Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd
[2016] NZHC 2141
•9 September 2016
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-911 [2016] NZHC 2141
BETWEEN LAKES EDGE DEVELOPMENTS
LIMITED Plaintiff
AND
KAWARAU VILLAGE HOLDINGS LIMITED
Defendant
Hearing: 29 August 2016 Appearances:
J E Hodder and J C Adams for Plaintiff
D T Street and M D Arthur for defendantJudgment:
9 September 2016
JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE
This judgment was delivered by me on
09.09.16 at 3.30 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
LAKES EDGE DEVELOPMENTS LIMITED v KAWARAU VILLAGE HOLDINGS LIMITED [2016] NZHC
2141 [9 September 2016]
Introduction
[1] The plaintiff, Lakes Edge Developments Limited (“LEDL”), has brought proceedings in trespass against the defendant, Kawarau Village Holdings Limited (“KVHL”). The dispute arises in relation to a number of rock anchors which allegedly protrude from the defendant’s land into that belonging to the plaintiff. This judgment determines an application for summary judgment on the issue of liability which was filed by LEDL. The application was opposed by KVHL.
Background
[2] LEDL and KVHL own neighbouring parcels of land on the shore of Lake Wakatipu in Queenstown (“the LEDL land” and “the KVHL land”, respectively). Prior to 2007, the LEDL land and the KVHL land were combined in a single title (“original site”).
[3] In 2005, Peninsula Road Ltd (“PRL”) purchased the original site. PRL was a member of the Melview Group, which was owned and controlled by a property developer, Nigel McKenna. The Melview Group proposed a significant development of up to 13 buildings on the original site, to be known as the Kawarau Falls Station Development. In 2007, as part of the resource consent, the original site was subdivided into a number of separate titles. The downhill site, which is now the KVHL land, was transferred to a company called Melview (Kawarau Falls Station) Investments Ltd (“MIL”). The uphill site, which is now the LEDL land, remained in the ownership of PRL.
[4] The first stage of the development involved the construction of a hotel on the KVHL land. As part of the resource consent, the Queenstown Lakes District Council imposed a condition that the first stage of development should be secured by means of rock anchors. The rock anchors were to be driven into the rock under the LEDL land (owned by the Melview Group) in order to prevent “seismic drift” of any new structures down the hill towards the direction of the lake. The anchors were installed in 2008 and the first stage of development was subsequently completed. The KVHL land is now the site of the Doubletree by Hilton, an upmarket hotel.
[5] However, in 2009 the development came to a halt when the Melview Group became insolvent. As a result of the insolvency, PRL and MIL were placed in receivership. The receivers incorporated a new company, KVHL, which acquired the first stage of the development from the Melview Group. A few years later, in February 2014, the receivers sold the neighbouring title to LEDL. For the first time since their construction, the rock anchors straddled two separate titles which were owned by two separate and unrelated parties.
[6] LEDL alleges that in late 2015, as part of the further development of the LEDL land, it proposed to undertake a substantial excavation near the boundary adjacent to the KVHL land. As part of its preliminary investigations, LEDL discovered the existence of the rock anchors. The presence of the rock anchors will inhibit the extent of any possible excavation in that part of the LEDL land.
[7] LEDL alleges that the continued presence of the rock anchors in the ground under the LEDL land constitutes a continuing trespass by KVHL. It pleads that it has at no time licensed or consented to the presence of the rock anchors in its land and that there is no easement entitling such presence. Accordingly, LEDL seeks a declaration that the presence of the rock anchors on its land constitutes a continuing trespass by KVHL. It seeks an order for the removal of the rock anchors which impede its planned excavation or alternatively, an order for compensation.
[8] In reply, KVHL submits that the rock anchors constitute a fixture and therefore form part of the LEDL land such that there is no continuing trespass by KVHL. Alternatively, KVHL contends that LEDL knew of KVHL’s interest in the rock anchors and intends to fraudulently deprive KVHL of that interest.
Principles on summary judgment applications
[9] In order to succeed at the summary judgment stage, a plaintiff must demonstrate that the defendant has no arguable defence to a cause of action in the statement of claim or to a particular part of any such cause of action. The Court
must be left without any real doubt or uncertainty on the matter.1 However, the
Court will not hesitate to decide questions of law where appropriate.2
The law of trespass
[10] Trespass is generally defined as “an unjustified direct interference with land in possession of another.”3 Both parties agreed that the following principles of law, as summarised by the plaintiff, are applicable to the law of trespass:
(a) If A inserts an object into the subsoil of land belonging to B without lawful justification, A has committed a trespass against B.
(b) So long as the object remains in B’s land without lawful justification,
its presence constitutes a continuing trespass.
(c) While the trespass is ongoing, A’s successor in title can be liable for continuing it, and B’s successor in title has standing to sue.
(d)If B has given consent to A’s installation of the object, that will be a lawful justification for the object’s presence and there will be no trespass.
(e) However, consent without the grant of an interest in the land (for example, registration of an easement) will constitute only a bare licence between A and B.
(f) A bare licence does not bind third parties and hence the licence expires upon B transferring its interest in its land to another party.
(g) Once the licence for the object to be in the land has expired, the
object’s presence becomes a trespass for which the then-owner of A’s
land is liable.
1 Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 4.
2 At 4.
3 Stephen Todd and others The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [9.2.01].
[11] However, the parties differed in their views regarding the relevance of the chattels/fixtures distinction. Briefly stated, KVHL submitted that the rock anchors were a fixture and, therefore, formed part of the land and property of LEDL. On that basis, KVHL argued, there was no trespass. LEDL rejected this distinction, arguing that there was no distinction between chattels and fixtures for the purposes of determining whether a trespass had occurred. Therefore, the two issues which I am required to decide are as follows:
(a) Is there a valid distinction between fixtures and chattels in the law of trespass?
(b) If so, what is the status of the rock anchors?
[12] If it is at least arguable that the fixtures/chattels distinction is valid and that the rock anchors are fixtures, it follows that the application for summary judgment must be dismissed.
Is there a valid distinction between fixtures and chattels in the law of trespass?
[13] Both parties relied heavily upon existing case law in support of their submissions for and against the validity of this distinction.
Submissions regarding the chattels/fixtures distinction
[14] On behalf of LEDL, Mr Hodder QC cited a number of authorities in which commonwealth courts had concluded that encroachment into the plaintiff’s land by support structures constituted a continuing trespass. This line of cases began with the 1839 case, Hudson v Nicholson.4 The defendant had been responsible for “nine shores and nine timbers” being “put, placed, fixed and erected” and “kept and continued … in, upon and over” the plaintiff’s land. The plaintiff was unable to remove these shores and timbers without causing the defendant’s building and premises to “tumble and fall”. The Court of Exchequer unanimously concluded that
the plaintiff had a valid claim in trespass, as he had not consented to the placement
4 Hudson v Nicholson (1839) 5 M & W 436, 151 ER 185. See also Holmes v Wilson (1839) 10 A
& E 503; Willcox v Kettell [1937] 1 All ER 222 (Ch); Lim v Titov [1998] 5 WWR 495 (ABQB);
SSYBA Pty Ltd v Lane [2013] WASC 445.
of the shores and timbers. Mr Hodder also referred to a number of other cases in which, as recently as 2008, courts had concluded that the presence of subterranean anchors constituted a continuing trespass.5 A key feature in all of those cases was that the plaintiff had not consented to the installation of the anchors, or had only consented to their presence for a limited period of time.
[15] Mr Hodder cited one further case of interest, Maeckelburg v Radium Waterworks District.6 In that case, the defendant installed a water main and sewer line underneath a property with the verbal consent of the property’s owner. The plaintiffs later purchased the property without knowledge of the pipes, intending to develop the land into a motel. The development could not be carried out as proposed because of the presence of the pipes. The Court of Appeal held that the pipes’ existence in the land constituted a continuing trespass, which first occurred either when the plaintiffs purchased the land or when they learned of the existence of the pipes because “the consent at that time was withdrawn”.7 There are obvious similarities between those facts and the facts in the present case. I will return to this matter later in this judgment.
[16] On behalf of KVHL, Mr Arthur referred me to a number of trespass cases in which the distinction between a chattel and a fixture had been upheld, and, in some cases, had been determinative of the case. In one case, Queenstown Central Ltd v March Construction Ltd, the defendant had excavated and placed ground material on adjacent land under a resource consent that allowed the fill to remain there for five
years only.8 It covered the fill in topsoil and sowed grass so that, to an observer, the
area looked like any other rural section. The plaintiff subsequently purchased the adjacent land and demanded that the defendant remove the fill, alleging trespass by the defendant. The High Court set out a two-stage analysis to determine whether
there was trespass:
5 Vancouver Block Co v Empire Realty Co [1979] 2 ACWS 382 (BCCA); Austin v Rescon
Construction (1984) Ltd 45 DLR (4th) 559; Epstein v Cressey Development Corp (1992) 65
BCLR (2d) 52 (BCCA); Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52, [2004] Aust Torts Reports 81-728; Vetro v Strata Plan 2008 BCPC 275; Proprietors of SP 20297 v G&S Developments Pty Ltd [2008] NSWSC 257.
6 Maeckelburg v Radium Waterworks District [1982] 53 BCLR 90 (BCCA).
7 At [18].
8 Queenstown Central Ltd v March Construction Ltd [2016] NZHC 1884.
(a) Whether the fill was a chattel or part of the land; (b) Whether the fill belonged to the defendant.
[17] The Court considered the history of the fill and the purpose of its placement on the plaintiff’s land. The Court was particularly influenced by the terms of the original resource consent, which contemplated temporary storage only. On that basis, the Court found that the fill remained a chattel and, further, that the fill was the property of the defendant. On that basis, the defendant was liable in trespass.
[18] Mr Arthur also referred me to a Scottish case in which the fixtures/chattels distinction had been upheld in relation to the presence of rock anchors. In Property Selection & Investment Trust Ltd v United Friendly Insurance Plc, the parties discovered the existence of rock anchors which straddled the boundary between their
respective parcels of land.9 The rock anchors had been placed by the previous
owners of the defendant’s land. The Court in that case found that the rock anchors were fixtures which formed a part of the plaintiff’s land and therefore the defendant was not liable in trespass.
Submissions regarding the relevance of consent
[19] Mr Arthur was careful to note that an object or structure could only become a fixture, and therefore part and parcel of neighbouring land, in circumstances where the owner of the neighbouring land consented to its annexation.10 In the absence of consent, he acknowledged, the installation of the relevant object or structure would clearly be an unjustified direct interference with land in the possession of another amounting to trespass.
[20] Mr Hodder rejected the argument based on consent. He submitted that the authorities show that a fixture which extends from one property over the boundary into another can constitute a continuing trespass to the land which is encroached
upon, even if the plaintiff had initially consented to the placement of the fixture.
9 Property Selection & Investment Trust Ltd v United Friendly Insurance Plc 1999 SLT 975 (OH).
10 See Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch); Armstrong v
Sheppard [1959] 2 QB 384 (CA); Blake v Highways Departments EWCA (Civ) B2/2000/6434, 6
October 2000.
Therefore, it was his contention that even if the rock anchors were fixtures which had initially been placed by consent, LEDL had now withdrawn that consent and so the presence of the rock anchors constituted a continuing trespass. With respect to Mr Hodder, I do not think that interpretation is correct. This reasoning would lead to the conclusion that any structure placed on any land at any time, even with the consent of the owner, could later give rise to liability in trespass. This is plainly incorrect. To take an extreme example, a landowner might consent to the construction of a house on its land by a third party. The house would subsequently become a fixture. The landowner would clearly not be entitled to decide at some point in the future that it had withdrawn its consent to the presence of the house, such that the presence of the house on its land constituted a continuing trespass.
[21] Once the fact of annexure of the fixture to the land has occurred, it is not open to another party to purport to revisit that occurrence and attempt to argue that, because the owner of the land does not now consent, the item annexed as to no longer be regarded as a fixture. The law in this area would be unworkable if it was as the plaintiff describes it.
Analysis
[22] I have already noted the general proposition, supported by both parties, that trespass is defined as “an unjustified direct interference with land in possession of another.”11 Further, there is no doubt that the insertion of a subterranean object into the land of another can amount to a trespass.12 However, I am satisfied that a fixture which, by the consent of the landowner, is affixed to neighbouring land cannot give
rise to an action in trespass, although my reasons for so finding differ from those put forward by each of the parties.
[23] The status of an object as either a chattel or a fixture depends on an objective assessment of its properties. This assessment is not dependent upon whether the landowner initially consented to its placement on the land. If the object is a fixture, then it forms a part and parcel of the land. The concept of a fixture which remains
personal or removable property is a contradiction in terms and an impossibility in
11 Todd and others, above n 3, at [9.02.01].
12 Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, [2011] AC 380.
law.13 The object/fixture is therefore the real property of the landowner. Logically, the presence of a fixture which belongs to the landowner cannot give rise to an action in trespass.
[24] I accept that in Maeckelburg v Radium Waterworks District, the British Columbia Court of Appeals found that a trespass had occurred, notwithstanding that the landowner had originally consented to the placement of the pipes underneath his property.14 However, the case on appeal primarily concerned the quantum of damages. Further, the British Columbia Supreme Court at first stance did not appear to consider the issue of trespass in any depth, and did not discuss the chattels/fixtures distinction at all.15 In light of those considerations, I do not think it necessary to place significant weight upon the outcome in that case.
Further considerations
[25] Mr Hodder raised two further points which I wish to address regarding this issue.
[26] The first point is Mr Hodder’s argument that the conclusions I have set out above would lead to a highly artificial situation in which the title to a single object which extends across a boundary line is split between the parts that lie on one side of the line and those on the other. I do not consider this to be a significant issue. As noted by Mr Arthur, this situation is not unique. Mr Arthur gave the example of a party wall:16
Where a wall is built on the boundary of two adjoining parcels of land so that the centre line of the wall coincides with the boundary line, the property in the wall follows the property in the land upon which it stands even though the wall was built at the joint expense of the parties. In the absence of any easement granted in relation to the wall each owner may do anything with his or her half: he or she may even demolish it, provided there is no injury to the neighbour’s half.
13 Melluish v B.M.I (No. 3) Ltd [1996] 1 AC 454 at 473.
14 Maeckelburg v Radium Waterworks District, above n 6.
15 Maeckelburg v Radium Waterworks District (1982) 24 LCR 286 (BCSC).
16 Hinde and others Hinde, McMorland and Sim Land Law in New Zealand (looseleaf ed, LexisNexis) at [6.054] (footnotes omitted).
[27] I consider that the same reasoning is applicable in respect of a fixture such as a rock anchor which straddles a boundary. This may, as Mr Hodder notes, give rise to practical difficulties if LEDL determines that it wishes to deal with its portion of the rock anchors in a manner which is detrimental to KVHL’s interests. There may be other legal (and non-legal) remedies which will address those difficulties. However, in my view, the solution to the practical difficulties which Mr Hodder has identified is not to be found in the law of trespass.
[28] What happened in this case is that following the change in the boundaries it so happened that the new boundary notionally bisected the rock anchors. The result was that after the boundary adjustment, material that had once been on the defendant’s property now lay under the plaintiff’s property. Substrate materials of all kinds formerly located under the defendants land now lay under the plaintiff ’s land. The defendant did not, notwithstanding the boundary change, somehow retain residual rights in and control over those parts of the material that formally lay under its land. That is as true of the man-made elements that had since been incorporated into the land as it is of the original earth structures. Just as natural objects such as large rocks might once have lain entirely on the defendants land, it is entirely possible that after the boundary adjustment they partly lay within the defendant’s land and that of the plaintiff. In brief, I see no reason why part of the land anchors should not lie on each side of the boundary as the defendant contends. The plaintiff has possession of the part that lies under its land. The defendant cannot be liable for a trespass founded upon the presence on the plaintiff’s land of that part of the rock anchors.
[29] As a final point, I address Mr Hodder’s further submission that the implementation of a chattels/fixtures distinction in the law of trespass would undermine the objectives of the land transfer system. The reasoning which underpins this submission is not clear to me. If anything, the implementation of the chattels/fixtures distinction appears to promote the objectives of the land transfer system. A purchaser of land can be safe in the knowledge that every part of the land, including all its fixtures, will be the sole property of the purchaser. In contrast, if the Court were to accept Mr Hodder’s submission that even a fixture should remain the property of its installer, the purchaser would be required to inquire about the
circumstances in which the fixture came to be present on the land in order to determine whether the presence of the fixture constituted a trespass. This would be inconsistent with a key principle of the Torrens system, that a purchaser should not be required to investigate the chain of title (or other) documents relating to a piece of land.
What is the status of the rock anchors?
[30] If the chattels/fixtures distinction is relevant to the law of trespass, then it is necessary to determine the status of the rock anchors in the present case.
Submissions for the parties
[31] Mr Hodder did not address this issue in any detail, although he submitted that a rock anchor was a discrete physical item which might (with effort) be removed intact from the ground and therefore should be considered a chattel.
[32] Mr Arthur, on the other hand, made a number of submissions on this issue. He referred to the Court of Appeal judgment in Auckland City Council v Ports of Auckland Ltd.17 In that judgment, the Court of Appeal adopted and followed the House of Lords decision in Elitestone Ltd v Morris, in which Lord Lloyd of Berwick introduced the modern test for determining whether a chattel could properly be said to have become part and parcel of the land.18 Whether that had occurred, he said, depended upon two main indicators: the degree of annexation and the object of annexation.
[33] In Auckland City Council v Ports of Auckland Ltd, the Court of Appeal was called to determine whether a composite arrangement of pontoons forming a jetty had become part and parcel of the land below. The pontoons were held in place by piles driven into the sea bed. The pontoons could rise and fall vertically but they could not be moved horizontally and could not be separated from the locating piles.
The Court held:19
17 Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 (CA).
18 Elitestone Ltd v Morris [1997] 2 All ER 513 at 518.
19 Auckland City Council v Ports of Auckland Ltd, above n 17, at [75].
The degree of annexation of the jetty structure, as a whole, is reflected in the fact that its piles are embedded in the sea bed and its uses dependent upon maintaining that degree of annexation. As to the object of annexation, again the chattel has been incorporated into the whole jetty structure, to give effect to and allow full enjoyment of the rights of occupation of the water space at Westhaven which the respondent port company enjoys.
[34] However, the Court of Appeal was not required to consider the intentions of the parties regarding ownership of the pontoons.
[35] Mr Arthur submitted that the degree and object of annexation of the rock anchors were such that the rock anchors could properly be characterised as fixtures:
(a) The rock anchors have a “fixed length” of 6 metres, which is drilled and grouted into the rock in order to provide a stabilising force to the land into which they are drilled. The other half of each rock anchor is the “free length” and is free to move within a grout encasement in order to transfer the tensile stresses applied at the anchor head down to the fixed zone.
(b)The rock anchors are affixed to and provide support to the LEDL land (as well as the KVHL land). In particular, without the rock anchors, three metres of LEDL land would be at risk of failure and would need further stabilisation in order to support future development.
(c) The rock anchors also provide support to Alpine Lakes Drive, which is the only access to parts of the LEDL land and over which LEDL has a right of way.
(d)The rock anchors were installed for the purpose of providing stabilising pressures to the excavated hillside. At the time of installation, the rock anchors were part of a comprehensive development of the entire site and were intended to be permanent.
Relevant law
[36] A key authority concerning circumstances in which personal property becomes part of real property is Holland v Hodgson.20 In determining whether there has been an incorporation of personal property into the land the Court of the Exchequer Chamber determined that the relevant considerations are:21
(a) The degree or mode of annexation;
(b) The object or purpose of the annexation.
[37] I will deal first with the degree or mode of annexation. Holland v Hodgson established that two rebuttable presumptions arise from the initial fact or degree to which an object has been attached to the land or building in question. These are that if the object is not physically attached to the land or to a building on the land but barely rests on its own weight it is not part of the land (a fixture) but merely a chattel. The other rebuttable presumption that if there is an element of physical attachment to the land or building in question, even slight, then the object ceases to
be a chattel and becomes a part of the land (a fixture).22
[38] In the House of Lords case Elitestone Ltd v Morris, the Court provided further elucidation regarding the inferences to be drawn from the degree of annexation.23 In that case, the question was whether a bungalow which rested on land with its own weight being supported by concrete pads was a chattel or had become part of the land. In the first relevant passage from the speech of Lord Lloyd of Berwick it was stated that:24
The nature of the structure is such that could not be taken down and re- erected elsewhere. It could only be removed by a process of demolition. This, as will appear later, it a factor of great importance in the present case. If a structure can only be enjoyed in-situ, and is such that it cannot be
20 Holland v Hodgson (1872) EL AR 7CP 328 at 334-335.
21 These two considerations are the subject of informative discussions in Roger Fenton Garrow
and Fenton’s Law of Personal Property (7th Ed, LexisNexis, Wellington, 2010) vol 1 at [3.3] and following; see also Rick Bigwood “Some Reflections on the Personalty-Realty Interface in New Zealand” (2002) 8 NZBLQ 290.
22 Bigwood, above n 21, at [4.1].
23 Elitestone Limited v Morris, above n 18.
24 At 516.
removed in whole or in sections to another site, there is at least a strong inference that the purpose of placing the structure on the original site was that it shall form part of the realty at that site, and therefore cease to be a chattel.
[39] The object of annexation is equally important. Where the purpose of the annexation is to effect a “permanent and substantial improvement of the land” this may indicate that the object is a fixture.25 This factor was also considered in Elitestone v Morris:26
But a house which is constructed in such a way that it cannot be removed at all, save by destruction, cannot have been intended to remain as a chattel. It must have been intended to form part of the realty. I know of no better analogy than the example given by Blackburn J in Holland v Hodgson [citation omitted]:
Thus blocks of stone placed one on top of another without any mortar or cement for the purpose of forming a dry stone wall would become part of the land, though the same stones, if deposited in a builder’s yard and for convenience sake stacked on the top of each other in the form of a wall, would remain chattels.
[40] These considerations were said to provide what his Lordship described as “strong but not necessarily conclusive evidence” that the article has acceded to the land.
[41] A final point to note is that the object and purpose of the annexation is to be inferred from the circumstances of the case and is not concerned with the subjective intention of the person who caused the annexation to be made.27
Application to the present case
[42] With that brief review of the authorities, I now turn to the circumstances of the present case. In particular, I must consider the degree and purpose of annexation in relation to the rock anchors to determine whether their installation resulted in the accession of those objects to the LEDL land.
[43] In my view, the degree of annexation is such that it must have been intended that the rock anchors would become a permanent part of the LEDL land. First, the
25 Bigwood, above n 21, at [4.2].
26 Elitestone v Morris, above n 18, at 519.
27 Elitestone v Morris, above n 18, at 519 and 524.
anchors are buried deep below the surface and are set in concrete. Any attempt to withdraw and recover possession of the anchors would be a difficult, expensive and disruptive process. In fact, it may be that because of the degree of attachment, any attempt to withdraw them would be impossible because it would result in their destruction. On the basis of the evidence which is before this Court on the summary judgment application, the natural inference is that once the rock anchors were placed in the ground, they were there to stay.
[44] The purpose of the annexation also supports a finding that the rock anchors have been converted into fixtures. The rock anchors were installed in order to preserve land stability, which would in turn enable the construction of a high value hotel and, later, a larger development. So long as the development loaded the downhill site, there was going to be a continuing need for the rock anchors. Further, insofar as the rock anchors were required by the terms of the resource management consents, it can be supposed that rock anchors were intended to remain in place permanently. The conditions did not require the maintenance of rock anchors only for a particular period, after which the developer would be at liberty to remove them.
[45] Finally, I note that for the purposes of this summary judgment application, I consider that in light of the evidence provided by KVHL and given the nature of the relationship between the companies which owned the KVHL land and the LEDL land at the relevant time, it is at least reasonably arguable that the owner of the LEDL land consented to the incorporation of the rock anchors into its land.
[46] The overall conclusion I draw is that the rock anchors were incorporated into the land at the time that they were put into place. All of the evidence from the perspective of the degree of attachment and the object of placing the rock anchors in the land points towards the likelihood that the rock anchors were intended to become part of the land. I conclude that the rock anchors did in fact become part of the land at the time when they were inserted.
Conclusion
[47] In summary, I conclude that the rock anchors were attached to the LEDL land in a manner which caused the rock anchors to become a fixture. I consider that it is
at least reasonably arguable that the owner of the LEDL land consented to the incorporation of the rock anchors into its land. Accordingly, there was no trespass at the time of installation. Further, the rock anchors now form part and parcel of the LEDL land and are therefore the property of LEDL. On that basis, the presence of the rock anchors cannot give rise to an action in continuing trespass against KVHL.
[48] The application for summary judgment is dismissed.
Costs
[49] The parties should confer on the question of costs and (preferably) provide a memorandum setting out agreement on that subject. Alternatively they have leave to file concise memoranda not exceeding five pages which are to be filed and served
within fifteen working days of the date of this judgment.
J.P. Doogue
Associate Judge
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