Walshe v MacRae - [2012] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-8259 [2012] NZHC 296

BETWEEN ANTHONY PATRICK WALSHE Plaintiff

ANDROSS DONALD MACRAE AND LYNETTE GWYNETH JOY COLLINS Defendants

ANDLESLEY ANNE BERTRAM-SMITH First Counter-Claim Defendant

ANDDOUGLAS SEYMOUR ALDERSLADE, RAYMOND JOHN BEECH AND CHRISTINE BEECH
Second Counter-Claim Defendants

ANDRICHARD HAMMOND AITKEN, ANGELA RUTH AITKEN, BRIAN HAMMOND AITKEN AND ROBERT JAMES AITKEN
Third Counter-Claim Defendants

AND AUCKLAND COUNCIL
Fourth Counter-Claim Defendant

Hearing: 4 - 8 July 2011

Counsel: G C Jenkin for Plaintiff
D K Wilson for Defendants

Judgment: 28 February 2012

JUDGMENT OF KEANE J

This judgment was delivered by on 28 February 2012 at 5pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Date:

Bruce Dell Law, Panmure, Auckland for Plaintiffs
Tetley-Jones Thom Sexton, Auckland for Defendants

ANTHONY PATRICK WALSHE V ROSS DONALD MACRAE AND LYNETTE GWYNETH JOY COLLINS HC AK CIV 2009-404-8259 [28 February 2012]

[1] In issue in this case between neighbours in Church Bay, Waiheke Island, are two questions concerning a right of way given over the land of one, Anthony Walshe, for the benefit of his neighbours, Ross Macrae and Lynette Collins, whom I shall call the Macraes, who have, since the right of way was granted, subdivided their land into two.

[2] The first issue is as to the extent of their right of way, which was conferred by agreement between them and Mr Walshe's predecessor in title, Lesley Smith, dated August 1998, and conferred finally by easement transfer that she executed; since registered against Mr Walshe's title and now against both the titles into which the Macrae land is subdivided.

[3] Does this easement, as Mr Walshe contends, serve one 'dwelling' only on the Macraes' land, however subdivided and is it to be exercised only for that or a strictly related purpose? Or does it, as the Macraes contend, allow them access to any part of their land, however subdivided, and for any legitimate purpose including access to their 'visitors' facility'?

[4] The second issue arises from the Macraes' application for an order

'modifying' the easement under s 317 of the Property Law Act 2007, and ratifying the right of access they presently enjoy to each of their pieces of land; a right that extends to a 'dwelling' on each, not on one only. In issue on this application is the extent of any consequent injury to Mr Walshe if the easement is explicitly enlarged and what compensation, if any, he is entitled to.

Narrative of events

[5] Mr Walshe, a New Zealander, who apart from three years in Auckland between 2000 - 2003 has lived in England since 1991, owns 88E Church Bay Road, a 2.76 hectare property that he purchased in January 1999 as vacant land; the state in which it still remains. He and his wife intend to build their home there once he retires, an event that lies somewhere in the future.

[6] The Macraes own 88H Church Road, below Mr Walshe's property, known as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walshe v MacRae

Details

AGLC: Walshe v MacRae [2012] NZHC 296
Case: [2012] NZHC 296
Decision Date: 28 February 2012

CaseChat Overview and Summary

In Walshe v MacRae, Keane J addressed two main issues concerning the extent of a right of way granted over the Walshe property for the benefit of the Macraes, and the potential modification of this easement. The court determined that the easement granted the Macraes unrestricted access over the Walshe land but limited their use to servicing a single dwelling on their property. The court found that the easement did not confer access to any part of the Macrae land for any purpose beyond servicing the single dwelling. Regarding the Macraes' application to modify the easement, the court concluded that while the modification would not substantially injure Mr Walshe, it would still require compensation. The court accepted the evidence of Mr Taylor, the plaintiff's valuer, and determined that Mr Walshe should be fully compensated for the 7.5% discount to the value of his property resulting from the enlargement of the easement and receive half the increase in value of the Macraes' lot two. The court deferred entering formal judgment until the parties resolved certain issues, including the timing and method of compensation payment.

Final order: The court will defer entering formal judgment until the parties resolve certain issues, including the timing and method of compensation payment.

Orders