Harvey v Hurley
[2000] NZCA 37
•2 March 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 189/99 |
| BETWEEN | COLIN MANSON HARVEY & MARY ELIZABETH HARVEY |
| Appellants |
| AND | MARK GORDON HURLEY, GREVILLE CHRISTOPHER NIGEL WILSON, & BRUCE ARTHUR CHRISTMAS |
| Respondents |
| Hearing: | 15 February 2000 |
| Coram: | Henry J Thomas J Tipping J |
| Appearances: | B P Henry and K M Elcoat for Appellants A C Sorrell for Respondents |
| Judgment: | 2 March 2000 |
| JUDGMENT OF THE COURT DELIVERED BY THOMAS J |
Introduction
The parties to this appeal are locked in a neighbours’ dispute. They share a right of way. The appellants constructed decking and pool steps around their swimming pool. But the decking and steps, together with associated landscaping, encroach on the right of way. Moreover, the appellants have since erected a fence across part of the right of way. In the District Court they succeeded in obtaining an order that the right of way was to be amended “to conform with common-sense and the established intention of the parties when this easement was created”. It would seem that the more formal order reads: “…the right of way should be amended so that it incorporates only the yellow portion of the memorandum of transfer and not the pan part, which is the green section on Exhibit B”.
On appeal to the High Court this order was revoked.
The right of way in issue
In the High Court, Cartwright J described the relevant land in these terms:
There are three pieces of land with which this appeal is concerned.
1.Property owned by the [respondents] at 59A Beach Road, Castor Bay (“the [respondents’] property”) comprising the land in Certificate of Title 8D/1321. This land includes a narrow strip from Beach Road to the portion on which the [respondents’] house is built. The [appellants] have a right of way over this narrow strip created by Memorandum of Transfer A153410 (“the narrow strip”).
2.A small piece of land registered to the [appellants] and contained in Certificate of Title 49A/877 which together with the narrow strip described in 1. above comprises the complete right of way. The right of way begins at Beach Road and ends in a broader strip which is a buffer between the northern boundary of the [appellants’] property and the southern boundary of the [respondents’] property (“the land in CT 49A/877”). The shape has been described as a “panhandle.” The [respondents] have a right of way over this land created by transfer A153410.
3.Property on which the [appellants’] home is sited comprising the land in Certificate of Title 21D/604 (“the [appellants’] property”).
A plan incorporated in the judgment may also be repeated:
(It may be noted that the above plan does not show a separate lot which fronts on to Beach Road and which is, as far as can be discerned, part of the lot shown as lot 83 on the plan. This omission, however, does not affect the issues addressed in this appeal).
The two pieces of land which comprise the right of way can be identified from this plan. One is the rectangle strip called “the narrow strip”, and the other is the rectangle strip and rhomboid shaped area having the appearance of an inverted hockey stick or long-handled frying pan. The rhomboid shaped area has been referred to as the “pan”.
The land which is subject to the right of way was originally owned by the Takapuna City Council. Although it was never made clear to the Court, it appears that the land was part of a larger landholding in the ownership of the Council. It also appears that the land was used to provide pedestrian access from Beach Road to steps down the cliff-face to the foreshore until the cliff eroded. In 1963, a Mrs Denney, the owner of lot 81 which is shown on the above plan, sought the Council’s permission to purchase the pedestrian way in order to obtain vehicle access to Lot 81. This was eventually effected in 1966 under Memorandum of Transfer A153410, under which: the narrow strip of 2.8 perches was transferred to Mrs Denney; Lot 81 was granted a right of way over the balance of the access way comprising 6.4 perches (the “handle” and “pan”); and the Council, as owner of the 6.4 perches “handle” and “pan”, was granted a right of way over the narrow strip. A new title was issued to Mrs Denney incorporating into lot 81 the rectangle strip of 2.8 perches. It is Certificate of Title 8D/1321. This land was transferred to the respondents on 30 April 1987.
On 20 August 1981 a new title was issued for the “handle” and “pan”. It is Certificate of Title 49A/877 and Mr and Mrs Kuys then became the registered proprietors, the land having been transferred to them by the Council. By virtue of this transfer the “handle” and “pan” and the adjoining land now owned by the appellants came into common ownership. But the titles were not merged. In July 1993 transfers were registered conveying to the appellants both the land subject to the right of way in Certificate of Title 49A/877 and the adjoining land in Certificate of Title 21D/604.
On 30 April 1987 the respondents acquired the land in Certificate of Title 8D/1321 (which had belonged to Mrs Denney). In July 1993 transfers were registered conveying to the appellants both the land subject to the right of way in Certificate of Title 49A/877 and the adjoining land in Certificate of Title 21D/604.
The dispute
Undoubtedly, the present dispute has its genesis in the difference between a plan prepared by the Council prior to the registration of the easement and the plan attached to the Memorandum of Transfer creating the easement. The earlier plan divided the land into three pieces: “the narrow strip” which was coloured blue, the “handle” of the adjoining strip which was coloured yellow up to the boundary of lot 81 and inside the pecked line as shown on the above plan, and the area of land off this strip, the “pan”, which was coloured green. On the plan accompanying the Memorandum of Transfer both the “handle” and “pan” areas are coloured yellow. It appears, therefore, that the registration of a right of way over the area of the “pan” may have been a mistake. Mr Henry, who appeared for the appellants, asserts this to be so. On the basis of the evidence before the Court, however, it cannot be said with certainty that the change to the plan was inadvertent. There are too many gaps in the evidence relating to the implementation of the transfer to Mrs Denney for the Court to reach a definitive answer.
Cartwright J described the events giving rise to the eventual dispute in these terms:
In 1996 the [appellants] carried out construction and landscaping for a swimming pool which, at the northern boundary, encroached onto the land in CT 49A/877. The [respondents] then filed proceedings in the District Court which in their submission were the culmination of fruitless attempts on their part to resolve the question of whether the [appellants] were entitled to utilise the right-of-way in this manner. In spite of the fact that the [respondents] were prepared to permit some encroachment, the [appellants] failed to comply with the informal agreement reached, obtained the requisite consents from the territorial authority and completed their project. The territorial authority took no steps to ensure that consents issued by it did not contravene the respondents’ rights and as consents under the Resource Management Act were granted without the requirement of notification to the [respondents] they were unaware that the work had the territorial authority’s imprimatur until it had begun.
As originally conceived, the complete right-of-way created by Transfer A153410 was intended to allow access to the [respondents’] property from Beach Road and in the part of it which was contiguous with the northern boundary of the appellants’ land, would enable vehicles to turn around when leaving the property and exiting back to Beach Road. That portion of the right-of-way, however, has not been used in that manner and remains unsealed. But the [respondents], although having no present intention to do so, may wish to redevelop their property in the future to a higher density level and would then wish to use the right-of-way fully. Their primary concern is to preserve the rights granted under Transfer A153410.
The respondents sought orders in the District Court requiring the destruction and removal of the landscaping, earthworks and construction which encroached on the land forming part of the right of way, or an order that the appellants pay to them the cost of removing the works. The appellants argued that the right of way did not include the “pan” and that they were therefore entitled to the full use of the land. Alternatively, they sought an order pursuant to s 126G of the Property Law Act 1952 modifying the right of way so as to exclude the “pan” area. As indicated above, the respondents failed in the District Court and the appellants obtained an order under s 126G. The respondents appealed against that decision to the High Court.
The judgment under appeal
Cartwright J held that the District Court Judge was in error in assuming a concept of ownership of the land in Certificate of Title 49A/877 which “minimised” the right of way over it in favour of the appellants as owners of the land. She also found that the District Court Judge was in error in placing emphasis on a plan of the right of way which did not accord with the plan which had been deposited. The learned Judge observed that, whatever the intentions of the parties might have been at the time the right of way was created, its boundaries and the uses to which it could be put are clearly set out in the Memorandum of Transfer, A153410.
Turning to s 126G, Cartwright J acknowledged that the section permits the Court to modify or extinguish a right of way, but she could find no reason within the scope of subs 1(a),(b) or (d) of that section which would justify the Court in doing so. An examination of the reasons why the District Court Judge reached her determination confirmed that there had been a misunderstanding as to the rights conferred by the easement.
The appeal
In this Court Mr Henry again sought to establish that the right of way or its reasonable user did not include the land in the “pan” area. Alternatively, he contended that the order made by the Judge in the District Court pursuant to s 126G should be reinstated.
(1) The nature of the grant
Mr Henry advanced a number of arguments in support of his contention that the right of way excluded the “pan” area or any entitlement to turn a vehicle in that area. First, he submitted that Cartwright J erroneously considered the right of way between Certificate of Title 49A/877 and lot 81 as giving some rights of access to the land in Certificate of Title 21D/604. Secondly, he argued that the right of way was “undefined” and that this meant that the respondents could not use the land other than for the purpose of obtaining reasonable access to their property. Thirdly, he urged that the right to “go pass and repass” on the right of way did not embrace the right to turn a vehicle on the land.
We do not agree that Cartwright J was in error or that she misunderstood the District Court Judge’s reasoning. On the contrary, Cartwright J’s analysis seems perfectly correct. As she states, the Judge in the District Court appears to have proceeded from a notion of ownership of the land in Certificate of Title 49A/877 which resulted in the Judge giving “pre-eminence” to the rights of the appellants as registered proprietors of the land over the rights of the owners of the dominant tenement under the easement. The District Court Judge should, of course, have focused on the terms and scope of the grant. As a result of this misunderstanding the Judge was induced to have regard to the perceived intention of the parties at the time the right of way was created.
Nor do we agree with Mr Henry that the right of way is “undefined”. The registered easement is precise in its terms and is supported by the rights conferred by statute. It was this suggested lack of definition which led the District Court Judge to consider and apply the decision of the Supreme Court of Canada in Laurie v Winch (1953) 1 SCR 49. But this case can have no application in the present circumstances. As Cartwright J said, when referring to Laurie v Winch:
The Court’s reliance on Laurie v Winch as authority for allowing the intention of the parties to be influential was therefore inappropriate. The right-of-way with which this Court is concerned has none of the ambiguities or uncertainties with which the Supreme Court of Canada was faced. The rights conferred by the instrument creating the right-of-way are well settled under the Land Transfer Act and the Property Law Act and there is no need to go behind the clear language of the conveyance. Indeed, it would rarely be necessary to do so under New Zealand’s system of transfer of land.
Finally, we do not accept Mr Henry’s argument that the terms of the easement restrict the proprietor of the dominant tenement from turning a vehicle on the right of way. The relevant part of the Memorandum of Transfer creating the easement reads as follows:
Reserving … uninterrupted and unrestricted right liberty and privilege to and for them the registered proprietor or proprietors for the time being of all that parcel of land secondly abovedescribed or any part thereof … from time to time and at all times hereafter by day and by night at their will and pleasure to go pass and repass … with or without vehicles, carts, carriages, motor vehicles, machinery and implements of all descriptions laden or unladen through over and along that portion of the said piece of land firstly abovedescribed to the intent that the right of way hereby created and reserved shall be forever hereafter appurtenant to the said piece of land secondly abovedescribed for all purposes connected with the use occupation and enjoyment thereof. (Emphasis added)
Again as pointed out by Cartwright J, the easement is not limited to simply passing and repassing. The instrument creating the mutual rights of way cannot be so narrowly read. The learned Judge continued:
The right is “uninterrupted and unrestricted … to go pass and repass … through over and along [the right-of-way].” The right is not restricted to a narrow passage of access and egress. It is conferred over all of the land and would therefore include a right to walk over any portion of the land and to turn a vehicle on it.
In short, therefore, we consider that the easement created by the Memorandum of Transfer is definite in its terms. Cartwright J was correct to state that 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. On registration, instruments become part of the register and are to be treated as if written out on the face of the register. Anyone proposing to deal with the land is required “to examine the documents constructively placed before his eyes”. See re Goldstones Mortgage: Registrar General of Land v Dixon Investment Co Ltd (1916) 35 NZLR 489, at 504-505. Both parties to this dispute have acquired their interest in the right of way on the basis of the register. Consequently, the respondents are entitled to exercise the rights conferred by the grant. This means they are not only able to move to and from their property but also that, subject to any topographical or physical limitations, they may turn a vehicle on the land subject to the right of way.
The appellants must fail on this issue.
(2) The application under s 126G
The relevant portion of s 126G of the Property Law Act reads as follows:
126G. Power for Court to modify or extinguish easements and covenants– (1)Where land is subject to an easement or a positive covenant …, a Court may from time to time, on the application of the occupier of the land, by order, modify or wholly or partially extinguish the easement … upon being satisfied -
(a) That, by reason of any change since the creation of the easement or covenant –
(i) In the nature or extent of the user of the land to which the benefit of the easement or covenant is annexed or of the user of the land subject to the easement or covenant; or…
(iii) In any other circumstances of the case that the Court considers relevant, -
the easement or covenant ought to be modified or wholly or partially extinguished; or(b) That the continued existence of the easement or covenant in its present form would impede the reasonable user of the land subject to the easement or covenant in a different manner or to a different extent from that which could have been reasonably foreseen by the original parties at the time of the creation of the easement or covenant; or
…
(d) That the proposed modification or extinguishment will not substantially injure the persons entitled to the benefit of the easement or covenant.Mr Henry submitted that paras (1)(a)(i) and (iii) and (1)(b) and (d) were satisfied in this instance and that the Court therefore had jurisdiction to modify or extinguish the right of way. It has to be said, however, that his arguments in support of paras (1)(a)(i) and (iii) and (1)(d) were argued but faintly and lacked conviction. Only para (1)(b) warrants the attention of this Court.
Mr Henry relied heavily on the reasoning of the Judge in the District Court. Thus, his argument proceeded on the basis that the “pan” area was not originally intended to be part of the right of way or intended to be used for vehicle manoeuvres. The “pan” area was, in fact, he asserted, the land to which the true right of way was appurtenant. He submitted that, because the grant was over the whole of the land comprised in Certificate of Title 49A/877, the owner was effectively prohibited from any form of reasonable user, and therefore the “pan” should be excluded. Unusual as that situation may be, the immediate difficulty with this argument is that the terms of the grant clearly and unequivocally includes the use of the “pan” area.
Further, Mr Henry came close to saying, if he did not actually say, that in order to have reasonable use of the land in issue it is necessary to permit a swimming pool or its surrounds to be constructed on that land. Cartwright J met that assertion with this succinct comment:
[The appellants] cannot suggest that in order to achieve reasonable use of the land in Certificate of Title 49A/877, the easement must be modified or extinguished to accommodate their pool, the swimming pool which has initiated the application for modification.”
It is, of course, difficult to conceive how a swimming pool could be regarded as a reasonable use of the land subject to a right of way. Section 126G(1)(b) relates to “the land subject to the easement or covenant”. Once that land is impressed with the grant of a right of way, any use inimical to the right to “go pass and repass” over the land cannot be considered a “reasonable user of the land”. It would seem to us that s 126G(1)(b) would have greater application to other forms of easements or restrictive covenants, such as a building height restriction, or grant of water rights, or the like. Nor does the continued existence of the easement impede the reasonable use of the land subject to the right of way in a different manner or to a different extent from that which could have been reasonably foreseen by the original parties at the time the right of way was created. The original parties at that time could only have reasonably foreseen that the right of way would be used for the purposes of a right of way, not a swimming pool or its surrounds.
In our view, para (1)(b) of s 126G contemplates different circumstances from those urged upon the Court by Mr Henry. The paragraph envisages situations where the reasonable use of the land subject to an easement is impeded by the existence of that easement because of a change of circumstances which could not have been reasonably foreseen by the original parties. This change will necessarily result in the easement being a greater burden to the proprietor of the servient tenement. Consequently, the paragraph does not embrace the intention of the parties prior to the creation of the easement. To accept that the parties’ intentions fall within the ambit of the paragraph would be to permit a surrogate form of rectification of the register which would be inconsistent with the land transfer system and the scheme of the Act. It would effectively undermine the concept of indefeasibility.
Consequently, we do not accept that the continued existence of the right of way created in 1963 would impede the reasonable user of the land subject to the easement in a different manner or to a different extent from that which was contemplated by the original parties. This being the case, the Court has no jurisdiction to exercise the power to modify or extinguish the right of way. It is therefore unnecessary to consider the matters dealt with by the Judge in the District Court and Cartwright J relating to the exercise of the Court’s discretion. It should be said, however, that Cartwright J’s assessment of the position would appear to be soundly based.
The cross appeal
Mr Sorrell, who appeared for the respondents, lodged a cross appeal seeking an order for the removal or destruction of the encroaching work. It appeared, however, that leave to appeal in respect of the cross appeal has not been expressly obtained. Even if this had been so, it is doubtful whether it would be appropriate for this Court to entertain an issue which has not been the focus of a hearing in the District Court or the High Court based on the legal position as now held on appeal. The respondents must pursue such rights as they may have in the District Court, if any, or seek the appropriate injunction in the High Court. We would add that this ruling is not to be seen as an encouragement to undertake further litigation. It is patently clear that a settlement, properly formalised, is in the best interests of both parties.
Conclusion
The appeal is dismissed.
The cross appeal is also dismissed.
Costs in this Court are awarded to the respondent in the sum of $5,000, together with disbursements, including accommodation and travel expenses, which failing agreement are to be fixed by the Registrar.
Solicitors
D. Gates, Whangaparaoa for Appellants
Herne Bay Law, Ponsonby, Auckland for Respondents
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