Lyons v Breslin

[2012] NZHC 366

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-7165 [2012] NZHC 366

BETWEEN  PETER JOHN LYONS AND SUSAN MARIE LYONS

Plaintiffs

ANDMARTIN PAUL BRESLIN AND SHAYLE CHAMBERS

First Defendants

ANDVICTOR RUTHERFORD Second Defendant

Hearing:         19 - 22 September, 21 - 25 November, and 7 December 2011

Appearances: K A Muir and L Cox for the Plaintiffs

P J Dale and H McKee for the Defendants

Judgment:      7 March 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 7 March 2012 at 4.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel:

K A Muir, Morgan Coakle, Auckland. Email: [email protected]

L Cox, Morgan Coakle, Auckland. Email: [email protected]
P J Dale, Barrister, Auckland. Email: [email protected]

H McKee, Glaister Ennor, Auckland. Email: [email protected]

LYONS V BRESLIN AND ORS HC AK CIV-2009-404-7165 [7 March 2012]

CONTENTS

Paragraph

Introduction  1

The issue  8

The history of the properties and the right-of-way

Title to number 31  20

Title to number 33  23

Coastal walkway  26

Right-of-way easement  29

Can Mr Breslin park permanently on the right-of-way?  31

Relevant evidence  49

Discussion  64

A permanent injunction?  81

Trespass  87

Result  95

Other pleaded issues  96

Costs  97

Additional matters  100

Introduction

[1]      The plaintiffs (the Lyons) and the first defendant (Mr Breslin) own coastal residential properties in Milford, blessed with superb views of the Hauraki Gulf. The Lyons’ property is 33 Kitchener Road.  Mr Breslin’s property is 31 Kitchener Road.    The  properties  share  a  boundary.    Both  properties  are  accessed  from Kitchener Road, down a right-of-way.

[2]      The next page of this judgment comprises a diagram (produced as part of the evidence) which shows both properties, the right-of-way, and a paved coastal walkway that separates the properties from Thorn Bay.

[3]      The  Lyons  purchased  number 33  in  September 2008.   Settlement  of the purchase occurred in December 2008.  Mr Breslin purchased number 31 during the same timeframe (the transfer to his family trust being registered in November 2008).

[4]      At the heart of the parties’ dispute is the fact that, so far as Mr Breslin is concerned, he is unable to drive a motor vehicle on to number 31.  Indeed, when they bought their respective properties neither party was able to drive motor vehicles on to them.   When the Lyons purchased number 33, there was an approximate three metre drop from the end of the right-of-way.  There was a pathway along the face of the drop for pedestrian access.  For Mr Breslin’s property, vehicular access off the right-of-way was legally and physically impossible.  Pedestrian access to number 31 from the right-of-way was via a 2.13 metre-wide walkway running off the right-of- way at right angles.

[5]      Neither  party  (this  being  common  ground)  has  any  permanent  vehicular access right along the coastal walkway.   Access to the walkway from the nearest street, Audrey Road, is blocked by a locked barrier arm.  However, Auckland City Council allows the owners of coastal properties on this particular section of the coastal walkway (which includes the parties), to use a hidden key so that the barrier arm  can  be  unlocked.    Occasional  vehicular  access  for  emergencies  and  the unloading of provisions or materials is thus possible.   However, daily vehicular

is not permitted.

the demolition of the existing house and the construction of a new architect-designed home in its stead.  The arrival of contractors’ vehicles on the right-of-way caused difficulties for the occupiers of number 31.  Mr Breslin did not (and still does not) live in number 31.  The second defendant, Mr Rutherford, was a tenant.  There were also sub-tenants of number 31 who occasionally would park motor vehicles in the right-of-way leading off Kitchener Road.   Matters came to a head in September – October 2009 when there were a number of confrontations between the Lyons and Mr Rutherford over the use of the right-of-way.  There were allegations of assaults. Mr Rutherford also took steps to impede contractors’ vehicles and on one occasion parked a large digger at the Kitchener Road end of the right-of-way which blocked it for approximately six days.

[7]      These confrontational disputes led to injunction proceedings which were determined, on an interim basis, by Ellis J in her reserved judgment of 29 March

2010.1  The Lyons were granted injunctive relief and various orders were put in place

to  govern  the  notice  and  frequency  of  use  of  the  right-of-way  by  contractors’

vehicles.

The issue

[8]      Mr Breslin, as the evidence reveals, was well aware when he was negotiating to purchase number 31 that the property had no drive-on vehicular access.   In an attempt to overcome this disadvantage to what was otherwise a highly attractive property,  he  considered  the  possibility  of  purchasing  number  33.     When  he discovered the Lyons had already agreed to buy it, he explored the possibilities of purchasing number 33 from the Lyons or, alternatively, selling number 31 to them. Initially the Lyons were not totally uninterested in Mr Breslin’s approach.  It would have been obvious to Mr Lyons and Mr Breslin (both of whom have had some experience in property development) that, given the terrain of both properties and (particularly so far as number 31 was concerned) the legal limitations imposed by the

right-of-way easement from Kitchener Road, boundary adjustments and driveway

1   Lyons v Breslin (2010) 11 NZCPR 262 (HC).

amenity value of both.

[9]      Nothing, however, came from the parties’ somewhat desultory discussions in late 2009 and the first half of 2010.   The Lyons began to advance their plans to construct a new family home on the site of number 33.  Mr Breslin (who, with his family, lives and works in Queensland), continued to make approaches to the Lyons, frequently using Mr Rutherford as his intermediary and agent.  Purchase of number

33 now not being an option, Mr Breslin proposed boundary adjustments which would allow him to construct a driveway on to number 31 across the Lyons’ land which abutted the end of the right-of-way.

[10]     The  actions  of  Mr  Rutherford,  which  in  part  would  have  reflected  Mr Breslin’s general frustration that the solution which he wanted to achieve drive-on access did not seem to be forthcoming, exacerbated problems which arose out of the use of the right-of-way in September/October 2009. This led to the hearing before Ellis J to which I have referred.2   That hearing, which included a site visit, took place in February 2010.

[11]     I  interpolate  here  that,  as  the  Lyons’  construction  for  their  new  home proceeded, they have formed a steep curving driveway from the end of the right-of- way on to their land which allows them to drive vehicles on and off their property. The garaging for vehicles will be at the foot of the driveway at the end of the house furtherest away from the sea.  Mr Breslin contends (albeit with little vigour on the part of his counsel) that the formation of this driveway is illegal.

[12]     Having failed either to acquire number 33 himself or to negotiate with the Lyons an appropriate boundary adjustment which might permit drive-on vehicular access, Mr Breslin has invoked s 327 of the Property Law Act 2007.  He claims that number 31 is landlocked land and seeks an order from this Court granting him reasonable access to it.

[13]     It is convenient here to set out the relevant statutory provisions:

2 Supra [7].

326      Interpretation

In this subpart,—

landlocked land means a piece of land to which there is  no reasonable access

reasonable access, in relation to land, means physical access for persons or services of a nature and quality that is reasonably necessary to enable the owner or occupier of the land to use and enjoy the land for any purpose for which it may be used in accordance with any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the Resource Management Act 1991.

327      Owner or occupier of landlocked land may apply to court

(1)      An owner or occupier of landlocked land may apply to a court for an order under section 328(1) granting reasonable access to any such land.

…

328      Court may grant reasonable access to landlocked land

(1)       A court, on an application under section 327, may—

(a)       make an order granting reasonable access to the landlocked land; and

(b)      for that purpose, specify in the order that—

(i)        any other piece of land (whether or not adjoining the landlocked land) must be vested in the owner of the landlocked land; or

(ii)      an easement over that other piece of land must be granted for the benefit of the landlocked land.

…

329Matters  court  must  consider  in  determining  application  for order for reasonable access

In determining an application for an order under section 328, the court must have regard to—

(a)       the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:

(b)      the circumstances under which the land became landlocked: (c)     the conduct of the parties, including any attempts they have

made to negotiate reasonable access to the landlocked land:

(d)       the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that

would be caused to any other person by the making of an order:

(e)      any other relevant matters.

[14]     Number 33 is not, of course, “landlocked” in the sense that Switzerland or Bolivia are landlocked.   Nor is it landlocked in the sense that the property is inaccessible without any legal means of access across surrounding land.  Number 33 clearly is accessible.  It is accessible by walking or driving down the right-of-way from Kitchener Road and then walking along the walkway leading off the right-of- way on to number 31.  It is accessible, too, by walking along the coastal walkway from the end of Audrey Road and entering number 31 through the gate in the fence- line which separates number 31 from the coastal walkway.

[15]     It is Mr Breslin’s submission that, because there is no drive-on vehicular access to number 31, the property has no reasonable access.   Therefore the “reasonable access” s 326 definition extends to number 31.   Because he and the occupiers of number 31 cannot drive vehicles on to the land, he is deprived of the physical access which is reasonably necessary to allow the owners and occupants to use and enjoy number 31 as a residence.

[16]     Mr  Dale,  in  his  opening  and  closing  submissions,  correctly  identified reasonable access as the central and critical issue.  If Mr Breslin fails to satisfy the Court that number 31 is landlocked land for the purposes of ss 326 and 327, then that is  the  end  of  the  matter.    An  assessment  of  whether  access  to  the  property is reasonable would have to include a scrutiny of the rights of the registered proprietor of number 31 conferred by the right-of-way easement.

[17]     Only if this Court were to decide number 31 was landlocked (because it lacked reasonable access), would subsidiary issues have to be addressed.   If so satisfied the form of relief would be to grant some form of vehicular access across the rear of the Lyons’ property at number 33.

[18]     A number of proposals were raised in evidence which I need not detail.  All proposals required vesting a strip of the Lyons’s land in Mr Breslin, coupled with extensive engineering and construction work.  Thus it was, in addition to evidence

from the parties (which included occupants of number 31 and another Milford resident), the Court heard extensive evidence from arborists, planners, engineers, traffic engineers, and valuers.

[19]     In addition to this central issue (whether number 31 has reasonable access), there is a subsidiary issue arising out of Mr Breslin’s pleadings.  That is whether, by forming a driveway on to number 33 from the end of the right-of-way, the Lyons have committed a trespass which entitles Mr Breslin to some form of relief.

The history of the properties and the right-of-way

Title to number 31

[20]     The title to Mr Breslin’s property, number 31, (NA 51D/1316) records three registered  easement  interests.    Appurtenant  to  it  is  the  right-of-way  created  by transfer 383397 which was registered in February 1945.  That grants a right-of-way over part of the Lyons’ property at number 33.  The same transfer rendered number

31 subject to a right-of-way in favour of number 33.

[21]     The created right-of-way (which is approximately 75 metres long and 2.13 metres wide), comprises reciprocal strips of approximately equal width, one strip comprising the land and the title of number 31 and the other strip comprising land and the title of number 33.

[22]     The third right-of-way interest, created by a later transfer (504083) registered in 1952, gives a right-of-way to the four owners of the freehold and  leasehold interests in an adjoining property, 25 Kitchener Road.  The owners of that property have their own access driveway running off Kitchener Road, along the opposite boundary to that boundary abutting part of the right-of-way enjoyed by the Lyons and Mr Breslin.   Number 25 is separated from the right-of-way by a high fence penetrated only by a pedestrian gate.   The evidence (this being common ground between the parties) was that the purpose of the right-of-way, in favour of number 25 was to provide emergency access for ambulances and fire engines.  Interestingly, the

right-of-way created in favour of number 25 only extends over the side of the right- of-way comprised in the title of Mr Breslin.  In other words, the easement rights of the owners of number 25 affect only one half of the right-of-way.   The relevant easement is not registered against the title of the Lyons’ property, number 33.

Title to number 33

[23]     The title to  the  Lyons’ property,  number 33  (NA 52D/550) is  relevantly subject  to,  and  has  appurtenant  to  it,  the  right-of-way  which  I  have  already described, created by transfer 383397, registered in 1945.  The Lyons’ title is totally unaffected  by  the  right-of-way  created  in  favour  of  the  owners  of  number  25

Kitchener Road.

[24]     The land comprised in the Lyons’ title includes a garage.  This garage does not abut the land in the titles to either number 31 or number 33.  It is on Kitchener Road and sits on the southern side of the created right-of-way adjacent to number 29

Kitchener Road.   Technically the garage abuts that strip of the right-of-way appurtenant to Mr Breslin’s land and is subject to the easements created in favour of the Lyons and the owners of number 25.

[25]     During the course of the hearing (during which the parties made a number of open offers designed to  resolve their differences), the  Lyons offered to sell the garage portion of their land to Mr Breslin to permit the creation of off-street parking (at the top of the right-of-way off Kitchener Road), for two vehicles.  This proposal was not, however, acceptable to Mr Breslin.

Coastal walkway

[26]     The downhill eastern boundaries of both numbers 31 and 33 abut Auckland City’s esplanade reserve or coastal walkway.   No title or easement references are necessary to describe this.  The walkway is clearly a civic amenity extending along the coast, being part of a public walkway from Takapuna Beach to Milford Beach. One of its many functions is to provide maintenance access to a pump house lying to

the south of the parties’ properties.  The walkway is paved and is of sufficient width comfortably to allow access to a motor vehicle or a truck.   Vehicular access is permitted on a limited basis.  I have already mentioned the barrier arm separating the walkway  from  the  end  of  Audrey  Road.    Some  six  coastal  property  owners (including the parties) have possession of or access to a padlock key to unlock and raise the arm.

[27]     The restricted nature of available access to the Lyons and Mr Breslin along the coastal walkway is demonstrated in documents produced in evidence relating to a request in 1989 by Mr D Lea, who was then the owner of number 31.   Mr Lea applied formally to the Takapuna City Council (the then territorial authority) for legal vehicular access across the coastal walkway.  His application was declined.  A memorandum dated 29 August 1989 from the City Surveyor to members of the Council’s Policy and Finance Committee is instructive:

[The application seeks formal approval for access] along 60 metres of the existing grassed and concreted strip leading from Audrey Road to the North Shore Drainage Board’s pumping station situated some 30 metres further to the south [of number 31].

This strip is comprised of a 2 metre width of concrete paving along the top of the main sewer and a 3 metre width of level lawn up to the property fences.

Daily vehicular access is gained to the pumping station by the North Shore Drainage Board’s servicing staff and [Mr Lea] holds a gate key to allow occasional property access where necessary for maintenance and other purposes. There is no record of this having caused any difficulty to date.

...

There has always been a heavy pedestrian and recreational use of the subject part of the coast line and the trend has been to impose greater constraints on development and use of coastal areas through the legislation and District Scheme controls.

In the context of ever increasing environmental concern over the treatment of such areas it would appear to be inappropriate to permit vehicular access to the subject property on a permanent day to day basis.  Whilst it may be workable   to   allow   occasional   access   under   the   existing   goodwill arrangement it would be quite another matter to grant a formal right-of-way even if the terms of the right were to specify how and when the right should be taken up.

[28]     The Council was prepared to permit and continue, at its will and pleasure, occasional access to the property under the current arrangement, but it was unwilling to formalise a right-of-way because it considered to do so would be contrary to the public interest, having regard to the nature and use of the coastline in that area. Counsel agreed that this remains the situation.

Right-of-way easement

[29]     The memorandum of transfer creating the easement was signed in September

1944 (during the Second World War) and registered in 1945.   The parties to the transfer were Mrs D M Holland, who at that stage was the owner of Lot 2 of the relevant deposited plan (being number 31), and Mr N L Wright, who was the owner of Lot 1, being number 33.  (It was from the estate of Mr Wright’s widow that the Lyons would purchase number 33).

[30]     There is nothing remarkable about the transfer or the easement it creates. The parties were granting a reciprocal right-of-way to each other.  The effective words are:

Do hereby transfer and grant unto [the other party] and the registered proprietor for the time being … and to his/her and their tenants, servants, agents, workmen, and visitors from time to time and at all times hereafter at his/her or their will and pleasure the full and free right and liberty to go, pass, and repass, through over and along [see relevant portion of the deposited plan] to the end and intent that the right-of-way hereby created shall be forever hereafter appurtenant to [the other parties’ lot].

The transfer also contains a covenant by registered proprietors to contribute equally toward the cost of maintaining and keeping the surface of the driveway in a good, tidy and substantial order, condition, and repair.

Can Mr Breslin park permanently on the right-of-way?

[31]     Towards the end of the hearing Mr Breslin sought leave (which was not opposed) to file an amended statement of defence and counterclaim which included an additional cause of action.  The cause of action seeks a declaration confirming what  Mr  Breslin  asserts  is  the  right  to  park  vehicles  on  the  right-of-way on  a

permanent basis.   Mr Breslin submits the right-of-way easement created in 1944 confers that right on the owners of number 31.   The Lyons oppose this additional relief, there being, in the circumstances, no strict need for the plaintiffs to replead.

[32]     Mr Breslin’s asserted right to park motor vehicles permanently on the right- of-way relates to whether number 31, for landlocked land purposes, has reasonable access.  The undoubted inconvenience facing occupiers of number 31 of having to park their vehicles on Kitchener Road, Audrey Road, or neighbouring streets and return to their home by walking, would be mitigated somewhat if occupants’ vehicles could be parked permanently at the end of the right-of-way.  Indeed Mr Dale accepts that if Mr Breslin can so park, number 31 will have reasonable access.

[33]     The words contained in the easement,3 which confer reciprocal rights “to go, pass,  and  repass,  through,  over  and  along  the  right-of-way”  do  not  easily lend themselves to an interpretation that either party to the easement intended to confer on the other a right to park motor vehicles on a permanent basis.

[34]     An obvious reason for excluding permanent parking from the ambit of the easement is the likelihood of obstruction, which would be totally inconsistent with the freedom and ease of passage that the easement creates.  Certainly on the evidence (to  which  I  shall  return),4   there  has  been  a  history  in  recent  years  of  various occupants of number 31 parking motor vehicles overnight on the right-of-way.  The width of the right-of-way would allow a vehicle to remain parked on it without

causing obstruction only in certain circumstances.   Those circumstances would include the vehicle being of modest width; probably its wing mirrors being retracted; and certainly one side of the vehicle being very close to a right-of-way fence – so close that the door closer to the fence could not be significantly opened.   Even if those criteria were met, however, a larger motor vehicle would find it difficult to drive past the parked vehicle.

[35]     The issue of obstructing the right-of-way is critical.   Clearly the rights of passage conferred by an easement would be nugatory if there were obstructions.  The

3 Supra [32].

4 Infra [45].

requirement for a right-of-way to be free of obstructions is reinforced by cl 2(c) of schedule 5 of the Property Law Act which confers on those entitled to the benefit of a right-of-way “the right to have that land at all times kept clear of obstructions that are caused by parked vehicles … or unreasonable impediment to the use and enjoyment of the driveway”.   The word “obstruction” as used in the clause was

addressed by Hammond J in AH Properties Ltd v Tabley Estates Ltd.5    His Honour

commented, in respect of a door constructed across a pedestrian right-of-way in a shopping  centre  (which  pedestrians  would  have  to  open  and  close)  that  an obstruction need not be an absolute barrier but “must surely mean something which creates a significant hindrance as well as an absolute block”.   The free flow of pedestrian traffic was an important factor.

[36]     Applying this approach to the present case, parked vehicles on the right-of- way might occasionally constitute an obstruction for other vehicles being driven along the right-of-way.

[37]     The right to pass and to repass along a right-of-way in a vehicle includes, on good authority, the right to remain stationary for a reasonable period to load and unload.6    The right to stop a vehicle for a reasonable period to load and unload, implied as it is into the right to pass and repass in a vehicle, is qualitatively very different from a right to park permanently on a right-of-way.

[38]     Further helpful authority is found in the classic text, Gale on Easements.7   At

9 – 96 the authority states:

There appears to be no reason in principle why a right to park a car somewhere in a defined area should not be capable of being an easement provided that: (a) it is made appurtenant to a dominant tenement, and (b) the right is not so excessive as to exclude the servient owner and leave him without any use of the area in question for parking or anything else.  Indeed counsel have often accepted or assumed and the courts have on a number of occasions now decided that a right to park is capable of being an easement. Any residual doubts on this point have now been dispelled by the decision of the House of Lords in Moncrieff v Jamieson p 416 – 417.8

5   AH Properties Ltd v Tabley Estates Ltd HC Hamilton CP142/92, 3 September 1993 at p 20.

6   See Handforh v Kokomoko Farms Ltd, (2010) 11 NZCPR 171 (HC); Bulstrode v Lambert [1953] 2

All ER 728; McIlwraith v Grady [1968] 1 QB 468 at 476 (CA) per Denning MR; Cannon v Villars

(1878) 8 ChD 415, 420 – 421 per Jessel MR.

7   J Grant & P Morgan (eds) Gale on Easements (18th ed, Sweet and Maxwell, London, 2008).

8   Moncrieff v Jamieson [2007] 1 WLR 2620 and in particular at [47] and [137].

The 1944 easement, of course, creates no such right.

[39]     Gale on Easements further states:9

The grant of a right to “pass and repass” does not per se include a right to park; neither does a “right of access”.  It was, however, held in Bulstrode v Lambert that a right to pass and repass over a cul de sac for the purpose of obtaining access to an auction mart implied the further right to halt vehicles in the cul de sac for so long as might be necessary for the purpose of loading or unloading, because such a right was necessary for the enjoyment of the right reserve.  It has been argued that this principle would entitle the tenants in a block of flats to park overnight on the basis that the tenants could not substantially enjoy their tenancies without the right to park, but that seems unsustainable.

[40]     The “unsustainable” argument was raised by counsel in Handel v St Stephens Close Ltd.10   The tenants in a block of flats in north-west London were claiming the right to park on private roads around St Stephens Close.  Aldous J commented on counsel’s submission that the tenants were entitled to park in the relevant right-of- way so they could substantially enjoy their tenancies.   The Judge considered the submission to be speculative and doubted whether there was sufficient evidence to establish whether flats in London could not be substantially enjoyed without a right to park.  In the context of his judgment, however, Aldous J’s observation was obiter.

[41]     Although not a point submitted by counsel, it might be possible to argue that an owner of the servient tenement, Mr Breslin, is entitled to park on his strip of land comprising the right-of-way. This  would  accord  with  the “all-important  civiliter principle” that a dominant tenement’s reasonable use of the right-of-way must not interfere with the servient tenement’s rights as owner.11  Given that the ability to occupy one’s land is an incidence of ownership, perhaps a right-of-way should not prevent Mr Breslin from parking on his land.

[42]     On the other hand, such an approach would prove highly problematic in the present case. If Mr Breslin can park on his side of the right of way, it is at least

reasonably foreseeable that his vehicle would represent an obstruction and prevent

9  At 9-106, p 419 - 420.

10 Handel v St Stephens Close Ltd [1994] 1 EGLR 70.

11 Moncrieff v Jamieson [2007] UKHL 42, 1 WLR 2620.

the Lyons from passing and re-passing over the right of way.12 Depending on the size of their vehicle, both the Lyons and their agents, such as construction workers and visitors, may have problems manoeuvring around Mr Breslin’s car.13

[43]     In the English decision of Celsteel Limited v Alton House Limited [1985] 1

WLR 204 the Court adopted a relatively low threshold for when such an interference will be substantial and therefore unacceptable. In that case, narrowing a driveway that prevented a dominant tenement from reversing down the driveway, his preferred mode of access, was enough to constitute a substantial interference.14   New Zealand courts adopt the same low threshold.15 Accordingly, the reasonable possibility that Mr Breslin’s car may prevent the Lyons and their agents from driving along the right

of way is likely be enough to interfere substantially with the Lyons’ rights as owners of the dominant tenement. For Mr Breslin’s part, there are additional problems that include his easement obligations towards number 25.  Mr Breslin cannot park on his own side of the right-of-way in these circumstances.

[44]     On the basis of this analysis and the authorities to which I have referred, I do not consider that the terms of the right-of-way easement confer on Mr Breslin or other occupants of number 31 the right to park motor vehicles permanently on the right-of-way.  Certainly he has no right to park on the right-of-way strip comprised in the title to number 33.  Nor does he have a right to park on his own side of the right-of-way when doing so could cause an obstruction.

[45]     In reaching that conclusion I have been alert to the evidence led by Mr Dale and in particular the evidence of Mr Dwayne Smith.   Mr Smith was a tenant in number 31 in 2006 until approximately May 2008, a period when neither the Lyons nor Mr Breslin were on the scene.   He then returned to the property as Mr Rutherford’s sub-tenant in July 2009 and has lived there ever since.  Mr Dwayne’s evidence was that during the 2006 - 2008 period both he, his partner and their two

flatmates would park their cars on the left hand side of the right-of-way (the strip

12 Property Law Act 2007, cl 1(1), Sch 5.

13 Property Law Act 2007, cl 1(3), Sch 5.
14 Celsteel Limited v Alton House Limited [1985] 1 WLR 204.

15 Hinde, McMorland and Sims Land Law in New Zealand (online looseleaf edition, LexisNexis) at

16.050, AH Properties.

belonging to number 33) approximately 20 cms from the fence.  Two other flatmates would park their cars on the street in Audrey Road. At that time the late Mrs Wright, the owner of number 33, needed assistance from caregivers who would both bring her groceries and on occasions assist her overnight.  Mr Smith, his partner, and the two relevant flatmates took care to ensure that the right-of-way was not obstructed and that vehicles visiting number 33 had room to park at the far end of the right-of- way.  On occasions Mr Smith would help a caregiver, who had physical difficulties, to reverse her car back up the right-of-way to Kitchener Road, or turn her car around.

[46]     This evidence demonstrates that, if they were so disposed, the parties (or their successors in title) might be able to reach some accommodation which allowed either or both owners the use of the right-of-way for off-street parking.  The situation has, of course, changed since 2008 in two respects.  First the Lyons have constructed their own driveway.  Secondly, since the clashes in late 2009, the parties are unlikely to come to any form of amicable arrangement.  Potential obstruction relating to the width  of  the  vehicles  being  used  by  the  occupants  of  both  properties,  and  in particular the number of number 31 occupants with motor vehicles, present obvious difficulties.

[47]     As Ellis J observed at [15] of her judgment it is possible to park the car on parts of the right-of-way with room for another car to pass.16     However, as was evident in my own site visit, were a car to be commodiously wide, or to have its wing mirrors extended, or not be parked hard up against the fence, there would undoubtedly be an obstruction.  The evidence of the Lyons’ expert witness, Mr W J Edwards, traffic engineer, was to the effect that two 90th  percentile cars could pass each other.  I accept that evidence.  Nonetheless, the size of the two passing vehicles (if  one  for  instance  was  over  the  90th   percentile),  and  the  manner  in  which  a stationary vehicle was parked are all critical to whether or not the right-of-way might be obstructed.

[48]     The short point, however, is that Mr Breslin currently has no legal right to use the right-of-way to provide off-street parking for occupants of number 31.

16   Op cit, .

Relevant evidence

[49]     Because of the conclusion to which I have come, I intend in this section to deal only with evidence directly relevant to the central issue of whether number 31 is landlocked.

[50]     There can be no dispute, and I so find, that Mr Breslin knew number 31 had no drive-on access well before he executed the agreement to buy it.   Indeed he sought legal advice on the topic.

[51]     Mr Breslin, his wife, and his two young daughters live in Queensland.  He operates his business there.  The family have not lived in New Zealand for over 11 years (since June 2000).  At an earlier stage in his life Mr Breslin lived in Takapuna. He wanted to acquire a North Shore property, ultimately to be used as a home when the family return to New Zealand (probably for the girls’ secondary school education), but also as a family holiday residence whilst they live in Australia.  Mr Breslin asked his friend and colleague, Mr Rutherford, to keep an eye out for a good quality waterfront property.  In June 2008 Mr Rutherford contacted Mr Breslin about the possibility of number 31 coming on to the market.  The property at that stage was owned or controlled by Ms Lyn Carter, a developer whom Mr Rutherford knew, but who was in financial difficulties (the actual registered proprietor was Paradise Cove Limited).   Ms Carter was apparently in default under a mortgage and faced the prospect of a mortgagee sale.  As Mr Breslin candidly admitted in evidence, he was able to negotiate a purchase price at a figure which would satisfy the mortgagee, but somewhat  lower  than  what  the  property  was  worth  on  the  open  market.    He ultimately purchased the property for $2.5 million.

[52]     In the approximate three month period between Mr Rutherford informing him about number 31 and signing the agreement to purchase it, Mr Breslin performed due diligence and made a number of inquiries.  He learned about the right-of-way. He was aware that there was no drive-on access.  He was unaware that the owners of number 25 had an easement over half of the right-of-way, but nothing hangs on that. He was under no illusions that vehicular access on to the property was impossible and received legal advice to that effect.  His evidence-in-chief states:

Upon inspecting the property and undertaking pre-purchase due diligence I realised that there were access issues with the property...  There is no car access to number 31 from Kitchener Road...  At the time of my inspection there  was  no  vehicle  access  to  number  33  either...  Prior  to  purchasing number 31 I took legal advice on the access issues from [my solicitor].  As a result of that advice I understood that any work on the shared right-of-way would need to be agreed between all of the owners of the right-of-way and that legally no one was entitled to park their car(s) on the right-of-way.

[53]     Mr Breslin’s inquiries led him to believe that number 33, which had been on the market for approximately a year, was likely to be developed.   Mr Breslin, not unreasonably, thought that logically, access issues for both properties should be resolved at the same time through some form of land swap and mutual easement arrangements. This would achieve satisfactory vehicular access on to both properties for the mutual benefit of both owners.  He considered purchasing number 33 (on the market at that time with an asking price of $4 million), but did not wish to consider this  option  until  he  had  acquired  number  31.    It  was  after  he  had  signed  the agreement to purchase number 31 (but before settlement) that Mr Breslin’s inquiries revealed that number 33 had been sold to the Lyons.

[54]     Mr Breslin first approached Mr Lyons in approximately September 2008. Neither party was living on their respective properties.   Exchanges (frequently by email) were cordial.   The Lyons were working on designs for their house.  At an early stage  (19  September  2008)  Mr  Lyons  proposed  selling  number  33  to  Mr Breslin for $3.8 million.   (The Lyons had purchased the property for $2,730,000.) Mr Breslin was not interested.

[55]     It is unnecessary to detail the various exchanges, discussions, and proposals which were made.  Mr Lyons made a further offer on 23 May 2009 to sell number 33 for $3 million.  Mr Breslin expressed some interest but nothing eventuated.

[56]     Effectively for a year, (until the Lyons finalised their plans and began the demolition of the house on number 33 which led in turn to confrontations involving Mr Rutherford and contractors about using the right-of-way), Mr Breslin, who continued to live in Queensland, was hopeful that some mutually beneficial arrangement over drive-on access could be negotiated.   The Lyons, for their part, were proceeding with design concepts for a new residence on number 33.  Nothing

was ever concluded between the parties.   Mr Breslin became aggrieved that the Lyons were not fully informing him of their design and development plans.  And the Lyons, particularly in the light of Mr Rutherford’s overtures, began to resent the fact that they were being pressured by Mr Breslin.

[57]     The Lyons and their son had lived for some time in the Takapuna area.  They were attracted by number 33 because of its spectacular views, its privacy, its general location, and considered it would be a good property on which to build a family home.  Certainly Mr Lyons, on his evidence, was not uninterested in Mr Breslin’s initial ideas of providing vehicular access to both the properties.   He saw certain practical difficulties, however.   His perception was Mr Breslin never made any concrete proposals.   Mr Lyons’ offer on 23 May 2009 to sell number 33 to Mr Breslin was accompanied by clear advice that, in the meantime, the Lyons were continuing with their plans to build on the site.  Although Mr Breslin (in an email of

27 May 2009) indicated he would consider the offer, he did not pursue it.  I accept Mr Lyons’ evidence that he and his wife were not particularly keen to sell the property to Mr Breslin, but saw a possible sale as the best solution to onsite access to number 31 becoming a major issue for Mr Breslin.   The Lyons did not want that issue to interfere with their plans to develop and enjoy number 33.

[58]     In short, nothing was ever agreed.   Drive-on vehicle access for Mr Breslin was never negotiated.  The Lyons formed their own driveway on to number 33 from the end of the right-of-way.   Exchanges of correspondence between the parties’ solicitors brought no resolution.  The threat made by Mr Breslin’s solicitors to seek drive-on access through the mechanism of s 327 became a reality.

[59]     I turn now to the evidence of Mr Dwayne Smith.  I have already outlined his evidence in respect of historical overnight parking on the right-of-way.17    Further relevant evidence was given by Mr Smith about occasional storms (almost invariably involving a coincidence of strong north-easterly gales and high tides) which inundate the coastal walkway, thereby making pedestrian access from Audrey Road to the

front of number 31 impossible.

17 Supra [45].

[60]     He told of an unfortunate incident one dark night when, having presumably lost his bearings, he walked off the walkway into the sea.  His evidence was that, in the absence of a moon,  the coastal walkway is unlit at night, there being little ambient light from adjacent properties.   Late one night in August 2009 when Mr Smith was returning to number 31 from his car (there was no moon and he had no torch), he was carefully trying to “guess my way along the walkway” and fell into the sea.  He hurt his leg on a rock and lost his wallet and mobile phone.  He found this a frightening experience.

[61]     Moreover Mr Smith’s evidence referred to the coincidence of a storm and a high tide on 23 January 2011 which he photographed.   Waves swept across the coastal walkway.   The front lawn of number 31 and neighbouring yards were inundated with water.  Part of the coastal walkway, approximately 50 metres to the south, was destroyed.

[62]     The Lyons called evidence from a longstanding Milford resident, Mr Paul Firth, who for the last 11 years has lived in what was his family home at 9 Kitchener Road.    Mr Firth  had  lived  there as  a child  and  young man for over  30  years. Although Mr Firth has off-street parking at his home, his preference is to park his car in Audrey Road and walk along the coastal walkway.   He also, pursuant to the Council’s permission, unloads grocery items and firewood from his vehicle which he drives along the walkway and then returns to park in Audrey Road.

[63]     Mr Firth, whose evidence I accept in this regard, describes the January 2011 storm as being “truly unusual”.  He said it left the coastal walkway impassable for two  hours on  either side of high  tide.   The unusual  strength  of the storm  was demonstrated by its demolition of a public wooden footbridge just outside number 9 which has survived many previous storms.  Mr Firth’s evidence was that, on average, there would be three storms a year which would make the coastal walkway impassable by both foot and vehicle, but that these conditions would usually subsist for half an hour to 45 minutes at the most on either side of high tide during a storm. I accept this evidence, which was not really challenged.

Discussion

[64]     The threshold issue, as stated at the outset of this judgment,18 is whether Mr Breslin’s property at number 31 can be described as landlocked for s 328 purposes when the property is accessible by more than one manner and by more than one route.

[65]     People can lawfully walk down the right-of-way from Kitchener Road.  They can walk lawfully along the sea wall from Audrey Road.  Were the sea wall to be temporarily impassable for pedestrians because of wind and tide, people can walk from Audrey Road and up the steps of Audrey Lane to Kitchener Road, a very short distance from the top of the right-of-way.

[66]     People can also gain access to the property, should they arrive in a motor vehicle.  The quickest and undoubtedly more convenient method would be to drive down the right-of-way, stop, and alight.  The motor vehicle would then have to be parked.  It could be parked on Kitchener Road, a busy arterial route where parking places might not be close at hand or, despite there being no legal right so to do, the vehicle could be parked hard against one of the fences of the right-of-way in the hope that it would not cause a trespass or legally unpermitted obstruction. Alternatively a person could park a vehicle in Audrey Road and then walk to the property via the coastal walkway.   On those rare occasions when the walkway is inundated by waves, the Audrey Lane pedestrian route is available.

[67]     Although both Mr Breslin and Mr Smith suggested in evidence that parking on Audrey Road could never be guaranteed, I prefer the evidence of both Mr Lyons and Mr Firth to the effect that finding a vehicle park on Audrey Road has not been difficult.    Audrey  Road  is  a  residential  no  exit  street.    On  occasions,  such  as weekends and during fine weather, cars may well be parked there by people wanting to access the coastal walkway.  It certainly would not be always possible to find a parking space at the end of Audrey Road within three or four car lengths of the barrier arm.   Parking is nonetheless readily available on all but busy occasions

within 100 metres of the barrier arm on either side of the street.  (Certainly that was

18 Supra [16].

the case during both of my site visits.)   Significantly, Audrey Road is not a street within easy walking distance of a commercial centre so it would not be used for all- day parking by people working nearby.

[68]     The issue remains: do the facts that Mr Breslin and occupants of number 31 cannot drive on to the property and have no right to park permanently along the right-of-way  mean  that  number  31  is  landlocked  because  it  has  no  reasonable access?  Is guaranteed on-site parking “reasonably necessary” to enable Mr Breslin and occupiers of his property to enjoy number 31?

[69]     Mr Dale’s submissions on that issue were both moderate and careful.  As the hearing progressed (over three phases) it became apparent that Mr Breslin’s litigation objectives were being scaled back. There is no criticism of Mr Breslin or his counsel in that observation.  The changing stance, which I am satisfied was attributable to an over-riding desire to find a solution, was commendable and has not affected my assessment of the issue.

[70]     Mr Dale’s leading submission was that if it were possible to park motor vehicles permanently on the right-of-way without causing substantial interference to other users, then the case need go no further because number 31 would not be landlocked.  Nor would the Lyons be entitled to any permanent injunction.

[71]     Mr  Dale  submitted  there  was  no  perfect  solution  to  the  dilemma  that confronted the parties.  Options available to the Court, however, were:

[a]      To determine there is no right to park permanently on the right-of- way and to preserve the status quo.

[b]     To determine that permanent parking on the right-of-way was permissible, provided there was no substantial interference.   This would still leave potential for future conflict.

[c]       To determine that there is no right to park on the right-of-way and

that number 31 was landlocked in which case the alternatives were:

[i]       To create (by vesting approximately 70 m² of number 33’s land in Mr Breslin), drive-on access to number 31 across number 33.

[ii]       Stack parking for one or two vehicles, which again would

require vesting of number 33’s land.

[iii]     Strategic placing of turntables to assist the parties turn around their cars in confined spaces for garaging purposes.

[iv]      Creating two car parks on and adjacent to the site occupied by number 33’s garage at the Kitchener Road end of the right-of- way.

Mr Dale stressed that it was only if I were to reject his submission that permanent parking was allowed on the driveway that I needed to consider whether number 31 was landlocked.

[72]     Accepting that what was reasonable access is ultimately a question of fact, Mr Dale marshalled a number of reasons as to why number 31 might not have reasonable access.  These included social and demographic changes in the Milford region  since  the  easement  was  created  in  1944;  the  fact  that  the  owners  and occupants of number 31 would own a number of vehicles (the current house being a six  bedroom  house);  that  both  properties  comprised  substantial  homes;  that Kitchener Road, as a significant arterial route, had only limited parking available; that the creation of more apartments in the Takapuna/Milford area increased the demand for on-street parking; that not being able to drive on to number 31 would create significant problems in a situation where a member of the Breslin family might want to drop off groceries and/or children, particularly if it was wet; proximate parking  in Audrey  Road  and  Kitchener  Road  could  not  be  guaranteed  and,  in particular, having to park across the far side of Kitchener Road and crossing at times of heavy traffic flows (there being no pedestrian crossing) could be hazardous; that having to reverse from the walkway to number 31 at the end of the right-of-way out on to Kitchener Road was undesirable, particularly if the children had to be left

unattended; that walking along the coastal walkway when it was wet might not be attractive to well-dressed adults wearing expensive shoes; that, on the evidence of Mr Smith, pedestrian access along the coastal walkway could be hazardous; that the degree of inconvenience caused to Mr Breslin and his family (although they do not currently live there on a permanent basis) could constitute hardship as could the risks and hazards involved in reversing, parking, flooding, walking, and damage to motor vehicles parked in the street overnight from vandalism.

[73]     Mr Dale also relied on the nature of the property (being a high value coastal residential property) and the fact that very few similar properties were without off- street parking.

[74]     There  is  clear  authority,  as  Mr  Dale  submitted,  for  the  proposition  that whether or not, for landlocked land purposes, a property has reasonable access is a question of fact.19     It is trite to observe that the history, configuration, and circumstances surrounding any proceeding which alleges land is landlocked will differ.  I have, of course, considered carefully the authorities cited to me by counsel. None, however, are totally comparable nor do any provide an automatic answer.

[75]     I  am  attracted  by  the  “general  propositions  of  principle”  enumerated  by Joseph Williams J (including the substantively identical s 129B of the Property Law Act 1952) in Murray v BC Group (2003) Ltd.

[23]      A  property  will  be  landlocked  in  terms  of  s 129B(1)(c)  if  the physical access  to the  property is  not  reasonable for  its allowable  uses (Wilson v Rush [1980] 2 NZLR 577 at p 583). Just what is reasonable is very much a question of fact in the particular context of the case. But the cases point to some general propositions of principle that provide broad parameters to assist in determining what is reasonable. They are as follows:

(a)       Section 129B is remedial in its intent. There is no presumption in favour of non-interference in the respondent’s title (B A Trustees Ltd v Druskovich [2007] 3 NZLR 279 (CA) at para [15]).

(b)       Respect  for  the  exclusive  possession  of  registered  proprietors affected by an application for access is to be found instead in the requirement that the applicant must prove that his or her current access is unreasonable in the circumstances. The reasonableness test is a substantial barrier to be overcome by the applicant.

19    Murray v BC Group (2003) Ltd [2009] 3 NZLR (HC) at [23]; Murray v BC Group (2003) Ltd

[2010] 3 NZLR 590 (CA) at [27].

(c)       If the land cannot be accessed on foot, it is landlocked (Wilson v

Rush at p 583).

(d)       If the land cannot be accessed by motor vehicle, it will be a question of degree whether that is unreasonable (Wilson v Rush at p 583).

(e)       Reasonable access is not invariably vehicular, but the circumstances in which non-vehicular access will be reasonable will be few. Those circumstances are to be considered in light of:

(i)        contemporary standards, particularly reliance on the motor vehicle;

(ii)       the topography of the area; and

(iii)      other    local    contexts    (Asmussen    v    Hajnal    (2005)

6 NZCPR 208 at pp 221 – 222).

(f)        It is not sufficient to show that access arrangements are merely inconvenient for the applicant or that upgrading access would be desirable    in    general    terms    (Brankin    v    MacLean    [2003]

2 NZLR 687).

I have also derived assistance from the article by Elizabeth Toomey “Landlock Land;  a  real  threat  to  indefeasibility  in  the  twenty-first  century”  which  I have considered.20

[76]     Reasonable access does not invariably mean vehicular access.21    Wild J in Asmussen v Hajna made some pertinent comments about vehicular access in contemporary society.

[58]     These views are in line with the cases on s 129B.   The principles emerging from those cases are:

(a)       Reasonable  access  does  not  invariably  mean  vehicular access.

(b)       However, nowadays the situations in which non-vehicular access will be regarded by a Court as reasonable are likely to  be  few,  as they are to be  determined  in the light  of contemporary   requirements   as   well   as   the   general topography and nature of the area in question. There are, for example, enclaves of residential land in Auckland and Wellington which do not have, and are never likely to have, vehicular access. They include Karaka Bay in Auckland and parts of the historic zone in Thorndon, Wellington.

20   Elizabeth Toomey “Landlock Land; a real threat to indefeasibility in the twenty-first century in

David Grinlinton (Ed)  Torrens in the twenty first century (LexisNexis NZ, Wellington 2003) 177.

21   Asmussen v Hajna (2005) 6 NZCPR 208 (HC) at [58].

c)Full recognition of the very great dependence people now have upon the motor vehicle must be given. The utility to people’s lives through being able to drive their vehicle upon their land cannot be underestimated.

d)There is no force in a defendant proving that there are other residential  properties  in  the  locality  without  vehicular access, as each case must be assessed on its individual merits.

I have drawn those principles largely from Murray v Devonport Borough Council  [1980] 2 NZLR 572n; Wilson  v  Rush  [1980] 2 NZLR 577; Hutchison v Milne [1982] NZLR 568; Evison v Johnson (1984) 2 NZCPR

181; Sayes v Wentworth 12/11/93 HC Auckland M1817/90 and Brankin v

MacLean [2003] 2 NZLR 687.

In that case, however, the applicant had always enjoyed vehicular access to the property, albeit by a route different from a triangle of land on the relevant Plan.  The Judge observed this was consistent with vehicular access but was impractical to engineer for driveway purposes.

[77]     It is important to note that vehicular access to a property is not necessarily the same as  drive-on  access.    It  is  clear that  number 31  is  accessible by vehicles, particularly down the right-of-way.   What is impossible (and has always been impossible without acquiring land from adjoining property owners) is the ability to drive on to the property.  Any assessment of the merits of Mr Breslin’s claim must bear in mind the distinction between vehicular access and drive-on access.  As was clear from the valuation evidence I heard (and doubtless reflected in the asking price of number 31, before negotiation, when Mr Breslin was interested in it) the inability

to drive on to number 31 inevitably diminishes its value.22

[78]     My conclusion is that Mr Breslin’s property at 31 Kitchener Road enjoys reasonable access, being access reasonably necessary to enable its owners and occupiers to use and enjoy the land (s 326).   It is therefore not landlocked for the purposes of s 327.  My reasons for so concluding, are largely self-evident from my

analysis of the evidence and principles and are as follows:

22  The valuation evidence I heard from both parties’ expert witnesses (designed to help me if I was in a position to fix a compensatory figure) differed considerably on what the increased value of drive-on access and its associated engineering works would amount to. Although there is no direct evidence, the absence of drive-on access could well diminish the value of number 31 by something in the order of $250,000.

[a]      Since 1944, and certainly from the time a house was built on it, number 31 has always enjoyed pedestrian access.

[b]      The rights for motor vehicles of owners and occupiers of number 31 to drive up and down the right-of-way created in 1944 and to stop vehicles for the purposes of unloading or loading people and goods are indisputable and secure as a matter of law.

[c]      Although drive-on access and parking on-site is not available to the owners  and  occupiers  of  number  31,  vehicles  can  reasonably  be parked in neighbouring streets (particularly in Audrey Road).  While this may be inconvenient, such inconvenience does not diminish in any significant way the use and enjoyment of number 31.

[d]      Although,  as  I have ruled, Mr Breslin has  no  legal right to park permanently or overnight on the right-of-way, occasional parking, of a  non-obstructive  nature,  has  always  been  a  negotiated  option available to the owners of numbers 31 and 33.

[e]      Although not a disqualifying factor, Mr Breslin was fully aware of the absence  of  on-site  access  and  parking  when  he  purchased  the property.

[f]      The requirement to park in Audrey Road or elsewhere and to enter the property by foot along the coastal walkway or down the right-of-way, although occasionally inconvenient and involving a few minutes more time, is not hazardous, nor a hardship, or more onerous than anything faced by thousands of other New Zealand occupiers not blessed with driveways, garages, on-site parking or dedicated car parks.

[79]     I add, while not determinative to my judgment, that although the corpus of property law can sometimes cause an injustice, I would have been extremely uneasy about making an order which would have the effect of diminishing the size of the Lyons’ property at number 33 and bringing a neighbour’s traffic closer to them.  First

Mr Breslin was well aware he was buying a property which did not permit drive-on access; secondly the Lyons, for good reason, do not want to part with a sector of their land; and thirdly Mr Breslin’s application has been largely triggered by his inability to negotiate the outcome for which he was pushing at an early stage.

[80]     Having resolved that number 31 Kitchener Road is not landlocked, it follows that the application under s 327 must be dismissed.  It is thus unnecessary for me to consider the other evidence designed to assist were I to grant reasonable access by vesting land in Mr Breslin pursuant to s 328.

A permanent injunction?

[81]     The orders made by Ellis J on 29 March 2010 were interim in nature.  They were:

[a]      Restraining   Mr   Breslin   and   Mr   Rutherford   and   their   agents, employees, or contractors from obstructing or preventing vehicular ingress to or egress from the right-of-way, and

[b]      Restraining the same people from stopping or interfering with the plaintiffs, their agents, employees, or contractors bringing vehicles, including trucks on to the right-of-way and stopping, loading, or unloading those vehicles.

[82]     Mr Muir submits that I should issue a permanent injunction in similar terms. Mr Muir accepts that, since the interim injunctions were issued, there has been compliance and no repetition of the unfortunate behaviour which preceded it.  Given the nuisance which obstruction of the right-of-way constitutes, the Lyons are nervous for the future and consider that, given past behaviour, there is a significant risk that the shared right-of-way might be unlawfully obstructed in the future, such obstructions  impacting  adversely  on  the  Lyons’  enjoyment  of  their  property. Damages would be an inadequate remedy. Thus an injunction should issue.

[83]     Mr  Dale’s  submission  was  that  a  permanent  injunction  should  not  issue because of his substantive argument that the occupants in number 31 had a right to park on the right-of-way.

[84]     I  am  reluctant  to  grant  a  permanent  injunction.    In  the  exercise  of  my equitable discretion I decline to do so.  I do so for the following reasons.  First the injunction granted by Ellis J arose from a situation, over two years ago, when Mr Rutherford took unwise and unlawful actions designed to cause difficulties for the Lyons and their contractor.  That situation has now passed.  Secondly, were I to issue a permanent injunction, the Lyons could refuse point blank to allow any occasional overnight parking of a non-obstructive nature on the right-of-way.  I think that would be unfortunate.  The door should be left open for Mr Breslin (or his successors in title if he decides to sell the property), to negotiate some informal arrangement so far as parking on the right-of-way is concerned.  The parties, for the time being, remain neighbours.  Neighbourly relationships, despite litigation, should be encouraged.  It is my hope the Lyons,  although successful in this proceeding, will not adopt a triumphalist attitude.

[85]     I have no information on whether the right-of-way is still being used by the Lyons’ contractors.   When last seen, the new house on number 33 was nearing completion.  During the final stages tradesmen with vehicles may still need access along the right-of-way, in which case the structure put in place by Ellis J should remain in place.

[86]     What I intend to do is discharge the interim injunctions made by Ellis J on 29

March 2010, such discharge to take effect at 5 pm on the 10th working day following the release of this judgment.   If, however, the right-of-way is still being used by contractors and tradesmen working on number 33, Mr Muir is directed to file a memorandum advising accurately the date of completion or the date on which contractors’ vehicles will no longer need to use the right-of-way.  On receipt of such memorandum I shall make an order extending the life of the interim injunctions to a later date.

Trespass

[87]     The  Lyons  in  recent  months,  as  I  have  mentioned,  constructed  a  steep driveway (yet to be sealed or fully retained), from the end of the right-of-way on to their land.   The purpose of this driveway is to provide vehicular access to a twin garage which is part of the rear of their house.  There is sufficient room for vehicles to reverse out of the garage and turn so that they can proceed forwards up the driveway and out on to Kitchener Road.  The turning area has to some extent been constrained by the need to protect the roots of a protected pohutakawa tree (featuring significantly in evidence), which the Lyons are anxious to retain and keep alive. There has been some damage inflicted on the pohutakawa tree by persons unknown, but the weight of the arborists’ evidence is that it is slowly responding to treatment and recovering.

[88]     To form the driveway much of the land at the rear of number 33, including the pedestrian pathway and scoria retaining walls,23 has been reconfigured.

[89]     There is no real contest, and I so find, that the Lyons’ driveway does not intrude on Mr Breslin’s  land.   Nor does the driveway extend beyond  the outer perimeters of the right-of-way.

[90]     For the driveway construction to be completed it was necessary to fill a void of approximately 1m².  That 1m² was technically on the footprint of the right-of-way and as such was (subject to the easement), part of Mr Breslin’s land.

[91]     Mr Breslin’s argument is that to form a driveway, and in particular to reclaim or fill the 1m² void, required a trespass.  As I have already indicated24 Mr Dale did not pursue this cause of action with strong submissions.

[92]     I  do  not  consider  the  cause  of  action  founded  in  trespass  can  succeed. Certainly it has not been proved on the balance of probabilities.  In my judgment a

complete answer to the claim, and indeed the legal right of the Lyons to form a

23 Supra [11].

24 Supra [11].

driveway on their land to join with the end of the right-of-way, is found in cl 2(a) of schedule 5  of the Property Law Act 2007.   That provision entitles owners and occupiers of land:

To establish a driveway on the land over which the right-of-way is granted and to make necessary repairs to any existing driveway on it and to carry out any necessary maintenance or upkeep, altering if necessary the state of that land.

[93]     On the basis of cl 2(a) the Lyons had a clear statutory entitlement to establish a driveway on the land over which the easement extended.   (They certainly were, subject to planning permission, entitled to form a driveway on their own land.) They were also entitled to alter the state of the right-of-way land if necessary.   This is exactly what they did.  For the driveway to be formed it was necessary to recontour the land which would inevitably have included the land on Mr Breslin’s right-of-way strip including the void.

[94]     The defendants’ trespass claim thus cannot succeed.

Result

[95]     For the reasons stated in the relevant sections of this judgment the outcome of this proceeding is as follows:

[a]      The defendants’ application under s 327 of the Property Law Act

2007 is dismissed.

[b]      The defendants’ application for a declaration to the effect that the right-of-way easement created by transfer 383397 affords the defendants the right to park vehicles on the right-of-way on a permanent basis is refused.

[c]      The plaintiffs’ application for a permanent injunction is refused.

[d]      The interim injunctions made by Ellis J on 29 March 2010 are to be rescinded in accordance with the time frames set out in [86] of this judgment.

[e]       There is judgment for the plaintiffs in respect of the defendants’ cause

of action in trespass.

Other pleaded issues

[96]     Given the multiplicity of issues thrown up by the parties’ pleadings and the somewhat changing nature of the litigation during the three phases of the hearing (one cause of action was settled), there remains the possibility that there is an extant cause of action or substantive issue not covered by this judgment.  If, despite my best endeavours to avoid such a situation, there has been an omission of this type, rather than go through the rigmarole of recalling a judgment or declaring myself functus officio, I merely adjoin any such omitted matters for determination if counsel are in a position to identify any such matters and require a supplementary judgment.

Costs

[97]     My hope is that counsel can agree on costs to which the plaintiffs are prima facie entitled.  Given the length of the hearing and the number of witnesses involved I imagine costs will be considerable.

[98]     With the advantage of hindsight, it is a pity that the critical threshold issue of s 327 could not have been determined first.  The conclusion I have reached means that many of the witnesses, and probably three or four days of hearing time, were unnecessary.   However, liability and quantum hearings envisaged by r 10.14 are fraught with risk.  The experienced counsel involved would doubtless have formed the view that obtaining hearing time was critical given the urgency of the issues dividing the parties and the difficulties in obtaining a fixture for a long cause.

[99]     Costs are reserved, to be determined by me only if the parties cannot agree.

Additional matters

[100]   I am grateful to all counsel for the competent and good-humoured way in which they ran this trial.  Submissions, bundles, and general trial management were of the highest order and I have been greatly assisted.  The parties have been well served by their counsel in all respects.

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Priestley J