Newstart Holdings Ltd v Tidd Foundation Inc

[2005] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND

CA233/04

BETWEENNEWSTART HOLDINGS LIMITED

Appellant

ANDTIDD FOUNDATION INCORPORATED

Respondent

Hearing:14 June 2005

Court:William Young, Chambers and Robertson JJ

Counsel:R O Parmenter and C M Kersey for Appellant

K G Parker for Respondent

Judgment:9 August 2005 

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay to the respondent costs in the sum of $6,000, plus usual disbursements.

REASONS

(Given by Chambers J)

The case of a disappearing right of way

[1]        Newstart Holdings Ltd, the appellant, owns land – in fact on two titles - in Victoria Street in Hamilton.  Tidd Foundation Incorporated, the respondent, owns the adjoining land.  Newstart has a building going right across its Victoria Street frontage.  On the ground floor is Biddy Mulligan’s Hotel and on the upper floor an establishment called “Calendar Girls”.  There is another building at the rear of the site which is occupied by a sign writer trading under the name of The Green Frog Sign Company.  Tidd has a large building on its site.  The gap space between Newstart’s building and Tidd’s is a right of way (on Tidd’s land) enabling vehicular access to Newstart’s carpark and The Green Frog.  A plan showing the layout of the various buildings and the right of way is attached to this judgment.

[2]        Originally both the Newstart land and the Tidd land were owned by the Hamilton City Council and leased pursuant to perpetually renewable 21 year leases (Glasgow leases).  In 1994, Newstart’s predecessors purchased the reversion from the council and as a result, by operation of law, the leasehold estates on their two titles merged into the fee simple.  In 1996, Tidd did the same.  As a consequence and consequently, its leasehold estate also merged. 

[3]        The right of way which the Newstart land had traditionally enjoyed over the Tidd land had been created under the Newstart leases.  That right of way does not now appear on Newstart’s freehold titles, but Tidd’s title does record that its land remains subject to that right of way until 6 September 2010.  That is the date on which one of the Newstart leases would have expired, but for the merger.  The other lease would have expired on 4 August 2010; the right of way under that lease is also recorded on Tidd’s title.

[4]        The thoughtful reader, knowing there must be a dispute between Newstart and Tidd for this judgment to exist, might well be tempted to guess at this point that Tidd must be arguing that its title has been wrongly declared subject to the right of way, while Newstart is arguing that the right of way still exists.  Not a bit of it.  Tidd fully accepts that its land and its title remain subject to the right of way.  It is Newstart which argues that the right of way has gone.  This case is all about whether Newstart should get a new right of way over Tidd’s land pursuant to s 129B of the Property Law Act 1952.  That section is the provision under which the High Court can order landowners to provide access to their neighbours’ landlocked land.  It is Newstart’s contention that part of its land is now landlocked as a result of losing its right of way. 

[5]        Newstart’s application under s 129B came before Salmon J in the High Court in Hamilton.  His Honour dismissed the application because he was not satisfied that the Newstart land was landlocked: HC HAM CIV-2004-419-328 8 October 2004.  Newstart has appealed from that decision.

Issue on the appeal

[6]        There is only one issue on this appeal: is the Newstart land landlocked? 

Is the Newstart land landlocked?

[7]        For the purposes of s 129B, a piece of land is landlocked if there is no reasonable access to it: subs (1)(a).  “Reasonable access” is defined in subs (1)(c):

Reasonable access means physical access of such nature and quality as may be reasonably necessary to enable the occupier for the time being of the landlocked land to use and enjoy that land for any purpose for which the land may be used in accordance with the provisions of any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the provisions of the Resource Management Act 1991. 

[8]        In his reasons for judgment, Salmon J recorded the following submission made on behalf of Tidd by its counsel, Mr Parker:

[14]     Mr Parker submitted that s 118A of the Land Transfer Act made it clear that the Tidd land was subject to the rights of way.  He undertook on behalf of the Tidd interests to take whatever steps were necessary to ensure that those rights recorded on the Tidd Certificate of Title were memorialised in the appropriate way on the Newstart titles.  He acknowledged that Newstart had rights of way over the Tidd property until 2010 but submitted that at that time those rights would expire.  He submitted that there was no jurisdiction to make any order under s129B because the Newstart land was not landlocked.

[9]        Having recorded that submission, Salmon J went on:

[15]     I conclude that the defendant’s willingness to ensure that a right of way is provided until 2010 provides a complete answer to the plaintiff’s claim.  This is because I am not satisfied that the Newstart land includes a “piece” that is “landlocked”.  The decisions emphasise that a practical approach is needed.  As the Court of Appeal said in Cleveland v Roberts [1993] 2 NZLR 17 at 23:

The ordinary meaning of the words used suggest that land is to be regarded as landlocked if it does not in a practical sense have reasonable access.

[16]     At least until 2010 the rear portion of the Newstart land does have reasonable access.  I do not accept Mr Parmenter’s argument that the right to access was annihilated by the merger of the leasehold and freehold interests.

[10]      His Honour then concluded:

[24]     The first defendant’s acceptance that the rights of way exist until 2010 means that at this stage the land is not landlocked.  Therefore the plaintiff’s claim must fail.  I do, however, as discussed and agreed at the hearing, order that the defendant takes such steps as are necessary to ensure that rights of way until the expiry date of the former leases are recorded on the plaintiff’s titles as appurtenant to that land.

[11] The sealed order of the judgment duly records the order referred to in [24]. We are uncertain as to Salmon J’s jurisdiction to make this order, given that the only relief sought in the proceeding was an order under s129B, the entitlement to which was not established. But Tidd has not appealed against that order; on the contrary, Mr Parker before us reiterated that Tidd was happy to do whatever needed to be done to have the rights of way recorded on Newstart’s titles as well as its own.

[12]      In this court, Mr Parmenter, for Newstart, continued to argue that Newstart did not have a legal entitlement to the right of way.  He submitted that Salmon J had been wrong so to find.  In the end, we find it unnecessary to determine the legalities of the situation.  The fact is that Tidd acknowledges that a right of way exists over its land until September 2010, as recorded on its certificate of title.  It remains willing to do whatever is necessary to have the right of way recorded on Newstart’s titles as well, should that be Newstart’s wish.  Newstart, its tenants and their visitors remain able to use and are using the existing right of way, as they have always done.  Further, there will be no change in that position until September 2010.  In light of this, there is absolutely no doubt about the position: all of Newstart’s land currently enjoys reasonable access to Victoria Street.  No part of Newstart’s land is currently landlocked.

[13]      Even if there were something in Mr Parmenter’s argument as to the legal effect of merger on this right of way, we reiterate what this court said in Kingfish Lodge (1993) Ltd v Archer [2000] 3 NZLR 364 as to the importance of the current factual situation in determining s 129B applications.  This court said at [26]:

A property owner normally has both a legal right of access and the physical means to exploit it.  In exceptional cases there can be one without the other.  Paper roads can be physically impassable.  Routes which are physically passable are not always supported by strict legal rights.  In our view, the phrase “physical access” was used in s 129B(1)(c) to make it clear that in this context the factual situation may be decisive.

[14]      In our view, Salmon J was completely correct, and there is nothing we can usefully add.  Newstart’s application was, with respect, quite misconceived.  What Newstart should have done was seek declaratory relief as to the legal status of its right of way.  The Registrar-General of Land would also have needed to be heard on such an application, as he obviously considers the right of way to be legally enforceable and any declaration that it was not would involve amendment of his register.  If Mr Parmenter’s argument had been upheld in such a proceeding, and if subsequently Tidd had moved to block access to the rear of Newstart’s land, then – but only then – could Newstart have properly considered a s 129B application.  This was the wrong sort of proceeding for the point Newstart is trying to establish. 

[15]      We have given thought as toconsidered whether we should give a definitive ruling as to what the position would be in 2010 if Tidd were, at that stage, to prevent further access to the rear of Newstart’s land.  Does the legal right of way come to an end in September 2010?  Would the back of Newstart’s property be considered a separate piece of land for the purposes of a s 129B application at that time?  (Obviously tThe front of Newstart’s land has excellent access to Victoria Street.  Thus a A s 129B application  can in any event could succeed only if the back of the property is regarded as a separate piece of land.)  Would it be relevant that access to the back of Newstart’s land is blocked only because Newstart’s predecessors chose to erect the Biddy Mulligan’s building so that it spread across the entire frontage? 

[16]      We have decided that it is not appropriate to express any views about these questions.  First, the only relief sought by Newstart was an order granting reasonable access under s 129B on the footing part of its land is landlocked now.  It is not possible to seek a s 129B order with future effect, on an assumption that the land might become landlocked.

[17]      Secondly, a lot may change between now and the end of 2010.  Tidd or a successor might decide to continue to allow Newstart or its successor to use the right of way.  Newstart or a successor might choose to redevelop the Newstart site, allowing access to the back of the Newstart land over its own land.  Newstart or a successor might buy other adjoining land, giving access by other means.  There are many possibilities.  This court is not in the business of providing advisory opinions, especially when they would be based on factual assumptions which may not come to pass: Glasgow Navigation Co v Iron Ore Co [1910] AC 293 at 294 (HL); Gazley v Attorney-General (1995) 8 PRNZ 313 at 315 (CA).

Result

[18]      We dismiss the appeal.

Solicitors:
Ruby Law, Hamilton, for Appellant
Tompkins Wake, Hamilton, for Respondent