Salis v Filleul Apartments JV Limited
[2019] NZHC 766
•10 April 2019
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2019-412-000008
[2019] NZHC 766
BETWEEN SERGIO SALIS AND CHRISTOPHER ROBERTSON
AppellantsAND
FILLEUL APARTMENTS JV LIMITED
Respondent
Hearing: 5 April 2019 Appearances:
L A Andersen for Appellants S Chadwick for Respondent
Judgment:
10 April 2019
JUDGMENT OF GENDALL J
SALIS v FILLEUL APARTMENTS JV LTD [2019] NZHC 766 [10 April 2019]
[1] This is an appeal against a decision of the District Court delivered on 13 February 2019. The appeal relates to a Notice of Appeal filed by the appellants on 18 February 2019. The appeal is opposed by the respondent.
General factual background
[2] This proceeding and its predecessors have a reasonably long history. Some brief background to this whole matter is useful.
[3] The appellants own a commercial property at 34 London Street, Dunedin (34 London) from which in part they operate their dental practice. 34 London neighbours an adjoining property at 95-97 Filleul Street, Dunedin (97 Filleul), owned by the respondent. This general area in Filleul and London Streets is quite steep, with 34 London lying to the north and above the shared boundary with 97 Filleul. A driveway and car park area in 34 London runs along that shared boundary.
[4] The respondent is in the process of building a four storey apartment building on 97 Filleul and, as I understand it, a number of apartments have been the subject of pre-purchase agreements.
[5] A little over three years ago the respondent applied to the Dunedin City Council (the DCC) for a resource consent for their proposed apartment building development at 97 Filleul. The DCC heard that application and a resource consent was granted in April 2016. The appellants, who I understand had opposed the original resource consent application, then appealed the DCC’s decision to grant consent. An Environment Court hearing was held to consider this appeal in March 2017 with a decision issuing in mid-2017 which dismissed the appeal and confirmed the respondent’s resource consent.
[6] The appellants then lodged a further appeal against that Environment Court decision to the High Court. That appeal was dismissed by this Court in September 2017.
[7] The respondent suggests that from an early stage it took a number of specific design approaches and changes in its development in an effort to mitigate the effects on the appellant’s neighbouring property and their dental practice offices.
[8] The respondent goes on to state that over quite a long period of time it made numerous approaches to the appellants in an effort to agree:
(a)What would be built on the parties’ shared boundary to improve the retaining walls between the two properties; and
(b)Any possible methods of access over the driveway and part of the car park at 34 London to facilitate construction on 97 Filleul.
The respondent contends that there has been almost no constructive engagement by the appellants, both with respect to this boundary work and access possibilities, despite the respondent’s claim that at its own expense boundary arrangements with 34 London have been improved considerably.
[9] It is interesting to note that a condition of the resource consent adopted by both the Dunedin City Council and the Environment Court required the respondent to ensure that:
The exterior wall surfaces on the northern and southern facades are to be painted in a light colour and finish that maximises light reflection.
[10] It follows that the respondent claims it had no other alternative but to bring the application to the District Court at issue here under ss 319 and 320 of the Property Law Act 2007 (the PLA). This application sought orders from the District Court authorising entry onto 34 London. The purpose of this entry was to complete certain development work and paint exterior walls, that painting in particular being necessary to comply with the requirement of the respondent’s resource consent noted at para [9] above.
[11] It is true to say that many of the contentions advanced by the respondent are disputed by the appellants. In doing so, however, Mr Anderson, counsel for the appellants, notes here that their principal complaints are the lack of recognition of their
property rights relating to 34 London, an allegation that they have been unjustifiably blamed by the respondent for delays in having this case heard and their request for vindication as landowners of the position they have taken in this matter, which they regard as an appropriate one.
The ss 319 and 320 PLA application
[12] Sections 319 and 320 of the PLA provide the Court with certain special powers to make orders to enable an applicant to enter neighbouring land for certain specified purposes. These purposes are specified in s 319(1) as follows:
(a)to erect, repair, alter, add to, paint, or demolish the whole or any part of any structure on the applicant’s land; or
(b)to do any other necessary or desirable thing in relation to the applicant’s land.
[13] In its ss 319 and 320 application the respondent detailed the purposes for which entry was sought over 34 London as directed to:
(a)Construction of the northern aspect of the respondent’s apartment building, including block-laying, timber framing and finishing, fibre cement cladding and roofing;
(b)Finishing and painting the northern aspect of the respondent’s apartment building, including preparation and painting and any other miscellaneous finishing work; and
(c)Any necessary remedial work.
[14] The respondent also proposed in the application what seemed to be a comprehensive range of conditions of access set out in detail there.
[15] This s 319 and 320 application was filed on 24 July 2018. It was accepted by the District Court Judge who was involved that the matter was urgent and directions were made to ready it for hearing. Various other matters intervened in the meantime, however, and it was not until 6 December 2018 that the initial hearing in the District Court took place. Issues arose over whether the proceeding should have been commenced as it was by way of originating application, rather than by way of a full statement of claim, but I need not go into this aspect for present purposes. The respondent claims that what it says was delay in having this application heard, meant
that construction under its approved development project on 97 Filleul was under considerable pressure, in particular with weatherproofing and related construction issues.
[16] At the hearing before the District Court on 6 December 2018, Judge Christiansen found the originating application process adopted by the respondent here to be appropriate and he granted leave for it to commence its present application by this process. Directions were then made for what was then an amended application to be filed and served on neighbouring tenants. This was attended to within two days of the hearing.
[17] The appellants then filed a Notice of Opposition to the amended application and affidavit in support around 21 December 2018.
[18] The respondent contends, however, that the appellants failed to file any appropriate evidence that properly contradicted the clear evidence from Mr N Lyons and Mr J Lyons for the respondents. Both of these men are said to have considerable expertise and experience in managing construction projects and it is claimed their evidence clearly demonstrated the need for access to 34 London to complete the work specified in the application, not least of all for health and safety reasons.
[19] Again, many of these matters are strongly disputed by the appellants but for reasons which will become apparent later in this judgment I need say little further relating to these at this point.
District Court 13 February 2019 decision under appeal
[20] In his decision, Judge Christiansen in the District Court reiterated an earlier view that the access sought by the respondent here was urgent. He noted too that the Court had sought to provide this matter with as much urgency as it could in all the circumstances.
[21]Addressing ss 319 and 320, Judge Christiansen found:
(a)The requirements of s 319(3) had been complied with, and the Court’s involvement in this matter was necessary. He determined that the appellants had refused to give the construction access sought which was essential here both for health and safety reasons and also because it would not be possible to reasonably access the northern faces of the respondent’s building except from the appellant’s property.
(b)The amended application, which was one now to use scissor lifts rather than scaffolding, was appropriate and would reduce the amount of time required for construction access.
(c)The full terms of the amended orders sought were clear, the provisions of the Health and Safety at Work Act 2015 were relevant here, and the obligation on the respondent to comply with the resource consent condition to paint the north wall facing the appellant’s property which required access was also a relevant factor.
[22] Judge Christiansen granted access for specified purposes and on detailed conditions. Immediately following this 13 February 2019 decision, the appellants then lodged this appeal. They also at the same time sought from the District Court a stay of the orders authorising access, but this was unsuccessful.
Initial developments in this Court
[23] The appellants’ appeal to this Court was given urgency and set down for hearing on 5 April 2019.
[24] When the appeal file came before me, on 4 April 2019, I issued a minute which it is useful to repeat here:
[1] On 18 February 2019 the appellants filed in this Court a Notice of Appeal against a decision given in the District Court at Dunedin on 13 February 2019.
[2] That appeal was then set down for hearing tomorrow, 5 April 2019 at 10 a.m.
[3] The District Court judgment dated 13 February 2019, the subject of this appeal, made orders in terms of an amended originating application filed by the respondents on 10 December 2018.
[4] The orders made in terms of ss 319 and 320 of the Property Law Act 2007 enabled the respondent Filleul Apartments JV Limited to enter and re- enter onto and over the driveway and a portion of the car park area of the appellants’ property at 34 London Street, Dunedin, to carry out certain construction finishing and painting work on a town-house development on the respondent’s neighbouring property described as being such work as may be “reasonably necessary for the Specified Purposes”. Those “Specified Purposes” were set out in the orders which, in addition, provided conditions of access to 34 London Street including a provision relating to timing which stated:
Time
(i)Subject to any unforeseen events, access for the Specified Purposes is required for a period of approximately two months from the date of these orders. This period includes all work required through to any remediation and final clean up. The timeframe may be subject to reasonable variations as construction proceeds.
[5] Relating to that District Court decision and the orders made on 13 February 2019, the appellants, Mr Salis and Mr Robertson, then filed an application in the District Court for a stay of execution of the judgment and orders. In a reserved judgment dated 12 March 2019 Judge Christiansen in the District Court addressed this and dismissed the application for a stay.
[6] The appeal against the 13 February 2019 judgment still remains and has been scheduled to be heard in this Court tomorrow, 5 April 2019.
[7] That said, I repeat as I have outlined at para [4] above, that the order against which the respondents appeal envisaged that generally access to their property for the Specified Purposes was to be required for a period of two months from the date the orders were made. That date was 13 February 2019 with the two month period expiring in a little over one week’s time.
[8] It is acknowledged that the timing provision did go on to say that the timeframe may be subject to “reasonable variations as construction proceeds”. Notwithstanding this, and given the history of this matter and what has been said to be the need for the respondents to proceed with construction work in their development with all reasonable speed, I question whether the work to be carried out on the respondent’s property may now be approaching completion. I say this given that the two month period noted above has almost elapsed. If that is so, then an obvious question arises as to what is hoped to be achieved with the present appeal. It is noted, as I understand the position, that no appeal was brought against the 12 March 2019 judgment of Judge Christiansen dismissing the application for stay.
[9]Comment is now sought from counsel for the parties on these aspects.
[25] In response to that minute, on 4 April 2019 counsel for the respondent filed a memorandum in this Court which relevantly stated:
…
2In respect of paragraph 7, [of the 4 April 2019 minute] FAJV notes:
aThe Directors of the company were uncomfortable accessing 34 London Street for the specified construction purposes prior to the District Court’s decision on the Appellants’ application for a stay. A copy of FAJV’s Memorandum of Counsel filed in the District Court advising their position in that regard is attached.
bAs a result FAJV has only began accessing 34 London Street after the stay was declined, since approximately 14 March 2019 (incorporating two days’ notice to the Appellants and their tenants, which it was necessary to provide pursuant to FAJV’s Construction Management Plan).
cTo date the weather conditions have been particularly favourable and Counsel understands the necessary construction work is well underway. Subject to any reasonable variations, FAJV is hopeful that the necessary
work will be able to be completed by 14 April 2019.
3In respect of paragraph 8:
aFAJV notes the importance of obtaining construction access to complete work on the building at 97 Filleul, for FAJV, and for the other parties with legal interests in the properties under construction. FAJV has therefore been obligated to defend the appeal.
bOn the further matters in this paragraph, FAJV has no further knowledge of why the Appellants continue to press their position on appeal, and as recorded in evidence, FAJV has unsuccessfully sought further clarification from the Appellants on this point over a long period of time.
4Finally it is noted that if FAJV is the successful party Counsel has been instructed that the Company will look to make application for an additional award of costs above scale.
(emphasis added)
[26] Counsel for the appellants also filed a memorandum dated 4 April 2019 in response which relevantly stated:
…
2The Respondent did not exercise any of the rights contained in the Order until 14 March 2019 which was a reasonable position to take as it had waited for the decision on the stay application. Consequently, it seems possible that there is at least one month more work to carry out, although part of the appellants’ appeal is that they are not certain what work is going to be carried out in addition to painting and sealing (which seems now to be almost complete).
3.The Appellants’ main complaint is that they have not been listened to by the Court and they seek vindication of their position including the setting aside of the determination that they are liable for costs and that they have any responsibility for matters that occurred prior to December 2018.
The hearing before me
[27] At the outset of the hearing of this appeal before me Mr Anderson for the appellants reiterated matters he had outlined in his 4 April 2019 Memorandum in answering the question he posed himself, “Why are we here today?” His answers to this question were:
(a)The appellants feel they did not have a fair hearing in the District Court; and
(b)The appellants contend there was a complete lack of recognition of their property rights in the District Court and feel aggrieved by this; and
(c)The earlier costs award against the appellants was wrong and should be reversed.
[28] And, at the start of this hearing, Ms Chadwick for the respondent also confirmed again that all the work required to be done on 97 Filleul which needed some access over 34 London was now almost complete and at the most should take only one week from 5 April 2019 to attend to. Thus, Ms Chadwick contended that the real purposes of this appeal, and the main relief sought (being to refer the matter back to the District Court for a re-hearing) in reality were simply otiose.
Discussion
[29] On all the substantive matters usually addressed in an appeal of this kind, it is difficult to escape the conclusion here that the original purpose of this appeal has now gone. At the hearing before me, counsel for both parties agreed that effectively all the work the respondents were intending to complete requiring access over 34 London
was almost finished and was likely to be fully completed by the time this judgment is released. There would no longer be any need for the s 319 and 320 orders made by Judge Christiansen to continue. I accept therefore this appeal has served no significant practical purpose and in terms of the substantive issue here is now largely futile. The horse has effectively bolted.
[30] That said, it is my view I do not need to address in detail the significant number of appeal points Mr Andersen advanced for the respondent.
[31] The appellants’ real concern, as noted in Mr Andersen’s 4 April 2019 memorandum noted at [26] above, is for “vindication of their position and their property rights” given their claim they were not “listened to” in the District Court. And formally they seek the “setting aside of the determination that they are liable for costs”.
[32] I will now turn to broadly address these issues. In doing so, however, I will need at least for the sake of completeness to record the various grounds for appeal which the appellants have advanced here and I now do so:
(a)The procedure adopted in determining the case was unfair and contrary to natural justice as the Appellants were not given any opportunity to challenge by cross-examination the assertions by the Respondent that access was required for health and safety reasons;
(b)Inadequate consideration was given to the Appellants’ rights as property owners to undisturbed possession of their land and, on the contrary the decision appears to proceed on the premise that the Respondent is entitled to have access to the Appellants’ property notwithstanding their objection;
(c)No additional evidence was filed supporting the claims made in the amended originating application and the Appellants’ argument that section 319 requires a detailed explanation of the work to be carried out and the necessity for access to carry out the work was wrongly rejected by the Court;
(d)No account was taken of the fact that the Respondent had failed to comply with the conditions of its resource consent and, in particular, has failed to remedy the damage that it has already caused to the Appellants’ land;
(e)No consideration was given by the Court to the reasonable offer made by the Appellants which would have allowed the Respondent to apply
sealant and paint the wall adjacent to the property in a manner which minimised the disturbance to the Appellant’s property.
(f)The Court ignored the claim by the Appellants that there were alternative means to carry out the work required without access to the Appellant’s land;
(g)The claim that health and safety requirements required access to the Appellant’s land was accepted uncritically by the Court despite the lack of supporting information;
(h)The Court wrongly determined at [24] that “The evidence is that the applicant has made numerous offers to the respondents in an effort to reach an agreement about the planned development, including plans for upgrading the shared retaining wall along the boundary” when no such evidence was before the Court;
(i)The finding that “Application delays are largely due to the Respondents’ opposition” is incorrect in law as:
(i)The appellants correctly identified that the proceedings had been wrongly commenced by way of originating summons when no application for leave was filed or granted; and
(ii)The decision was made within 2 months of the Respondent being granted leave to file an amended originating application.
(j)The application should not have been heard until the supporting documentation was served on the tenants and the finding that the tenants were not required to be served is contrary to the requirements of section 319 Property Law Act 2007 which requires all occupiers to be served with the application (including the affidavits) and it was a specific direction in the judgment of 18 December 2018 that was not complied with by the Respondent;
(k)There is no proper basis for the determination that the Appellants should pay costs to the Respondent.
[33] I do not intend to minutely address each of those eleven specific appeal grounds for reasons I outline below. To do so in light of the ultimate result I propose here would be pointless.
[34] At this point it is useful to reflect upon the final decision of the Environment Court issued on 19 June 2017 which I refer to at [6] above and one aspect of that decision. In the decision itself, Schedule 1 set out the specific conditions upon which the resource consent for construction and operation of the proposed apartment building at 97 Filleul was granted. In this Schedule 1 the Environment Court specifically provided:
6. All construction activities are to be implemented in a manner that maximises the protection of adjoining properties and shall provide for:
…
[3]Any significant effect on, intrusion into or reliance on the neighbouring property at 34 London Street is prohibited.
…
[35] Then, in the advice notes attached to that Schedule 1, the Environment Court stated at para [8]:
Advice notes:
…
8. This resource consent does not give the consent holder permission to undertake work on adjoining sites. Work on adjoining property can only occur with the express permission of the relevant property owner/s. The consent holder is advised to familiarise themselves with the legal requirements for undertaking construction works on adjoining sites, including temporary excavation.
[36] Mr Anderson for the appellants made something of these matters. He contended that with these specific prohibitions in existence, the appellants feel properly aggrieved that their property rights have now been effectively ignored in this case when the District Court granted the respondent’s ss 319 and 320 application. He noted that the starting point for a s 319 application is that property rights are inviolable, and that three key principles arise from the authorities on these provisions:
(a)The Court is authorising a trespass when it is persuaded that it is appropriate to use the provisions of the PLA to overcome a neighbouring property owner’s right not to be trespassed;
(b)The authorisation is only permitted for statutory purposes; and
(c)The authorisation is to be the minimum necessary to achieve the statutory purpose.
[37] Significantly, Mr Andersen pointed to the specific prohibition imposed on the resource consent conditions prohibiting any intrusion into or reliance on the neighbouring property at 34 London.
[38] Although I accept there is something in this argument advanced by Mr Andersen, it does not necessarily prohibit the District Court (as it did here) from granting access for construction purposes when the court considers it just and equitable in terms of s 319 and 320 of the PLA. What is clear is that there must be a principled basis to justify a court authorising access in a case like this. The respondent says the evidence it provided from Mr J Lyons made clear that there were no other reasonable alternatives available to carry out the construction work in question other than through the limited access use of 34 London it sought. Ms Chadwick contended this was purely a pragmatic issue which the District Court itself had noted. In the amended application Ms Chadwick suggested the reduced period of use required (being now for only a short period of time) and the far less intrusive specified purposes of the use (by way of a scissor lift rather than erected scaffolding) added to the desirability of its application being granted.
[39] From a very recent interim judgment in this Court, Jagose J in Body Corporate 329331 (In Administration) v Escrow Holdings Forty One Ltd1 addressed similar issues under s 320 of the PLA:
[30] Yet the section [s 320] relies for entry on exercise of the Court’s discretion, which must have some principled foundation. In Guo v Bourke [[2017] NZCA 609 at [11]], the Court of Appeal observed generally the 2007 Act gives courts “a range of special powers to deal with issues that often arise between neighbours”. This included s 320, which it described as empowering “orders authorising owners of adjoining properties to enter onto each other’s land where reasonably necessary in connection with work required on their own property.” But the Court went on to say at [12]:
The powers are remedial, and hence are typically expressed in broad terms. Generally, relief may be granted when the Court considers it just and equitable, and orders may be made on such terms and conditions as the Court thinks fit. The Courts are therefore empowered to make pragmatic but principled decisions in circumstances where…neighbours are unable to resolve differences that have arisen.
[31]I would apply that test to the present application.
1 Body Corporate 329331 (In Administration) v Escrow Holdings Forty One Ltd [2019] NZHC 600.
[40] I agree that this is the test to be applied here. It requires a decision between these parties to be both pragmatic and principled and in a situation where the Court considers it just and equitable for relief to be granted.
Appeal by way of rehearing
[41] The PLA does not expressly provide a right of appeal here. The appellants therefore rely on the general right of appeal from a District Court decision to the High Court pursuant to s 124 of the District Court Act 2016. This appeal is, therefore, to be by way of rehearing. The principles applicable to all general appeals were outlined in the Supreme Court decision in Austin Nichols & Co Inc v Stichting Lodestar.2 In a general appeal like the present, this Court must form its own view of the merits. The appellants, however, bear the onus of satisfying this Court that it should differ from the decision under appeal.3
[42] In a case where there may be a mix of findings of fact and evaluative judgment and the exercise of a statutory discretion then the issues on appeal may not be entirely straightforward.4 In a case where an appeal is made against the exercise of a discretion, the appeal court should not interfere unless the judge whose decision is under appeal acted on a wrong principle, failed to take into account some relevant matter, took account of some irrelevant matter or was otherwise just plainly wrong.5
My decision
[43] The consequences of the present appeal, in light of recent events and the construction progress that has been made, must mean in my view that the major item of relief sought by the appellant here has been overtaken by these events and serves no practical purpose. Any question of referring this matter back to the District Court to reconsider its decision would be entirely futile.
2 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103.
3 Above n 2 at paras [4] – [5].
4 Bethel v Bethel [2018] NZHC 3171 at [20].
5 Above n 4 at [19].
[44] The appellants, nevertheless, have chosen to proceed with this appeal to hearing. This is on the basis that they say they require “vindication” of their position and a reconsideration of the costs question.
[45] On this first matter, there is major disagreement between the parties, it seems to me, on the evidence which was before Judge Christiansen in the District Court. It is my view that little would be gained by endeavouring to trawl through these matters now long after the events in question have been completed.
[46] Suffice to say I accept here that the decision of the District Court in granting the respondent’s ss 319 and 320 application was a significant indulgence. I say this particularly bearing in mind the earlier Environment Court consent conditions, (noted at para [34] above) which initially prohibited any intrusion by the respondent into 34 London in carrying out the development.
[47] That said, there might well be something, as I see it, in the argument advanced by Mr Andersen that, Judge Christiansen in his decision may have paid insufficient attention to that Environment Court condition and the appellants’ property rights in 34 London. I say no more than that at this point however. Also, I make no definitive decision on the 11 individual grounds of appeal advanced by the appellants before me. I note that they were all strongly opposed by the respondent.
[48] The pragmatic outcome that in my view is needed on this appeal simply requires that I should set aside the orders for costs made by Judge Christiansen in his decisions under appeal. I now do so and I direct that costs with respect to all those matters are simply to lie where they fall. This takes into account the fact too that, in my view, although the respondent succeeded in its s 320 application it effectively obtained an indulgence in being permitted to have access to 97 Filleul, no doubt with some beneficial cost-savings to it. The work for which access was required, as I have noted, is now effectively completed.
[49] That leaves one question outstanding. This relates to costs on this present appeal to the High Court. Again I note, as I have recorded at para [2] above, that this whole matter involving the respondent’s development at 97 Filleul has a long and
tortuous history. It is hoped that the many differences that have arisen between these neighbours, the appellants and the respondent, are now virtually at an end.
[50] With this in mind and adopting what I see as a pragmatic approach here, I find that costs with respect to the current appeal to this Court should also simply lie where they fall.
Result
[51] This appeal, in my view, having some merit is nevertheless largely otiose, given that from a pragmatic perspective it serves no useful purpose. Subject to [52] below, the appeal is effectively dismissed.
[52] The order for costs in the District Court decisions under appeal is quashed. Costs on those matters and costs in this Court on the present appeal are to lie where they fall.
...................................................
Gendall J
Solicitors:
Guest Carter, Dunedin
L A Anderson, Barrister, Dunedin Webb Farry, Dunedin
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