Ruby & Rata Limited v Reed Trustee 2018 Limited
[2022] NZHC 2025
•16 August 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-724
[2022] NZHC 2025
UNDER section 313 Property Law Act 2007 BETWEEN
RUBY & RATA LIMITED
Applicant
AND
REED TRUSTEE 2018 LIMITED and ANTHONY PRIVETT REED
Respondents
Hearing: 2 August 2022 Appearances:
RO Parmenter for the Plaintiff JW Maassen for the Defendant
Judgment:
16 August 2022
JUDGMENT OF FITZGERALD J
[Application for interim injunction]
This judgment was delivered by me on 16 August 2022 at 11.30am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Graham & Co, Auckland (G Bilkey)
Langford Law, Wellington (J Langford)
To:R Parmenter, Auckland J Maassen, Wellington
RUBY & RATA LTD v REED [2022] NZHC 2025 [16 August 2022]
Introduction
[1] The applicant, who I will refer to as “Ruby”, applies for an interim injunction in relation to a right of way easement which passes over the respondents’ land.1 Mr Reed is the grantor and Ruby is the grantee of the right of way.2
[2] In summary, Ruby wants to carry out works on the right of way and says they are consistent with its rights as grantee. Mr Reed, on the other hand, says the proposed works go beyond what is reasonably necessary for Ruby to enjoy its rights under the right of way. He issued trespass notices against Ruby’s two directors as a result.
[3]Ruby now seeks interim relief against Mr Reed preventing Mr Reed from:
(a)enforcing the trespass notices; and
(b)interfering with any of the works on the right of way proposed by Ruby.
The right of way as it currently exists
[4] Ruby and Mr Reed’s properties are located adjacent to each other. Both are rural blocks of land. It is convenient to set out an aerial photograph of the properties, the right of way and the access points which Ruby wants to develop. That is shown below:
1 I will refer to the respondents collectively as Mr Reed.
2 Although the right of way was created prior to either party owning the properties in question.
[5] Ruby’s land is on the left-hand side of the above photograph, Mr Reed’s is on the right. The right of way is shown by the red boundary. As can be seen, it runs alongside the boundary of Ruby’s land. Through the middle of the right of way is a formed and sealed driveway which can also be seen in the above photograph (the light area within the red boundary).
[6] As matters currently stand, there is only one access point to Ruby’s land from the right of way, at the point marked “X” in the photograph. The gate which forms that access point is across a grass verge from the sealed driveway.
The works Ruby wants to carry out on the right of way
[7] Ruby wants to gravel the land (currently in grass) leading from the main sealed driveway to the gate at access point X (so vehicles using access point X do not have to drive over the grass verge), and also wants to establish a second access point further down the right of way at point Z, as marked in the above photograph. Like the accessway at point X, Ruby also wants to gravel the land leading from the formed driveway to the accessway at point Z. It wants to form this “mini-driveway” in a
straight-line from the sealed driveway to point Z to better accommodate stock trucks coming to visit Ruby’s property. A tree (marked “T”) on the above photograph would need to be removed for this purpose. Ruby says that all these steps are consistent with its rights as the grantee of the right of way.
[8] Mr Reed, on the other hand, does not consider anything more than the current accessway at point X, at least as Ruby’s property currently exists and is being used, is reasonably necessary for Ruby’s enjoyment of its rights pursuant to the right of way. He further says that the steps Ruby proposes to take are in effect implementation of a resource consent it has recently obtained to subdivide its property into four separate lots.
[9] Mr Reed says that it is clear that what Ruby is proposing is connected with the subdivision, given a new accessway at point Z is only required because of Ruby’s plans to plant an ecological belt across its own land which will effectively “split” its property in two. The top half of its land will thereby become “landlocked”. Mr Reed notes that this ecological belt is in fact a condition of the resource consent. Mr Reed is therefore concerned at what he sees as a “quasi-implementation” of the resource consent and the implications of this for his land (at least that comprising the right of way). His position is that these matters have not been fully discussed with and disclosed to him. He also says that creating these accessways would be unlawful in any event, in that a condition of the resource consent is that prior to any construction works taking place pursuant to the consent, engineering plans and the like for access to and from two of the subdivided properties (one of which would use accessway Z) must be submitted to Council for approval.
[10] The parties corresponded about the proposed works but an impasse was reached. Mr Reed then issued trespass notices which stated that each of Ruby’s directors was “warned to stay off the place known as 87 Ruebe Road …”, which is the entirety of Mr Reed’s property and accordingly includes the right of way. In papers filed in this Court and again at the hearing before me, Mr Reed’s counsel, Mr Maassen, acknowledged that the trespass notices were too broadly framed. Following the hearing, Mr Maassen filed a memorandum confirming that the trespass notices are varied in a number of respects. Those variations are set out in the schedule to this
judgment. As will be apparent, the varied trespass notices contain certain conditions before the works Ruby proposes are “permitted” or agreed to by Mr Reed.
The claim and application for interim relief
[11] In its statement of claim, Ruby seeks declaratory relief under s 313 of the Property Law Act 2007 (the PLA) that:
(a)Ruby is entitled to access its land from the right of way at all reasonable places but, particularly, at point X and Z; and
(b)that Ruby is entitled to carry out the works described in the statement of claim (being those works summarised at [7] above).
[12] In response, and in addition to opposing the relief sought by Ruby, Mr Reed pleads affirmative defences (to the effect that the proposed works are to implement the subdivision consent) and has also commenced his own counterclaim seeking an order modifying or extinguishing the easement “so that no access can be created for the subdivision other than in the location shown as X in the statement of claim where the existing accessway is created”.
[13] As noted, pending resolution of the substantive dispute, Ruby seeks interim relief on the basis that the trespass notices are inconsistent with Ruby’s rights as grantee of the right of way, and that the proposed works are a reasonable and proper exercise of those rights. Ruby accordingly seeks orders that until further or other order of the Court, Mr Reed be restrained from:
(a)“enforcing trespass notices served on Ruby’s directors, Kristen Russell and Richard Stening”; and
(b)“interfering, in any way howsoever, with Ruby’s creation of accesses to its land at the points X and Z and in the manner denoted in the statement of claim herein”.
[14] It will be apparent that the interim order sought at [13(b)] above is akin to final relief, in that it has the effect of the Court endorsing Ruby’s proposed works as a proper and lawful exercise of its rights as grantee under the right of way.
The evidence before the Court
[15] Both parties filed (reasonably brief) affidavit evidence in support of and in opposition to the application.
[16] Ms Russell, one of Ruby’s directors, explains in her affidavit that “at the moment, we run stock from the land but we do have development plans”. Ms Russell goes on to says that Ruby wants to have two access points to its land at X and Z, and for access point Z, Ruby wants to maintain a straight line onto Ruby’s property so it can have stock trucks visit the property as needed. Ms Russell says that there is a tree on the grass verge near to proposed access point Z which would obstruct forming a “straight line” mini driveway from the formed sealed driveway to the access point at the boundary marked Z.
[17] Ms Russell then goes on to explain that “while [she] do[es] not want to have to make a case for each time [Ruby] want[s] to create an access point off the right of way”, Ruby will soon be erecting a fence, without gates, for an ecological planting area between the proposed access points X and Z, across Ruby’s land, which will essentially separate Ruby’s block into two parts. This is the ecological planting already referred to at [9] above. As noted earlier, and although not mentioned in Ms Russell’s affidavit, it seems a planting along these lines is a condition of the subdivision consent. Without any further explanation from Ms Russell about why the ecological belt is being planted, I infer it is with at least an eye to the subdivision consent and is probably not something that Ruby would be doing but for that subdivision consent.
[18] Turning back to the evidence, Ms Russell explains that the gravel extensions planned for access points X and Z are so they do not have to drive over grass/mud from the formed driveway to the boundary, particularly in winter. It is proposed that the extensions will be professionally formed, gravelled and approximately six metres wide. It is also proposed that inside the burdened part, a culvert pipe will be installed
under each extension so that water flow is under the extensions and not washing over (and presumably scaling) the driveway extension. No particular details of the proposed gravel extensions have been provided beyond this, other than a brief letter from an earthworks contractor which refers to the scope of works for “the farm access track” as being:
(a)to remove topsoil between the driveway and fence at points X and Z;
(b)shape and form the clay;
(c)insert 200 millimetre culvert or nova flow pipe if required;
(d)cover area with metal and compact;
(e)reinstate topsoil around accessway; and
(f)plant grass seed and topsoil.
[19] As noted earlier, the parties have engaged in various discussions and written communications, though it is not necessary for present purposes to address them in any detail. I note, however, that Ruby’s initial position appeared to be that it could access the right of way at any points it considered appropriate without Mr Reed’s permission. Ruby then adopted the position that if Mr Reed remained concerned about the proposed works, Ruby would pause for a period to enable Mr Reed time to issue injunction proceedings. Instead of taking such action, however, Mr Reed issued the trespass notices referred to earlier.
[20] Turning to Mr Reed’s evidence, his opposition to the works proposed by Ruby is twofold. First, and irrespective of the proposed subdivision, Mr Reed’s position is that an accessway at point X in its current form is all that is reasonably necessary for Ruby’s enjoyment of its own land and rights under the right of way. His position is that Ruby is not entitled to effectively “do what it wants” in terms of multiple accessways along the right of way (and works associated with such accessways), but only what is reasonably necessary. Further, Mr Reed is concerned that Ruby is effectively taking steps to implement the resource consent without appropriate
engineering and other relevant information being available to him to consider the proposed works properly. He states that:
(a)he needs to understand what is being proposed with sufficient accuracy and professional engineering detail in order to understand the implications of the work and its appropriateness;
(b)any work had to be integrated with the maintenance and upkeep requirements of the driveway and not interfere with his access rights;
(c)the work needed to be coordinated in such a way that the interests of both parties are served;
(d)there must be consideration of an increased driveway width or passing bays for the safe and convenient movement of vehicles; and
(e)ideally, a single access point would be obtained to the four lot subdivision of Ruby’s property, which he says can be conveniently accommodated in the existing access way at point X.
[21] Mr Reed notes that condition 7 of Ruby’s subdivision consent requires approved plans with appropriate construction and engineering detail before implementing the accessways required to implement the consent. He is therefore of the view that it is contrary to the resource consent to attempt to implement these accessways now, in the absence of the relevant plans. He refers to the proposal to “dump gravel” on the proposed accessways and considers this to be unlawful activity and also unreasonable, given what he refers to be “the potential consequences for the driveway of uncontrolled works and development activity”. Mr Reed also raises issues about the subdivision consent being obtained without his consent.
Applicable principles — injunctions
[22] The legal principles applicable to an application for an interim injunction are not in dispute and may be briefly stated.
[23] It is helpful to recall the fundamental purpose of an interim injunction, described by the Court of Appeal as follows:3
The object of an interim injunction is to protect the plaintiff from harm occasioned by any breach of rights, that is the subject of current litigation, for which the plaintiff might not be adequately compensated by an award of damages by the Court, if successful at trial. Against that object it is necessary to weigh the consequences to defendants of preventing them from acting in ways which the trial may determine are in accordance with their rights.
[24] There are three stages to the consideration of whether an interim injunction ought to be granted:4
(a)first, the applicant must establish there is a serious question to be tried, or that its claim is not vexatious or frivolous;
(b)second, the balance of convenience must be considered; and
(c)finally, an assessment of the overall justice of the position is required as a check.
Applicable legal principles — easements/right of ways
[25] Again, the legal principles are not in dispute, though there is a different degree of emphasis which each party (unsurprisingly) puts on those principles.
[26] The rights and obligations flowing from a right of way arise from the express terms of the grant (properly interpreted), as well as any terms to be implied into it.
[27] Both parties proceed on the basis that the right of way in this case is subject to the Land Transfer Regulations 2002 (the Regulations).5 Clause 6 of Schedule 4 to the Regulations sets out a number of rights to be implied into a vehicular right of way:
3 Roseneath Holdings Ltd v Grieve [2004] 2 NZLR 168 (CA) at [35].
4 NZ Tax Refunds Ltd v Brooks Homes Ltd [2013] NZCA 90 at [12].
5 I proceed on the same basis, though note that those Regulations were revoked by s 249 of the Land Transfer Act 2017. Clause 1 of Sch 1 to the Land Transfer Regulations 2018 provides, however, that reg 21 of the 2018 Regulations applies only to an easement registered on or after the commencement of those Regulations, “so that the rights and powers implied into an easement registered before that commencement are not affected.”
6 Rights of way
(1)A right of way includes the right for the grantee in common with the grantor and other persons to whom the grantor may grant similar rights, at all times, to go over and along the easement facility.
(2)The right to go over and along the easement facility includes the right to go over and along the easement facility with or without any kind of—
(a) vehicle, machinery, or implement; or
(b) domestic animal or (if the servient land is rural land) farm animal.
(3)A right of way includes—
(a) the right to establish a driveway, to repair and maintain an existing driveway, and (if necessary for any of those purposes) to alter the state of the land over which the easement is granted; and
(b) the right to have the easement facility kept clear at all times of obstructions (whether caused by parked vehicles, deposit of materials, or unreasonable impediment) to the use and enjoyment of the driveway.
[28] The “easement facility” in relation to a right of way is defined as the part of the surface of the land that is shown on a plan prepared for purposes of specifying the easement and is referred to in a transfer instrument, easement instrument or deposit document.6
[29] The right of way in this case is also subject to the implied terms in Schedule 5 to the PLA. Clauses 1 and 2 of Schedule 5 provide:
1Right to pass and re-pass
(1)The grantee and the grantor have (in common with one another) the right to go, pass, and re-pass over and along the land over which the right of way is granted.
(2)That right to go, pass, and re-pass is exercisable at all times, by day and by night, and is exercisable with or without vehicles, machinery, and equipment of any kind.
(d) In this clause, the grantee and the grantor include agents, contractors, employees, invitees, licensees, and tenants of the grantee or the grantor.
6 Land Transfer Regulations 2002, sch 4, cl 1 definitions of “easement facility” and “stipulated area”.
2Right to establish and maintain driveway
The owners and occupiers of the land for the benefit of which, and the land over which, the right of way is granted have the following rights against one another:
(a) the right to establish a driveway on the land over which the right of way is granted, and to make necessary repairs to any existing driveway on it, and to carry out any necessary maintenance or upkeep, altering if necessary the state of that land; and
(b) any necessary rights of entry onto that land, with or without machinery, plant, and equipment; and
(c) the right to have that land at all times kept clear of obstructions, whether caused by parked vehicles, deposit of materials, or unreasonable impediment to the use and enjoyment of the driveway; and
(d) the right to a reasonable contribution towards the cost of establishment, maintenance, upkeep, and repair of the driveway to an appropriate standard; and
(e) the right to recover the cost of repairing any damage to the driveway made necessary by any deliberate or negligent act of a person bound by these covenants or that person’s agents, contractors, employees, invitees, licensees, or tenants.
[30] Turning to the nature of these rights more generally, the courts have stated that the grantee’s right to pass and re-pass is not unfettered — it is limited to such use and enjoyment as is reasonable.7 There is accordingly no right to go over every square inch of the burdened land,8 nor to pave every inch,9 but only so much as is reasonable for the purpose of accessing the grantee’s own land.
[31] In terms of the grantee of a right of way being entitled to establish access points to their property from the right of way, this right derives from what are sometimes referred to in the authorities as “ancillary rights”. In Cornes v Village Residential
7 Breslin v Lyons [2013] NZCA 161 at [30].
8 F C Strick and Co Ltd v City Offices Co Ltd (1906) 22 TLR 667 (Ch) at 669; Pettey v Parsons [1914] 2 Ch 653 (CA) at 663 and 665; Emmons Developments (NZ) Ltd v RFD Investments Ltd HC Christchurch CP42/01, 4 July 2001 at [43]; and Keam v Theilman-Le Cornec Trust (2005) 7 NZCPR 26 (HC) at [102].
9 Butler v Muddle (1995) 6 BPR 13,984, (1996) ANZ ConvR 147 (NSWSC) at 13,986.
Limited, the Court of Appeal referred with approval to commentary in Hinde, McMorland and Sim that:10
The grant of an easement carries with it such ancillary rights as are reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted. However, those ancillary rights are restricted to the exercise of the rights expressly granted and any user of the burdened land beyond those rights and purposes is a trespass, not being authorised by the grant.
[32] In support of the proposition that Ruby is entitled to establish multiple access points to its property along the right of way, Mr Parmenter, counsel for Ruby, referred to the following extract from Hinde, McMorland and Sim:11
Where the easement runs along the boundary of the benefited land, and in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the burdened owner is entitled to fence the right of way, provided sufficient points of access through gates are allowed to permit reasonable user of the right of way. The prima facie position is that:
1)The burdened owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the benefited owner through gates at such points as meet the benefited owner’s reasonable requirements; and
2)The benefited owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but
3)The benefited owner is not entitled to have the easement remain unfenced.
[33] There is no real dispute about these principles. One of the cases cited by the authors for the propositions set out above is Butler v Muddle.12 In that case, Young J in the Supreme Court of New South Wales reviewed the earlier case law on whether the grantee of a right of way should only have one point of access onto the right of way or multiple points. Young J described the position as being that “one must look at the reasonableness of it all when construing the grant and, in my view, the
10 Cornes v Village Residential Limited [2021] NZCA 216 at [30]; and D W McMorland and others Hinde, McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [16.038] (emphasis added).
11 At [16.038] (emphasis added).
12 Above n 9.
defendants are entitled to access from more than one point, but only such access as is reasonable”.13 The Judge also stated:14
I think it is rather artificial in the case where a right of way runs alongside the land which benefits from it to say that the parties intended that there should only be access at one spot. After all, land is developed perhaps every 50 or 60 years and dependent on the development the dominant owner for the time being wants access even if there is only a single point of access at various points over the centuries.
[34]Young J concluded his discussion of the authorities by stating:15
The prime thrust is that the land is still land belonging to the servient owner. The only rights that the dominant owner has are those expressly granted to him, which he has to use in a way that is necessary and thus in a reasonable way. It is not a situation that the dominant tenement can dictate by saying what he wants and compelling the servient owner to comply with his wishes.
[35] Similar conclusions were reached more recently in another decision of the Supreme Court of New South Wales, Trewin v Felton.16
[36] As to paving parts of the right of way, this was also an issue addressed in Butler v Muddle. Young J stated “there is not the slightest dispute in this case that the defendants have the right to pave what is reasonably necessary”.17 Referring to cases from the 16th and 17th centuries, Young J noted that in such cases the right to pave was also accepted, stating:18
Whilst such paving was not absolutely necessary it was “needful” to enjoy the way and in accordance with the manner in which the parties intended it be enjoyed. Likewise it was said that where one had a right of carriageway one could pave so that the wheels of one’s carriage did not sink into the ground.
[37] Similar observations have been made by the courts in this jurisdiction. For example, in Gregory v EK Trust Ltd, Katz J observed:19
[32] Ancillary rights will generally include a right for the dominant owner to alter the surface of the land so as to better facilitate access to the property
13 At 13,986.
14 At 13,986.
15 At 13,987.
16 Trewin v Felton [2007] NSWSC 851.
17 At 13,987.
18 At 13,987.
19 Gregory v EK Trust Ltd [2015] NZHC 1785, (2005) 16 NZCPR 519.
owned by the servient owner, for example, by putting down gravel, sealing a right of way, or cutting steps into a steep slope.
[38] The Court of Appeal in Cornes also referred to similar observations made in Newcomen v Coulson, in which the English Court of Appeal held that the agricultural purposes of the land in question did not limit the benefitted landowners’ rights which extended to putting down a metal road. The Court in Cornes referred to the following extract from Newcomen v Coulson explaining the rationale for that conclusion:20
Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word “repair” in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted.
[39] The Court in Cornes also observed that “the rights conferred by an easement can respond to evolving circumstances so that they are sufficient to enable the lawful use of the benefited land at any given time”.21 In that case, where the benefitted land had been subdivided, the Court stated:
[37] In our view, given the subdivision of Lot 1 is lawful, as it received a subdivision consent, the upgrading of the access way required by the Council as a condition of subdivision consent, ought to be permitted. It is required to enable access, including vehicular access, to the subdivided lots of the benefited land. Any other reading would fetter VRL’s ability to exercise the access rights which have been granted.
Discussion
[40] As I conveyed to counsel at the hearing, the threshold of there being a serious question to be tried is, in my view, plainly made out. Whether it is consistent with Ruby’s rights as grantee of the right of way for Ruby to establish a further access point from the right of way to its land at point Z, and to gravel the land between the paved
20 Newcomen v Coulson (1877) 5 ChDD 133 (CA) at 143 as cited in Cornes v Village Residential Limited, above n 10, at [34].
21 At [36].
driveway and the accessways at points X and Z, are both serious questions to be tried.22 My reasoning follows.
[41] As the authorities make clear, the issue will turn on the proper construction of the grant in question and the facts of each individual case. The express terms of the grant of the right of way in this case are framed in a brief and generic way, and do not provide direct assistance on the matters arising. The relevant aspect of the grant simply records that the easement comprises, in part, a “right of way”23 and that:
Unless otherwise provided below, the rights and powers implied in specific classes of easements are those prescribed by the Land Transfer Regulations 2002 and/or Schedule Five of the Property Law Act 2007.
[42]Nothing is “otherwise provided below” in the grant.
[43] Ruby’s property is, however, a substantial block of land (currently extending to around 42 hectares) and the right of way runs some length along it (estimated by counsel to be approximated 176 metres). In these circumstances, and in light of the authorities referred to earlier, there is a serious question to be tried that a second access point to Ruby’s land from the right of way is consistent with Ruby’s rights under the grant. In particular, if the intention at the time the grant was made was that there would be only one access point, there would have been no need for the right of way to extend as far as it does along the boundary of Ruby’s property. Further, the authorities are clear that what is reasonably required in terms of access to the right of way may evolve over time, in line with the change in use of the benefitted party’s property.
[44] Many of Mr Reed’s concerns arises from his view that the proposed works are in truth a backdoor implementation of the resource consent. The application does not rely on the proposed works being reasonable in the context of the subdivision, and Mr Parmenter firmly submitted that the application ought to be determined on the basis of the land as it is now, being one single lot and Ruby’s current use of it. Ultimately, that is all the Court can do. Ms Russell’s evidence does not provide any
22 I do not comment on whether it would be reasonable to have additional access points beyond X and Z, that not being the proposal that is currently before the Court.
23 The grant also comprises a right to convey telecommunications and computer media, and the right to convey electricity.
detail about the proposed subdivision, its suggested timeframes, how the proposed access to the various lots might differ from the access currently proposed at points X and Z, and why the works currently proposed would be reasonable in the context of the subdivision. Accordingly, my conclusion that there is a serious question to be tried is necessarily limited to Ruby’s rights flowing from the right of way in the context of its land in its current form, putting aside the subdivision. At least on this basis, a number of Mr Reed’s concerns seem somewhat makeweight.
[45] Turning to paving or graveling the accessways, at least on the evidence currently before the Court, it would appear reasonable to have some form of paving or gravel from the existing sealed driveway to the gate at the boundary at points X and Z, given without that, vehicular access is across a grass verge. That may not create any difficulties in summer when the ground will be firm, but common sense suggests this may be an issue in the winter months and/or after periods of heavy rain.
[46] Where the application for an interim injunction fails, in my view, is in terms of the balance of convenience and the overall interests of justice. Ultimately, and as Mr Maassen submitted, what is or is not reasonable in the context of disputed works associated with a right of way is an intensely factual question which ought to be the subject of a hearing and evidence in the ordinary way. While I have some sympathy with Ruby’s position (at least when measured against its property in its current form, and putting aside the subdivision), it is not appropriate to shoehorn the Court’s substantive endorsement of works under a disputed right of way into an interim injunction application hearing, particularly given there is very limited evidence before the Court on the present application.24
[47] I acknowledge Mr Parmenter’s submission that even if the proposed works are carried out now and later found not to have been appropriate following a full hearing, they are reversible, but that does not answer the fundamental point in my view that interim relief is intended to be just that, interim. That it is inappropriate to grant the
24 In this context, I note that in Mr Parmenter’s memorandum dated 19 May 2022, and in response confirmation by counsel for Mr Reed that the trespass notices did not prevent the right to pass over the right of way, Mr Parmenter stated “I do not press for an injunction”. His memorandum went on, however, to seek timetabling orders on the injunction application, and Toogood J directed on 19 May 2022 that the application be heard on 2 August 2022.
relief sought by Ruby on the present application is reinforced by the fact that, while Ruby no doubt wishes to undertake the works as soon as possible, there is nothing in the evidence to suggest that there is any particular urgency in relation to them, such that they cannot await a hearing in the usual way. In this context, I note that Ruby has owned the land since May 2021, so has presumably coped with the single accessway at point X since that time. There is certainly no evidence to suggest that it has not. And as noted earlier, while Ms Russell says in her affidavit that “we do have development plans”, she provides no details in relation to this, including the timing of the planting of the ecological belt.25
[48] On the basis that the matter is assessed through the lens of Ruby’s current use of the land and that it is a single lot, the substantive matter ought to be able to be dealt with within a day and with limited evidence. Indeed, I expect that most of the evidence could be reduced to an agreed statement of facts under s 9 of the Evidence Act 2009, with any additional evidence given by way of affidavit in accordance with the procedure in Part 18 of the High Court Rules 2016. Discovery would not be necessary. The parties could jointly seek an early hearing date (present indications being that one- day hearings are currently available before the end of this year). Mr Maassen confirmed at the hearing before me that Mr Reed has no interest in getting bogged down in protracted litigation.26
[49] I make two further observations. First, both parties seem to have got offside by taking (initial) positions that were probably not sustainable as a matter of law — Ruby, to the effect it could “do what it wants” in terms of accessways and associated works on the right of way; and Mr Reed, by underestimating a grantee’s rights (including ancillary rights) under a right of way, and unnecessarily issuing overly broad trespass notices as a result. I would hope that the ventilation of the issues arising on the interim injunction application have at least clarified the legal position.
25 Other than stating “we will soon” be planting that belt.
26 In that context, Mr Reed has since offered to have the dispute mediated. If Ruby does not wish to do so, an alternative might also be for the parties to agree to arbitrate the dispute, if timeframes to a substantive hearing in that forum might be quicker than the proceeding remaining in the Court. Mr Maassen also indicated at the hearing that Mr Reed would also be willing to refer the dispute to arbitration. This is of course the procedure envisaged under the dispute resolution provisions of the Land Transfer Regulations (both the 2002 and 2018 versions). While Mr Reed has submitted to the jurisdiction of this Court in the context of these proceedings, there is nothing preventing the parties from now agreeing to refer the dispute to arbitration.
[50] Second, it seems from the confirmed “exceptions” to the trespass notice communicated on behalf of Mr Reed following the hearing that there may be scope for an agreed interim position pending resolution of the underlying dispute. In this context, I do not consider it appropriate or necessary to comment or “rule” upon the proposed exceptions to the trespass notice. I do observe, however, that some of those “exceptions” seem overly onerous, including that I do not consider formal undertakings to the Court are required (given the current application, and the Court’s finding that there is a serious question to be tried, has been assessed against Ruby’s property in its current condition and use, putting aside the subdivision), nor that any documents that might be prepared are to be filed with the Court. Other than the Court determining the present application for interim relief, and determining the application for final relief, it is not the Court’s role to have continuing “oversight” of the present dispute between the parties.
[51] I accordingly encourage the parties to agree a suitable interim position pending the underlying claim being determined. Good neighbours would do no less. I am sure counsel will be advising their respective clients of the potential costs consequences of not doing do. It seems wholly unnecessary for the present dispute to proceed to a formal court hearing.
Result and costs
[52] The application for an interim injunction is declined. This is on the basis of Mr Reed’s confirmation that the trespass notices are amended in accordance with schedule A to this judgment, and in particular, paragraph [1] of that schedule. Further, while the Court has some sympathy with Ruby’s position, the underlying issues are appropriately determined in a substantive hearing in the ordinary way, rather than through an interim injunction application.
[53] In terms of costs, my preliminary but non-binding view is that it may be appropriate for costs to lie where they fall. It was not unreasonable for Ruby to bring the interim injunction application given the original form of the trespass notices. Confirmation that the trespass notices did not prevent passage over the right of way was only provided following the commencement of the proceedings. And formal
amendments were only made following the injunction hearing and at the Court’s invitation. Despite this, however, Ruby has not obtained the substantive relief which it sought.
[54] If, despite these observations, the parties are not able to agree on costs, any party seeking costs may file a memorandum within 15 working days of the date of this judgment. The other party may file a response within a further five working days. Unless I need to hear further from counsel, I will then determine costs on the papers.
[55] The proceeding is to be listed in the next available Duty Judge list for the allocation of a hearing date and timetabling to that hearing. As noted earlier, this may be a matter suitable for determination under Part 18 of the High Court Rules, and it seems unlikely that discovery will be required.
[56] Finally, and by consent, I make an order that the defendant/respondent be replaced with Reed Trustee 2018 Limited and Anthony Privett Reed (as trustees of the Eagle Trust).
Fitzgerald J
SCHEDULE A
Exceptions to the Trespass Notice issued by the Defendant dated 2 May 2022
[1]The plaintiff (including its agent, contractors and invitees) may use the right of way and access point X in the statement of claim – without modifying the land in any way without restriction – in a manner that does not offend the right of the defendant that the right of way is not obstructed under the Property Law Act, sch 5.
[2]The plaintiff may pave or lay gravel on the easement land to enable access to point X in the statement of claim for use by vehicles other than heavy motor vehicles as defined in the Land Transport Act 1998 provided:
(a)The plaintiff lodges an undertaking to the Court it is unrelated to subdivision purposes.
(b)A registered engineer certifies that the work is suitable for the purpose, does not adversely impact the existing driveway, and appropriately manages overland stormwater flow paths.
[3] The plaintiff may form an access for heavy motor vehicles shown as point X in the statement of claim for any purpose not related to the implementation of the subdivision provided:
(a)The plaintiff lodges an undertaking to the Court it is unrelated to subdivision purposes.
(b)The access is designed and certified by a registered engineer confirming that the work is suitable for the purpose, does not adversely impact the existing driveway, and appropriately manages overland stormwater flow paths.
(c)An engineering report of the driveway’s condition before works.
(d)The documents in (b) and (c) are filed and served in the Court and on the defendant.
3
5
0