICH
Second Defendants
AUCKLAND COUNCIL Third Defendant
Hearing: 3 March and 26 March 2014 Appearances:
A C Sorrell for the Plaintiffs
No appearance by or on behalf of the First Defendants
I Druskovich in person (on 3 March 2014)J Foster for Second Defendants (on 26 March 2014) J Hilario for the Third Defendant
Judgment:
26 May 2014
JUDGMENT OF BROWN J
This judgment was delivered by me on 26 May 2014 at 1 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Paddy Orr & Co, New Lynn, Auckland
Rainey Collins Wright, Auckland
Counsel: A Sorrell, Auckland
J P Schlooz, Epsom, Auckland
BA TRUSTEES LTD v MA'A LTD [2014] NZHC 935 [26 May 2014]
Introduction
[1] The plaintiffs (“BA Trustees” and “Fuego”) each own properties adjacent to a property owned by the second defendants (“the Druskovichs”). A building in the nature of a garage is located on the Druskovichs’ property. It encroaches on both the plaintiffs’ properties, albeit in the case of the BA Trustees property that encroachment is on land over which there is a right of way in favour of the Druskovichs’ property.
[2] The plaintiffs originally sought three distinct orders:
(a) The removal of those parts of the garage which encroach on the right- of-way and on the Fuego property;
(b)The removal of the garage in its entirety on the ground that it is in breach of the third condition of the grant of the right of way in that it has a frontage wholly on the right of way; and
(c) A modification of the easement granting the right of way.
[3] For reasons which are explained below the only issue of substance which now requires determination relates to the second of those matters. Instead of injunctive relief a declaration is now sought.
The manner in which the hearing evolved
[4] The first defendants, who were tenants who had previously occupied the property, filed a statement of defence dated 22 October 2013. Because that defence did not contain any denials of the allegations in the statement of claim, it was effectively an admission by virtue of r 5.48(3). The first defendants did not appear at the hearing.
[5] No relief is sought against the third defendant (“the Auckland Council”). By memorandum dated 18 February 2014 the Auckland Council sought to be excused
from appearing at the hearing. However at my request Mr Hilario appeared for the purpose of addressing the second order sought.
[6] The Druskovichs did not file a statement of defence. Consequently the proceeding was set down for formal proof under r 15.9. However, when the matter was called on 3 March 2014 Mr Druskovich appeared, unassisted by counsel, and sought to be heard. He claimed to be under the impression that the purpose of the hearing was to consider the making of an order for inspection of the property on which the garage is situated.
[7] After hearing from Mr Sorrell, Mr Hilario and Mr Druskovich himself, I concluded that there may be a miscarriage of justice if judgment by default was entered. However I also considered that it would be quite unfair for the plaintiffs if the matter was postponed for the purpose of the filing of a statement of defence by the Druskovichs. Accordingly, after conferring with Mr Sorrell and Mr Druskovich, I directed that the matter should proceed as a defended hearing. Evidence was given by Mr McClure and Mr Trafford for the plaintiffs and by Mr Druskovich for the second defendants.
[8] At the conclusion of the evidence I indicated to Mr Hilario that I wished to have a clear statement from the Auckland Council as to its current policy or practice1 (if there is one) with reference to the enforcement of conditions equivalent to condition 3 applicable to the right of way in question, namely:
That no buildings be erected having a frontage wholly to the Right of Way.
[9] Mr Sorrell naturally preferred not to make his closing submissions until the Council’s position was clarified. Accordingly the hearing of closing submissions was deferred until 26 March 2014.
[10] I released a Minute dated 4 March 2014 in which, in addition to recording what had occurred on the previous day, I suggested that it would be in
Mr Druskovich’s interests to obtain legal advice on the implications of the condition
1 In previous litigation between BA Trustees Ltd and the Druskovichs the Court of Appeal commented that it had no evidence of the current attitude of the Auckland Council to such conditions: B A Trustees Ltd v Druskovich [2007] NZCA 131 at [42].
concerning a building with a frontage wholly on a right of way and its application to the garage on the Druskovichs’ property. I also drew attention to Subpart 2 of Part 6 of the Property Law Act 2007 (“the Act”) concerning wrongly placed structures.
[11] Subsequently the Druskovichs retained Ms Foster as counsel and an application was filed for leave to file a statement of defence and counterclaim. The counterclaim sought orders under s 317 of the Act for the removal of the condition from the easement in transfer 242333 and orders under s 325 of the Act for relief in relation to the garage to the extent of its encroachment.
[12] The Court also received a very helpful memorandum from Mr Hilario providing the background and history of frontage conditions and commenting on the Auckland Council’s position both on frontage conditions in general and on the frontage condition in question.
[13] At the hearing on 26 March 2014 I granted leave to the Druskovichs to file the statement of defence and counterclaim save for paragraph 25(e) which concerned a different building which was not on the Druskovichs’ property.
[14] I also gave leave to the plaintiffs to file a first amended statement of claim which reflected the fact that agreement had been reached between the plaintiffs and the Druskovichs as to the terms of a modification of the easement so as to restrict its use. The agreed modification is as follows:
The right of way is limited to that of providing access to any building erected on the dominant tenement for the purposes only of the authorised uses of the registered proprietor and lessees of the dominant tenement but excluding therefrom all invitees except those providing services for those authorised uses or deliveries to the registered proprietor or lessees of the dominant tenement.
[15] Ms Foster advised the Court that the Druskovichs had decided to make alterations to the garage as a consequence of which there would no longer be an encroachment either on the right of way or on the Fuego property. Consequently, as Mr Sorrell accepted, there was no need for an order to be made for the removal of the encroachment.
[16] The matter which remained for determination was the dispute concerning the application of the easement condition to the garage. In that regard Mr Sorrell advised that the plaintiffs no longer sought an injunction requiring the removal of the garage but only a declaration.
[17] The final preliminary matter which was raised concerned costs. Ms Foster sought to file an affidavit of Mr Druskovich which apparently concerned the history of the litigation. Mr Sorrell opposed the filing of the affidavit. I ruled that the affidavit would not be received at that time. However I indicated that when I came to deal with the issue of costs I would be prepared to entertain an application to file that affidavit.
Relevant facts
[18] BA Trustees is the registered proprietor of Lot 1 DP 66697 known as
584 Great North Road (“BA Trustees’ land”) as shown on the plan annexed to this judgment. Fuego is the registered proprietor of Lot 21 DP 19592 known as
2 Barrington Road (“the Fuego land”).
[19] Adjacent to BA Trustees’ land are two pieces of land owned by the Druskovichs (“the Druskovich land”), namely Lot 2 DP 22812 NA 630/185 known as 580 Great North Road and Lot 3 DP 22812 NA 616/48 known as 576 and 578
Great North Road.
[20] Lot 3 is divided into two parts. The northern part, known as 578 Great North Road, is used for the operation of a dairy and does not concern this proceeding. The first defendants previously leased the southern portion of Lot 3, known as 576 Great North Road (“the premises”), from the Druskovichs from which the first defendants had operated a cafe. The Druskovichs have recently entered into a new lease of the premises.
[21] Lot 3 has appurtenant to it a right of way over BA Trustees’ land which is described in Transfer 242333 dated 18 December 1929. One of the conditions relating to the approval of that right of way reads:2
(3) That no buildings be erected having a frontage wholly to the Right of Way.
[22] There is erected at the rear of the premises a building described as a garage which not only fronts onto the end point of the right of way but encroaches on BA Trustees’ land the subject of the right of way. The current extent of the encroachment is approximately 0.84 metres onto the right of way and across the entire width of the right of way. The garage also encroaches on the Fuego land at various points by a small distance. At the point adjacent to the door frame (which encroaches on the right of way) the extent of the encroachment on the Fuego land is
0.02 metres.
[23] There has previously been litigation between BA Trustees and the Druskovichs concerning the right of way access to 580 Great North Road. That matter went to the Court of Appeal.3 However I refer to the judgment of Simon
France J at first instance as a convenient source of the early history of the premises:4
[6] Mr Druskovich’s association with the properties goes back to the early 1960’s when he began delivering fish to the fish shop. He described his recollection of the use of the right-of-way from that time. There was no real challenge to the evidence and, to be realistic, very little basis on which there could be.
[7] In 1971 Mr Druskovich bought the fish shop business, and at the same time he leased from the building owner the accommodation above the fish shop. He lived there until 1982 when he moved to his own house. In
1990 Mr Druskovich bought the site now occupied wholly by the chemist shop (Lot 2). At the time of purchase it consisted of two shops – the chemist
and a hairdresser, but in 2003 the chemist took over the whole site. Then in
1993 Mr Druskovich bought the adjoining building which contains the fish shop and dairy.
[24] In his evidence in the present case Mr Druskovich confirmed the accuracy of that previous evidence. He stated that the garage was in existence in 1971. There is
2 The same condition was considered by the Court of Appeal in Wright v Tan [2004] 2 NZLR 735 (CA) and in Rental Space Ltd v March (1999) 4 NZConvC 192,873 (HC).
3 B A Trustees Ltd v Druskovich & Anor, above n 7.
4 I & V Druskovich v BA Trustees Ltd HC Auckland CIV-2003-404-6617, 14 June 2005, at [6]-[7].
some corroboration for that in a letter from the Auckland Council to BA Trustees dated 17 November 2008 which states that Council aerial photographs confirmed that the garage was established prior to 1997.
[25] The premises have been progressively converted to a cafe by virtue of resource consents dated 21 August 2008 and 5 August 2013. It was contended by BA Trustees that the use of the premises as a cafe with the rear yard in use by patrons was a change in the nature and extent of the use being made of Lot 3 and would cause a change to the use being made to the subject land. Examples given were the ingress and egress of patrons via the easement, the loss of on-site parking for the occupants and deliveries, and greater use of the BA Trustees’ land for parking. It appears that it was this change in circumstances that prompted the modification to the right of way referred to above.
The claim and counterclaim
[26] The declaration which the plaintiffs seek was recorded in the first amended statement of claim as follows:
A declaration that the garage building on the western portion of lot 3 owned by the second defendants adjacent to the plaintiffs’ land is a building with frontage wholly on the right-of-way.
[27] In the statement of defence and counterclaim the position of the second defendants was stated in this way (condition (3) is referred to as condition (c)):
14.… The garage is not, in all the circumstances, a building with its frontage wholly onto the right-of-way as prescribed by condition (c) of the easement described in transfer 242333 (“the right-of-way”) because:
(a) It is not a separate building but is in essence part of the building that includes the café;
(b) The café has a frontage onto Great North Road;
(c) Alternatively, properly construed the reference to “Building” in the conditions on deposited plan 22812 is to a principal building not to an ancillary building such as a garage or shed.
[28] The counterclaim which sought an order under s 317 of the Act stated:
21.If the garage is a building with its frontage wholly to the right-of- way in breach of condition (c) of the Right-of-Way, all which is denied, the right-of-way ought to be modified by the removal of condition (c) under s 317 of the Property Law Act 2007 by reason of the following circumstances:
(a) The garage was constructed no later than 1970 without objection from the then registered proprietor of the BA Trustees Land or the territorial authority,
(b) The garage does not cause the harm intended to be prevented by such a condition, and
(c) If the garage is treated as a separate building for the purposes of the covenant it is incidental to one of the main buildings on the Druskovich land and that main building has frontage to Great North Road.
Counsel’s submissions
[29] Mr Sorrell’s submission in summary was:
(a) The word “building” in s 8 of the Building Act 2004 includes a structure intended for occupation by people, animals, machinery or chattels. The garage in question fitted that description;
(b)This form of condition addresses the requirement for additional road frontage access to buildings so that they are not wholly dependent on right of way access;
(c) This particular form of condition was considered by the Court of Appeal in Wright v Tan who held that any building which is erected must have a second frontage, namely to a road. The frontage to which this type of condition is directed is the frontage of the building, not of the land; and
(d) Because it is situated behind the building which has frontage to Great
North Road, the garage has frontage wholly to the right of way. [30] Ms Foster’s submission in summary was:
(a) The garage was part of a building (namely the building containing the cafe) which has a frontage to Great North Road. As a consequence the garage has two frontages, Great North Road and the right of way;
(b)Alternatively, if the garage was separate from the building containing the cafe, (with the consequence that the garage did not have a frontage to Great North Road) then “building” should be construed as a reference to a primary building (not being incidental or ancillary in nature). The garage is ancillary in nature and hence not in breach of the condition; and
(c) If the garage is in breach of the condition, then, in view of the anachronistic nature of the condition and the modification now agreed to the easement, the Court should either:
(i) Delete the condition; or
(ii)Modify the condition so that it refers only to primary and not to ancillary buildings; or
(iii) Decline to make a declaration in the exercise of the Court’s
discretion.
[31] Ms Foster also drew attention to the fact that the form of declaration sought did not reflect the wording of the condition which was a prohibition on the erection of a building with a frontage only to the right of way.
[32] Mr Hilario’s memorandum sought to clarify the Auckland Council’s current attitude as regards the enforcement of certain easement (right of way) conditions including the particular condition in question. Three other variances were mentioned namely:
(a) that no building be erected having a frontage to the right of way;5
(b) that no building be erected having a frontage to the right of way only;6
and
(c) that no building be erected having the right of way as its frontage.
The memorandum referred to those four variances collectively as the “frontage conditions”.
[33] The memorandum explained that frontage conditions were imposed by local authorities (municipal corporations) in New Zealand in the period from the 1880s to the early 1940s and were made pursuant to various pieces of legislation since repealed.7
[34] The memorandum said:
It appears that such conditions were chiefly imposed as a crude form of controlling density and amenity in subdivisions and developments given the lack of building control in planning laws at that time. Particularly for stylistic (and possibly also fire/safety reasons) the then Auckland City Council had taken a determined stance against “back lots”, that is lots which did not permit a building to have a full frontage to the road. It further appears that during that period (1880s to early 1940s) frontage conditions may have been standardly imposed by the then Auckland City Council without any real thought as to how these conditions would actually affect a particular situation. The Auckland Council does not impose frontage conditions anymore having ceased to do so in the early 1940s.
[35] There is currently no Auckland Council policy regarding frontage conditions. They are neither routinely monitored nor enforced. Given the spectrum of regulatory tools currently at its disposal (for example the District Plan, resource management law and building control law) the Auckland Council considers frontage conditions anachronistic at best. The only conceivable instance where it is said the Auckland Council would actively seek to enforce a frontage condition would be where the current laws are inadequate to address regulatory or planning issues in a property, a scenario considered to be highly unlikely given the reasonably comprehensive and
robust nature of the current legislation.
6 See English v Auckland City Council (1990) 1 NZConvC 190,354 (HC).
7 Section 227 of the Municipal Corporations Act 1900; s 181(4) of the Municipal Corporations
Act 1933.
[36] The Auckland Council’s view is that the Druskovich’s garage has a frontage which is wholly to the right of way. However the Auckland Council has not identified any regulatory or planning issues at the property at 576-578 Great North Road that would require the enforcement of the frontage condition and for that reason the Council is not inclined to enforce the frontage condition which it considers to be a relic of a bygone age.
[37] From the Auckland Council’s stand point the dispute regarding the frontage condition has moved completely into the private sphere, involving only the proprietary interests of BA Trustees and the Druskovichs. While recognising that it is for the Court to determine the issue, the Auckland Council advised that for what it is worth its view is that no regulatory or planning benefit would be derived from the Council seeking to enforce the frontage condition.
Discussion
Does the garage have a frontage wholly to the right of way?
[38] As noted above the particular form of condition in issue has previously been the subject of judicial analysis. In Wright v Tan the Court said:8
[23] What then does “frontage” mean in a condition that “no buildings be erected having a frontage wholly to the right of way”? Three points can be made immediately. On a literal reading the word is related to buildings. Secondly, the condition speaks of “a” frontage, not “the” or “its” frontage. This suggests that the condition is contemplating the existence of more than one frontage, namely a frontage to the right-of-way and a frontage elsewhere. That situation in fact existed in 1939 when lot 2 was bounded by a road. Thirdly, the word “wholly” seems to be synonymous with “only”, for it would make no sense to read it as meaning “entirely”.
[24] Taking these points into account, can the condition be given a sensible meaning in the physical context of 1939? Our preliminary view, looking only at the words themselves as applied to the situation of lot 2 at that time, is that the condition has the meaning that no buildings are to be erected with a frontage only to the right-of-way. In other words, any building which is erected must have a second frontage, namely to the road. …
[39] The Court noted that the reason for the condition in that case was something of a mystery, it apparently being a standard condition imposed in Wright v Tan and in
other cases without any real thought for how it would actually affect a particular situation. The Court continued:
[41] However that may be, and however inappropriate the condition may today seem to be in its application to the particular situation of the Tans' property, it must be taken to have been validly imposed. Our preliminary view, formed on the basis of a reading of the words of the condition, has been confirmed by reference to the earlier High Court decisions and the authorising statute. There is no proper basis for departing from the meaning which the words appear to have when applied to the situation on the ground at the time of the council approval in 1939. The restriction imposed by the condition is expressly related to the frontage of any building, not to the frontage of the allotment. Therefore, for the reasons already given, it prevents the erection of the residence on lot 2. The Tans' remedy, unless the council has power to revoke or amend the condition – a proposition not canvassed before us – must be by way of an application under s 126G of the Property Law Act 1952. …
[40] It is common ground that the building containing the cafe has a frontage onto Great North Road. Behind that building there is a rear yard which separates that building from the garage. I do not accept the submission that the garage is a part of the building which contains the cafe such that the garage could also be said to have a frontage onto Great North Road. From the photographs in evidence the garage is a separate building which stands behind the cafe building. Consequently the garage does not have a frontage onto Great North Road.
[41] Accordingly I accept Mr Sorrell’s proposition (d) that, because it is situated behind the building which has a frontage onto Great North Road, the garage has a frontage wholly to the right of way. I do not accept Ms Foster’s submission that the garage has two frontages.
Is the garage a “building” within the meaning of condition 3?
[42] Mr Sorrell relied on the definition in s 8 of the Building Act 2004.9 A similar definition was contained in the Building Act 1991. However those statutes had their specific purposes which are not necessarily applicable to the context of the present
issue. As Speight J observed in Buckleigh v Brown:10
9 At [29](a) above.
10 Buckleigh v Brown [1968] NZLR 647 (HC) at 652.
In my view there is no strict or primary meaning of the word "building" which is conclusive one way or the other as contended for by the parties. This is well summarised by Lord Halsbury in Paddington Corporation v Attorney-General [1906] A.C. 1; [1904-7] All ER Rep. 362. That was a case concerning the interpretation of the word "building" in relation to two statutes. The learned Lord Chancellor said: “I entirely agree with Buckley J. that in the books there may be found a great variety of cases where, with reference to the subject-matter of the covenant and the meaning of what was in question between the parties, a screen or some erection of that nature, might be considered a 'building' with reference to some covenants and might not be considered a 'building' with reference to others. The subject-matter to be dealt with is to be looked at in order to see what the word 'building' means in relation to that particular subject-matter. It is impossible to give any definite meaning to it in the loose language which is used in some cases; anything which is in the nature of a building might be within one covenant and the same erection might not be a building with reference to another covenant.”
[43] His Honour made the point that in cases where a statute or bylaw is involved, there will frequently be a definition or some grouping of similar words or some clear intention in the legislation which explains the reason for usage. Consistent with the approach in Wright v Tan,11 I consider that it is necessary to attempt to discern the meaning of the word as at 1929 and in the context of the then applicable legislation.
[44] The grant of the right of way was part of a subdivision of land the approval for which was recorded on the transfer in the following terms:
In pursuance of a resolution of The Auckland City Council passed on the third day of October 1929 approving under Section 335 of the “Municipal Corporations Act, 1920” the subdivision, and under Section 181 the Right of Way subject to the following Conditions:–
(1) That the Right of Way be formed, metalled and maintained to the satisfaction of the Council
(2) That a gate be erected and maintained at the entrance to the Right of
Way
(3) That no buildings be erected having a frontage wholly to the Right of Way.
[45] Section 181(1) of the Municipal Corporations Act 1920 stated:
No person shall lay out or make any private street or private way, or grant or reserve a right of way over any private way in any borough, except by permission of the Council; and, subject to the provisions of this Act as to minimum of width in the case of private streets, the Council in granting any
11 Wright v Tan, above n 2, at [24].
such permission may impose such conditions as to width, levels, entrances, course, formation of footways, cost of formation, maximum number of buildings to be erected fronting any such private street or private way, minimum distance between any two buildings if dwellinghouses, position of building-line, and otherwise in all respects whatsoever as the Council thinks fit.
[46] The 1920 Act did not contain a definition of “building” of general application. The only definition of “building” was one specific to s 297(1) which dealt with “ruinous” buildings. Unsurprisingly, because such buildings were dangerous to persons therein or passers-by, the definition was broad so as to include:
any part of a building, or anything affixed thereto, and also a wall or fence, whether forming part of a building or not.
[47] Various sections (including s 181(1)) identified dwellinghouses as a subset of buildings. The prevention of overcrowding of dwellinghouses was addressed in s 299 which required that at the side or rear of a new dwellinghouse there was to be an open space of not less than 300 “superficial feet” exclusively belonging to that dwellinghouse. Section 299(3) contained a reference to ancillary structures as follows:
(3) The minimum distance across such open space from every part of the dwellinghouse, and from any part of any washhouse, shed, convenience, or other erection attached thereto, shall be …
[48] It is not clear from that subsection whether it was a requirement that every such ancillary structure must be “attached” to the dwellinghouse. However other provisions, such as s 298(1) (relating to the improvement of insanitary portions of a borough), refer to “buildings and erections” which suggests that the two were seen as distinct.
[49] The focus on dwellinghouses in the context of frontages was apparent in the
Auckland City Council’s bylaws which included:12
187.No person shall erect any building intended wholly or in part for residential purposes, or alter any building not erected therefor (sic), so as to make the same fit therefore, unless such building shall have a frontage for its full width to some public or private street.
188.No person shall erect any building on any land owned or occupied within the City whereby any dwellinghouse or other building used wholly or in part for residential purposes already existing thereon shall be deprived for the whole or any part of its width of its frontage to any public or private street.
[50] My strong suspicion from reviewing the legislation of the time was that the object of such conditions as condition 3 in the present case was to prevent the construction of a second dwellinghouse behind a dwellinghouse which enjoyed the exclusive frontage to the street. I do not think that condition 3 was intended to prevent the erection of ancillary structures such as those referred to in s 299(3), whether or not they were physically attached to the dwellinghouse.
[51] However condition 3 does not use the word “dwellinghouse” but the broader word “buildings”. Even though I consider that the objective of condition 3 was to prevent the construction of a second dwellinghouse on the rear of a section, in my view a stand-alone garage with a roof (i.e. not a carport physically connected to a dwellinghouse) would come within the definition of “building”. Viewed from a
1929 perspective I find support for that conclusion in the case of Doyle v Merry13
where the argument (about whether a stable converted into a dwellinghouse was required to comply with the open space requirement) appears to have proceeded on the basis that a stable was a building for the purposes of the Municipal Corporations Act 1900.
[52] I conclude that in 1929 the word “buildings” in condition 3 would have been construed as including a garage. Hence, when the garage in question was erected, that was in breach of condition 3.
Should condition 3 now be modified?
[53] In Wright v Tan the Court of Appeal remarked that Mr Tan’s remedy was by
way of an application under what was then s 126G of the Property Law Act 1952.14
The Druskovichs now apply for an order under s 317 of the Act either deleting condition 3 or modifying it so that it refers only to a principal building and not to an
ancillary building such as a garage or a shed.
13 Doyle v Merry (1902) 22 NZLR 643 (SC).
[54] I do not consider that it would be appropriate to entertain an application for an order that the condition be simply deleted in its entirety. If my view is correct as to the motivation for the condition (namely to preclude a second dwellinghouse behind a first dwellinghouse), BA Trustees Ltd is entitled to have the continued benefit of that protection.
[55] However I consider that there is a good case for modifying that condition so that the word “buildings” is confined to dwellinghouses or commercial or business premises and does not extend to ancillary buildings. I observe in that regard that Lot 3 is at least three times deeper than it is wide so that it is not unreasonable to expect that ancillary structures might be erected to the rear of the building which has the frontage to Great North Road.
[56] Secondly the right of way runs for quite a distance so that there would be an expectation that vehicles might use it, for example for deliveries as provided for in the agreed modified form.15 If vehicles were to be used, then it would not be unreasonable to expect that a structure might be erected for their security and in order that they might be unloaded with protection from weather conditions.
[57] The circumstances in which the Court may modify an easement or covenant are set out in s 317 which provides:
317 Court may modify or extinguish easement or covenant
(1) On an application (made and served in accordance with section 316) for an order under this section, a court may, by order, modify or extinguish (wholly or in part) the easement or covenant to which the application relates (the easement or covenant) if satisfied that—
(a) the easement or covenant ought to be modified or extinguished (wholly or in part) because of a change since its creation in all or any of the following:
(i) the nature or extent of the use being made of the benefited land, the burdened land, or both:
(ii) the character of the neighbourhood:
(iii) any other circumstance the court considers relevant;
or
(b) 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; or
(c) every person entitled who is of full age and capacity—
(i) has agreed that the easement or covenant should be modified or extinguished (wholly or in part); or
(ii) may reasonably be considered, by his or her or its acts or omissions, to have abandoned, or waived the right to, the easement or covenant, wholly or in part; or
(d) the proposed modification or extinguishment will not substantially injure any person entitled.
[58] The evidence establishes that the garage has been in existence since at least
1971. Until this proceeding no objection appears to have been taken to its existence or use, at least as a garage. It is significant in my view that no issue was raised in relation to the existence of the garage in the course of the litigation in 2005 and 2007 with reference to Lot 2.
[59] In addition, the parties have now agreed to modify the easement to restrict its use in the manner recorded at [14] above.
[60] The fact of the erection of the garage over 40 years ago, its subsistence and use since that time apparently without objection being made as to non-compliance with condition 3 and the recent agreement to restrict the scope of the easement, are relevant circumstances which cause me to be satisfied that condition 3 should be modified under s 317(1)(a)(iii). I am also satisfied that a modification of the condition in the manner proposed will not substantially injure BA Trustees Ltd.
Disposition
[61] I make the following orders:
(a) The terms of the right of way easement are modified as follows:
The right of way is limited to that of providing access to any building erected on the dominant tenement for the purposes only of the authorised uses of the registered proprietor and lessees of the dominant tenement but excluding therefrom all invitees except those providing services for those authorised uses or deliveries to the registered proprietor or lessees of the dominant tenement.
(b)A declaration that the garage building on the western portion of Lot 3 owned by the second defendants adjacent to the plaintiffs’ land is a building with a frontage wholly to the right of way.
(c) Condition 3 is modified as follows:
That no buildings (save for the garage existing at the date of the order of the High Court dated 26 May 2014) be erected having a frontage wholly to the Right of Way.
[62] Leave is reserved to the parties to apply to refine the terms of order (c) within
20 working days of this judgment.
[63] The parties are to file memoranda as to costs. I grant leave to the Druskovichs to file an affidavit with reference to the issue of costs. In those circumstances it is appropriate that the memorandum of the Druskovichs should be filed first. Their memorandum is to be filed by 16 June 2014 and the memorandum of the plaintiffs by 7 July 2014. The plaintiffs have leave to file an affidavit in
response to any affidavit filed by the Druskovichs.
Brown J
ANNEXURE
2