Organic Farming Limited v Bryson HC Palmerston North CIV-2006-454-186

[2007] NZHC 1639

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2006-454-186

BETWEEN  ORGANIC FARMING LIMITED Appellant

ANDPETER ROBERT BRYSON AND MICHELLE ANNE PALLESON Respondents

Hearing:         8 December 2006

Appearances: G M Mason for Appellant

A S A Hall and B Vanderkolk for Respondent

Judgment:      19 February 2007

In accordance with r 540(4) I direct the Registrar to endorse this judgment with a delivery time of 3.30pm on the 19th day of March 2007.

JUDGMENT OF CLIFFORD J

Introduction

[1]      This is an appeal against a decision of District Court Judge J M Kelly, made pursuant to s 126G of the Property Law Act 1952, modifying an easement enjoyed by the appellant over land belonging to the respondents.

Background

[2]      The appellant operates a dairy farm business in and around Taimatai Road in the Manawatu, producing organic milk and yoghurt.

ORGANIC FARMING LTD V BRYSON AND PALLESON HC PMN CIV-2006-454-186 19 February 2007

[3]      The respondents are the owners of a rural lifestyle block at 184 Taimatai Road.   That block was formed by way of subdivision of the farm property now owned and operated by the appellant.

[4]      The  respondents’  property  is  subject  to  an  easement  in  favour  of  the appellant’s property.

[5]      The  easement,  approximately  100  metres  long,  provides  access  from Taimatai Road over the respondents’ land to the appellant’s land.  The easement was surveyed to follow an existing fenceline on one side, but is not a uniform width all the way along.   It varies from a minimum width of 5.6 metres, up to a maximum width of 8.49 metres at a single point.   The driveway as actually formed over the easement has an average width of approximately 4.6 metres, and is fenced on both sides at that width.   In one area, it passes very close to the respondents’ dwelling house.

[6]      Both parties use the easement for access purposes.  Difficulties between the parties have arisen as regards the appellant’s use and enjoyment of the easement. Those difficulties appear to relate to the effect on the respondents of the speed at which vehicles servicing the appellant’s farm make use of the easement, the impact on the quality of the formed surface of the easement of that use and the “mess” created by that use (for example spilled silage), together with what were described as associated safety issues.  The proximity of the respondents’ house to the easement would appear to have increased the impact of these matters on the respondents, as did the birth of their daughter, an event which heightened their safety concerns. Those difficulties have continued until the present time.

[7]      As a result, there are serious relationship issues between the appellant and the respondents.   In the respondents’ view, this makes the shared use of the easement close to impossible.

[8]      In 2002, the respondents filed an application pursuant to the provisions of s 126G of the Property Law Act 1952 seeking to modify the easement.

[9]      Section  126G  provides  power  for  the  Court  to  modify  or  extinguish easements and covenants.  The section provides four grounds for such an order, and the respondents based their application on two of those grounds:

a)        First, they alleged a change in use of the easement (s 126G(1)(a)).

b)Second,  they  alleged  that  the  modification  of  the  easement  they sought would not substantially injure the appellants (s 126G(1)(d)).

[10]     The respondents initially proposed that the easement should be moved east for part of its length (particularly as it passes the house of the respondents) and reduced along its entire registered width to the actual formed width of 4.6 metres. The appellant rejected that proposal.

[11]     In   August   2004,   the   respondents   filed   an   amended   application   for modification of the easement.  The amended application proposed that – as before – the easement be moved east for part of its length, including as it passed the house of the applicants, but at a width of 6 metres uniformly in its entirety.

[12]     Both proposals were made on the basis that the respondents would pay for the cost of forming the modified easement if granted by the Court, and that the modifications would allow the respondents to form a separate driveway to their property for almost its entire currently shared length.

[13]     The second, modified, proposal for modification was the focus of the hearing before the District Court Judge.

The decision under appeal

[14]     In her judgment of 15 February 2006, the Judge first set out the general legal principles applicable to such applications.  There was no challenge on appeal to the Judge’s articulation of those general principles.

[15]     The  Judge  then  considered  the  grounds  advanced  by  the  respondents  in support of their application, namely those found in ss 126G(1)(a) (change in circumstances) and (d) (no substantial injury).

[16]     At trial the respondents argued, with reference to s 126G(1)(a), that due to a change in the nature and/or extent of the use of the land to which the benefit of the easement was annexed, or due to other relevant circumstances, an order to modify or extinguish the easement was appropriate.  The Judge found, as a fact, that there had not  been  any  such  change.    This  part  of  her  decision  was  also  not  subject  to challenge on appeal.

[17]     The Judge then proceeded to consider in terms of s 126G(1)(d) the question of substantial injury, which was the second ground relied on.   She found that the appellant would not be substantially injured by the modification proposed.

[18]     The appellant had argued that modifying the easement to a single width of 6 metres, and introducing curves into the easement as a result of its shift eastward, would cause injury, in particular by no longer providing the potential for large vehicles to pass.

[19]     Reflecting her view of the evidence, the Judge recorded her finding in the following terms:

[67]      I am therefore satisfied that the applicants have demonstrated that the proposed curves or width of the driveway will not cause difficulties for vehicles that may wish to use the driveway.

[68]      I accept that the fact that the easement will be a uniform width of 6m means there will be some reduction in the area of the easement at various points of the driveway.  However, at other points in the driveway the width will be increased.  I find that the reduction of width at points on the 100m of driveway that passes over Lot 1 to be insignificant or trifling.  In that respect I find that the modification would cause little injury to the respondent.

[69]     Therefore, I am satisfied that the applicants have established on the balance of probabilities that the proposed modification is reasonable in the circumstances and would not substantially injure the respondent.  That is, the respondent would not suffer any real or considerable injury.

[20]     That finding, essentially one of fact, is challenged.

[21]     Having formed the view that the ground provided by s 126G(1)(d) had been made out, the Judge then considered:

(a)             whether jurisdiction existed to make the order sought;  and

(b)whether, if such jurisdiction did exist, the order sought was one which she ought, in the exercise of her discretion, to make.

[22]     As to jurisdiction, Mr Rennie QC had submitted that, as the modification was not to the terms of the easement but rather to the area of land over which the easement was to run, it was not within the Court’s jurisdiction.   In rejecting that submission, the Judge relied on the decision of Re Lewis [1959] NZLR 1040, which held that a change in the location of a right of way from the centre of the applicants’ land to the side of the same piece of land constituted a modification. That legal conclusion is also challenged.

[23]     As to the question of the exercise of her overall discretion, she concluded that the proposed modification was appropriate, rejecting submissions that it was not because:

(a)             the respondents had not come with clean hands;  or because

(b)the only reason for the application was that the applicants would receive a benefit.

[24]     She then recorded that she was also satisfied the proposed modification had been adequately identified by the surveyor.  She accordingly made orders allowing the proposed modification.

[25]     The  appellant  asserts  that  in  exercising  her  discretion  the  Judge  applied incorrect principles and/or took into account irrelevant considerations or failed to take into account relevant considerations, including a failure to consider the requirement   for   the   approval   of   the   variation   of   the   easement   by   the Palmerston North City Council under s 243 of the Resource Management Act 1991.

[26]     The Judge expressed her decision by reference to a survey plan of 16 July

2004.  When subsequently considering the issue of costs she concluded that, due to an accidental slip, that order was somewhat unclear.   In a written decision on the question of costs of 3 April 2006, and on her own motion pursuant to Rule 12 of the District Court Rules, she corrected that slip by inserting a reference to a 6m formed easement strip and the plan marked “B” attached to the second amended application for  modification  of  easement  under  s  126  of  the  Property  Law  Act  1952. Accordingly, as so corrected, her Order provided as follows:

Modifying the right of way easement in Certificate No B875847.6 affecting the land contained in  the  Certificate  of  Title  50B/577  to  a  6m formed easement strip, situated as set out in the survey plan marked “B” attached to the second amended application for modification of easement under s 126G of the Property Law Act 1952 dated 2 August 2004.

[27]     Jurisdiction to make that slip order was challenged initially.  That point was not pursued before me, and accordingly I do not mention that issue again.

Interlocutory application

[28]     Shortly before the hearing of the appeal, the respondents sought leave to adduce further evidence by way of affidavit from an officer of the Palmerston North City  Council,  indicating  that  the  modification  of  the  easement  complied  with City Council requirements.  This application was initially opposed by the appellant. At the hearing, it was made clear to me that the issue of the requirement for the approval of the City Council was not a matter that had been referred to before the Judge, but was a fresh point raised on appeal.  On that basis, and in light of relevant authorities, I indicated that I was of a mind to allow the additional evidence.  At that point Mr Mason, quite properly in my view, withdrew his opposition to the introduction of the additional evidence, and only pursued the substantive appeal ground on a relatively limited basis to which I will return.  I therefore granted the application for the introduction of that  further  evidence, and took account of it accordingly.

Jurisdiction

[29]     On the question of jurisdiction, Mr Mason’s argument was that the Judge had been wrong to conclude she had jurisdiction to modify the easement in the manner requested.   In essence, his submission was that this was not a whole or partial extinguishment of the easement, as explicitly provided for in s 126G.  Further, it was not a modification, as that word was to be properly interpreted.  Properly interpreted, the term “modification” applied generally to changes to the terms and conditions of an easement, rather than adjustments to the land over which it ran.   In this he submitted that the decision in Re Lewis was wrong, and referred me to a range of authority in support of that proposition, including Richardson v Manawatu Tyre Rebuilders Ltd [1955] NZLR 541, Masters v Snell [1979] 1 NZLR 34, Child v Dynes [1985] 2 NZLR 554. He also relied on an article by Mr Gordon Cain “The Right of Way and the Court’s Power to Modify it” [1965] NZLJ 28 and a relatively recent Australian decision Loclot Pty Ltd v Pullen [2003] NSWSC 67; (2003) 56 NSWLR

592.

[30]     For the respondents, Mr Hall submitted that the Judge was correct in her approach to the meaning of the term “modification”, and in her reliance on Re Lewis. The over-arching philosophy of the section was to give the courts an ability to intervene in a dispute when necessary by modifying an easement.   The genesis of s 126G in is current form supported the approach taken by the Judge.  The restrictive interpretation argued for by the appellant, to the extent it was based on cases that were decided prior to the 1986 amendment, was no longer determinative of the approach to be taken.  Here, no movement of the easement as called for in the Re Lewis decision was required, rather what was approved was modification as to the western and eastern boundaries of the easement.   This was precisely the type of modification recognised in the Australian Loclot decision, where a change in alignment (albeit very minor in that case) was regarded as a modification.

[31]     The challenge here was essentially to the District Court Judge’s finding of fact.   The submission was that there was no basis in evidence for rejecting the appellant’s  evidence  that  the  possibility  of   heavy  vehicles   passing  was   of significance and was valuable.

Overall discretion – failure to give reasons

[32]     The submission here was that the District Court Judge had not, when her judgment was carefully read, provided any reasons at all for the way in which she exercised her discretion in granting the application.   In this context, Mr Mason referred to a number of authorities as to why reasons were required, including Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546, Three Sixty Ltd v 3 Sixty Ltd HC AK CP608-SW00 20 December 2000 and Samuels v Chief Executive of the Ministry of Social Development [2006] NZFLR 223; (2005) 24 FRNZ 840.

[33]     This was an error of law that could only be corrected if the discretion was exercised afresh, and reasons for the exercise given to the parties.

Exercise of discretion

[34]     Mr Mason for the appellant made three points in this respect.

[35]     First the respondents had, as a matter of contract, agreed to the terms of the easement by their purchase of the property.  The title for this property was issued in December 1999.  That was less than three years prior to the application to modify. Accordingly, both indefeasability of title and sanctity of contract were barriers facing the  respondents.     The  District  Court  Judge  had  not  accorded  those  matters appropriate significance.

[36]     Secondly,  the  Judge  was  wrong  in  rejecting  the  submission  that  the respondents had not come to the Court with clean hands.

[37]     Finally, notwithstanding that the easement as ordered to be modified would in fact comply with the Resource Management Act, the Judge had been in error in not turning her mind to the relevance of the need to so comply.

Discussion

[38]     In challenging the Judge’s decision that the Court did have jurisdiction to order the proposed modification, this appeal raises directly the question of the nature and extent of the Court’s power under s 126G of the Property Law Act 1952, and in particular the power given to the Court to modify easements.

[39]     Judge Kelly relied on the decision of Hutchinson ACJ in Re Lewis.  Re Lewis, a case which apparently had not been referred to during the trial, concerned – as I have noted above – an application by the owner of a servient tenement to, in effect, shift a right of way from the centre of that land to one side, thereby allowing the construction on that land of a dwelling house.  The application was not opposed but certain owners of dominant tenements, who neither consented to nor opposed the application, were heard.  On their behalf it was suggested that what was proposed was not in fact a modification, because its effect involved the extinguishment of one easement and the creation of another – the very argument made by the appellant here.

[40]     Responding to that argument, and setting out the core of his reasoning on this aspect of the application, Hutchison ACJ held as follows (at 1041):

There are, I think, three matters to be considered in connection with this application, and the first is whether what is proposed is a “modification” within the meaning of s 127 of the Property Law Act 1952.  Now, all that it is is a change of the locus of the right of way from the centre of this piece of the applicant’s land to the side of the same piece of land.  In my opinion, that is a modification, an alteration or change.  Mr Pope suggested that what is proposed could be divided into two parts, the extinguishment of a present right and the creation of a new right.   I do not agree that it should be so divided up.  It should be treated all as one, and, as one, it is, in my view, a “modification”.   That the word “modification” should be used in quite a liberal sense, I think would appear from the relevant section of the Acts Interpretation Act 1924 – s 5(j) – but such an interpretation is indicated, too, by the fact that an easement may be wholly or partially extinguished by an order made under the section.

[41]   Adopting that approach, Judge Kelly concluded that the respondents’ application, which involves adjustment to each side boundary of the easement in question but not its movement from one part of the land to another, was a modification allowed by the section.

[42]     In responding to the appellant’s challenges to that decision, it is convenient first to consider the issues raised by Mr Cain.   At the time that Re Lewis was decided, and Mr Cain wrote his article, s 127(c), the then equivalent of s 126G(1)(d), referred only to modifications of restrictive covenants (“restrictions”), and not of easements.   It was on this basis that Mr Cain suggested that modification of an easement was not in fact available on the ground that there was no substantial injury to the dominant owner.   Mr Cain did not, however, criticise Hutchinson ACJ’s approach to the meaning of the term “modify”.

[43]     In November 1986, s 4 of the Property Law Amendment Act 1986 repealed s 127 of the Property Law Act 1952 and substituted s 126G.   The effect of that amendment was discussed in Manuka Enterprises Ltd v Eden Studios Ltd [1995]

3 NZLR 230 where Thorp J, at 233 stated:

The  present  form  of  s  126G(1)  was  enacted  by  the  Property  Law Amendment Act 1986 and displays a legislative intention to broaden the basis upon which the Court’s jurisdiction may be exercised, both by deleting the former provision for modification or extinguishment if “the easement or restriction ought to be deemed obsolete” and by other broadening of the language of its different provisions.

[44]     The “broadening” of the original provisions was also noted in the Waikauri

Bay Reserve Ltd v Jamieson HC AK CP1981/87 12 February 1990, at 234.

[45]     The new s 126G(1)(d), in the context of modifications based on there being no substantial injury to the owner of the dominant tenement, now specifically refers to easements as well as covenants.

[46]     On that basis, I do not think there is much, if any, support for the appellant’s reliance on the comments of Mr Cain, or on the subsequent decision of Chilwell J in Masters v Snell, agreeing with Mr Cain that the better view was that s 127(1)(c), as it then was, did not apply to easements.

[47]     Mr Mason also submitted that support for a restrictive view of the meaning of the word modification was to be found in Richardson v Manawatu Tyre Rebuilders Ltd and Child v Dynes.

[48]     Richardson concerned a somewhat unusual situation, where the grantor of the right of way had in effect created an exclusive right of way for use of the grantee, subject only to a right for the grantor to use the easement, limited in time to so long as a certain building on the servient tenement was used as a dwelling house.

[49]     In Richardson, Turner J raised the question of whether s 127, and the power of modification, could in effect be used by the beneficiary of the right of way to enlarge that right of way.  He expressed doubt that the section could be used in such a way, and then went on to consider the matter as if the rights of the parties under the proviso to the right of way were created by a restrictive covenant whereby, having granted an “exclusive” right of way, the grantor then bound himself not to use the land as a passageway after the existing dwelling had ceased to be used as such.  He therefore approached the application on the basis it was one where what was requested was an extinguishment or modification of a restrictive provision.  I do not think, therefore, that the doubts expressed by Turner J as to the scope of the power to modify  an  easement  are  of  particular  assistance  to  the  appellants,  as  this  case concerns the owner of a servient tenement applying to lessen the burden of an easement, clearly as contemplated by the section.

[50]     I reach a similar conclusion as regards the Child case.  There, more clearly, the formal application was in effect made by the owners of a dominant tenement and would have increased the burden of the  restrictive  covenant  in  question  on  the servient tenement.   Reflecting the doubts expressed by Turner J  in Richardson, Barker J held that the owners of the dominant tenement were not entitled to apply to have the restriction modified.   They were only persons whose interests must be considered if the servient tenement was to have its burden lessened.  For that reason the word “modified” could only be read so as to lessen the burden of the covenant.

[51]     Therefore, I do not find Child of assistance to the appellant either.

[52]     Mr Mason also relied on the Australian decision of Loclot, concerning the equivalent provision in the Conveyancing Act 1919 of New South Wales.  In Loclot, Gzell J summarised his view of Re Lewis as follows:

In Re Lewis … Hutchison ACJ, in an ex tempore judgment, concluded that a substitution of a right of way on the side of a section of land for a right of way in the centre of the land was a modification for the purposes of the like provision in the Property Law Act 1952 (NZ), s 127.  In Manly Properties Pty Ltd v Castrisos …, Holland J disagreed.  In that case what was proposed was the substitution of a right of way along the northern boundary of one lot for a  right of way along the southern boundary of an abutting lot. In His Honour’s  view,  the  relocation  of  the  easement  constituted  the extinguishment of one easement and the creation of another.  With respect to Hutchison ACJ, that must be so (593 at para 6).

He went on to say (at 594):

In the instant circumstances, however, the bulk of the right of carriage way is to remain in its current location with but a small alteration of its boundaries at its northern extremity.  I regard that change in alignment as a modification within the meaning of the Act.  I am prepared, therefore, to modify the right of carriage way.

[53]     In other words, and notwithstanding Gzell J’s view of Re Lewis, the type of modification proposed here is the same type of modification as accepted in Loclot Pty.   That is, it is a modification affecting the boundaries of the easement, whilst retaining a core area of land comprising the servient tenement that remains subject to the easement both before and after the modification.

[54]     As regards the earlier decision of Manly Properties Pty Ltd, it is worth noting Holland J’s comments regarding an application inviting partial extinguishment of an existing easement coupled with an addition of a further area to the other side of the easement.   Holland J rejected counsel’s submission that the court would have to refuse such an application for the reason that the existing easement would have to be considered in isolation, and what was being extinguished in respect of the existing easement would totally destroy its usefulness.  “It seems to me”, Holland J said of this  submission,  “that  this is  much  too  narrow  view  to  take  of  the  jurisdiction intended by the legislature under this section.

[55]     I note further that whilst Holland J had disagreed with Hutchison ACJ’s approach to the power to modify, he got to the same result.  He did so by holding

that the Court had power to order that an existing easement be extinguished, subject to a new easement being created:

In my opinion, it is open to the court to deal with an application so put and to indicate what order the court would be prepared to make in the event that certain conditions were fulfilled.   I think that that is only procedurally different from an order that an easement be extinguished subject to certain events   occurring,   such   as   by   postponing   the   date   on   which   the extinguishment should take effect or by ordering extinguishment subject to certain  specified  events  that  were capable of  being  certainly  established having  taken  place.    I  think  it  would  be  an  undue  restriction  on  the jurisdiction of the court under a section such as this to hold that the only order  that  in  effect  the  court  could  make  would  be   an   order   for extinguishment after the circumstances justifying it had already occurred. (Manly Properties Pty Ltd at 425).

[56]     Finally, as regards this New South Wales authority, and although it is not necessary for me to decide this for the purposes of resolving this appeal, I think that the approach taken as regards a modification which would move the location of an easement within the boundaries of a servient tenement is somewhat artificial.  These cases achieve the  same result  as  Re  Lewis,  but  by the,  in  my view,  somewhat circuitous route of ordering that an existing easement be extinguished subject to a new easement being created.

[57]     I think a substantive argument can be made in support of my view, on the basis that an easement is essentially the creation of rights in favour of a dominant tenement over a servient tenement, and that the part of the servient tenement which is specifically subject to those rights is equally a term of the easement, as are the substantive rights in favour of the dominant tenement  created  by the  easement. Taking  that  approach,  a  shift  of  location  within  the  servient  tenement  can  be regarded as a modification of the easement, just as will be either an adjustment to boundaries of the easement or some alteration to the rights created by the easement. I do not, therefore, consider that it is necessary to adopt the extinguishment/creation dichotomy proposed by Holland J in Manly Properties Pty Ltd and apparently adopted by Gzell J in Loclot.

[58]     More  generally,  and  as  directly  relevant  to  this  appeal,  I  do  not  accept Mr Mason’s submission that ‘modify’ should be restrictively defined as meaning “lessened or extinguished”.  This would render redundant the power to ‘modify’, as

s 126G(1) already contemplates as an alternative to ‘modification’ that the Court may ‘wholly or partly extinguish’ an easement.

[59]     Further,  I think the approach taken by Hutchison ACJ  in Re Lewis, and followed by Judge Kelly, reflects –as regards this proposal- the appropriate meaning of the term ‘modify’.  For example, Webster’s New International Dictionary (1938), cited in Wellington District Law Society v Cummins [1998] 3 NZLR 363 at 366 (HC), includes the following among its definitions of ‘modify’:

4. To change somewhat the form or qualities of; to alter somewhat; as, to

modify the terms of a contract.

[60]     To similar effect is the Court of Appeal’s decision in Welsh v Cooney [1993]

1 ERNZ 407, which concerned ‘modify’ as that term appears in s 8(1)(b) of the Illegal Contracts Act 1970.  The court stated at 410 that the term ‘modify’ “can mean moderate or limit or confine; but it can also simply mean vary or change in part”.

[61]     This understanding, applied in the present context, recognises that to alter certain perimeters of an easement is to ‘modify’ it.  In my view, where, as here, a good deal of the land subject to the easement is to remain constant, the Court has a power under s 126G(1)(d) to alter the easement.     The important proviso to the exercise of this power is that the proposed alteration(s) must not unduly prejudice the interests of the dominant tenement (and their owners).

[62]     This construction of ‘modification’ is supported by the “broadly remedial”

nature of s 126G (Rental Space v March (1999) 4 NZ ConvC 192,873 at 192,887.

[63]     In my view, therefore, Judge Kelly was correct in law to conclude that the modification proposed by the respondents in this case was one which fell within the ambit of s 126G(1)(d).  I think the approach taken by Hutchison ACJ in Re Lewis to the meaning of the term modification in s 127 (as it then was) is essentially correct, and in New Zealand was confirmed by the broadening provisions of s 126G enacted in 1986.

Substantial injury

[64]     To make an order under s 126G(1)(d) modifying an easement, the Court must first be satisfied that the proposed modification “will not substantially injure the persons entitled to the benefit of the easement or covenant”.

[65]     I  record  in  paragraph  [19]  above  Judge  Kelly’s  finding  on  this  issue. Mr Mason’s challenge to these findings focussed on the Judge’s rejection of the appellant’s evidence that, given the legal width of the easement as surveyed, there was some possibility for vehicles to pass each other (in different directions), which possibility would be lost, depriving it of a substantial benefit.   In rejecting that proposition Judge Kelly:

a)       recorded her view that, as regards the proposed modification overall, Mr Tait-Jamieson (representing the appellant) must be said to have been less then co-operative; and

b)noted the affidavit evidence of Mr Ian McAffer, a road transport and heavy engineering consultant, that given the very short length of the driveway, any operator would not attempt to pass on it and would wait for it to clear before venturing down; and

c)       concluded that the modification would not cause substantial injury to the appellant.

[66]     There was no suggestion the Judge was wrong at law in the approach she took to this issue, and I was not persuaded by Mr Mason that the finding of fact she reached was not one that was open to her.

Discretion – failure to give reasons

[67]     Mr Mason’s essential submission here was that although Judge Kelly set out very clearly her reasons why the proposed  modification would not substantially injure the appellant, she did not, in determining to grant the modification, go on to

give reasons for the exercise of her discretion in that manner.  Mr Mason said it was quite clear that the question of the grant of an application for modification was a separate one to the question of whether the modification would substantially injure, and therefore the Judge was wrong in law in failing to have set out explicitly her reasons for granting the application.

[68]     Having decided that the proposed modification would – on the balance of probabilities – not substantially injure the appellant, the Judge referred to various relevant legal principles.   In discussing the exercise of her overall discretion, the Judge then explicitly considered two submissions made by Mr Rennie as to why the discretion should not be exercised.  That, Mr Mason said, was not sufficient.

[69]     In making that submission, Mr Mason referred to a number of New Zealand authorities, and in particular the decision of Elias CJ in Lewis v Wilson & Horton Ltd at [76] and [80]-[82]. On this point, counsel for the respondents referred me to R v Awatere [1982] 1 NZLR 644, R v MacPherson [1982] 1 NZLR 650, and also to comment by Elias CJ in Lewis, at [81], that “reasons may be abbreviated. In some cases they will be evident without express reference”.

[70]     At the end of the hearing, and in light of the appellant’s submission on the issue of the failure of the District Court Judge to provide reasons for the exercise of her discretion,  I asked  counsel  for  both  the  appellant  and  the  respondent  as  to whether they would consider the Judge’s notes of evidence and indicate whether those notes of evidence themselves reflected the reasons for the Judge’s decision.  I subsequently received a memorandum from counsel for the respondent, referring to various matters in the notes of evidence.   I also received a memorandum from counsel for the appellant, essentially repeating the submission that the matters referred to simply reflected the point that had already been made, namely that whilst the District Court Judge had articulated reasons for concluding that there was no substantial injury to the appellant, she had not articulated positive reasons for the exercise of her discretion.

[71]     In this instance, I think the reasons for Judge Kelly’s decision to exercise her discretion in the way she did are, if not explicitly and separately enumerated in her

decision, reasonably plain from the face of her discussion overall.  Having found that the proposed modification would not substantially injure the appellant, and having specifically referred to a range of relevant factors, in my view the District Court Judge  reached  her  conclusion  by  an  appropriate  balancing  exercise.    That  the evidence called for a conclusion to be reached on that point, and that that was in effect what the District Court Judge was doing, is to me reasonably clear from the whole nature of the difficulties that had arisen between the parties and the desire of the respondents to avoid and resolve those difficulties by creating a new driveway for their own use running parallel to a large part of the length of the easement across their property, and only joining the current driveway very near to the road.

[72]     I think, in particular, the Judge’s finding – albeit made in the context of her inquiry as to substantial injury – that Mr Tait-Jamieson must be said to have been “less than co-operative” reflects implicitly a conclusion that this was an appropriate circumstance for the exercise by the Court of the remedial jurisdiction provided by the section.  In this, the District Court Judge would appear to have had in mind the authority she had referred to regarding the philosophy of the section.   Put simply, given the difficulties that the Judge recognised existed between the parties regarding the easement, (see, for example, paragraphs [1], [13] and [14] of her judgment), the proposal made by the respondents to address those difficulties – that is moving the easement eastwards in parts so as to facilitate the creation of a separate accessory – and the absence of substantial injury, in my view the Judge concluded this was an appropriate case in which to exercise her discretion.

[73]     On that basis, I do not accept that there was a failure by the District Court Judge to give reasons of such a nature as would constitute an error in law going to the validity of her decision overall.

The exercise of discretion

[74]     Finally, Mr Mason submitted that the Judge’s exercise of her discretion was based on incorrect principles and/or had taken into account irrelevant considerations. In my view, this ground of appeal does not succeed either.   With reference to the matters raised by Mr Mason:

(a)            The Judge clearly considered the cautious approach to be taken to interfering with property rights, referring in  several  places  to  that principle.

(b)She  explicitly considered  the  behaviour  of  the  parties,  and  in doing so expressed the view that the appellant only raised concern with impediments on the legal easement (those impediments being fences, trees and power poles) that had been on the land since before the creation of the easement  after  this  application  was  filed.    Mr Mason suggested that the Judge was wrong in that conclusion, by reference to evidence in an affidavit of one of the respondents that the appellant had insisted, after the removal of various trees by the respondents, on being able to drive over that newly grassed area.  As I pointed out to Mr Mason during the hearing, it would appear that the impediments referred to at this part of his submissions were ones that had been on the land prior to the creation of the easement, and that the appellant’s wish to drive over the newly grassed area formed by the removal by the respondents of various of those impediments was a different issue to whether or not the respondents had not come to the Court with clean hands because of a failure to keep the existing easement clear of all impediments.

(c)            Finally,  I  note  that  in  light  of  the  further  evidence  provided, namely that the proposed modification did comply with the requirements of the relevant local authority, I do not consider Mr Mason’s final point regarding the attention paid to that matter to be material.

Conclusion

[75]     I therefore dismiss the appeal against the Judge’s decision, with the effect that  the  orders  made  by  her  as  recorded  in  her  decision  of  3  April  2006  at paragraph [6] are confirmed.

Costs

[76]     The respondents having succeeded on this appeal, costs will follow the event. Costs are to be on a category 2B basis.  I trust that counsel will be able to resolve the question of costs between them.  In the, hopefully unlikely, event that they cannot they may make further submissions to me.  Such submissions are to be received by

me no later than 5pm on 16 March 2007.

Clifford J

Solicitors:

Hughes Robertson, Palmerston North, for Appellant

Ben Vanderkolk and Associates, Palmerston North, for Respondents