MacLaurin v Hexton Holdings Ltd - [2008] NZCA 570

IN THE COURT OF APPEAL OF NEW ZEALAND
CA212/07
[2008] NZCA 570

BETWEENGRAHAM KENNETH MACLAURIN AND ANNE MARY MACLAURIN

Appellants

ANDHEXTON HOLDINGS LIMITED

Respondent

Hearing:26 June 2008

Court:Chambers, Arnold and Ellen France JJ
Counsel:J O Upton QC for Appellants

N S Gedye for Respondent

Judgment:19 December 2008 at 2.15 pm

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe cross-appeal is dismissed.
CAll orders made in the High Court, both on 16 April 2007 and on 29 October 2007, are quashed.
D The respondent must pay to the appellants, with respect to costs in this court, $6,000, plus usual disbursements.
EAny existing costs order in the High Court is quashed. Costs in that court must, in the absence of agreement, be fixed by that court in light of this judgment and the reasons therefor.

REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
Access to a proposed bottling plant  [1]
Issues on the appeal and the cross-appeal  [10]
Is Hexton’s land landlocked?  [13]
           The meaning of “right”  [14]
           Other existing uses  [22]
           New arguments on Hexton’s behalf  [25]
           Remission to the High Court or dismissal of the s 129B claim?                 [36]
Has something gone wrong here?  [43]
Result  [48]

Access to a proposed bottling plant
[1]       Anne and Graham MacLaurin, the appellants, own a farm on the outskirts of Gisborne. Members of their family have farmed the land since 1921. In the middle of the farm sits a piece of land owned by Hexton Holdings Limited, the respondent. Hexton is the corporate vehicle of John McKendry. His family have also lived in the district for many years and indeed his grandfather bought what is now Hexton’s land in 1974. Hexton’s land is less than a hectare in area. To get to Hexton’s land, one has to cross the MacLaurins’ farm.
[2]       The story of how this piece of land came to be separated off from the farm around it is intriguing. The land has two natural springs on it, the larger one being known locally as “the Brewery Spring” and the smaller as “the Acton Spring”. Since around 1880 water has been taken from the springs. It has been piped off-site and used for domestic and rural water supply and, for many years, for brewing beer.
[3]       The area of land around the springs was subdivided off from the rest of the farm in 1904. The springs land, now Hexton’s land, became lot 54 on the relevant deposited plan. The subdivision was effected by the Barker family, who owned the surrounding farm land and became the owners of lot 54. In 1923, however, lot 54 passed out of the Barker family’s ownership. It was sold to New Zealand Breweries Limited, which began to use the water at its brewery in Gisborne. The water was piped to the brewery. New Zealand Breweries obtained easements over neighbouring land to permit such piping. Those easements, however, did not permit general access to lot 54, other than for maintenance…

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.

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Details

Case: [2008] NZCA 570
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the case of MacLaurin v Hexton Holdings Ltd, the Court of Appeal of New Zealand reviewed the decision of the High Court, which had granted an easement to Hexton Holdings Ltd (respondent) over the land owned by the MacLaurins (appellants). Hexton Holdings Ltd, owned by John McKendry, had acquired a small piece of land in Gisborne and intended to establish a bottling plant on the site, utilizing the natural springs located on the property. The MacLaurins opposed the establishment of the bottling plant and the granting of access across their land. The appeal raised several issues, primarily whether Hexton's land was landlocked and if the High Court's decision to grant an easement was justified.

The Court of Appeal found that the High Court had erred in its interpretation of the term "right" in the definition of "reasonable access." The Court held that "right" referred to existing uses and permissions under the Resource Management Act, rather than a right to apply for a resource consent. As Hexton's proposed bottling plant was not a permitted use, the Court held that the High Court was not entitled to take it into account when deciding if the land was landlocked. The Court also found that the existing access to Hexton's land was sufficient for its current use as an olive plantation. Consequently, the Court held that Hexton's land was not landlocked, and the High Court's decision to grant an easement must be quashed.

The Court of Appeal allowed the MacLaurins' appeal and dismissed Hexton's cross-appeal. All orders made in the High Court were quashed, as they were dependent on Hexton's land being landlocked. The MacLaurins were entitled to costs in the Court of Appeal, and any existing costs order in the High Court was also quashed. The Court suggested that Hexton should pursue its Environment Court hearing for a resource consent and consider a new application for access under the Property Law Act 2007 if the consent was granted.

Orders