Fox v Hamilton
[2024] NZHC 2479
•30 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-123
[2024] NZHC 2479
UNDER Sections 327 and 328 Property Law Act 2007 IN THE MATTER
of an application in respect of landlocked land
BETWEEN
HENRY ALLAN FOX and MARIE PATRICIA MUHL
First Applicants
NATHALIE FREDERIQUE GIRAUDON and EMMANUEL STAUDER
Second ApplicantsJONATHAN ROBERT SMITH,
BEVERLEY ANN WALLS and PETER MARK WALLS
Third Applicants
MICHELLE HELEN SNAPE
Fourth ApplicantPHILIP LAURENCE LEES
Fifth ApplicantDONALD GORDON MICHAEL and KAREN HILDA MICHAEL
Sixth Applicants
AND
LISEL BRITTA HAMILTON
Respondent
Hearing: 9 May 2024 Appearances:
T C Daley for Applicants
L B Hamilton (Respondent) in person (with Mr Hamilton as McKenzie friend)
Judgment:
30 August 2024
FOX v HAMILTON [2024] NZHC 2479 [30 August 2024]
JUDGMENT OF OSBORNE J
[1] This is a proceeding under the Property Law Act 2007 (the Act) for an order granting access to landlocked land.
[2] The six applicants own hillside properties off Wainui Main Road overlooking Akaroa Harbour (the A properties). The A properties have for many years been accessed by a shared driveway traversing up the slope and, at its start, passing over the lower portion of the respondent’s property (the R property). The respondent also accesses her (vacant) property via the driveway.
[3] It was discovered after the respondent purchased the property in September 2020 that the driveway was not fully within formal right of way easements the respondent’s predecessors in title had granted over their property. It transpires that the driveway also passes over a very small portion of land within the title of one of the applicants (Michelle Snape) with no easement in relation to it, whether in favour of the other applicants or the respondent.
The application
[4] The applicants retained Frizzell & Associates Ltd trading as Survus Consultants (Survus), to survey the affected properties and to produce a plan which would expand the right of way to follow the existing driveway (the Survey Plan). The expansion of the right of way would affect 102 m2 of the R property (the “Hamilton portion”) and a very small portion of the Snape property (the “Snape portion”).
[5] The applicants seek an order that right of way easements in accordance with the Schedule of Easements on the Survey Plan be granted on the same terms as the wording of the existing right of way easements. Ms Snape consents to the creation of the requested easements over the Snape portion.
[6] The applicants undertake to meet the legal and surveying costs associated with registration of new easements. The existing driveway does not require physical
alteration. The applicants submit they should not have to pay compensation to the respondent under s 330(1)(a) of Property Law Act 2007 (the Act) on the basis the respondent will suffer no prejudice from the modification of the existing right of way. In the alternative, should the Court think fit to impose a condition as to payment of compensation, they submit the sum should be that indicated in an agreement the parties reached in August 2023 (below at [38](b)] (“the “August 2023 agreement”). They also assert the new easements will not increase the value of their properties.
[7] The respondent initially opposed the application on the basis the A properties were not landlocked. In the alternative, were the Court to grant the applicants relief, the respondent sought compensation. At the hearing she identified a set of estimated amounts she submitted the applicants should pay, totalling $66,000 (below at [18]).
[8] The respondent before the hearing identified she no longer contested the relief sought in the application. It is now common ground that, by reason of the topography, the A properties are landlocked in terms of s 326 of the Act and a grant of access is to be made.
[9] The evidence clearly establishes the A properties are landlocked and the proposed right of way easements will provide reasonable access to the A properties. Having regard to the respondent not opposing that relief, the hearing focused entirely on the issue of compensation — whether there should be a condition as to the payment of compensation and, if so, in what amount.
Conditions as to the payment of compensation — the legal regime
[10] Once the Court is satisfied it is appropriate to grant reasonable access to landlocked land under s 328 of the Act, the Court has a discretion under s 330 of the Act to impose conditions. Relevantly, s 330(1) provides:
330Court may impose conditions in making order for reasonable access
(1)In making an order under section 328, a court may impose any conditions it thinks fit, including conditions relating to the following:
(a)the payment of reasonable compensation by the applicant to any other person:
…
[11] The breadth of the discretion conferred by s 330(1)(a) was identified by Mallon J in Dooley v Sturgess Consulting Ltd (Dooley), where her Honour observed:1
The issue of compensation arises under s 330(1)(a). Compensation can be imposed as a condition of an order granting reasonable access. The Court is not required to order compensation, as s 330 provides it is to be ordered if the Court “thinks fit”. If compensation is ordered, this must be “reasonable” compensation. Beyond that, it is necessary to obtain guidance from case law.
[12] In Dooley, Mallon J identified the leading authority for assessing compensation is the Court of Appeal decision in Jacobsen Holdings Ltd v Drexel.2 She referred to relevant passages in the Court of Appeal’s judgment as delivered by Cooke P, and then summarised the correct approach to compensation, by reference to that discussion (which I adopt):3
[20]Accordingly the approach to compensation is:
(a)Compensation need not always be ordered (it is discretionary).
(b)However it will ordinarily be fair to order compensation, because the defendant (the provider of access) is required by the Court to provide something of value to the plaintiff (the owner of the landlocked land) and potentially to the detriment of the defendant.
(c)The amount of compensation is the fair consideration which a willing buyer and willing seller would agree to in a friendly negotiation.
(d)In ordering compensation it is relevant to consider both the benefits and detriments to either side in providing the access because they are factors a willing seller and a willing buyer would take into account.
(e)But the amount ordered must be “reasonable” in the circumstances and not an amount which is forced to “unreasonable heights by necessity”.
(footnotes omitted)
1 Dooley v Sturgess Consulting Ltd [2016] NZHC 1905 [Dooley] at [15].
2 Jacobsen Holdings Ltd v Drexel [1986] 1 NZLR 324 (CA).
3 Dooley, above n 1, at [20].
[13] In Dooley, Mallon J next reviewed a number of examples from the case law.4 She reached conclusions as to what an applicant would need to pay by way of compensation in ordinary cases and in special circumstances. The plaintiff will ordinarily need to pay the following by way of compensation:5
(a)The costs associated with obtaining legal access. This will include the cost of constructing or upgrading the access and legal costs directly associated in granting the legal access. Legal costs up to the issue of proceedings are also potentially recoverable.
(b)All of the diminution in the value of the defendant's land attributable to granting legal access to the plaintiff, if there is any such diminution properly proven on the evidence.
(c)Around 20 to 36 per cent of the increased value of their land from obtaining legal access.
(footnotes omitted)
But a different approach might be appropriate where there are special circumstances:6
(a)These special circumstances might relate to what a willing buyer and willing seller would agree to in the situation. For example, where a payment on the above approach would lead to an overall payment which is too great relative to the cost of forming access and the value of the property; or
(b)they might relate to whether compensation is payable at all. For example, where legal access was always intended but a mistake was made in attending to its creation.
(footnotes omitted)
[14]Having set out these conclusions, Mallon J in Dooley observed:7
Overall the Court is seeking to arrive at a fair price for the legal access in the particular circumstances of the case. The assessment is not an exact science. Valuation evidence is relevant when assessing the loss to the defendant and the gain to the plaintiff if legal access is granted over the defendant’s land. Valuation evidence may also extend to a view about the overall sum that a
4 Jacobsen Holdings Ltd v Drexel [1987] 2 NZLR 52 (HC) (being the High Court decision in Jacobsen after referral back from the Court of Appeal); Lowe v Brankin (2005) 6 NZCPR 607 (CA); Hajnal v Asmussen [2010] NZCA 410, (2011) 12 NZCPR 169; MacRae v Walshe [2013] NZCA 664, (2013) 15 NZCPR 254; Squally Cove Forestry Partnership v Wagg [2013] NZCA 463, (2013) 3 NZLR 793; Macken v Jervis [2014] NZHC 3408; Reikorangi Forest Ltd v Charman HC Wellington CIV-2004-485-1255, 15 October 2007; J T Jamieson & Co Ltd v Inland Road Ltd [2013] NZHC 3313.
5 Dooley, above n 1, at [38].
6 At [39].
7 At [40].
willing buyer and willing seller might agree to in the circumstances. Negotiations between the parties might also assist in determining the compensation that would be agreed between a willing buyer and willing seller. However such evidence may be unhelpful if the negotiations have not been based on any reliable valuation framework or on the applicable compensation principles or there are other reasons why they do not provide good evidence of a willing buyer/willing seller negotiation.
(footnotes omitted)
[15] Moving beyond these statements of principle and approach, the decision in Reikorangi Forest Ltd v Charman is, on its facts, instructive.8 In Reikorangi, as here, the applicant’s access along an unsealed and long-established private road deviated from the registered easement. The principal respondents resisted a Property Law Act application on the basis that no access at all should be granted under s 328 of the Act. They sought extensive conditions, including as to payment of compensation, in the event access were granted. Gendall J made an order for access with a standard condition that the costs of survey in relation to the deviation be met by the applicant. The Judge rejected the respondents’ submission that various sums of compensation should also be paid. The Judge explained:
[78] This is not the usual case involving landlocked land. Reikorangi Forest is landlocked as having no reasonable access because Mr Charman has the ability to place a barrier across one or more of the portions where the existing roadway deviates from the registered easement. The deviations are relatively minor and in one respect trivial and the roadway has been used for over 20 years by landowners to the southwest and southeast. It is still being used by all.
…
[87] I have no doubt that continued use of the formed roadway, of itself, does not diminish the Charmans’ enjoyment of the property and I am satisfied by a wide margin that Reikorangi Forest Limited are entitled to the remedial relief that it seeks.
The parties’ contentions as to compensation
Respondent’s contributions
[16] At the time the respondent filed her notice of opposition, there was a bare claim to compensation, sought in the event the Court was to order access. At that time and
8 Reikorangi Forest Ltd v Charman, above n 4.
until close to trial the respondent’s pleaded position was that the access application should be refused for two reasons:
(a)if granted it would deny the respondent the ability to use part of her land as a platform for a second residence; and
(b)a feasible alternative to the access application was a partial realignment of the existing driveway, taking less of the respondent’s land, with a retaining wall able to support the realigned driveway.
[17] When the focus at the hearing turned entirely to the issue of compensation, the respondent contended:
(a)there should be compensation on account of the value of the respondent’s land being subject to the easement, having particular regard to the inability the respondent will then have to erect a building on her preferred platform;
(b)there should be compensation to account for an increase in value of the applicants’ properties;
(c)the Court, in considering compensation, should take account of the applicants’ failure to discuss or negotiate a partial realignment option; and
(d)the best evidence of the fair consideration for what the respondent would be giving up on a willing buyer/willing seller basis is not the August 2023 agreement figure of $10,529.74 as the respondent had previously turned down an (12 December 2022) offer of $13,587.60.
[18] As the respondent did not in her written submissions identify any particular compensation figure or figures, I directly asked her in the course of her oral submissions what sums of compensation she was submitting would be appropriate.
She said, on a “very conservative” basis, her estimates of compensation appropriately payable by the six sets of applicants were:
(a)First applicants — $10,000
(b)Second applicants — $5,000
(c)Third applicants — $10,000
(d)Fourth applicant — $12,000
(e)Fifth applicant — $13,000
(f)Sixth applicants — $16,000
Applicants’ contentions
[19] Mr Daley (for the applicants) noted, before any consideration is given to the possibility of compensation, the applicants have already accepted the imposition of a condition whereby the applicants will meet all the costs associated with creating the new easements and that the respondent will be benefitting (albeit in relation to a very small parcel of land) by obtaining a legal right of access over the fourth applicant’s land (that is the Snape portion).
[20] The applicants’ primary position, against this background, is that no compensation should be payable because:
(a)the new easement will benefit the respondent;
(b)it will cause the respondent no prejudice as identified by valuation evidence adduced by the applicants;
(c)there is no evidence the new easement will result in any increase in value to the applicants’ properties; and
(d)the new easement is reasonable.
[21]In the alternative, were the Court minded to award compensation, then:
(a)the evidence of Mark McSkimming (the applicants’ expert valuer) is that the new easement would neither increase nor decrease the value of the respondent’s property ($200,000 as at January 2024);
(b)the respondent has adduced no reliable evidence to establish building on her preferred platform is feasible, nor any evidence to indicate that by reason of an impact on building plans or otherwise the value of her property will be diminished; and
(c)the best evidence of what a willing buyer would pay and a willing seller would accept lies in the August 2023 agreement figure of $10,529.74.
The evidence
[22] As this proceeding was commenced by originating application, the parties’ evidence primarily came in by way of affidavit. A good deal of the evidence filed ultimately had little relevance to the issue remaining for determination at the hearing, namely whether compensation ought to be ordered.
[23]The evidence adduced by the applicants comprised:
(a)affidavits on behalf of each set of applicants;
(b)an affidavit of a structural engineer, Brendan O’Connor (as to realignment of the driveway);
(c)an affidavit of a registered valuer, Mark McSkimming (as to the valuation of the respondent’s property).
[24] The applicants’ two expert witnesses were required by the respondent for cross- examination.
The respondent’s evidence comprised:
(a)an affidavit of the respondent;
(b)an affidavit of the respondent’s husband, Hamish Hamilton.
[26]I will discuss relevant evidence by reference to the following subject-matter.
Value of the respondent’s properties
[27]The applicants focused their valuation evidence on the respondent’s property.
[28] Mr McSkimming prepared a valuation of the respondent’s property on the basis of an inspection on 31 July 2023. He recorded his valuation was based on the estimated amount for which the property would exchange on the valuation date between a willing buyer and a willing seller in an arms-length transaction, after proper marketing and where the parties had each acted “knowledgeably, prudently and without compulsion”. His detailed report identified the property by reference to site details, locality and improvements. He provided a market overview and then explained he was valuing on a comparable transaction method, referring to nine properties for sales evidence. His assessment was that the maximum price payable for the property with its available current access was around $200,000.
[29] Mr McSkimming was asked to report whether there would be a difference in value for the property if the existing right of way access was formalised — he considered there would not be a significant difference in value.
[30] In the subsequent affidavit by which he produced his report, Mr McSkimming qualified himself as an expert. He confirmed (as at January 2024) the current value of the property remained $200,000 and that he did not consider granting a right of way over the existing shared driveway would increase or decrease the value of the property.
[31] The respondent chose not to obtain and file expert valuation evidence. The Court extended time for the respondent to file valuation evidence by 18 December 2023. She did not do so but instead filed the affidavit of her husband (who does not
have valuation qualifications) — he exhibited 18 photographs showing views of the properties of the applicants and the respondent and of several of the properties referred to by Mr McSkimming for sales evidence.
[32]There were two emphases in Mr Hamilton’s description of his photographs:
(a)the photographs from and in relation to the respondent’s property indicate the good views and aspect the property has and the quality of the respondent’s preferred platform;
(b)the photographs of Mr McSkimming’s “comparable” properties show those properties have relatively inferior views.
[33] The respondent cross-examined Mr McSkimming on the topic of improvement in the value of the applicants’ properties, the difficulties of lawfully accessing the applicants’ properties (by vehicle or foot) if the easement was not regularised, and a proposition that one particular property considered by Mr McSkimming for sales evidence (sold for $400,000 in January 2022) was the most comparable to the respondent’s property.
[34]I summarise Mr McSkimming’s oral evidence on these topics:
(a)it is possible that a purchaser of the first applicants’ property would see more security by having the easement corrected — there possibly would be impact. Potentially someone “would pay a little more, with the surety of access and the legal people having done their job properly”. There could be a benefit to a fully informed purchase of the property;
(b)without the driving access along the existing driveway both parking on the Wainui Main Road and pedestrian access to the properties would become difficult or extremely difficult;
(c)the property the subject of the $400,000 comparable sale identified by Mr McSkimming has many advantages compared to the respondent’s
property, is in a preferred locality and has available services. The property picked out by the respondent has some relevance one way or the other but Mr McSkimming identified the first property he listed (sold for $220,000 in February 2022) as “the best one”; and
(d)Mr McSkimming can “guarantee that early-2022 was the peak of the market”.
[35] In re-examination by Mr Daley, Mr McSkimming was asked to comment on the consequence for the respondent’s land if the easement was not regularised, with the respondent having to form her own access to reach her property. Mr McSkimming agreed the implications for the respondent of having to do that would also come into the valuation exercise, although he considered with such problems “common decency or common interest would allow people to use that access even though it hadn’t been put in the right place”.
[36] I found Mr McSkimming to be a reliable witness. His initial valuation report was founded on substantial knowledge and research. It was comprehensive. The valuation he assessed in July 2023 was logically supported by the underlying information.
[37] The respondent’s election not to call her own valuation evidence has meant Mr McSkimming’s valuation opinion stands substantially unchallenged.
[38] The additional information that must be brought into account in relation to valuation is the evidence of the August 2023 agreement. The evidence is that the parties had negotiations to agree an appropriate compensation sum should the easements be regularised:
(a)On 12 December 2022 the applicants, on the basis of the Rateable Value of the respondent’s property in December 2022 ($220,000), offered (in addition to the costs of forming the easement) to pay compensation calculated at $113.23 per square metre for each square metre required for the proposed easement). Based on an example of the easement over
the respondent’s land covering an additional 120 m2, the applicants’ lawyer explained the compensation would be $13,587.60. (The final survey, identifying the exact area required, would determine the actual amount of compensation paid). The respondent did not accept that proposal before it expired 10 days later;
(b)by August 2023, the applicants had obtained Mr McSkimming’s valuation of the respondent’s property ($200,000). The Survus survey had also been completed, indicating the affected area was 102.3 m2. On 9 August 2023, the applicants (following the same methodology as used in the December 2022 offer) offered $10,529.74 as the compensation sum, the offer open for acceptance for nine days;
(c)on 14 August, the respondent through her then-barrister, accepted the applicants’ offer. Arrangements were immediately made for a settlement conference scheduled to commence a week later to be vacated; and
(d)it transpired the respondent reneged on the settlement agreement. The applicants, rather than pursue a separate proceeding for enforcement of the settlement agreement, elected to continue with this proceeding to obtain the orders under the Act.
[39] As I have noted, the applicants primarily assert, on the basis of Mr McSkimming’s $200,000 valuation evidence, there should be no condition as to payment of compensation. But, in the event there is to be, they rely on the August 2023 settlement figure as market evidence of what a willing buyer and willing seller would agree on as the price for extending the easement over the respondent’s land.
[40] Mr McSkimming, in re-examination by Mr Daley, did not directly confirm the August 2023 agreement figure would be the best market evidence of the value of what the respondent was giving up. Mr McSkimming indicated that you would “look at the specifics of that” including the valuation of the land itself. Mr McSkimming’s answer, while less than clear, generally supports what I conclude must be the correct position.
Against the information both parties had through a lengthy period of discussion and litigation and in light of Mr McSkimming’s valuation report on the respondent’s land, the $10,529.74 settlement figure represents good evidence for valuation purposes in that it is the agreed figure of a willing seller and willing buyers acting upon full information.
The respondent’s preferred platform
[41] The respondent’s affidavit evidence was filed at the outset in full opposition to the application for relief under the Act. She explained, when she and her husband entered into a contract to purchase the property, they understood they would have the right to build a main dwelling together with a secondary dwelling of no more than 80 m2. They trusted themselves to be able to make the best of what they had, come what may.
[42] Upon completing the purchase, the respondent and her husband worked on their “preferred solution” for the property. Mr Hamilton (who is not a surveyor by occupation) undertook survey work and concluded “the optimum place to build the secondary dwelling would be part way onto the misplaced driveway”.
[43] The respondent in her affidavit said, whilst she believed it may be technically feasible to move her proposed building footprint back to allow the easements to follow the existing driveway, that “would need the approval of a geotechnical engineer”. She referred to a report from Ian McCahon, a geotechnical engineer at Geotech Consulting Ltd dated 22 September 2008. The respondent did not provide an affidavit from Mr McCahon. In her affidavit, however, the respondent went on to record that, if the Geotech engineer gave his approval, further excavation of the respondent’s property would be required with consequential costs. The respondent would “probably need outside contractors”.
[44] The respondent did not file any expert surveying or engineering evidence. The conclusions she reports her husband reaching in relation to survey matters are not admissible in evidence. Nor are the opinions the respondent expresses in relation to engineering matters or indeed costing matters.
[45] While Mr McCahon’s two-page report is not admissible evidence, it is appropriate to set out the concluding paragraph which serves to emphasise the unreliability of the respondent’s assumption that her preferred platform is a viable building site:
Given the two possible sites, in theory two houses would be possible. However, it must be understood that the site is marginal with clear evidence of instability along this hillside. It is our opinion that two houses on the lot is too intensive for such a locality. Debris diversion fences above the houses could end up diverting any debris that might occur into the adjacent house. This opinion holds even if additional land is purchased. Specific foundation design is required for either site.
[46] To the extent any evidence was adduced from an expert as to the respondent’s preferred platform for her property, it was that of Mr O’Connor, the applicants’ engineer. Mr O’Connor reviewed the plans and information provided by the respondent. He opined there were alternatives, upslope, from the respondent’s preferred platform. Mr O’Connor noted that locating a second house to the west and higher up the hill, rather than excavating into the hill, would reduce the height of a retaining wall and associated costs. It would also increase sun exposure. Mr O’Connor expressly recorded he was forming his opinion on limited information and there may be other constraints.
[47] Mr O’Connor then considered specifically the location in which the respondent was planning her garage for the second dwelling. He anticipated there would be complications in forming an appropriate driveway to access a garage at the respondent’s proposed site.
[48] The respondent cross-examined Mr O’Connor with a view to establishing that an alternative location as suggested by Mr O’Connor could not be built without a lot of expense. Mr O’Connor’s evidence remained that he did not think he had enough information to make that call. In re-examination, Mr O’Connor explained what would be needed, referring to scale drawings, topographical information, and survey data.
[49] Mr O’Connor’s evidence demonstrated, in short, that a great deal of uncertainty exists in relation to the practicability of the respondent building a second house to be located on her preferred platform.
[50] There is simply no reliable evidence on which the Court could reach the conclusions the respondent invites in relation to the potential to locate a secondary dwelling on the respondent’s preferred platform. There is accordingly no reliable evidence that the enjoyment and value of their land will be detrimentally affected by the easements being amended to follow the driveway that has existed and been used by both the applicants and the owners of the respondent’s property for many years.
[51] In support of her consideration of a retaining wall for her property, the respondent obtained drawings from Limestone Structural Engineers in June 2023 containing a retaining wall design for her property. An engineer from Limestone was not called to give evidence. The Limestone drawings are therefore not of evidential assistance. In any event, the drawings contain notes expressly referring to the need for a geotechnical engineer to confirm the suitability of conclusions relied on in the drawings and to confirm that the slope would have stability if built upon.
[52] As none of these matters were established by evidence, there is no basis on which to conclude that the respondent’s desire to have provision for a second building on the site is viable or (if it were) that it could be appropriately located in the respondent’s proposed location.
[53] The respondent also provided an estimate from AreaTech dated 13 July 2023, estimating the cost of constructing a retaining wall of the nature drawn by Limestone. Again, the information in the report was not made the subject of evidence by a witness with expertise. As it is, the report was hedged with reservations, such as the inability to estimate some costs without a detailed geotechnical report and an inability to “comfortably provide an estimate for the provided design”. This again indicates the inappropriateness, in the compensation context, of attaching any weight to the respondent’s focus on her preferred platform.
Discussion — compensation
[54] Upon the basis the applicants are to acquire the legal right of access over the full area taken up by the existing driveway, the respondent will be required to submit to an extension of the easement over 102.3 m2 of a 1,943 m2 property. Given this bare fact, I consider it unsurprising that the applicants, informed by Mr McSkimming’s
valuation of the respondent’s property at $200,000, saw fit to offer compensation. I am satisfied it is appropriate that there be a payment of compensation by the applicants to the respondent as a condition of this Court’s order.
[55] I am guided in fixing the appropriate sum of compensation by the following matters:
(a)what is reasonable will be informed by the fair consideration which a willing buyer and a willing seller would agree to in a friendly negotiation;
(b)the best evidence of that in this case is the agreed sum reached by the parties in their settlement agreement in August 2023, namely
$10,529.74, calculated directly from the area affected by the extended easement;
(c)there are benefits to both the applicants and the respondent in creating the new easement — all the parties gain legal instead of informal access over the already existing driveway to their properties, the applicants over the land of the respondent and the respondent over the land of the fourth applicant (albeit to a very minor extent);
(d)the need to alter the easement has been brought about by an historical error occurring at the time the various parties’ predecessors in title formed the original easement;
(e)the order for access being made does not create an entirely new right of way but aligns the new easement to what has been the pre-existing physical access for both the applicants and the respondent;
(f)there is no reliable evidence to establish the easement will prevent the respondent constructing at a particular location on her property a building that could have been built but for the alteration of the easement; and
(g)there is no admissible evidence to establish the value of the respondent’s property has been diminished beyond the previously agreed settlement sum of $10,529.74.
[56] Without the evidence of the $10,529.74 settlement sum I might well have thought fit to assess a slightly different figure as the appropriate compensation. That said, consistently with valuation principles I consider it appropriate to adopt that figure.
Orders
[57]I order:
(a)the parties are to cooperate to register right of way easements in accordance with the Schedule of Easements on the Survey Plan prepared by Survus Consultants, drawing no. SS-01, (Schedule A to this judgment);
(b)the terms of the right of way easements are to be the same as the wording contained in Transfer Instrument 363891 of the existing right of way easement;
(c)leave is reserved to the parties to apply should any further directions be required to give effect to the rulings in this judgment;
(d)pursuant to s 331 Property Law Act 2007, the reasonable cost of all work necessary to give effect to this order must be met by the applicants;
(e)it is a condition of this order that the applicants pay to the respondent on the registration of the new easement reasonable compensation which I fix in the sum of $10,529.74 (inclusive of GST, if any);
(f)the costs and disbursements of the proceeding are reserved. In the event the parties are unable to agree in relation to costs and disbursements the
same will be determined on the papers, with the applicants to file and serve within 15 working days a memorandum (five page limit) setting out their submissions, with a schedule of items and calculations attached, and the respondent within five working days thereafter to file a memorandum in reply (same page limit), with (if appropriate) an amended schedule of items and calculations.
Osborne J
Solicitors:
Anthony Harper, Christchurch
Copy to: Mrs L B Hamilton (Respondent)
SCHEDULE A
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