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Murray v BC Group (2003) Ltd

Murray v BC Group (2003) Ltd

Case [2010] NZCA 163 4 May 2010

Reasonable Access

Landlocked Land

Easements & Covenants

Adverse Possession

Judicial Review

Statutory Interpretation

Property Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA137/2009
[2010] NZCA 163
BETWEENSAM MURRAY AND BRENDAN TUOHY
Appellants

ANDBC GROUP (2003) LIMITED, JOHN MOLYNEUX AND JUDITH SHIRLEY MOLYNEUX
First Respondents
ANDELIZABETH RUTHERFORD
Second Respondent
ANDSARAH JUNE STUART
Third Respondent
ANDSUSAN MARGARET STOKES
Fourth Respondent
ANDHILARY CATHERINE LOW
Fifth Respondent
ANDTHOMAS PETER GOTT AND JOCELYN ANN CRANEFIELD
Sixth Respondents

Hearing:20 April 2010

Court:Ellen France, Gendall and Cooper JJ
Counsel:P S J Withnall for Appellants
P J Bartlett for First Respondents
J M Morrison for Second Respondent
No Appearance for Third, Fourth, Fifth and Sixth Respondents

Judgment:4 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the first and second respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Gendall J)
[1]       Ms Murray and Mr Tuohy sought an order under s 129B of the Property Law Act 1952 requiring their immediate neighbours to provide access to their property, through a right-of-way easement, on the basis that it was landlocked. Those immediate neighbours are the first and second respondents. The remaining respondents, not being directly affected by the application, took no part in the proceedings. The application was dismissed by Joseph Williams J in the High Court at Wellington on 12 February 2009.[1] He held that the appellants’ property was not landlocked for the purpose of s 129B.
[1]      Murray v BC Group (2003) Ltd HC Wellington CIV-2007-485-198, 12 February 2009.
[2]       This appeal is against that decision.
Evidential background
[3]       The appellants and their neighbours own adjoining properties in the Wellington hillside suburb of Ngaio. The properties were created by a subdivision in 1963 and are described as Numbers 3 Iwi Street (owned by the appellants), 3A Iwi Street and 4B Fox Street (owned by the Molyneux interests) and 4A Fox Street (owned by Elizabeth Rutherford). The appellants purchased No. 3 Iwi Street in 1989, and have lived there for over 20 years. Although the lot on which their home is built has theoretically frontage to Iwi Street through a narrow strip of land, the strip is less than half a metre wide and does not provide reasonable access. The appellants’ property has access via a Council-owned, lit and paved public footpath, which runs between Fox Street and Iwi Street.
[4]       The owners of 4A and 4B Fox Street have wider frontage to their respective properties. There is drive-on access from Fox Street to those properties created by the formation of a sealed driveway. They have reciprocal rights-of-way granted pursuant to an easement. Whilst No. 3A Iwi Street does not have actual frontage onto Fox Street, as it is owned by the Molyneux interests it is able to share the right‑of-way to No. 4B Fox Street. A cadastral map showing locations of the relevant properties was annexed to the High Court judgment and it is annexed to this judgment (Annexure…

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 Murray v BC Group (2003) Ltd

Details

AGLC: Murray v BC Group (2003) Ltd [2010] NZCA 163
Case: [2010] NZCA 163
Decision Date: 4 May 2010

CaseChat Overview and Summary

The Court of Appeal dismissed the appeal brought by Sam Murray and Brendan Tuohy against BC Group (2003) Limited and others. The appellants sought an order under s 129B of the Property Law Act 1952, which provides for reasonable access to landlocked land, to compel their immediate neighbours to provide access to their property through a right-of-way easement. The High Court had previously dismissed their application, holding that their property was not landlocked for the purposes of s 129B. The Court of Appeal upheld the decision of the High Court, agreeing that the appellants' property was not landlocked and that the existing access via a Council-owned, lit and paved public footpath was reasonable. The Court noted that the onus was on the appellants to establish that their land was landlocked and that a grant of relief was appropriate, which they had failed to do. The Court also rejected the appellants' contention that reasonable access necessarily included vehicular access, holding that the type of relief which is reasonably necessary must be determined in light of factors such as the characteristics of the locality, the topography of the area and contemporary requirements in relation to transportation.

Orders