Counsel:
K A Muir, Morgan Coakle, Auckland. Email: kmuir@morgancoakle.co.nz
L Cox, Morgan Coakle, Auckland. Email: lcox@morgancoakle.co.nz
P J Dale, Barrister, Auckland. Email: pauldale@45chancery.co.nz
H McKee, Glaister Ennor, Auckland. Email: Hayley.mckee@glaisterennor.co.nz

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lyons v Breslin

Details

AGLC: Lyons v Breslin [2012] NZHC 366
Case: [2012] NZHC 366
Decision Date: 7 March 2012

CaseChat Overview and Summary

In Lyons v Breslin, the High Court of New Zealand considered a dispute between neighbouring property owners over access to a right-of-way. The central issue was whether the defendant's property was landlocked for the purposes of obtaining reasonable access under s 327 of the Property Law Act 2007. The plaintiffs, the Lyons, had constructed a driveway on their property, which the defendants claimed was a trespass. The defendants also sought a declaration that they had the right to park vehicles on the right-of-way on a permanent basis.

The court found that the defendants' property was not landlocked as it had reasonable access despite the lack of drive-on access and the inability to park vehicles on the right-of-way. The court also ruled that the plaintiffs were entitled to construct the driveway on their property, as it did not intrude on the defendants' land. The court dismissed the defendants' application for reasonable access and their claim for trespass. The interim injunctions previously issued by another judge were rescinded, but could be extended if needed. The plaintiffs were awarded costs, subject to agreement between the parties or determination by the court.

Orders