Guo v Bourke
[2017] NZCA 609
•18 December 2017 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA524/2016 CA15/2017 [2017] NZCA 609 |
| BETWEEN | QINGYAN GUO |
| AND | GARY EDWARD BOURKE AND BENJAMIN WILLIAM MCALPINE TOTHILL AS TRUSTEES OF THE KAMBARA TRUST |
| Hearing: | 19 June 2017 |
Court: | Brown, Clifford and Mander JJ |
Counsel: | D K Wilson for Appellant |
Judgment: | 18 December 2017 at 4 pm |
JUDGMENT OF THE COURT
AThe appeal in CA524/2016 is allowed.
BThe appeal in CA15/2017 is allowed in part.
CRelief is granted in accordance with [63]–[65] of the judgment.
DThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
Mrs Qingyan Guo and Mr and Mrs Bourke are neighbours. Mrs Guo lives at 131 Mountain Rd, Epsom, Auckland (131). Mr and Mrs Bourke live at 129 Mountain Rd (129).[1] Both properties access Mountain Rd by a shared driveway (the driveway). The driveway is formed on part of land subject to reciprocal easements between 129 and 131.
[1]Mr Bourke and his co-respondent, Mr Tothill, own 129 as trustees. Mr and Mrs Bourke live at 129 with their children.
Mrs Guo appeals against judgments of Duffy J in the High Court at Auckland:
(a)declining her applications under the Property Law Act 2007 (the PLA) for orders requiring the Bourkes to remove a set of steel gates and part of an associated block wall from the driveway;[2] and
(b)granting cross‑applications by the Bourkes under the PLA for orders requiring her to remove:[3]
(i)all impediments[4] currently located on the easement over 131 in favour of 129, although not on the driveway itself; and
(ii)another part of that wall, which is located on 129 proper although, again, not on the driveway itself.
Facts
[2]GuovBourke [2016] NZHC 2240. There is no reference to the wall in the originating application, although it appears to have been raised later.
[3]Bourke v Guo [2016] NZHC 2932.
[4]Plants, garden walls, gnomes and the like.
129 and 131 originally comprised one title. In 1977 the then owner, Mrs Craig, created 131 by the subdivision of her property. At that time, Mrs Craig was living in the original house on the property — the house the Bourkes now live in. Mrs Craig built, and moved into, a new house on 131 (which Mrs Guo now lives in).
The driveway was the original driveway up to what is now the Bourkes’ house. The titles were surveyed, and easements created, so that the owners of both 131 and 129 could access their properties along the driveway. The plan below shows the titles and easements as originally surveyed and created:
Diagram 1
The easements are marked A and B. In terms of easement A, the dominant tenement is 131 and the servient tenement is 129. In terms of easement B, the dominant tenement is 129 and the servient tenement is 131.
The easements together delineate an area of land approximately 50 m long and, for most of that length, some 5.56 m wide. Towards its western end, easement B widens out over the last 6 m so that, where they abut the boundary of 129 proper, the easements’ combined width is 9.72 m wide. In effect, a triangular area (the triangle) is added to easement B. The driveway runs down the middle, more or less, of the land subject to the two easements. The driveway does not, however, extend over the full width of the two easements but, as it meets 129 proper, it widens out as does easement B. The driveway is sealed for its entire length.
The gates and the wall
Shortly after Mrs Craig sold 129 and moved into 131, and with her consent:
(a)wooden gates (the old gates) were erected across the width of the driveway, some 6 m from the entrance to 129 proper; and
(b)a block wall was built from the old gates along (more or less) the southern edge of the driveway towards 129 proper (the driveway wall),[5] and then along 129 adjoining the east/west boundary between 129 and 131 (the boundary wall).
[5]No wall was needed on the northern edge of the driveway, as there was already an effective boundary barrier in place.
The diagram below depicts the old gates and the driveway and boundary walls relative to the western end of the driveway (where it adjoins 129 proper), the two easements and the boundary between 129 and 131.
The Bourkes purchased 129 in October 2005, Mrs Guo 131 in August 2006. At first, the driveway, and the shared access it provided, did not cause problems. That changed in early 2008, when the Bourkes decided to replace the old gates with a set of electronic steel gates (the new gates). New gateposts would also be required. “Out of courtesy”, as Mr Bourke put it in evidence, Mrs Bourke and the contractor who was to install the new gates (Mr Dalton) spoke to Mrs Guo. Mrs Bourke and Mr Dalton’s evidence was that they told Mrs Guo of the plan to replace the old gates with the new gates and that, once Mrs Guo had been assured she would not be required to pay anything, she had consented.
Thereafter, Mrs Guo and the Bourkes fell out. Mrs Guo’s evidence was the dispute arose in the following way. When she had purchased 131, there were not — to her knowledge — gates across the driveway. Moreover, she had not been told by the Bourkes that they were planning to replace those gates with the new gates. The first she knew of that was when she came home one day and saw the new gates in place across the driveway. Thereafter she tried unsuccessfully to get the Bourkes to agree to remove the new gates. She had been asking for that ever since: notwithstanding the involvement of lawyers, and a survey, no agreement had been reached. Those events forced her to make her applications under the PLA. Mrs Guo’s husband, Mr Xu, gave evidence that supported that narrative.
The applications
The PLA gives the courts a range of special powers to deal with issues that often arise between neighbours. The courts may:
(a)make a wide range of orders to determine disputes over easements and covenants (s 313);
(b)make orders modifying or extinguishing easements and covenants due to changes in circumstances over time (s 317);
(c)make orders authorising owners of adjoining properties to enter onto each other’s land where reasonably necessary in connection with work required on their own property (s 320);
(d)grant relief for wrongly placed structures (s 323);
(e)provide access to landlocked land (s 327); and
(f)order that trees be removed or trimmed and unauthorised structures be removed, altered or repaired (s 333).
The powers are remedial, and hence are typically expressed in broad terms. Generally, relief may be granted when the court considers it just and equitable, and orders may be made on such terms and conditions as the court thinks fit. The courts are therefore empowered to make pragmatic but principled decisions in circumstances where, as here, neighbours are unable to resolve disputes that have arisen.
Mrs Guo applied:
(a)under s 313 of the PLA for orders requiring the Bourkes to remove the parts of the new gates located on 129, as they constituted an impediment to Mrs Guo’s right of way over 129; and
(b)under s 322 of the PLA for orders requiring the Bourkes to remove as wrongly placed structures (i) the parts of the new gates located on 131 and (ii) the driveway wall.
The Bourkes opposed both of Mrs Guo’s applications. In addition, the Bourkes applied under s 317 of the PLA for orders extinguishing Mrs Guo’s easement over the part of 129 inside the new gates, and for the compulsory transfer to them of the part of 131 inside the new gates and the driveway wall. If both those applications and their opposition to Mrs Guo’s applications failed, the Bourkes applied under s 313 of the PLA for orders requiring Mrs Guo to remove (i) all the impediments on the easement over 131 in favour of 129 and (ii) the boundary wall.
As s 317 of the PLA expressly provides for a person bound by an easement to apply for the extinguishment of an easement, there was clearly jurisdiction for that part of the Bourkes’ application.[6] There is, however, no power for the courts to make compulsory transfer orders between adjoining landowners. At a later point, and after receiving legal advice, the Bourkes withdrew their compulsory transfer application. As before, there is power to order impediments to a right of way to be removed by the owner of the servient tenement. Given, however, that as relevant for the Bourkes’ applications the boundary wall was located on their property, there is no power under the PLA to require Mrs Guo to remove that part of the wall.
The High Court judgments
[6]The Bourkes are, as the occupiers of the servient tenement, persons bound by the easement — Property Law Act 2007, s 4.
The Judge dealt first with the disputed facts. She was not impressed with Mrs Guo or her husband as witnesses.[7] She concluded that Mrs Guo’s evidence was self-serving and unrealistic.[8] There was strong independent evidence confirming the Bourkes’ narrative on important points: from Mrs Craig (as to the fact that the white gates had been on the driveway when she sold the property to the Bourkes) and from Mr Dalton (as to what he and Mrs Bourke had told Mrs Guo).[9] As the Judge put it:
[34] The overall impression I formed of Mrs Guo was that she was an obdurate witness who took untenable positions when it came to her account of the relevant events. …
[35] Mrs Guo struck me as someone who, when faced with assertions of events which were not favourable to either her view of events or her case, simply denied their existence. In this regard she did not help herself.
[7]Guo v Bourke, above n 2, at [30] and [36].
[8]At [30].
[9]At [30]–[31].
On the other hand, the Judge found Mr and Mrs Bourke, and Mr Dalton, to be credible and reliable witnesses.[10]
[10]At [39].
Having made those findings of fact, the Judge considered a jurisdictional issue which had not been pleaded, but which would appear to have been raised by the Judge herself and have been the subject of further submissions.[11] Section 323(3) of the PLA provides that the court must not grant relief if the wrongly placed structure is a fence and all questions or disputes concerning it can be resolved under the Fencing Act 1978. As relevant, the Judge found:
[49] The factual findings that I have made mean that from the time the block wall between [129] and [131] was altered, with the consent of Mrs Craig who was then the owner of [129], this wall together with the original wooden gate across the right of ways provided a physical barrier between [129] and [131]. This leads me to conclude that the wall and gate would have fallen within the definition of a fence in s 2 of the Fencing Act. The replacement of the, by then old, wooden gate in 2008 with the steel gates does not detract from the legal character of the fence, as this would constitute repair work to an existing boundary fence. When the wall and gates are viewed in this way s 24 of the Fencing Act is engaged, which means that s 323 of the [PLA] is excluded. However, s 313 of the [PLA] is still relevant.
On that basis, the Judge concluded she did not have jurisdiction to require the Bourkes to remove the new gates and the driveway wall from 131.
[11]At [45].
The Judge then considered Mrs Guo’s application under s 313. She found that, because Mrs Guo had consented to the new gates being installed, she was estopped from enforcing any right she may have had under her easement over 129 to have them removed from that easement.[12] Given the previous existence of the old gates, and applying the test for estoppel articulated by this Court in Wilson Parking Ltd v Fanshawe 136 Ltd,[13] that consent was sufficient to create a belief or expectation on the part of the Bourkes that she would not “enforce her rights under the easement” in the future.[14] The Bourkes had relied on that belief or expectation in constructing the new gates and had “suffered a detriment, being the cost of constructing a relatively sophisticated set of gates”.[15] That was sufficient, the Judge concluded, to make it unconscionable for Mrs Guo to resile from her “representation”, particularly given another one of the Judge’s factual findings — namely, that Mrs Guo must have been present for the construction of the new gates, yet did not express any objection until well after their construction had been completed.[16] Accordingly, the Judge declined both of Mrs Guo’s applications.
[12]At [54].
[13]Wilson Parking Ltd v Fanshawe 136 Ltd [2014] NZCA 407, [2014] 3 NZLR 567.
[14]Guo v Bourke, above n 2, at [59].
[15]At [57].
[16]At [57].
The Judge addressed the Bourkes’ cross-applications in a subsequent judgment.[17] The Bourkes had, following the release of the first judgment, requested she refrain from delivering a judgment on their applications. They were, at that point, happy with the status quo. But, before Duffy J had determined the appropriate response to that communication, Mrs Guo had filed her appeal. The Bourkes then sought judgment on their applications, conditional on Mrs Guo’s appeal succeeding.
[17]Bourke v Guo, above n 3.
Noting that the parties had agreed that approximately 50 per cent of the width of 129’s easement over 131 was obstructed by planting and other impediments,[18] the Judge reasoned:
[12] Mrs Guo argues that despite intrusion of the impediments onto [easement B], they do not impinge on the formed driveway. That is correct. However, I consider that the impact of the intrusion needs to be assessed in terms of its effect on the legal boundaries of [easement B]. When considered from this perspective the intrusion takes up at least 50 per cent of the width of the right of way and for the most part this intrusion runs along the length of the right of way. I consider that such intrusion is well beyond what is tolerable and reasonable and constitutes a substantial interference with the [Bourkes’] right to utilise [easement B]. …
[18]At [6].
The Judge therefore granted the Bourkes’ alternative application to have Mrs Guo remove those intrusions.[19] Without any further discussion the Judge also ruled that “Mrs Guo must remove or relocate the portion of the block wall that encroaches on the [Bourkes’] land on the western boundary of Mrs Guo’s property”, that is the boundary wall.[20] The Judge would not appear to have considered it relevant at that point that the boundary wall was, according to her earlier analysis, a fence.
This appeal
[19]At [14].
[20]At [15].
Mrs Guo now appeals both judgments. As regards the first, she says the Judge was wrong to find that the new gates and the driveway wall constituted a fence, and that she was estopped from enforcing her rights under her easement over 129. Her appeal of the second is largely a matter of form. Were she to succeed on her appeal against the first, Mrs Guo does not appeal the order made in the second judgment requiring her to clear the impediments from 129’s easement over her land, but does oppose the order to remove the boundary wall from 131.
Similarly, if Mrs Guo’s appeal fails the Bourkes formally acknowledge they will not enforce Duffy J’s second judgment. In those circumstances, they consent to Mrs Guo’s appeal against that judgment being allowed. They otherwise support the Judge’s reasoning.
Analysis
Overview
With only one relevant exception, neither party challenged the Judge’s findings of fact. The exception is that Mr Wilson (counsel for Mrs Guo) submitted the Judge had gone too far in finding that, on the day Mrs Guo was visited by Mrs Bourke and Mr Dalton, she understood the gates were partly located on her land.
In addition, during the hearing of this appeal it became apparent Mr Bourke, his counsel (Mr Hamilton) and hence Duffy J, may have misunderstood the practical effect of the High Court granting Mrs Guo’s applications for the removal of the new gates and the driveway wall. We explain that misunderstanding in [43]– [50] below. Accordingly, we are to determine whether, on the facts as Duffy J found them but subject to the significance of those two matters, the Judge was correct in determining that:
(a)the new gates and the driveway wall constituted a fence so that the combination of s 323(4) of the PLA and s 24 of the Fencing Act meant the Court did not have jurisdiction under the PLA to order their removal from 131; and
(b)Mrs Guo was estopped from exercising any right she might otherwise have had to have the new gates removed as an impediment to the easement she enjoys over 129.
The conclusions we reach on those issues will, as already indicated, determine the outcome of Mrs Guo’s appeal against the second judgment.
Most of the argument we heard was directed at the second of those questions. We will therefore consider it first. Mrs Guo essentially argues that the relief the Judge granted was disproportionate to any equity which the circumstances of her, now undisputed, consent to the replacement of the old gates gave rise to. To assess that argument, we first put the doctrine of estoppel in the context of the indefeasible rights Mrs Guo has as the registered proprietor of 131. We then consider Mrs Guo’s challenge to the Judge’s finding that she knew, when she consented to the old gates being replaced, that they were partly located on her land. We also consider the implication of the misunderstanding that arose as to the practical effect of the Court granting Mrs Guo’s applications on the Bourkes’ use of the driveway.
Against that background, we assess the extent of the equity in favour of the Bourkes that arose from Mrs Guo’s consent to the replacement of the old gates. When doing so, we have regard to Mrs Guo’s clarification during the hearing of this appeal that she has no difficulty with the Bourkes continuing to use that part of the sealed driveway on her land beyond their easement.
Having regard to all those matters, we conclude that the relief the Judge granted can now be seen to be disproportionate. We also reach a different view to the Judge about the significance of the Fencing Act. We then consider the appropriate relief.
We conclude that the appropriate relief is to allow for the removal of the new gates and the driveway wall, whilst at the same time requiring Mrs Guo to perfect her agreement to the Bourkes continuing to use the full area of the sealed driveway currently behind the new gates. There would not appear to be any reason requiring the boundary wall to be removed by Mrs Guo. It is the Bourkes who are concerned about the fenced boundary between their land and Mrs Guo’s. But the difficulty we have, given the form of the applications before us, is finding a legal basis to require Mrs Guo to extend the easement the Bourkes have over 131 to give effect to her acknowledgement that she has no difficulty with the Bourkes continuing to use that area. We therefore make the relief we have granted Mrs Guo conditional on her agreeing to extend easement B in that way.
Estoppel and indefeasibility
As the registered proprietor of 131, and questions of estoppel or positive agreement aside, Mrs Guo was entitled:
(a)by dint of her indefeasible rights as owner of 131, to remove the new gates and the wall to the extent they were erected on 131; and
(b)by dint of her common law rights of abatement, to remove the new gates to the extent they were erected on 129 and interfered substantially with the exercise of her rights under her right of way over 129, so that she could access the rear of the property via the driveway.
The exercise of such rights is fraught with practical and legal difficulties. The old gates were placed on 131 with the agreement of Mrs Craig, the then owner. Abatement “is a remedy the law does not favour and is not normally available” — hence the powers given to the court under the PLA.[21] An estoppel of what would otherwise be an entitlement to the exercise of those powers must be seen in the context of the rights of ownership those powers reflect. As this Court put it in Harvey v Hurley, another case involving a dispute over a shared right of way:[22]
… the starting point in any consideration of estates or interests held pursuant to the provisions of the Land Transfer Act is the principle of indefeasibility of title. That principle is central to our system of land registration. …
[21]Lagan Navigation Co v Lambey Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226 (HL) at 244.
[22]Harvey v Hurley (2000) 9 NZCRR 427 (CA) at [20].
There is therefore a tension between the indefeasibility of rights to real property recognised by s 6 of the Land Transfer Act 1952 and the in personam relief recognition of an estoppel may give rise to. Grants of relief must recognise that.
Having said that, there is no doubt that equity may restrain the exercise of those rights. The starting point is Frazer v Walker where the Privy Council held that the general principle of indefeasibility:[23]
… in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or in equity, for such relief as a Court acting in personam may grant.
[23]Frazer v Walker [1967] NZLR 1069 (PC) at 1078.
The principle was discussed by this Court in CN and NA Davies Ltd v Laughton.[24] The Land Transfer Act was described as:[25]
[A] conveyancing enactment giving greater certainty of title but not an enactment which in any way destroys the fundamental doctrines by which courts of equity may enforce, as against registered proprietors, the “conscientious obligations entered into by them”.
[24]CN and NA Davies Ltd v Laughton [1997] 3 NZLR 705 (CA).
[25]At 712.
Properly perceived:[26]
… the principle sits comfortably with the concept of indefeasibility. … Indefeasibility is no answer to a claim based on such an equity or legal right. When granted, it is true, a remedy may restrict the registered proprietor in what he or she can do or require them to give up in whole or in part their registered interest, but until that event occurs the title remains conclusive as against third parties.
[26]At 712.
In Tuscany Ltd v Gill the High Court commented specifically on the availability of estoppel:[27]
[71] Finally, a word about estoppel. Again, had it become necessary I would have found for the first defendant on this ground. I reject Mr Till’s submission that if estoppel was available it would have the effect of watering down the statutory requirement for establishing Land Transfer fraud. In Frazer v Walker the Privy Council expressly recorded that the general principle that registration under the Land Transfer Act confers a title immune from adverse claims other than those specifically excepted by the statute does not deny the right of a plaintiff to bring an in personam claim, founded in law or equity, for such relief as a Court acting in personam may grant. …
[27]Tuscany Ltd v Gill HC Christchurch CP56-99, 7 August 2001 (citation omitted).
An earlier High Court decision, Smith v Corlett, had also recognised that “a personal claim, or in this case a defence, in equity based on such an estoppel would operate as an exception to indefeasibility of title”.[28]
[28]Smith v Corlett HC Wellington CP372/86, 9 October 1987 at 11.
In our view, when considering a claim of estoppel against what would otherwise be an entitlement to have indefeasible rights enforced by the courts, the strength of those rights is a relevant circumstance to be considered when assessing whether an estoppel arises and, if so, the relief to be granted. The Judge did not refer to that consideration.
Also potentially relevant to the significance of Mrs Guo’s consent was Mrs Bourke’s acknowledgement that she did not inform Mrs Guo that the old gates were partially located on 131, albeit on the right of way in favour of 129. The Judge found that was not material.[29] She was satisfied, despite Mrs Guo’s denials, that by 2008 Mrs Guo would have known the old gates were “in part” an “intrusion”.[30] As Mr Wilson noted, the Judge gave no particular reason for that conclusion. Moreover, it was at best inconsistent with the following evidence:
(a)In cross-examination, Mr Bourke acknowledged that he was not aware the old gates were partially on Mrs Guo’s land. As they were only replacing one set of gates with another, that was something he had never thought about.
(b)Mrs Bourke said she had thought the southern gatepost was on that part of 131 subject to the easement in favour of 129. But that was not something she focused on when replacing the old gates.
(c)Mr Dalton’s evidence was that he did not know the southern gatepost was on Mrs Guo’s land. Rather, he assumed that he was replacing gates that were on the Bourkes’ property.
[29]Guo v Bourke, above n 2, at [59].
[30]At [59].
For our part, and recognising that the Judge heard and observed the witnesses, we have difficulty sharing her degree of confidence on this disputed fact. We note first the considerable confusion that existed, even at the hearing of this appeal, as regards the precise details of the layout of the driveway. Moreover, we think it is significant that Mr Bourke and Mr Dalton acknowledged that they were not aware the old gates were, in part, on Mrs Guo’s land. For our part, we will not assess the significance of Mrs Guo’s agreement to the replacement of the old gates with the new gates on the basis she knew the old gates were, in part, on 131. In our view, it is more likely that, as was the case with Mr Bourke and Mr Dalton, Mrs Guo had either not turned her mind to this point or was in a state of some confusion. Having said that, and given where matters now stand, we do not consider that to be of any particular significance. That is, the finding that Mrs Guo consented to the replacement of the old gates is not challenged.
The second matter, and one of definite significance, is the question of the apparent confusion regarding the details of the easement over 131, where it borders 129 proper, and hence the practical implications of the orders Mrs Guo sought.
As Diagram 2 shows, 129’s right of way over 131 widens from the point just past the gates, at an angle of approximately 45 degrees, to the point where it meets the boundary between 129 and 131. That original design of the easement was clearly intended to facilitate entry onto 129. Moreover, at the time the old gates were installed and the driveway wall built, the driveway wall enclosed an additional area of land outside easement B. That additional area (the “hatched” area in Diagram 2) was sealed in the same manner as the drive, and the driveway wall built around its edge. As Mr Hamilton explained, the confusion that appears to have arisen is an assumption that, if Mrs Guo’s application succeeded, the Bourkes could no longer use any of the triangle to make their left turn onto 129, rather than just that hatched area.
The source of that apparent confusion can be found in Mr Bourke’s evidence in chief. One of the many “plans” before the High Court was drawn on an aerial photograph of 129 and 131. That plan not only showed the two easements, A and B, but also the associated driveways on 129. That plan depicted the area between the new gates, the driveway wall and the boundary of 129 in the following way:
|
With reference to that plan, Mr Bourke explained to the Judge how the driveway to 129 could lead straight on to that property and then around the back of the house to a carport[31] at the far side of the house. Alternatively, by turning left over the triangle and the hatched area you could drive on 129 parallel to the east/west boundary of 129 and 131, past the front of the house and towards garages at the rear of the property. The following exchange then occurred between Mr Hamilton and Mr Bourke:
QAnd Mr Bourke, if you did not have the additional area in B here, which is the subject of these proceedings, how would it work in terms of getting a car up the driveway and into the garages?
AYou’d have to drive up to A and then drive round underneath the pedestrian crossing and then it would be quite difficult to do a hard right turn to drive around the back. So you’d have to sort of drive in there and then somehow the section’s sort of severely sloped, comes down on a — maybe a five, five foot drop from the top to the actually bottom. And then it raises up so you’d have to drive somehow very — it’d be difficult to drive around, which is why the driveway goes around the bottom and then comes round the top. There’s actually steps underneath the pedestrian crossing, there’s little steps and that would have been the sort of grand entrance to the house when it was done back in the day of the 1905s, so there’s sort of quite significant steps round there, underneath that sort of pedestrian crossing, then you sort of walk up there and then you walk up some bigger steps into the house.
QMr Bourke would it be possible to manoeuvre a large vehicle or a vehicle towing a trainer to the back of your section in that way?
AImpossible. The only way you can get a trailer up the back is to drive through the lower part of the driveway.
[31]In Diagram 3, the carport is marked X.
As Mr Hamilton acknowledged at the hearing of the appeal, his reference to “the additional area in B here” confused the issue: only use of the hatched area would be lost if Mrs Guo’s application under s 322 of the PLA succeeded.
The Judge did not refer in any great detail in her first judgment to these matters, as that judgment focused on Mrs Guo’s application to remove the new gates. But that the Judge may have been a little confused, as Mr Hamilton was, is reflected in her second judgment. Remember, other than for the driveway wall that begins at the southern gatepost, there is no obstruction on easement B inside the new gates. It is the unobstructed use of the area inside the new gates which the Bourkes wish to retain. Notwithstanding, the Judge explained the position as she understood it from the Bourkes’ point of view in the following way:[32]
The [Bourkes] understandably want to have use of the full range of [easement B] in case they need to design and construct a new alternative boundary fence and gate. The tight turn I referred to earlier … may be ameliorated by increasing the width of the formed driveway. This can only be done if the [Bourkes] have the full use of all of [easement B]. Further, I can see no proper basis for denying the [Bourkes] the orders they seek.
[32]Guo v Bourke and Tothill, above n 2, at [12].
The Judge was clearly confused: the Bourkes currently enjoy not only the benefit of the sealed driveway over all of easement B inside the new gates, but also over the hatched area, that is the small area between the boundary of easement B and the base of the driveway wall. Mrs Guo’s application could not result in their losing the right to cross over any part of easement B. All they would lose would be, if Mrs Guo so insisted, the incorporation of the hatched area as part of the sealed driveway. Moreover, in ordering Mrs Guo “to remove all impediments to the right of way easement designated B on the certificate of title and referred to in easement certificate 375223.2 including all block walls rock walls and other vegetation”,[33] the Judge was on the face of things ordering Mrs Guo to remove those parts of the new gates and the driveway wall which the Bourkes wished to retain.
[33]At [14].
That confusion clearly affected the Judge’s assessment of detriment for the Bourkes.
Adding a further factor to our assessment, Mr Wilson confirmed that Mrs Guo’s concerns were with the new gates. She did not care that part of the sealed driveway was on her land which was not subject to the easement in favour of the Bourkes. Mr Wilson said he was authorised to say that Mr and Mrs Bourke could drive over that land as they wanted.
We now consider Mrs Guo’s challenge to the Judge’s finding of estoppel in light of those matters.
First, we reach a different view from the Judge as to the quality of the “assurance” Mrs Guo provided the Bourkes when she agreed to the installation of the new gates. As we have noted, it is not clear to us that any of the people involved had a clear understanding of the true legal position. Moreover, the conversation between Mrs Bourke, Mr Dalton and Mrs Guo would appear to have been reasonably brief. In cross-examination, Mrs Bourke described the time involved as being “a couple of minutes at her doorstep”. Mr Dalton described the conversation as involving Mrs Bourke explaining that Mr Dalton would replace the old gates in the same position as they currently were, that it would not cost Mrs Guo any money and that there would not be any rubbish or damage on or to her property. There was, Mr Dalton said, “a lot of head nodding”.
In our view, and in the context of a claimed estoppel that would preclude the exercise of indefeasible property rights, the quality of Mrs Guo’s assurance is not high.
Turning to the question of detriment, the Bourkes would suffer a loss equal to the cost of the installation of the new gates.[34] Beyond that, and bearing in mind the apparent confusion as to the practical effect of granting Mrs Guo’s application, any detriment would not appear to be material. That is, only the hatched area would no longer be available to them if the boundary line of easement B was strictly enforced. Given Mr Bourke’s evidence, it is difficult to see that the loss of that area only would have the adverse consequences he described to the Judge. If the new gates and the driveway wall are removed, the Bourkes would need to replace the new gates with, we envisage, sliding gates across the boundary between 129 proper and easements A and B. In our view, that is a preferable permanent solution to the difficulties that have arisen than the temporary solution which now exists. We describe that solution as “temporary” because, although the Judge did not expressly so provide, the estoppel would not bind a subsequent proprietor: that is, it is personal to Mrs Guo only and does not create property rights. Furthermore, the Bourkes’ boundary fence would then be in the “correct” place, and would not act as an impediment to the use of the reciprocal easements A and B. The Bourkes, and Mrs Guo, would have the ability to drive and otherwise cross over those easements using the driveway including, for Mrs Guo, to access the back of her property as now impeded by the new gates and the driveway wall.
[34]No evidence was given as to the cost of installing the gates.
On that basis, the appropriate relief would be to grant Mrs Guo’s application under s 313 for the removal of the new gates over easement A, with the cost of that removal to be shared equally between her and the Bourkes.
That leaves (i) the question of the new gates and the driveway wall to the extent they are located on easement B (that is, Mrs Guo’s property), (ii) in that context, how we should respond to Mrs Guo’s agreement that, if the new gates and the driveway wall are removed, the Bourkes may nevertheless continue to have the benefit of turning on the hatched area and, finally, (iii) the Bourkes’ cross applications.
In the High Court, Duffy J declined to consider Mrs Guo’s application under ss 321 to 325 to remove the new gates from easement B on the basis that the new gates and the wall were a fence. Essentially the notion of a fence is that it fences a boundary between two properties.[35] The Fencing Act provides a regime for the costs of boundary fences to be shared and for disputes relating to boundary fences to be resolved. The driveway wall is not a boundary fence at all. Rather, it simply marks what was agreed to be the edge of a sealed driveway part of which is placed on the hatched area. It is therefore not clear to us that the Judge was right to conclude that the Fencing Act might apply.
[35]See Fencing Act 1978, s 2, definition of “fence”.
Even if the driveway wall were a fence, then in terms of s 323(3) of the PLA we are not persuaded that all of the questions or disputes regarding that “fence” can be resolved by an exercise of the jurisdiction conferred by s 24 of the Fencing Act. That proposition would seem self-evident, given the matters dealt with in this judgment. Nevertheless, and as regards Mrs Guo’s application, neither in our view are any parts of the new gates or the driveway wall “wrongly placed structures”. By reference to the definition of that term,[36] the new gates and the driveway wall were placed on 131 intentionally, and with Mrs Craig’s consent. However, we see no particular reason why there should not be a declaration under s 313 of the PLA that, to the extent that the new gates and the driveway wall are located on 131, they are also to be removed. As we noted above, s 313 gives this Court a broad range of powers in disputes concerning easements.
[36]Property Law Act, s 321, definition of “wrongly placed structure”.
The next question is the Bourkes’ ongoing entitlement to use that part of the driveway formed over the hatched area. We think the simplest way of addressing that matter is to make the relief we have given to Mrs Guo (namely, to require the removal of the new gates and the driveway wall from her easement over 129 and from where they are erected on 131) conditional on her extending the right of way 129 has over 131 so that it is coextensive with the current sealed area of the driveway, as including the hatched area between the existing boundary of that legal easement and the base of the wall.
That leaves the orders Duffy J made as regards the removal of any impediments to 129’s easement over 131, and for the removal of the boundary wall by Mrs Guo from where it is erected on 129.
The “impediments” on 129’s easement over 131 do not, as the Bourkes’ position on Mrs Guo’s appeal shows, cause them any difficulty. As Duffy J recognised, however, the intrusions take up at least 50 per cent of the easement.[37] In those circumstances, there is no room to argue that the Judge erred in ordering Mrs Guo to remove those impediments. It will be for the Bourkes to decide whether they require Mrs Guo to do that. We doubt, however, there was jurisdiction under the PLA for the Court to order Mrs Guo to remove the boundary wall. For similar reasons as applied to our consideration of the wrongly placed structure issue relating to the new gates, we do not see how the boundary wall, intentionally placed on 129 by the previous owner as part of the arrangements relating to the old gates and the driveway wall on 131, could be said to be a wrongly placed structure. Moreover, and again on the way we have resolved Mrs Guo’s appeal against the first judgment, we sense that there will be little purpose in the Bourkes’ requiring Mrs Guo to remove the boundary wall.
Summary
[37]Bourke v Guo, above n 3, at [6].
In summary, we order that the gates and wall over easements A and B are to be removed.
However, this relief is conditional on Mrs Guo agreeing to extend easement B so that it is coextensive with the current sealed area of the driveway.
Mrs Guo must also remove the impediments to the easement over 131, if so required by the Bourkes.
Result
The appeal in CA524/2016 is allowed.
The appeal in CA15/2017 is allowed in part.
Relief is granted in accordance with [63]–[65] of the judgment.
There is no order as to costs.
Solicitors:
Loo and Koo, Auckland for Appellant
Duncan Cotterill, Christchurch for Respondents
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