Richaumont Investment Company Ltd v Otw Advertising Ltd HC Auckland Ap158-Sw00

[2001] NZHC 310

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY AP158-SW00

BETWEEN DE RICHAUMONT INVESTMENT COMPANY LTD
Appellant

AND OTW ADVERTISING LTD
Respondent

Date of Hearing: 7 March 2001

Counsel: R Thomas for Appellant
D P Hoskin for Respondent

Judgment: 30 April 2001

RESERVED JUDGMENT OF PRIESTLEY J

The Issue

[1] Section 128 of the Property Law Act 1952 confers jurisdiction on the District Court to make an order permitting the owner of land to enter upon adjoining land for various specified purposes. This appeal from a decision delivered in the Auckland District Court on 31 October 2000 raises the issue of whether s.128 can be invoked to permit the owner of a billboard to enter upon adjoining land to service that billboard when access to the billboard is only possible from that adjoining land.

[2] Section 128 was enacted by the New Zealand Parliament half a century ago. The only amendment to it has been to change the nomenclature of the Court exercising jurisdiction from the Magistrates Court to the District Court. The provision has not received previous judicial interpretation.

The Section

[3] Section 128 of the Property Law Act 1952 provides:

“128 District Court May Authorise Entry For Erecting Or Repairing Buildings, Etc.

(1) The owner of any land may at any time apply to a [District Court] for an order authorising him, or any person authorised by him in writing in that behalf, to enter upon any adjoining land for the purpose of erecting, repairing, adding to, or painting the whole or any part of any building, wall, fence, or other structure on the applicant’s land, and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose as aforesaid.

(2) On any such application the Court may make such order as it thinks fit. Any such order, or any provision thereof, may be made upon and subject to such terms and conditions as the Court thinks fit.

(3) Every application under this section shall be made by originating application in accordance with the rules of procedure for the time being in force under [the District Courts Act 1947]. The Court, for the purposes of hearing and determining the application, shall have all the powers vested in it in its ordinary civil jurisdiction.

(4) For the purposes of this section, the term “owner”, in relation to any land, means any person registered under the Land Transfer Act 1952 as the proprietor of an estate in fee simple in the land or as lessee or mortgagee of the land, or any person who is for the time being entitled to receive the rent of the land, whether on his own account or as agent or trustee for or mortgagee of any other person, or who would be entitled so to receive the rent if the land were let, or any tenant of the land bound by any express or implied covenant to keep any building thereon in repair.”

The Facts

[4] The facts are not significantly disputed. I have two advantages which were denied the learned District Court Judge. First, I have received in evidence a lease agreement dated 25 June 1999 between the respondent and the owner of the property to which the billboard is affixed. In the District Court the parties elected to proceed with the hearing without benefit of that lease, although the appellant was offered an adjournment if the lease was considered relevant. The second advantage I have is that the issues raised by this appeal were fully argued before me by counsel whereas the learned District Court Judge was constrained to comment that neither party had offered him a synopsis of their arguments and that the case “. . . was far from thoroughly argued”.

[5] The appellant is the owner of four carparks which are “accessory units” to inner city apartments situated at 246 Hobson Street in Auckland’s inner city area.

[6] The adjoining property at 240 Hobson Street is a four storey inner city building. The south wall of that building is on the boundary between the two properties and abuts both the appellant’s carparks and carparks belonging to others.

[7] Between the carparks and the 246 Hobson Street property is a right-of-way or service lane which for the purposes of this proceeding has no relevance. The short point is that the south wall of 240 Hobson Street can only be accessed either with the permission of the relevant carpark owners or by trespassing.

[8] The respondent is the lessee under a deed of lease dated 25 June 1999. The lease is for a two year period commencing 1 June 1999 and was operative at the time of the District Court hearing.

[9] Relevant provisions of the lease include:

[a] The site:

“[The site leased is] the entire south wall of the building “. . . wall mounted, up to a maximum size of 19 metres times six metres”.”

[b] Rent:

“The rent payable is 50% of the net revenue gained from the site paid monthly in arrears.”

[c] Lessee Access:

“6.1: The Lessor shall at all times during the term of this lease of any renewal [sic], and for a period of two calendar months following the determination of this lease (whether such determination be by way of the effluxion of time, frustration or howsoever caused) allow the Lessee, its servants or agents full access to enter in and upon the land and building of which the Site forms part, including the building erected thereon for the purpose of the erection, installation, maintenance, repair, inspection and/or removal of the sign provided that the Lessee shall before exercising such right of access give reasonable notice to the Lessor. The License hereby given to the Lessee shall endure in and for the favour of the Lessee for such period notwithstanding that either this lease and/or some of the provisions hereof have ceased to have force or effect.”

In this provision perhaps lies the genesis of this dispute since although the clause clearly permits the respondent full access and rights of entry to 240 Hobson Street, it cannot permit entry on to the adjoining land. A right of entry in respect of 246 Hobson Street is not the lessor’s to grant.

[d] Rights to Sign:

“8.1: The sign erected and placed upon the Site or upon the land and building of which the Site forms part shall not by reason of attachment or connection with those premises or that building or that land or be deemed [sic] to become a fixture and shall at all times remain the property of the Lessee free from any claim or right of the Lessor and further shall at all times be severable from either the Site, land or building.”

[e] Maintenance and Reinstatement:

“13.1: The Lessee during the term of this lease shall at its own expense maintain repair and keep in a clean and tidy condition all advertising structures and devices erected or connected to on the Site.

13.2: Upon the expiration or sooner determination of this lease, the Lessee shall within two months thereof remove from the Site all advertising structures and devices erected or connected thereon and restore the Site to its former state and condition, fair wear and tear, and damage or deterioration by any cause other than the erection existence or removal of the advertising structures and devices excepted.

13.3: In the event that the Lessee shall fail to remove such structures and/or devices the Lessor may so do and may repair any damage to the Site occasioned thereby and may recover the cost of such removal and repair from the Lessee. The Lessee’s obligation to observe and perform this covenant shall not merge upon the expiration or other termination of the term of this lease.”

[f] Implied Powers and Conditions:

“20.1: The provisions covenants and powers otherwise implied in leases by the Land Transfer Act 1952 and the Property Law Act 1952 shall for the purposes of this lease be negatived or modified in insofar as the same are contradictory to or inconsistent with the provisions of this lease.”

[10] Between 1 June 1995 and 31 May 1999 the appellant, which has owned 246 Hobson Street since 1985, had an agreement with the previous owner of the billboard on the south wall of 240 Hobson Street whereby $7,500 per annum plus GST was paid for access to 246 Hobson Street to enable the billboard to be serviced.

[11] Sometime in mid-1999 the ownership of the billboard (which presumably was similarly the subject of some lease agreement) transferred from its previous owner to the respondent.

[12] The billboard in question is fixed to the top half of the south wall of 240 Hobson Street. In terms of the lease agreement its dimensions are limited to a maximum of 19 x 6 metres (supra, paragraph [9][a]). The billboard is the respondent’s property who has obligations to maintain it during the currency of the lease and also to remove it on the lease’s termination.

[13] The billboard has two components. The first is a frame which is fixed to the south wall. The second is a vinyl skin which is fixed to the frame. Thus to erect and change any advertisement a skin must be fixed to the frame.

[14] The learned District Court Judge found that to fix a skin to the frame the respondent had to enter the adjoining land and use a cherry-picker. An alternative method of fixing the skin, but not seriously contemplated by the parties, would be to engage abseilers to descend from the top of the south wall of 240 Hobson Street. That solution, however, is not currently in contention and would probably involve a trespass into the appellant’s air space.

[15] The learned District Court Judge further found that entry on to the carpark land would be required five or six times a year to fix or change the skin and that occasionally, if the skin worked loose and detached itself from the frame, additional access would be required “. . . for safety and aesthetic reasons”.

[16] Negotiations between the parties to negotiate terms of access for the respondent to service the billboard foundered.

[17] The respondent therefore sought orders in the District Court pursuant to s.128 of the Property Law Act 1952. The orders sought were:

(1) Authorising OTW to enter on the common right of way, accessory units and air space between 240 and 246 Hobson Street, Auckland more particularly described as the common property comprised in the stratum unit title Certificate of Title 55C/131 Unit Plan 100539, North Auckland Registry;

(2) For the purpose of installing, servicing and repairing advertising vinyl on the existing billboard structure on the wall adjoining the common right of way at 246 Hobson Street, Auckland ‘the work’;

(3) Such work to be carried out from time to time following 24 hours written notice to the office of Body Corporate 100539;

(4) The work to be carried out no more than four continuous hours at any one time;

(5) The work to be carried out only between the hours of 7.00 p.m. to 7.00 a.m.

[18] The learned District Court Judge, in purported exercise of his statutory power under s.128, made the following orders:

“[The respondent] is authorised to enter from time to time the common right of way, accessory units, including the air space thereof, which lie between 240 and 246 Hobson Street and are as described in stratum unit Certificate of Title 55C/131 Unit Plan 100539 North Auckland Registry upon the following terms and conditions:

• Entries are permitted solely for the purposes of servicing, repairing, installing and replacing advertising vinyl on the existing billboard structure affixed to that wall of the building at 240 Hobson Street which abuts the area to which entry is hereby permitted.

• Personnel engaged by [the respondent] for the purpose of such entries (who may include abseilers) must carry the written authority of [the respondent] to do so.

• [The respondent] may use such equipment, including (without by its mention creating a restrictive category) a cherry picker, as is reasonably necessary to achieve any one or more of the authorised purposes.

• Entries may only be made overnight between 7.00 p.m. and 7.00 a.m. Only one entry is permitted on any such night and none is to last more than 4 hours.

• No entry is to be made unless written notice of same has been delivered to the office of Body Corporate 100539 at least 24 hours before the proposed entry.

• On every entry occasion [the respondent] shall take all reasonable precautions for the safety of the respondents and their invitees and any property of theirs or their invitees that may from time to time be on the land.

• [The respondent] shall go about that which is authorised in fashion calculated to cause least disruption of access to, egress from, or lawful use otherwise of, the land.

• At the conclusion of each entry occasion, [the respondent] shall leave the land as they found it.”

[19] The District Court Judge declined to fix any monetary compensation payable by the respondent to the appellant and correctly observed that s.128 conferred no such jurisdiction. The learned judge reserved leave to apply but only where the terms and conditions he had “devised” were unworkable or insufficient or if there was a substantial change of circumstances. The appellant was ordered to pay costs in the sum of $1200 plus fixed disbursements.

[20] The route by which the learned District Court Judge reached his decision is as follows:

“Status to Apply

[20] Whether [the respondent] has any right to claim relief at all is obviously the starting point. In terms of the uncontested evidence, [the respondent] had a lease in respect of the 240 Hobson land (an expression of wide meaning under the Act and which includes any building thereon) by which it was bound to maintain and repair both the billboard and the immediate area (of 240 Hobson) to which it is affixed.

[21] Taking the section as a whole, and bearing in mind that “building” is a synonym for “structure”, I hold [the respondent] to have the requisite status. (If I had not so held, it seems probable that the OTP partnership would have lent its name to the application anyway).

Opportunity to Enter

[22] I am sure that [the appellant’s representative’s] ultimate recitation of revised grounds was not intended to abandon an earlier proposition that [the respondent’s] application was devoid of any merit anyway. I am also sure that amongst the matters he would particularly ask me to weigh in the discretionary balance would be that [the respondent] has already - it would say out of need and frustration - helped itself already. I despatch that last right now. Nothing at all indicates any harm was done, or even inconvenience caused. Nought but assertions of a bare interference with legal rights is in evidence - [the appellant’s] seemingly very substantial toll demands could well explain self help. Any such entries are not part of the history which I hold relevant. It is the present merits (if made out) that matter.

What Activities Reasonably Necessary?

[23] That one such as [the respondent] should be allowed to attend to the billboard in the first place is only common sense. Section 128’s description of purposes of entry may not sit precisely with every aspect of [the respondent’s] billboard related activities but the purposive approach of s.5 and the terms of s.6 of the Interpretation Act 1999 (which recognise that the meaning of language is not a timeless essence) readily fix that.

[24] The latter says that an enactment applies to circumstances as they arise. This provisions [sic] replaces s.5(d) of the 1924 Act and reflect allowance for meaning or application to develop over time, taking account of changing or even new circumstances and changing perception of existing circumstances - see the discussion at pp. 34-36 of the Law Commission’s Report No. 17 (A New Interpretation Act). Those observations remain relevant for the 1999 actuality does not in substance differ from the Commission’s 1990 proposal.

[25] I have no hesitation in placing [the respondent’s] billboard attention plans within the purview of s.128(1).

[26] The touchstone for the scope of what may be done given justifiable entry is found in ss (1). It speaks of what may reasonably be considered necessary.

. . .

No Warrant for Commercial Purposes Entry?

[28] The related argument that s.128 is to be confined to entry for the well-being of 240 Hobson has no support in the section save of a superficial kind - the references to repair and so on. Nothing in it renders it unavailable for recourse in commercial context. So to read it done would make for nonsensical consequences. Numerous buildings double, or “work part time” as billboards. Sections 5 and 6 of the Interpretation Act must apply.

. . .

[32] The case for [the appellant] raises nothing of evidential substance when it comes to countering [the respondent’s] assertion of justification for access for a common place purpose.

[33] [The respondent’s] terms, self-imposed by the application, demonstrate consideration for the respondents. Inability to access the sign (and any such access necessitates air space or ground level intrusion into or on the respondents’ land) would obviously be the death knell of the billboard, one of which no complaint or criticism is otherwise made.”

I have omitted some portions of the District Court judgment relating to arguments which were not pursued on appeal and which in any event had little relevance to the central issue. I also observe that in framing the orders which he did the learned District Court Judge found some assistance in the draft of a recommended s.236(3) contained in the Law Commission’s Report No. 29 “New Property Law Act”. It is not necessary for me to set out that draft provision.

Parties’ Submissions

[21] Counsel for the parties locked horns on two issues. The first and determinative issue was whether s.128, as a matter of statutory interpretation, permits the District Court to make orders for the purpose which the respondent sought. The second and narrower issue is whether the respondent had the status of an “owner” of land for the purposes of ss.128(1) and 128(4).

[22] It was the appellant’s submission that s.128(1) does not permit what would otherwise be a trespass on adjoining land for the purpose of changing or maintaining advertising skins. The purpose in respect of which entry on to land was permitted related to activities to buildings, walls, fences or other structures, a class which as a matter of interpretation does not encompass advertising skins.

[23] The appellant submitted that s.128 was remedial legislation designed to permit a controlled and judicially authorised infringement of the property rights of an adjoining owner. But for s.128 there would be no right in New Zealand to gain access over adjoining property to carry out necessary repair and structural work. Rarely would access for the purpose which s.128 envisaged be obtainable through an easement and, under New Zealand law, common law creations of easements by prescription or the broad classification of rights contained in s.62 of the Law of Property Act 1925 (UK) had no application.

[24] Counsel further submitted that the enactment of s.128 by the Property Law Amendment Act 1950 recognised that the legislation was infringing the property rights of adjoining owners and, through helpful reference to Hansard, advanced the argument that the legislation was not designed to permit wide ranging infringements of property rights and their sanctity.

[25] In the appellant’s submission the words “other structure” in s.128(1) could not as a matter of interpretation extend to advertising skins.

[26] Counsel for the appellant submitted further that the types of activity which s.128(1) authorised “erecting, repairing, adding to or painting” did not extend to skin replacement. The replacement of a vinyl skin was a different activity from repair or painting.

[27] On the subsidiary issue of the respondent’s standing to seek an order under s.128(1) the appellant submitted that the respondent was not covered by the s.128(4) definition of “owner” since its status as lessee of the south wall did not fall within the definition of a tenant of land who was bound by a covenant “. . . to keep any building thereon in repair”.

[28] The appellant submitted that a proper construction of the terms of the lease agreement prevented the respondent from being classified as an owner under s.128(4). Clause 8.1 specified that the sign remained at all times the property of the respondent. Clause 13.1 imposed on the respondent an obligation to maintain and repair etc. all advertising structures and devices on the site (the south wall). Clause 20.1 incorporated the relevant covenants implied in leases by the Land Transfer Act 1952 and the Property Law Act 1952. In the appellant’s submission, unless the lease negatived or modified such statutory covenants the statutory obligation imposed on a lessee by s.106 of the Property Law Act to keep demised premises in good repair was excluded because the lease expressly imposed the obligation to maintain the structure on the respondent. Thus it followed that the respondent was not under any obligation through an express or implied covenant to keep the building in repair.

[29] The submissions of the respondent were unsurprisingly directed at upholding the learned District Court Judge’s decision. The respondent submitted that billboards were now a common feature of the urban landscape and were frequently affixed to the sides of buildings. Access to billboard sites was required and the only reason why the respondent had resorted to s.128 was because of the appellant’s refusal to permit access.

[30] On the interpretation of s.128 the respondent submitted that installing or repairing an advertising skin on to a billboard fell within the scope of the section. Installing an advertising skin was analogous to adding to a structure and was certainly analogous to painting a structure.

[31] In the respondent’s submission installing a pre-fabricated vinyl skin was merely a technological advance on painting. Advertising signs and the older technology of painting a billboard clearly came within the spirit and meaning of s.128.

[32] The respondent supported the learned District Court Judge’s interpretation of s.128 and submitted that s.6 of the Interpretation Act 1999 justified an interpretation to apply s.128 to advertising skins and billboards which were features of contemporary urban life, thereby applying a 1950 enactment “. . . to circumstances as they arise”.

[33] Like the learned District Court Judge the respondent found some assistance in the draft s.236 of the Law Commission’s Report No. 29 “New Property Law” which proposed adding to the words currently contained in s.128(1) an additional purpose, - that of “. . . doing any other necessary or desirable thing in relation to that land”.

[34] Somewhat boldly the respondent’s counsel submitted that this “proposed legislation” widened considerably the scope of s.128 and gave “. . . guidance in the context of applying s.6 of the Acts Interpretation Act 1999”.

[35] It was further submitted on the respondent’s behalf that the facts that the billboard was a commercial enterprise and the respondent derived income from the site were no bar to an application under s.128. Commercial use of premises for a billboard site was no different from receiving commercial rents from a building. In counsel’s submission access to adjoining land could properly be obtained in a situation where it was necessary to paint a wall in say the livery colours of commercial enterprise. Although the need to have access to the adjoining land five or six times a year was incidental to the commercial activity of maintaining the billboard, it was nonetheless necessary access.

[36] On the issue of the respondent’s status to make an application the respondent submitted that the appellant’s approach was too restrictive and that in terms of the lease the respondent was a tenant under a covenant-imposed obligation to repair the billboard site.

Interpretation of Section 128 and Policy Considerations

[37] The obvious starting point is that the respondent has no right whatsoever to enter on the appellant’s land for the purposes of servicing and maintaining the billboard, or indeed for any other reason, without the appellant’s permission. In the absence of such permission the respondent and its agents would be trespassers.

[38] In Kelsen v Imperial Tobacco Co. [1957] 2 All ER 343, which on its facts has similarities with this proceeding, McNair J issued a mandatory injunction to compel the removal of an advertising sign which extended approximately eight inches into the air space of the plaintiff’s leased tobacconist premises. There had been a history of agreed access through the plaintiff’s premises to carry out maintenance and repair work to the sign and also a history of periodic disagreements. The invasion of the plaintiff’s air space by the sign amounted to a trespass by the defendants and was not merely a nuisance. Although the trespass into the plaintiff’s air space was small the removal of the sign was ordered.

“I have no doubt at all that in the present case I have a discretion, which I have to exercise judicially, to award damages in lieu of an injunction if I see fit. It is true that the injury to the plaintiff’s legal rights in this case is small. The sign in his air space does him no harm and does not diminish his enjoyment. I doubt whether it is a case in which one can estimate the damage in terms of money because the damages, if estimated at all, would have to be stated to be nominal. [at 351]

. . .

In my judgment, bearing in mind that both parties in pursuance of what they claimed to be their business interests, have attempted to bring commercial pressure to bear one on the other, this is a proper case in which the Court should direct that there should be a mandatory injunction that such portion of the sign as projects over the plaintiff’s premises be removed . . . [at 352]”

[39] Similar examples of trespass into the air space of a landowner are to be found in Woolerton v Richard Costain Ltd [1971] WLR 411 and Lord Bernstein of Leigh v Skyways & General Ltd [1977] 2 All ER 302. The current proceeding, of course, does not centre around air space trespass although arguably the screen and almost certainly the projecting lights which currently illuminate the billboard site project into the air space of the adjoining land. The law is that the rights of a property owner on, above and below his or her land are absolute. Cuius est solum, eius usque ad coelum et ad inferos. Those rights can only be diminished by creation of competing interests in the land, by contract, or most importantly by statute.

[40] The enactment of s.128 by the Property Law Amendment Act 1950 must be seen as conferring on the Court a statutory power to permit entry on to adjoining land for specific purposes. An examination of the New Zealand Parliamentary Debates (Hansard) for 25 August 1950 and 14 September 1950 put it beyond dispute that s.128 was seen as authorising, under the general control of the then Magistrates Court, something which would otherwise be trespass but for limited purposes.

[41] At that time New Zealand had a bi-cameral legislature. The relevant Bill was read in both Houses. When the Bill was reported back from the Select Committee (NZPD Vol. 290 p. 1877) the deletion of relevant words which the Bill had originally contained “repairing or painting any part of any building situated . . .” was recommended and the words “erecting, repairing, adding to or painting the whole or any part of any building, wall, fence or other structure” were substituted. Mr C G E Harker MP for the Government explained to the House of Representatives that in its original form it would have been:

“. . . impossible for the Court to give leave to anyone to enter upon any land for the purpose of erecting a wall, adding to it or dealing with a fence or other structure. There was a hiatus in the Bill in this proposed amendment, as the House will see overcomes that difficulty.”

[42] Later the same day the then Attorney-General, the Hon. Mr T C Webb moved that the Bill be committed with the amendments proposed in the Statutes Revision Committee. The Attorney-General advised the House:

“The Secretary of the Municipal Association rang me up to suggest that it ought to be wider in order to cover something more than a building. He suggested a fence and so we have put in “wall, fence or other structure”. We have gone further still by saying that if permission can be obtained from the Court the person may enter upon adjoining land not only for painting or repairing a building but also for erecting or adding to a building fence wall or whatever it may be. That requires a little consideration because it means that an owner of land may get permission from a Magistrate to go on to another person’s land for the purpose of erecting a building on his own land. We have carefully considered this and the safeguard is that it requires the consent of the Court and we can rely on the Court I think to refuse its consent in appropriate cases. For example, for the erection of a new house, permission would not as a rule be granted, because houses are not built so close up to the boundaries these days. . . . A wall or fence is different. However it may be a question of repairing a garage close to the boundary and it would seem hard if the owner of the garage could not go onto the adjoining land to repair his building. There is, however, the safeguard of the consent of the Court.”

[43] The Rt. Hon. Mr Walter Nash, who at that stage in his long career was Deputy Leader of the Opposition, expressed some concern that the word “erecting” was fairly wide and related to the House a story of a builder who “without by your leave or anything” had stacked his timber and put a workshed on a section whilst he was adding a room to a house on adjoining land. No permission was granted and the builder was evicted. The point to this rambling story, - the Opposition agreed to the legislation - was that property rights were not lightly to be infringed.

[44] When the Amendment Bill was read in the Legislative Council it was thus described by the Hon. Mr C G White:

“The new provision enables an owner of property adjoining other land to erect, repair, add to or paint a building or other structure belonging to him which is close to the boundary line. The idea of the provision is to get over an awkward position which sometimes occurs when buildings are very close to a boundary line. When an owner wants to effect repairs or do some painting on such a building he is often to go on to the adjoining land to carry out this work. Some neighbours are neighbourly and would allow such work to be done, but others are fussy and “in such cases the owner of the building concerned may now go to the Court and obtain the necessary permission.”

The Bill was then read a third time without further debate.

[45] Reference to Hansard as an aid to statutory interpretation has, of course, been permitted in New Zealand since Marac Life Assurance v Commissioner of Inland Revenue [1986] 1 NZLR 694; and N Z Maori Council v Attorney-General [1987] 1 NZLR 641. Often little assistance is derived from that source but in this case considerable assistance is to be found about the legislative intent. The relevant clause was expanded to include activities beyond the mere painting of part of a building. Walls, fences and other structures were deliberately added. Behind the legislation was the purpose of enabling access to buildings which were close to boundaries where the necessary access could not be obtained as of right. The infringement on the property rights of adjoining owners was regarded as being sufficiently important as to require the supervision of the Magistrates Court. The permitted activities and purpose were given close scrutiny.

[46] It is surprising that s.128 has received no judicial scrutiny other than an obiter dictum comment in Blackburn v Gemmel (1981) 1 NZCPR 389. The High Court on appeal considered an encroachment by a few feet of a wash-house on to adjoining land where relief was sought under s.[ss] 129 and 129(A) of the Property Law Act. Section 128 was not in issue but Hardie Boys J observed:

“Many buildings are constructed right up to the boundary. The statute provides a method of dealing with the practical difficulties that may then be created by an uncooperative or hostile neighbour. It is in s.128 which allows the Court to authorise a property owner to enter onto adjoining land in order to carry out work on his own buildings. [393]”

[47] Section 5(1) of the Interpretation Act 1999 requires me to interpret the meaning of s.128 from its text and in the light of its purpose. Some assistance as to its purpose has already been derived from Hansard.

[48] Section 5 in its entirety states:

“5 Ascertaining Meaning of Legislation

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.”

As enjoined by those provisions I turn to the enactment itself. No assistance is provided by the long title of the Property Law Act 1952, it being trite that the statue[sic] deals with many but by no means all aspects of New Zealand’s property law.

[49] Section 128 is one of seventeen sections in Part IX of the statute which has the heading “Easements, Restrictive Stipulations, and Matters Affecting Neighbouring Land”.

[50] Part IX comprises six sub-headings being: Easements in Gross; Light and Air; Easements and Covenants; Encroachments; Landlocked Land; Trees and Structures on Neighbouring Land.

[51] Section 128 is one of three sections under the sub-heading “Encroachments”. The other two sections relate to empowering the Court to grant special relief in cases of encroachment (s. 129) and a similar section empowering the Court to grant relief in cases where there have been mistakes relating to boundaries or identity of land (s. 129(A).

[52] I consider as a matter of interpretation that the positioning of s.128 under a sub-heading “Encroachments” and in proximity to two provisions which empower the High Court to make significant changes to the rights of property owners an important factor. Section 129 covers the situation, referred to in the marginal note as a “Grant [of] Special Relief”, where a building encroaches on adjoining land. Section 129(A) covers in broad terms the situation where a structure is wrongly but mistakenly built on the wrong property.

[53] The fact that the High Court exercises the powers conferred by ss.129 and 129(A) whereas the District Court exercises powers under s.128 should not alter in any significant way the common purpose behind the three sections which appear under the “Encroachments” heading. The powers which the High Court exercises under ss.129 and 129(A) are certainly more extensive and can include the creation of easements and the vesting of portions of land. But the fact that it is the District Court rather than the High Court which exercises statutory powers under s.128 should not lead to a conclusion at the end of the interpretative exercise that the property rights of an adjoining land-owner which are being adversely affected by a District Court order are relatively insignificant or that the relief being sought is of little consequence.

[54] What the section empowers the Court to permit is entry on to adjoining land for specific activities. An order is required from a Court to authorise what would otherwise be a clear trespass. The specified activities are contained in the verb forms “erecting, repairing, adding to, or painting.”. The object of the permitted activity is the whole or part of any “building, wall, fence, or other structure”.

[55] The wording of the section and in particular, the background of the 1950 Parliamentary Debate lead me to the view that the purpose of the section was to permit by Court order those specified activities to those specified objects. Buildings, walls, fences and other structures which could not otherwise be accessed can be accessed by Court order.

[56] It goes without saying that the Court order will only be required in a situation where a neighbour, for whatever reason, declines access. In such a situation the person seeking access has only three options, to do nothing, to trespass, or to seek an order under s.128. With respect, Hardie Boys J is undoubtedly correct when in Blackburn v Gemmel (supra) he describes the section as providing “. . . a method of dealing with practical difficulties.” It may well be that the neighbour refusing access may be “uncooperative or hostile”. But that need not necessarily be the case. The balancing exercise which s.128(1) requires the Court to undertake is to consider whether the order authorising entry being sought is “reasonably . . . necessary for such a purpose . . .”

Decision

[57] The learned District Court Judge, carried out the same interpretation exercise and clearly addressed Sections 5 and 6 of the Interpretation Act 1999. He approached the application of s.128 to the facts as follows. The paragraph numbers are those used in the District Court judgment (supra, paragraph [20]).

[58] When addressing the fact that the respondent had already “out of need and frustration - helped itself already”, the District Court Judge commented:

“Nothing at all indicates any harm was done, or even inconvenience caused. Nought but assertions of the bare interference with legal rights is in evidence . . . [paragraph [22]]”

[59] With respect, I consider that approach to be incorrect when the purpose of s.128 is considered. The approach indicated by the learned District Court Judge goes further than signalling that he will give little weight to the respondent’s trespassing in the exercise of the Court’s discretion under s.128. I read the passage as suggesting that a trespass in the situation in which these parties found themselves was of little consequence because no damage resulted and that a “bare interference” with legal rights has riding with it a suggestion that the property rights of the appellant are of little consequence. In my view a correct interpretative analysis of s.128 requires the Court, as its starting point, to regard the appellant’s property rights as inviolate. The Court must recognise that the respondent is only entitled to an order if it is for the purpose specified by Parliament. There is the further requirement that the order is reasonably necessary in the circumstances of the case.

[60] The learned District Court Judge then asserts baldly, under the heading in his judgment “What Activities are Reasonably Necessary?”:

“[23] That one such as [the respondent] should be allowed to attend to the billboard in the first place is only common sense. Section 128’s description of purposes of entry may not sit precisely with every aspect of [the respondent’s] billboard related activities but the purposive approach of s.5 and the terms of s.6 of the Interpretation Act 1999 (which recognise that the meaning of language is not a timeless essence) readily fix that.”

[61] I disagree. That the billboard existed and that access to service it had until mid-1999 been specifically permitted by a commercial agreement does not justify a finding that permitting the respondent to continue to service its billboard is “only common sense”. Nor is the interpretative approach of dancing around the express words of s.128(1) justified when, as the learned District Court Judge correctly comments, the “. . . purposes of entry may not sit precisely with every aspect of [the respondent’s] billboard related activities . . .” The District Court Judge considered that s.6 of the Interpretation Act 1999 was a mechanism to “readily fix” this difficulty.

[62] The learned District Court Judge, of course, is correct when he reads s.6 of the Interpretation Act as requiring enactments to apply to circumstances as they arise. The meaning or application of a statutory provision may indeed:

“. . . develop over time taking account of changing or even new circumstances and changing perception of existing circumstances . . . [para. 24].”

[63] But, with respect, the leap which the learned District Court Judge then makes:

“I have no hesitation in placing [the respondent’s] billboard attention plans within the purview of s.128(1). [para. 25]”

is a large leap which, in my judgment, takes the learned District Court Judge outside the purpose of s.128 as it applies to the contemporary facts of this proceeding.

[64] The learned District Court Judge considers the unmistakable commercial nature of the respondent’s billboard and finds:

“. . . that s.128 is to be confined to entry for the well-being of 240 Hobson [sic] has no support in the section save of a superficial kind — the references to repair and so on. Nothing in it renders it unavailable for recourse in commercial context. So to read it done [sic, presumably down] would make for nonsensical consequences. Numerous buildings double, or “work part time” as billboards. Sections 5 and 6 of the Interpretation Act must apply. [para. 28]”

This analysis, with respect, has some obvious flaws. Urban New Zealand indeed provides many examples of buildings which carry billboards. That is not the phenomenon with which the Court has to deal. It is dealing instead with a billboard which cannot be serviced by its owner other than by trespassing. Nor is an approach limiting the powers of the Court under s.128 to orders specifically related to the maintenance and upkeep (or “well-being”) of adjoining land “superficial”. That is the purpose which as a matter of interpretation and legislative history lies at the core of s.128.

[65] The billboard situated on the south wall of 240 Hobson Street is not an essential part of the structure of that building. The purpose of the billboard structure on the south wall is to make money for the lessee of the billboard’s site. The vinyl skins on the billboard can be neither erected nor replaced without access to adjoining land. Without the adjoining land owner’s consent, accessing the billboard site is a clear trespass.

[66] The access which the respondent sought under s.128(1) has nothing whatever to do with erecting, repairing, adding to, or painting the whole or part of the building on 240 Hobson Street or its south wall. The purpose of s.128 is clearly to permit a land owner who otherwise would be unable to achieve the various purposes specified in s.128(1), to obtain a Court order to carry out those purposes. If the owner of 240 Hobson Street needed to paint the south wall, re-point its bricks, add another storey to the building, or construct windows in the south wall then those would be permitted purposes.

[67] However, fixing a billboard site to the south wall does not render that site an integral or essential part of the building itself. Nor when seen that way can erecting and replacing vinyl skins on an advertising site be regarded as an activity similar in kind to painting a wall.

[68] The activity which orders under s.128 are intended to permit relate to the maintenance and enhancement of structures close to a boundary which might otherwise be inaccessible. The orders obtained by the respondent in the District Court are in sharp contrast to that purpose. Those orders are designed to permit the ongoing use of part of a wall for a commercial purpose and envisage an unspecified number of incursions for an indefinite period. Such a purpose and the orders necessary to achieve it, in my judgment, go well beyond what Parliament intended.

[69] Subject to the relevant Resource Management Act controls and other relevant provisions there is no restriction on the owner of 240 Hobson Street using its south wall and the opportunity it presents for a billboard. The fact that the billboard site can only be accessed with the consent of the adjoining land owner obviously requires an accommodation with that owner. Such an accommodation was in existence prior to mid-1999. The fact that consent has been withdrawn may be inconvenient to the lessee of the south wall and may have adverse commercial consequences. Without the consent of the appellant, the respondent can only service the billboard site by trespassing which is clearly illegal. Section 128 is not intended as an instrument to force an adjoining owner to provide access in this situation.

[70] For these reasons I conclude that s.128 does not permit an order of the type the respondent sought. The purpose for which the respondent seeks access to 246 Hobson Street lies outside the intent and purpose of the legislation.

[71] In the light of my decision that the orders which the respondent obtained in the District Court under s.128 of the Property Law Act were not permitted, it is not strictly necessary for me to decide whether the respondent had the status of a “owner” for the purposes of ss.128(1) and 128(4), I nonetheless turn to that issue.

[72] The respondent is clearly a lessee or tenant of the south wall of the building in terms of the lease agreement dated 25 June 1999. However, in terms of s.128(4) an applicant owner is defined to include a number of registerable interests in the land adjoining the property in respect of which an order permitting entry is sought. The only category specified in s.128(4) which could cover the respondent is:

“. . . any tenant of the land bound by any express or implied covenant to keep any building thereon in repair.”

[73] I do not consider that that category of “owner” extends to the respondent in this particular case. The respondent is indeed the tenant of the south wall of the building and has an obligation under the lease to maintain and repair “. . . all advertising structures and devices erected or connected to [the south wall]”. I further take the view that the [sic] because the leased site is the “entire south wall” albeit with a restriction on the size of the mounting of the billboard, the Property Law Act implied covenant contained in s.106(b) has not been negatived or modified thereby imposing on the respondent all obligation to maintain and repair if not the entire south wall, at least the billboard site itself.

[74] I do not consider either of those lease obligations to repair metamorphose the respondent, in its capacity as a tenant of the south wall of the building, into a tenant of “the land” (240 Hobson Street) bound by a covenant to keep “any building thereon” (the entire four storey building) in repair.

[75] As the learned District Court Judge rightly pointed out, if there was a difficulty over the status of the applicant undoubtedly the owner of the building would have brought the application. Had it done so my decision would be identical.

Judgment

[76] The appeal is allowed.

[77] The various orders made by the learned District Court Judge on 31 October 2000 are set aside.

[78] The appellant is allowed costs on the 2B Scale.

[79] There is an order that the affidavit of Mr Mark Venter dated 7 March 2001, which has annexed the respondent’s lease which has some commercial sensitivity, be taken off the Court file and returned to the respondent’s counsel.

[80] There is a further order prohibiting publication of the details of the rent payable by the respondent under the said lease and the duration of the lease.