Cornes v Village Residential Limited - [2021] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA526/2020
[2021] NZCA 216

BETWEEN	DAVID IAN CORNES AND REI KAHUI JONES Appellants
AND	VILLAGE RESIDENTIAL LIMITED Respondent

Hearing:	16 March 2021
Court:	Clifford, Brewer and Dunningham JJ
Counsel:	D J O’Connor and J C Heaphy for Appellant D M Kerr for Respondent
Judgment:	31 May 2021 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

Introduction

The appellants, Mr Cornes and Ms Jones, own a property at 24 Lucknow Road in Havelock North. It comprises a large back section of over 1500 square metres including a strip of land extending to Lucknow Road which contains their driveway. Its legal description is Lot 2 Deposited Plan 8107 (Lot 2).
In mid-2018 the respondent, Village Residential Ltd (VRL), agreed to purchase the property at 26 Lucknow Road which sits in front of the appellants’ property. VRL’s property comprises a large section of just over 2000 square metres and its legal description is Lot 1 Deposited Plan 8107 (Lot 1). Although Lot 1 has frontage onto Lucknow Road it, too, uses the appellants’ driveway for access pursuant to a right of way easement registered against the title when the lots were created.
The driveway which serves both properties was once partially or fully sealed but now consists of a combination of disintegrating seal and loose metal. It has a storm water sump located approximately halfway down it which was installed around 10 years ago. The sump is described by VRL’s advisors as inadequate to manage stormwater on the shared driveway which slopes downhill towards Lucknow Road.
Subdivision of Lot 1 is a controlled activity under the Hastings District Plan and on 8 July 2019 the Hastings District Council (the Council) granted subdivision consent to VRL on various conditions. VRL is now in the process of subdividing Lot 1 into five lots, two of which will have access directly from Lucknow Road, while the other three will have access via the existing right of way.
The resource consent for subdivision of Lot 1 is conditional on the driveway being upgraded and a new drainage sump being installed within it to provide better stormwater management and reduce potential runoff. The approved plans show the driveway will be constructed of reinforced concrete with a new kerb and channel, and there will be a drainage sump installed at the lower end of the driveway close to the road. There will also be a drainage sump installed at the head of the driveway, but within VRL’s land, to collect stormwater that would otherwise flow down the driveway.
The appellants do not want the driveway upgraded as proposed. They are content to have it maintained, but not upgraded as is required to complete the approved subdivision. The affidavit evidence indicates the appellants are concerned…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZCA 216
Decision Date: 31 May 2021 at 10.30 am

CaseChat Overview and Summary

The appeal in Cornes v Village Residential Limited concerns a dispute over the right of way easement over a driveway located on the appellants' property. The easement was created in 1951, and the easement holder, Village Residential Limited (VRL), wishes to upgrade the driveway in accordance with conditions imposed by the Hastings District Council as part of its subdivision consent. The appellants opposed the proposed works and brought an application to the High Court to determine the scope of the easement and whether the proposed works were permitted. Doogue J found that the works were permitted, and the appellants now appeal that decision. The appeal was dismissed by the Court of Appeal, which held that the terms of the easement and the implied statutory rights under the Property Law Act 2007 (PLA) permit the works proposed. The Court of Appeal also held that the proposed drainage works did not constitute the creation of a new drainage easement. The Court of Appeal found that the costs of the works must be shared between the parties unless they agree otherwise, but that matter is to be determined in a separate proceeding.

The central issue on the appeal was whether the easement holder was entitled to upgrade the driveway in accordance with the subdivision consent. The Court of Appeal held that the easement terms permitted the upgrading of the driveway as part of the rights conferred to the easement holder to maintain a driveway and for the purpose of enabling the lawful use of the benefited land. The Court of Appeal held that the implied statutory rights under the PLA did not limit the easement holder's rights to upgrade the driveway, and that the common law recognises ancillary rights to the easement terms which permit the upgrading of the driveway. The Court of Appeal also held that the proposed drainage works did not constitute the creation of a new drainage easement, as the proposed works did not require the appellants' land to receive additional stormwater, and the drainage sump at the bottom of the driveway was integral to the construction of the driveway.

Orders