Lyons v Breslin HC Auckland CIV 2009-404-7165
[2010] NZHC 477
•29 March 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2009-404-007165
BETWEEN PETER JOHN LYONS AND SUSAN MARIE LYONS
Plaintiffs
ANDMARTIN PAUL BRESLIN AND SHAYLE CHAMBERS
First Defendants
ANDVICTOR RUTHERFORD Second Defendant
Hearing: 9 February 2010
Appearances: K A Muir for Plaintiffs
P J Dale for Defendants
Judgment: 29 March 2010
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 29 March 2010 at 2.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Morgan Coakle, PO Box 114, Auckland 1140
Counsel: P J Dale, PO Box 130, Auckland 1140
LYONS V BRESLIN AND ORS HC AK CIV 2009-404-007165 29 March 2010
[1] The plaintiffs (Mr and Mrs Lyons) and the first defendants (Mr Breslin and Mr Chambers) are the owners of neighbouring, and equally spectacular, properties in Milford on the North Shore of Auckland. Both properties have only the Thorne Bay coastal walkway between them and the sea, of which they enjoy uninterrupted and commanding views. The second defendant (Mr Rutherford) is the tenant of the first defendants’ property.
[2] The plaintiffs and the defendants are presently embroiled in a dispute about the use of their shared right of way.
[3] Both the plaintiffs and the first and second defendants have applied for interim injunctions relating to the use of this right of way, which exists over a “pan- handle” driveway of approximately 75 metres in length and 4.26 metres in width. The right of way has for over 60 years been shared by the proprietors of
33 Kitchener Road (presently the plaintiffs) and the proprietors of 31 Kitchener Road
(presently the first defendants).
[4] The driveway terminates with a bank of approximately three metres drop and a pathway down to the Lyons’ section. The defendants’ current access to
31 Kitchener Road is from the driveway via a walkway 2.13 metres wide which runs at approximately right-angles to the driveway along the end of the Lyons’ section.
[5] Near the beginning of the hearing before me on 9 February 2010 counsel for both parties suggested that a site visit would assist the Court and I, together with counsel and the parties, visited Milford on the morning of 9 February. Accordingly, I have had the considerable advantage of seeing not only the right of way itself but the contours of the surrounding land, which assume some significance in relation to the dispute.
[6] As a result of that site visit it became apparent that there was further relevant material that was not before the Court. This material related to the possible use of an alternative access point from the Thorne Bay walkway that runs across the bottom of the 33 Kitchener Rd property, and which could be accessed by vehicles from Audrey Road. This resulted in a flurry of filing activity after the hearing:
a) On 10 February 2010 a further affidavit was filed on behalf of the plaintiffs;
b) Two further affidavits and a memorandum were filed on
15 February 2010;
c) On 19 February 2010 the plaintiffs filed supplementary submissions and the defendants filed an amended statement of defence and counterclaim, a notice of interlocutory application for directions as to service and a further affidavit;
d) On 24 February 2010 the defendants filed a memorandum in reply;
e) On 25 February 2010 the plaintiffs also filed a memorandum in reply;
and
f) On 23 March 2010 the plaintiffs filed a statement in reply to the statement of defence and counterclaim.
Facts
[7] A considerable amount of evidence has been filed. Not all of it is relevant to the two applications that are the subject of this judgment. Some goes to the substantive proceedings including in particular the application by the defendants under s 327 of the Property Law Act 2007, which relates to access to land-locked land, and which was included in the defendants’ amended counterclaim dated
19 February 2010.
Admissibility Objection: Alternative Access Issue
[8] Before canvassing the relevant evidence it is necessary to record that Mr Dale for the defendants has objected to an affidavit from the plaintiff Mr Lyons that was filed after the site visit on 9 February 2010 relating to the alternative access issue. He objected on the grounds that some of its contents are hearsay and/or opinion
evidence for which no grounds for belief have been given. Mr Dale refers in particular to the passages in Mr Lyons’ affidavit where he refers to advice he has received from Mr McCabe (an earthmoving and foundation contractor engaged by the plaintiffs who has previous knowledge of building work done in the early 1990s at 31 Kitchener Rd) and those where Mr Lyons records the views formed by him and his wife on certain practical and technical matters relating to the alternative access issue. The defendants contend that there is an obligation on the plaintiffs to file further direct evidence in relation to those, and other, issues. Mr Dale says that these matters are of “fundamental importance” because “the plaintiffs have the onus of establishing that there is no alternative means of access other than to use the right-of- way.”
[9] Those parts of Mr Lyons’ evidence in which he refers to the advice he has received from Mr McCabe are admissible as to the fact that that advice was received. They are not, however, admissible as to the truth or accuracy of the advice itself, which appears to have been that it would be sensible to place a weight limit on trucks using the Thorne Bay walkway. Plainly, however, that advice was relied on by the plaintiffs, as a proposed 10,000 tonne weight limit formed part of their subsequent application to the Takapuna Community Board.
[10] I accept that there is no expert evidence before me as to why a weight limit is required and also that (if there was) the defendants might well wish to contest any such evidence. However I do not accept that the weight limit issue is as fundamental as the defendants contend. More particularly I agree with Mr Muir that the onus on the plaintiff is not as stated by Mr Dale. Rather it is to satisfy me that there is a serious question to be tried and that the balance of convenience favours granting an interlocutory injunction in the plaintiffs’ favour. The issue of alternative access will be considered, on the basis of the admissible evidence before me, in that context.
[11] In terms of the views Mr Lyons has expressed in his last affidavit as to the practicality of alternative access and certain technical matters associated with that I am prepared to accept his evidence for what it is. He and his wife have plainly formed these views as a result of their longstanding involvement with the project and their personal knowledge of what their plans are likely to entail. I consider that
Mr Lyons’ evidence overall has set out sufficient grounds for their opinions and I am prepared to admit the relevant paragraphs under r 7.30. I do not, however, regard those views as “expert” and therefore necessarily accord them limited weight. The comments I have recorded above about my approach to the underlying alternative access issue apply equally here.
Relevant Evidence
[12] My summary of the relevant evidence (as to all the issues presently before me) is as follows.
[13] The right of way was created in 1944 by mutual grant made by the plaintiffs’ and the first defendants’ predecessors in title, a Miss Holland and a Mr Wright respectively. The easement created by the relevant memorandum of transfer provided that Miss Holland, in consideration for the grant of a materially identical right of way by Mr Wright in relation to a specified portion of Lot 1, granted to Mr Wright a right of way in relation to a specified portion of Lot 2. More specifically, and in each case, what was granted was for:
... her his and their tenants, servants, agents, workmen and visitors from time to time and at all times hereafter at her, his or their will and pleasure [to have] the full and free right and liberty to go to, pass and re-pass through, over and along that part of the said lot.
[14] As can be seen from the copy of the relevant Deposited Plan that is attached to this judgment, the two rights of way thereby granted essentially comprise conjoined parallel strips of land which together form the driveway. Necessarily, the two strips have different (and opposite) dominant and servient tenements.
[15] Aside from the original documents creating the easement, there is no evidence before me as to the intentions of the parties’ predecessors in title when creating the easement. It is, however, accepted by the parties that, in recent time at least, the driveway has been used by all of them for parking vehicles. As I saw for myself it is possible to park a car on parts of the driveway with room for another car to get by.
[16] The present dispute and both the interim injunction applications, arise out of the purchase by the plaintiffs of 33 Kitchener Road in 2008 and their demolition of the existing house there with the intention of rebuilding. The plaintiffs say their rebuilding plans are contingent on their ability temporarily to park large trucks at the end of the right of way nearest their property and to load and unload those trucks from time to time. This activity necessarily involves some interference with the defendants’ use of the right of way and their access from it to the walkway to
31 Kitchener Rd. My understanding is that while it is still possible to reach the walkway on foot, there is limited room and it is certainly not possible to drive a car up to the end of the right of way while the vehicle remains parked there.
[17] As a result of work associated with the plaintiffs’ demolition of the pre- existing house in September and October 2009 there were a number of confrontations between the plaintiffs and the second defendant over the use of the right of way. Certain events took place that are accepted by all concerned to have been unlawful. In particular:
a) On one occasion the plaintiffs’ contractors left trucks parked on the right of way overnight;
b)On more than one occasion, the second defendant “parked in” vehicles belonging to the plaintiffs or their contractors on the right of way so that they were unable to be driven away;
c) The second defendant was arrested for an alleged assault on one of the plaintiffs’ contractors and allegations of assault by the contractors on Mr Rutherford have also been made;
d)The second defendant also at one point hired a large digger and parked it for some six days across the right of way, blocking access to it.
[18] During and since these events there has been a considerable amount of correspondence between not only the parties themselves but also their respective
solicitors. As a result of this correspondence the plaintiffs have provided the defendants with a little more detail about what is proposed in terms of the building works. By solicitor’s letter dated 18 November 2009 they relevantly advised:
As your client will be aware, some earthmoving work has started on the site. Our clients believe that construction on their home will be completed by December 1010. It is estimated that the heavy construction elements of the project including concreting and exterior construction will take 15 weeks. The balance of the work will be roof, lining windows and fit out.
They estimate that there will be five days of major concrete pours during that time, allowing for three hours each day for actual concrete delivery and pumping onto site and three hours for forming and finishing.
Most deliveries will be delivery in bulk with concrete blocks, timber etc to be palleted and dropped off by Hiab from the right of way into site. Each load should take no more than 15 to 30 minutes to offload.
The more detailed programme of works will be sent through when it is available.
[19] Attempts have also been made by the parties and their solicitors to formulate undertakings that could be signed by both the plaintiffs and the defendants which would address their on-going respective concerns about the use of the right of way.
[20] On 27 November 2009 the defendants Mr Breslin and Mr Rutherford both signed an undertaking which was before the Court in which they undertook not to obstruct or cause to be obstructed the right of way “unlawfully”. The difficulty the plaintiffs have with an undertaking in this form is that it necessarily begs the question of what is “unlawful”. That is, of course, the central issue in the substantive proceedings.
[21] The defendants say that the terms of the undertakings proposed by the plaintiffs are equally open to criticism. Essentially, the plaintiffs have offered to promise that any stopping, loading and unloading of trucks on the right of way will be “reasonable”. The defendants submit that this begs certain issues that are also central to in the proceedings, namely whether stopping, loading and unloading of trucks on the right of way is permitted at all and, even if so, what is “reasonable” in that respect.
[22] Also in November 2009 the Lyons applied to the North Shore City Council for access across the Thorne Bay coastal walkway reserve in order to facilitate earthworks and excavation on the site. In the context of explaining in general terms the works proposed the application noted that:
All heavy loads: concrete trucks, concrete blocks, timber framing and the like will be unloaded onto a temporary, formed area at the end of the ROW and carried or pumped down site. The concrete pours will be kept to a minimum, we estimate 5-6 will be required.
[23] More specifically the application sought access to the walkway on the following basis:
An estimated construction period of 10 months ... Best estimate of trucks is
30-35 over this period. Earthmover would remain on site and not transit.
For specific, controlled access of approved vehicles, I am prepared to email or telephone council 24 hours prior to access with details if required.
...
Reserve area is for transit only, all vehicles will remain stationary until the walkway is clear of pedestrians ... We have noted that from 1100-1500 the foot traffic decreases considerably and we will endeavour to accommodate these times.
Maximum weight recommended by Mr McCabe is per 10 tonne truck ...
[24] Mr Lyons has deposed that the plaintiffs consulted with Mr McCabe (as I have mentioned above) and with the Parks Officer Mr Paul Cliffe before making the application. Mr Cliffe subsequently prepared a report for the Takapuna Community Board which was considered at a meeting of the Board on 14 December 2009. Like the application, the report referred to a maximum weight of 10 tonnes for trucks.
[25] The Board meeting was attended by Mr and Mrs Lyons and Mr Cliffe. The
Board resolved that:
a) Mr Cliffe’s report would be received;
b)Access to the Thornes Bay Promenade would be granted to the Lyons for a 10 month period from the start of construction work (further permission being required for any extension of time);
c) The public were to have right of way at all times and that contractors must wait until pedestrians have cleared the area before entering or leaving the site;
d)Vehicles entering and leaving the Promenade would be escorted by two staff wearing high visibility jackets; and
e) No work was to be done on weekends or public holidays. [26] There was no mention of a 10 tonne weight limit for vehicles.
[27] Since that time the dispute has continued. The plaintiffs say they are unable to proceed with their building work until it is resolved.
The Underlying Claims and the Terms of the Injunctions Sought
[28] Mr and Mrs Lyons’ statement of claim refers to various events that I have outlined in paragraph [17] above as a “trespass” and seeks damages (general and exemplary) and orders by way of permanent injunction:
a) Prohibiting the first and second defendants from obstructing the right of way in future;
b)Requiring them to remove any vehicles or other obstructions from the right of way;
c) Requiring them to comply with the terms of the easement and more particularly to use the right of way only for the purposes of ingress and egress, subject to a right to load and unload where reasonably necessary; and
d)Requiring the first defendant to take all necessary steps to ensure that the second defendant does not obstruct the right of way or otherwise interfere with the plaintiffs’ rights of ingress and egress.
[29] The interim injunctions sought by the plaintiffs are in materially the same terms.
[30] The relevant parts of the defendants’ counterclaim are founded on the contention that the terms of the easement do not permit the plaintiffs vehicular access to the right of way at all. The claim as pleaded does not make it clear what the underlying cause of action is. However general damages of $10,000 are sought, together with orders by way of permanent injunction:
a) Restraining the plaintiffs and their agents from obstructing the driveway; and
b)Restraining the plaintiffs from using the right of way for vehicular access.
[31] The interim relief sought by the defendants is more broadly framed and seeks only to have the plaintiffs ordered to “comply with the terms of the easement.” Although the defendants do not seek specifically to restrain the plaintiffs’ vehicles from using the driveway on an interim basis it seems to me that it flows as a matter of logic from their underlying claim that the defendants’ position is that general compliance with the terms of the easement necessarily encompasses such a prohibition.
[32] The legal bases for the claim and counterclaim are of course relevant to the interim injunction applications because those applications require the Court to have regard to their merits: whether or not it can be said that the claims made by the plaintiffs and/or the defendants raise a “serious question to be tried.”
[33] It is tolerably plain that any action relating to interference with an easement is usually founded in nuisance, rather than trespass: Paine & Company v St Neots Gas and Coke Company[1] at 823:
[1] Paine & Company v St Neots Gas and Coke Company [1939] 3 All ER 812 (CA)
An easement differs from a profit à prendre, although both may be classed under the head of servitudes in that the owner of an easement
cannot maintain trespass, the only remedies available to him for disturbance being by abatement or by an action for nuisance.
[34] For more recent New Zealand authority to the same effect see the following comments of William Young J in Emmons Developments (NZ) Ltd v RFD Investments Ltd\[2] at [41]:
[2] Emmons Developments (NZ) Ltd v RFD Investments Ltd HC Christchurch CP42/01, 4 July 2001.
Usually claims to enforce a right of way arise in a context where a right of way has been created in general terms and where the grantor has interfered with or obstructed the use by the grantee of the right of way. In such a case a claim by the grantee to enforce the easement is in nuisance and will succeed only if the grantor's actions involve an unreasonable interference with the rights of the grantee. That a claim to enforce an easement is by way of action for nuisance is well understood, see for instance Hinde McMorland and Sim at para 6.023. In determining whether the interference with the right of way is wrongful a court will, of course, have regard to the terms of the easement.
[35] William Young J went on to note (at [43]) that:
It is certainly the law that a right of way does not necessarily entitle the grantee to go over every part of the surface of the land over which the right of way exists. As well, not every obstruction of a right of way amounts to an unlawful interference. Leaving aside the possibility of a claim in contract in a situation where a particular obstruction is specifically prohibited by the words of the grant ..., the rights of the grantee lie in nuisance and an action in nuisance will only lie if the alleged obstruction involves a substantial interference with the easement granted.
[36] The difficulty with any claim by either the plaintiffs or the defendants for abatement or in nuisance in the present circumstances is that the obstructions formerly created by the defendants have been removed and the plaintiffs are not presently interfering with the defendants’ rights; there is nothing presently to abate and no ongoing nuisance. I accept, however, that without intervention of the Court there is a risk that obstructions or interference will occur again in future and indeed the defendants would say that any activity involving even the temporary stopping of large trucks on the right of way constitutes such interference.
[37] In any event, it appears to me that the truly critical issue for the plaintiffs (and conversely for the defendants) is whether and to what extent the easement permits the plaintiffs to bring large vehicles onto the right of way and permits such
vehicles to stop there for the purposes of loading and unloading. Associated with that is the plaintiffs’ concern to prohibit parking on the right of way, presumably because parked cars may prevent the passage of larger vehicles. On that basis it seems to me that what the plaintiffs should ultimately be seeking is a declaration as to the parameters of the easement.
[38] At the interim stage, any relief that is to be effective for the plaintiffs in terms of progressing their building plans would need to focus on the prohibition of any future obstruction (essentially a quia timet injunction) with if possible, some clear (if interim) parameters around what activities are and are not permitted on the right of way.
[39] I have already noted the broad terms of the defendants’ counterclaim and the interim relief sought by them. In my view it would assist no one for this Court simply to declare that the plaintiffs must comply with the terms of the easement, when it is what those terms mean that is the centre of the dispute between the parties. Just as with the plaintiffs’ claim, it seems to me that what will ultimately be most useful is some sort of declaration as to the interpretation of the grant by which the easement was created.
[40] At this interim point, the defendants’ concerns about the use of the right of way will in part be resolved by the answer to the plaintiffs’ application; to a large extent the two applications mirror each other and can be dealt with together. It seems to me that the only issue raised by the counterclaim that would not be so answered relates to the logically prior question of whether the easement prohibits the plaintiffs from vehicular access at all.
[41] Based on the above analysis of the underlying claims I propose to proceed to consider the claim and the counterclaim on the basis that they raise the following legal issues:
a)Do the terms of the grant confer a right of vehicular access for the residents of 33 Kitchener Rd?
b) If so, does the grant confer a right to stop, load and unload?
c)If so, what are the limits (if any) on that right where its exercise interferes with the rights of the residents of 31 Kitchener Road in relation to their use of the right of way?
Interim Injunctions: Relevant Principles
[42] There was no dispute as to the relevant principles that the Court is to apply when determining an application for interim injunction. Essentially these involve an assessment of first, whether the underlying claim raises a serious question to be tried, secondly, where the balance of convenience lies and thirdly, the overall interests of justice.
Serious Questions to be Tried?
[43] The issue of whether either the plaintiffs’ claim or the defendants’ counterclaim raises a serious question to be tried depends in the present case on what can be concluded at this interim stage about the extent of the right of way in question. I have identified the particular issues that I consider arise in that respect in paragraph [41] above.
[44] At [28] of his recent judgment in Handforth v Kokomoko Farms Ltd[3] Wild J recorded his substantial acceptance of submissions that he had earlier set out between [13] and [16] of that judgment. Those submissions were that:
[3] Handforth v Kokomoko Farms Ltd HC Napier CIV-2009-441-477, 21 January 2010.
[13] The extent of the right of way granted by the Easement Certificate is to be determined “according to the natural meaning of the words contained in the document, read in light of the surrounding circumstances existing at the time when the easement was executed”: Masters v Snell [1979] 1 NZLR 34; Grinskis v Lahood [1971] NZLR 502. Relevant to the interpretation task are the physical circumstances of the servient tenement at the date of grant, and the nature and description of the land and/or buildings (existing or intended) comprising the dominant tenement, and the purpose for which the right of
way is intended to be used: Paterson & Barr Ltd v University of Otago
[1925] NZLR 191.
[14] Although the “right to pass and repass” includes a right to stop for a reasonable time for the purpose of loading and unloading, that right is essentially ancillary and restricted to what is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted: Bulstrode v Lambert [1953] 2 All ER 728.
[15] A grant of a right of way would normally be construed as conferring a right to use the right of way for the purposes for which it would ordinarily be used at the time of the grant: Great Western Railway Co v Talbot [1902] 2
Ch 759 (CA).
[16] Where a right of way is granted in general terms giving full rights of use, and where no limitation arises from the circumstances surrounding the grant, the right of way may be used for the purposes for which the dominant tenement is used: Flavell v Lange [1937] NZLR 444. But in all cases the rights of use attach securely to the use of a driveway facility, i.e. Sketchley v Berger (1893) 69 LT 754; Clifford v Hoare (1874) 9 Ch 415 and Keefe v Amor [1965] 1 QB 344.
[45] In my view that is a succinct summary of the principles that are likely to be relevant in the present case. Accordingly I now apply them to the terms of the grant and the issues here (although not necessarily in the order set out in Handforth).
Vehicular Access for the Proprietors of 33 Kitchener Rd
[46] There can be no doubt that the right of way created by the 1944 mutual grant was for the purposes of facilitating access to the residential properties at 31 and
33 Kitchener Road. Both those properties had dwelling houses on them at the time of the grant. Without the easement, access to the dominant tenements could presumably be obtained only from Audrey Rd along the Thorne Bay walkway. Mr Lyons has deposed that vehicular access along that walkway is “at Council’s will and pleasure.”
[47] The width of the right of way has always been sufficient to permit access by car and, as I have said, cars can be parked at various places on the right of way without impeding access by other cars. Since the time it was created the right of way has run directly off a fairly significant road. Cars were commonplace in Auckland in 1944 and indeed the existence of the garage at the entrance to the right of way suggests that a car was owned by the proprietor of 33 Kitchener Road at the
time of the grant. For all these reasons I consider the facts of the present case to be very different from the facts of a case relied on by the defendants: Coleman v Shand[4].
[4] Coleman v Shand (2004) 5 NZ ConvC 194,019 (HC)
[48] As well, and at least until recently, cars associated with both the plaintiffs and the defendants have in fact been driven and parked on the right of way. It can reasonably be assumed that some larger vehicles such as removal vans have also been driven and parked for short periods on the right of way over the years. I accept, however, that those more recent facts do not necessarily assist in determining the circumstances in existence at the time the grant was made.
[49] In terms of authority it also appears to me that is well established that a grant in general terms of a right of way (as here) authorises user with vehicles: see Johnathan Grant and Paul Morgan (eds) Gale on Easements (18th ed, Sweet and Maxwell, London, 2008) at 9-26 quoting the following passage from Kain v Norfolk [1949] Ch 163 at 168:
[Counsel] says, and I think he is supported by authority, that a right given to the grantee of property at all times hereafter to go, pass and repass over and along a certain way without any reference to horses, carriages, carts or anything else, will, per se, unelaborated as it is, give a right of way for all purposes, that is to say, a right to pass with vehicles as well as on foot, provided that the way to which the grant refers is a way suitable at the date of the grant for use by vehicles. I think that accords with the statement of the law contained in the judgment of Jessel MR in Cannon v Villars.
[50] As I have said, there is no evidence before me that the right of way here was not used by, or was not suitable for use by, vehicles at the time of the grant.
[51] The defendants nonetheless suggest that vehicular access by the plaintiffs is not permitted because the garage belonging to 33 Kitchener Road is (and has always been) located at the Kitchener Road end of the right of way. The argument is that this indicates that the residents of 33 Kitchener Road were to park their car in that garage and thus that it could not have been intended that they would drive or park their cars on the right of way itself.
[52] I do not find this argument persuasive. The terms of the grants clearly indicate to me that they were intended to be equal and opposite; there is no suggestion whatsoever that the residents of 33 Kitchener Road were intended to have fewer rights than the residents of 31 Kitchener Road. The residents of both properties had equal need of the right of way to access their respective dwellings; both were effectively the same distance from the nearest roads. While there are presently restrictions on parking on Kitchener Road around the entrance to the right of way (which mean that the defendants potentially have further to walk from their cars than the plaintiffs, if use of the garage is made) there was no evidence before me as to whether those restrictions existed at the time of the grant.
[53] In these circumstances it is not reasonable to suppose that it was intended that the residents of number 33 would carry their groceries by foot up the 75 metre driveway from the garage while the residents at number 31 would be permitted to drive to and park at the end of the driveway nearest the two houses. I have already referred to established authority for the proposition that vehicular access is to be regarded as encompassed in a general grant of the kind at issue here.
[54] I do not consider that the defendants have raised a serious question to be tried in relation to the vehicular access issue.
The Right to Stop, Load and Unload
[55] There are a considerable number of decided cases in relation to rights of way and the right to stop, load and unload. I consider that the upshot of those cases is summarised in [14] of the Handforth decision that I have already set out above. By way of confirmation, however, I note the following aspects of the cases to which Wild J referred and to which counsel in the present case also drew my attention.
[56] In Bulstrode v Lambert,[5] Upjohn J considered the extent of a right of way where the relevant grant conferred a right to pass and repass with or without vehicles. At the time of conveyance there were structures on part of the servient
[5] Bulstrode v Lambert [1953] 1 WLR 1064 (Ch)
tenement in existence which limited to some extent the passage of vehicles, although passage of people was not limited. After considering the fact that at the time of the reservation in the conveyance there were gates that prevented the passage of certain types of vehicles (which were later removed), he said at 1069:
Pausing there, in my judgment the true effect of those words, that there is a right of way over and along the land coloured brown, cannot be affected by the circumstance that at the date of the grant there was this gate and bar across. The words of the grant are plain and unambiguous, and in my judgment the plaintiff plainly has a right over the whole of the yard coloured brown, and not merely a right to enter through the gates some 6 ft. in width. Not only that: he has a right to enter it with vehicles. That must mean vehicles of any size appropriate to go down the yard, and as the yard is at no stage, until the garage is reached, less than 11 ft. wide, there seems to be no reason why a pantechnicon should not use that yard. Further, the object of the reservation is made perfectly plain: it is “for the purpose of obtaining access to the building at the rear of the said premises and known as the auction mart.” ... [I]t seems to me quite clear that the whole object and purpose of this reservation was to give the plaintiff an alternative means of getting to his business premises; and that means, in the particular case of an auction mart, bringing goods to those premises; furniture and the like for sale on those premises.
[57] A “pantechnicon” is a large furniture van.
[58] His Honour then considered whether ancillary to the right to pass and repass for the purpose of bringing goods to the auction mart the plaintiff had a right “to halt for an hour or more while unloading” (at 1070). At 1071 he said:
I again have to look at this reservation and see what it means. I have this in mind: the yard is a cul-de-sac and therefore every car that goes in must at some time come out, and it must halt in that process; further, the plaintiff concedes that the limit of his right must be this, that the car or vehicle or pantechnicon may only halt for so long as required either to remove or stow the furniture, and that there is no other right whatever to halt in the yard.
When I look at this reservation I see that the whole object of it is for the purpose of the vendor, his workmen, and others obtaining access to the auction mart. What is the object of that? It is to get access to business premises, and in particular to a place where goods are going to be auctioned and sold. The plaintiff can do it with or without vehicles. Therefore, as I have already held, he can, in my judgment, bring goods in the vehicles to his auction mart. If he is entitled to do that, then he must, of necessity in my judgment, be entitled to unload them. And if he is entitled to unload them he must, per contra, be entitled to load them.
In my judgment, therefore, the vehicles must be entitled to remain in the yard for such time as is necessary to enable the plaintiff to enjoy his easement of bringing vehicles into the yard; that is, for such time as it takes
to load or unload the vehicles. It is only an incident of the right of way expressly granted and may be described as ancillary to that easement, because without that right he cannot substantially enjoy that which has been reserved to him.
[59] In McIlraith v Grady[6] Denning MR considered the grant of an easement “to pass and repass through over and along” an adjacent property to gain access to a grocer's shop. Again it was contended by the occupier of the servient tenement that the right to pass and repass gave no right to stop or halt on the right of way. His Lordship observed at 476:
Mr Howard said: "The deed of grant of the right of way only gives a right 'to pass and repass through over and along'." It does not give any right to stop or halt on the right of way. He submitted that where there is only a right to pass and repass, there is no right to halt except in case of necessity, such as, for instance, if a car broke down or a horse went lame. He suggested that Bulstrode v. Lambert ... supported that proposition. I do not think it does. Every grant must be construed in the light of the circumstances. In that case it was held that there was a right to bring goods to the auction mart and by implication a right to halt to load and unload. So here. There was a narrow passageway leading into a small yard. There was necessarily imported, in addition to an actual right to pass and repass, also a right to stop for a reasonable time for the purpose of loading and unloading. I should have thought it obvious in 1901 that carts could come and unload provisions for the grocer's shop. So also now the post office vans can come and stop for ten minutes or more to load and unload the letters and parcels. An occasional oil lorry can stay a quarter of an hour. And so forth. If we had taken a different view on the construction of the grant, Mr. Garland said he would have wished to call evidence that over all the years carts and vehicles have stopped in the yard to load and unload. We need not, however, go into it. Suffice it that as a matter of construction the right of way includes a right to stop.
[6] McIlraith v Grady [1968] 1 QB 468 (CA).
[60] The other members of the Court agreed with these observations.
[61] In Grinskis v Lahood[7] the use of the dominant tenement had changed from a block of flats to nine motel units providing casual accommodation to travellers and tourists. In the result, the right of way which gave access to the building was used more often and in a way which was intrusive to the owners of the servient tenement. They sought an injunction to restrain the owner of the dominant tenement from obstructing the right of way by stopping or parking vehicles on it, and a declaration
that the right of way did not authorise the use of it by motel guests and persons visiting the motel on business.
[7] Grinskis v Lahood [1971] NZLR 502 (SC).
[62] Haslam J held that as the instrument creating the right of way was expressed in general terms, motel guests and visitors on business were permitted to use the right of way. It was immaterial that there had been a change of user of the dominant tenement since the right of way was created. Its use was not confined to use only for the purposes of the dominant tenement in the condition that it was in at the time of the grant. It would appear to follow that a change in the activities or in the owner of the dominant tenement resulting in a greater or more intrusive use of the right of way may be permitted by the courts, unless that greater or more intrusive use is expressly prohibited by the terms of the grant.
[63] While the cases I have referred to above involved easements with business purposes it seems to me that the rationale for implying a right to stop, load and unload in those cases applies equally in cases involving dwellings. That this is so was made clear in the older case of Cannon v Villars[8] where Jessel MR said at 420-
421:
Where you find a road constructed so as to be fit for carriages and is of the requisite width, leading up to a dwelling-house, and there is a grant of a right of way to that dwelling-house, it would be a grant of a right of way for all reasonable purposes required for the dwelling-house, and would include, therefore, the right to the user of carriages by the occupant of the dwelling- house if he wanted to take the air, or the right to have a wagon drawn up to the door when the wagon was to bring coals for the use of the dwelling- house.
[8] Cannon v Villars(1878) 8 Ch D 415.
[64] Accordingly in the present instance I consider that there is a serious question to be tried that the demolition and rebuilding of a dwelling at 33 Kitchener Road, and the stopping, loading and unloading of trucks to that end is incidental, to and reasonably necessary for, the effective enjoyment of the rights expressly granted by the right of way.
Can the plaintiffs exercise their rights where doing so interferes with the defendants’
rights?
[65] A subsidiary but, in the present case, important issue relates to the limits on any right to stop, load and unload because the exercise of the right interferes with the rights of others, namely the defendants.
[66] In Grinskis (supra) at 509-510 Haslam J relied on Bulstrode and McIlwraith as authority for the proposition that the implicit right to stop, load and unload was conditional on “no obstruction of other persons entitled” being thereby caused.
[67] Although this condition appears absolute in its terms (“no obstruction”) I have already noted above that not all “obstruction” necessarily constitutes a nuisance; the interference with the affected person’s rights must be “substantial.” Bulstrode in fact makes it clear that interference with the rights of others is permitted provided such interference is minimised. More specifically Upjohn J said at 1071:
There is, however, this to be said. Bringing in vans, no doubt, causes great inconvenience to the defendant, and the plaintiff is under a duty to minimize that. It is his duty, for instance, so to back in his vehicles, or to see that customers bringing the furniture so back in their vehicles, as to leave ample space for the defendant and his licensees to use the means of egress from the door of the defendant's house into the side of the yard, either for the purpose of going out on to the road or for the purpose of going to the boiler house, the coal cellar, the water closet, or the store house. There is ample room for them to do that, and if the plaintiff's customers' vehicles to do not give that amount of room, then, in my judgment, the defendant will have a just cause of complaint. It is also the plaintiff's duty to move any vehicles out if at any time the defendant desires to get his car out from the garage.
[68] In the present case, the defendants say that because the exercise of the plaintiffs’ rights under the right of way must be reasonable and interference with the defendants’ rights must be minimised, the plaintiffs should not use the right of way for concrete pouring trucks at all because alternative access to the site (via the Thorne Bay walkway) is available.
[69] As I have indicated, there is a dispute as to the precise scope of that alternative access. The plaintiffs say that the coastal walkway is only suitable for lighter vehicles and for excavation work. The defendants say that there is no, or
insufficient, evidence of this and that there is no reason why significant concrete pours could not occur from below.
[70] As I have also indicated, I accept that the plaintiffs have proceeded on the basis stated by Mr Lyons in his evidence. What he says does not appear manifestly unreasonable and nor does his approach generally to this issue. That said, I accept that it is unsupported by expert evidence and that the relevant facts are (or would be) disputed by the defendants. As well, the terms on which access has been granted make no reference to the 10,000 tonne limit. It may be that ultimately evidence from the Council is required.
[71] I am simply unable to resolve the factual dispute at this interim stage. However I am prepared provisionally to assume, for the sake of determining what is before me, that the defendants are correct and that concrete delivery and pouring could take place from below, albeit at greater inconvenience and cost to the plaintiffs.
[72] On the basis of that assumption it seems to me that the question I must consider is this: do the plaintiffs have a real prospect of obtaining a permanent injunction notwithstanding the existence of the alternative (but less convenient) means of access? In turn that seems to me to entail consideration of whether the existence of alternative access means that the plaintiffs may not exercise what would otherwise be their rights under the right of way. Or put another way, is an assessment of what use is “reasonable” or what constitutes “minimising interference” referable solely to the manner of use itself, in the specific and limited context of the right of way, or may it take into account circumstances quite extraneous to the right of way (here, the fact of alternative access)?
[73] Without in any sense deciding those matters (and they are perhaps the least clear of all the legal questions raised by the plaintiffs’ claim) I consider that there is a serious question to be tried in this respect. I say that because I have difficulty with the proposition that legal rights that otherwise exist may cease to be exercisable simply because the same ends can be achieved in alternative ways. Moreover, it seems relevant that had the plaintiffs not applied to the Council (choosing rather
simply to rely on their rights under the easement) then there might be no readily available alternative at all. Further, by applying to the Council, it seems to me that the plaintiffs have already taken very significant steps to minimise interference with the defendants’ rights and (thus) to render their proposed use of the right of way reasonable. Perverse incentives would arise if their actions in this regard were effectively found to count against their position.
Balance of convenience
[74] Having found that the plaintiffs’ claim raises a serious issue to be tried, I am now required to balance the injustice that will be caused to them if I refuse interim relief but a permanent injunction is later granted, against the injustice to the defendants if an interim injunction is granted to the plaintiffs but later discharged.
[75] The leading statement remains that of Lord Diplock in American Cyanamid Co v Ethicon Ltd[9]. While stressing that the relevant factors and their weighting will depend on the individual case, the American Cyanamid approach suggests that regard should be had to the following matters:
[9] American Cyanamid Co v Ethicon Ltd [1975] AC 936 (HL).
a) The adequacy of damages for both the plaintiff (if interim relief is not granted) and for the defendant (if interim relief is granted);
b)The status quo (prudence often dictating that the status quo – the “last peaceable state between the parties”[10] should be preserved if possible);
c) The relative circumstances of the parties; and d) The relative strength of each party’s case.
[10] R & M Wright Ltd v Ellerslie Gateway Motels Ltd HC Auckland CP188/90, 11 July 1990 at 8.
[76] As well, account can be taken of such matters as any effect on third parties and the conduct of the litigants themselves, both in the sense that equity requires that
a plaintiff come to Court with “clean hands” and also in the sense that that party should not be permitted to take advantage of its own wrongdoing.
[77] I address these factors in turn.
[78] In terms of adequacy of damages, the plaintiffs say that if they are not permitted to have heavy vehicles stop, load and unload on the right of way there is likely to be a significant impediment to their rebuilding project and in fact it may not be able to proceed at all. It seems to me that this result would certainly involve the plaintiffs suffering some form of intangible harm as well as economic loss.
[79] That said, however, I acknowledge that it is possible that if an interim injunction were not granted the project could continue using the access from the Thorne Bay walkway and the additional cost of that could be met by a damages award if the plaintiffs were ultimately successful in their substantive claim. That is nonetheless a contingent matter. I am, in any event, inclined to agree with what
Harrison J said in Todd Pohokura Ltd v Shell Exploration Ltd at [54]: [11]
The litigation process is inherently problematic and difficult. I have never understood why the existence of a right to damages, except in a straightforward case where losses are easily quantifiable such as for difference in value on wrongful cancellation of an agreement for sale and purchase of land or chattels, should constitute a bar to granting the equitable remedy of injunction. At best the right is a factor to be taken into account.
[11] Todd Pohokura Ltd v Shell Exploration Ltd HC Wellington CIV-2006-485-1600, 23 August 2006.
[80] In fact, Mr Dale very reasonably did not take the point that adequacy of damages is fatal either way and accepted the argument set out in Mr Muir’s submissions on that point. Mr Muir relied inter alia on the Todd decision to which I have just referred.
[81] As regards the status quo, it is not in dispute that parking of cars on the right of way has regularly occurred, at least in recent times. While it might reasonably be said that, prior to the commencement of the plaintiffs’ demolition and building works, heavy vehicles did not routinely use the right of way, there can be little doubt that on occasion delivery or removal vans will have stopped and loaded or unloaded there – presumably having due regard to the convenience of other users. I accept,
however, that the status quo does not involve large concrete trucks parking for some time at the top of the right of way while making deliveries.
[82] On the other hand, what is now sought by the plaintiffs could not itself be regarded as much more than an extension of the status quo of a fairly limited kind and for a comparatively limited period. The plaintiffs do not propose fundamentally or permanently to alter the pre-existing state of affairs; the use sought does not involve an activity that is completely new, but rather a temporary increase in a certain kind of use.
[83] It seems to me that the relative circumstances of the parties are essentially similar. Both the plaintiffs and the defendants are the owners and/or occupiers of beautiful and high value properties which have (shared) difficult access. At present, the defendants are faced with the prospect of being inconvenienced by the building works proposed by the plaintiffs. Ultimately those building works may be of benefit to the defendants.
[84] The plaintiffs have sought a temporary indulgence from the defendants but none has been forthcoming. For the reasons I have already set out, the indulgence sought may well be consistent with the plaintiffs’ legal rights in any event. As well, as the terms of the counterclaim and certain submissions before me make clear, the defendants would undoubtedly benefit from co-operation by the plaintiffs in relation to the access-related issues that they themselves face.
[85] In short, therefore, I consider that the positions of the respective parties here are (like the right of way itself) essentially equal and opposite. There is no fundamental inequality between them and (on the evidence I have seen) none of the parties have acted in a way that could be regarded as oppressive. It is plainly in the long-term interests of all that some compromise be reached.
[86] In terms of the relative strength of each party’s case, it should already be clear from what I have said above that I consider that the plaintiffs have a prima facie position under the terms of the grant of the easement that is quite strong,
provided that any stopping, loading and unloading is reasonable and care is taken to minimise interference with the defendants’ enjoyment of their rights. I have of course also held that I do not consider that the vehicular access issue raised by the defendants constitutes a serious question to be tried.
[87] It seems to me that what the plaintiffs propose regarding the right of way would have no significant effect on third parties, other perhaps than the occasional visitor to 31 Kitchener Road, in the event that a truck is parked and delivering its load at the time of the visit. Third parties are, however, likely to be affected (by additional noise and obstruction) if still further access via the Thorne Bay public walkway becomes necessary.
[88] I do not regard the conduct of the parties as a particularly compelling factor in the present case. Although it seems that the second defendant in particular has on occasion deliberately obstructed the right of way and engaged in otherwise obstreperous behaviour, I do not consider that to be particularly material in the context of the plaintiffs’ application. That is because Mr Rutherford did not, in parking the digger across the right of way (for example), “create his own inconvenience” and then seek to have it take into account by the court when “balancing the scales of convenience” (cf NZ Farmers Co-operative Association of
Canterbury v Farmers Trading Co Ltd[12] at 28). Although Mr Rutherford’s
behaviour might assume more significance in the context of the defendants’ cross- application had I not already decided that the defendants’ claim did not raise a serious question to be tried, I do not consider his actions relevant to the assessment I am now required to make.
[12] NZ Farmers Co-operative Association of Canterbury v Farmers Trading Co Ltd ( (1979) 1 TCLR
18 (HC).
[89] Having carefully considered the factors set out above I am of the view that the balance of convenience here favours the plaintiffs, provided that steps can be taken to protect (insofar as possible) the defendants’ own rights under the right of way and to minimize inconvenience to them.
Interests of justice
[90] As I have said, I consider that the issues of whether the grant of the right of way can be interpreted as giving to the plaintiffs a right to stop, load and unload and, if so, whether in the circumstances of this case that right should nonetheless be restricted to prevent the activities proposed by the plaintiffs, constitute serious questions to be tried. I also consider that the balance of convenience here favours the plaintiffs, provided that the interim injunctions can be made on terms that reasonably protect the defendants’ interests.
[91] In terms of where the interests of justice ultimately lie I accept that the exercise by the plaintiffs of what I consider very arguably to be their rights under the right of way will involve some interference with the defendants’ rights in that respect. However I do not consider that that interference will be significant and nor will it be permanent. I also consider that the plaintiffs have taken reasonable steps to mitigate the interference and I am confident that they will continue to do so. For the reasons I have already discussed, the interests of justice (both in the sort and longer term) require a co-operative approach, even if that co-operation must be enforced by the Court. On balance, I consider that the interests of justice favour Mr and Mrs Lyons, subject to the taking of reasonable steps to minimize interference with the defendants’ rights.
[92] Lastly I mention that Mr Dale submitted to me that even if an injunction were to be granted it should not be granted against Mr Breslin because he had not been involved in the historical obstructions of the plaintiffs and that there was no agency relationship between him and Mr Rutherford. I accept that that is the case. Notwithstanding that, however, Mr Breslin is the registered proprietor of
31 Kitchener Road, and it seems to me that Mr Breslin (who is presently resident in Australia), plainly has an interest in the matters raised by the claim. Likewise, any relief ordered, whether interim or otherwise, directly affects his interests. I see no basis for excluding Mr Breslin from the terms of the orders I propose to make.
Orders
[93] I order interim injunctions on the following terms:
a) Restraining the defendants or their respective agents, employees or contractors from obstructing or preventing vehicular ingress to or egress from the right of way;
b)Restraining the defendants or their respective agents, employees or contractors from stopping or interfering with the plaintiffs, their agents, employees or contractors bringing vehicles (including trucks) onto the right of way and there stopping, loading and unloading those vehicles provided that:
(i) Where such stopping, loading and unloading is expected to take longer than 10 minutes -
• The plaintiffs are to give the defendants 24 hours notice of the proposed stopping, loading or unloading;
• Such stopping, loading or unloading will not take more than 1 hour at a time to complete;
• No vehicle that is stopped shall be left unattended in order that it can quickly be moved in the case of any emergency for which vehicular access to the end of the right of way is immediately required; and
• Any such stopping, loading or unloading shall not occur on weekends or public holidays, shall not occur more than three times in one day and shall not occur other than between the hours of 9 am and 5 pm.
[94] The plaintiffs have succeeded and are entitled to the costs of the applications
on a 2B basis, together with disbursements in the usual way.
Rebecca Ellis J
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