Macken v Jervis - [2014] NZHC 3408

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-167 [2014] NZHC 3408

UNDER the Property Law Act 2007

BETWEEN

SUSAN CARREL MACKEN, PETER FRANCIS TOBIN WARREN and CHRISTOPHER NORMAN LORD Applicants

AND

RONALD PETER JERVIS and KATHLEEN JERVIS Respondents

Hearing: 2, 3, 4 and 5 December 2014

Counsel:

F Whyte for Applicants
S A Connolly for Respondents

Judgment:

23 December 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 23 December 2014 at 1.15pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
LeeSalmonLong, Auckland
Barratt-Boys Law Practice, Auckland
Counsel:
S A Connolly, Newmarket

MACKEN V JERVIS [2014] NZHC 3408 [23 December 2014]

Introduction

[1] This proceeding concerns two properties situated in Remuera, Auckland. One, at 24 Wiles Avenue (the Macken property), is owned by the trustees of the Macken Family Trust (the Trust). Dr Susan Macken lives at the Macken property. The other (the Jervis property) is 24A Wiles Avenue. It is to the rear of the Macken property, and is occupied by Mr and Mrs Jervis.

[2] The Jervis property came into existence on completion of a subdivision of the land on which the Macken property stood. When the subdivision was undertaken, Dr Macken intended that two strips of land be created along a common driveway. Strip A was to be owned by the trustees of the Trust and Strip B by the owners of what is now the Jervis property. Although Strip A was to be part of the Macken property and Strip B part of the Jervis property, mutual rights of way were intended, so that both Dr Macken and the occupiers of what is now the Jervis property could reach and park at their homes. An error was made when the subdivision was completed, before Mr and Mrs Jervis bought their property. While Mr and Mrs Jervis can use Strip A, Dr Macken cannot use Strip B.

[3] Although it is clear that the right of way to be enjoyed over the Jervis property had been inadvertently omitted from the subdivision plan, it has proved impossible for the intelligent people who live in each to resolve their differences in a pragmatic manner. Part of the problem appears to be that Mr and Mrs Jervis have retained a gate, to preserve privacy, at their end of the driveway, even though Dr Macken’s rights to pass or re-pass go up to the boundary of the Jervis property. The gate was in place when Mr and Mrs Jervis bought the property. It should not be there (or should always remain open, so that it situated only on Strip B) as it is not for the purpose for which the right of way over Strip A was granted; namely, to enable the occupiers of the Jervis property to pass and re-pass.

[4] The result of the parties’ intransigence has been a hearing over four days in the High Court, in circumstances where each of the parties has significant risks…

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 Macken v Jervis

Details

AGLC: Macken v Jervis [2014] NZHC 3408
Case: [2014] NZHC 3408
Decision Date: 23 December 2014

CaseChat Overview and Summary

The applicants, the trustees of the Macken Family Trust, sought an order under section 327 of the Property Law Act 2007, granting reasonable access to the Macken property, a property owned by the Trust and occupied by Dr Susan Macken, located at 24 Wiles Avenue in Remuera, Auckland. The respondents, Mr and Mrs Jervis, occupy the adjoining property at 24A Wiles Avenue. The applicants sought an order for reasonable access to the Macken property, which they argued had become landlocked, because they could not drive their cars into their garage due to the absence of a right of way over the respondents' property. The respondents opposed the application, arguing that the Macken property was not landlocked because Dr Macken could still park in the street and walk into her property.

The court had to determine whether the Macken property was landlocked within the meaning of section 326 of the Property Law Act 2007, and if so, whether it should grant reasonable access to the Macken property under section 327 of the Act. The court considered the definition of "landlocked land" in the Act, which requires the absence of reasonable access to the property, and the definition of "reasonable access", which includes 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. The court also considered the relevant authorities, including Breslin v Lyons and Greenslade v Honeymoon Bay Holdings Ltd, which established that vehicular access is not always necessary to satisfy the requirement for reasonable access.

The court found that the Macken property was not landlocked because Dr Macken could still park in the street and walk onto her property. The court also found that the absence of vehicular access over the respondents' property did not amount to a lack of reasonable access, as the court had previously held in Murray v BC Group (2003) Ltd that reasonable access may include vehicular access, but it all depends on the circumstances. The court further found that the problem was of the Trust's own making, as the Trust's surveyors and lawyers were the agents of the registered proprietors who were implementing the proposed subdivision. The court also noted that the primary purposes for which access was required were to drive a car into the double garage on the Macken property, and to take a vehicle down the driveway for loading and unloading purposes. Reasonable access for that purpose would not require vehicles to go beyond that part of the driveway that is currently marked by the gate.

The court dismissed the application and reserved costs. The court also directed a telephone conference to be arranged to discuss the parties' respective positions on costs and whether any oral hearing or further submissions may be required.

Orders