Wills v Reed HC Nelson CP 23/97

[2001] NZHC 405

IN THE HIGH COURT OF NEW ZEALAND
NELSON REGISTRY CP 23/97

IN THE MATTER of the Property Law Act 1952

BETWEEN BARBARA WILLS & GARRY LEWIS
Plaintiffs

AND DENIS CHARLES REED & BERYL WHITEHEAD AND OTHERS
Defendants

Hearing: 24 May 2001

Appearances: S Yorke for plaintiffs

Judgment: 24 May 2001

JUDGMENT OF DOOGUE J

[1] This is an application under s 129B Property Law Act 1952 (“the Act”).

[2] On 21 June 1996 the plaintiffs purchased from the Tasman District Council 28.0244 hectares of land being Lot 2 Deposited Plan 987 comprised in Certificate of Title 12A/814 (Nelson Registry). The purchase price paid was $56,500. The Council was authorised to sell the land under the Rating Powers Act 1988 after the land had been declared abandoned. The matter that has led to these proceedings is that, although there is vehicular access to the plaintiffs’ land, they have no legal right to use it. The access consists of an old logging road. Part of it is in a right of way that runs from the main road south of Pakawau in Golden Bay through seven separate parcels of land and then on to an old logging track, over which there is no right of way, that runs through more lots of land before reaching the plaintiffs’ land. There are two legal roads on both the eastern and western boundaries of the plaintiffs’ land, but they are only paper roads.

[3] It is the plaintiffs’ view that because their land was previously abandoned there was no registered proprietor who could take the opportunity to negotiate legal access at any earlier time. The owner of the adjacent property had allowed the plaintiffs to use the right of way as his guests as an interim measure prior to purchasing the property. The plaintiffs were, however, forced to bring this proceeding as they could not reach agreement with all the neighbouring land owners who had rights in respect of either the right of way or the old logging track at that time. They submit, understandably, that a lack of vehicular access to their land severely restricts their use and enjoyment of it. They accept that they knew of the problems of access before purchasing but had no time to consider them further as the land was sold at auction. On the other hand, they believed that the owners of the lands through which the right of way and the old logging track ran would not suffer hardship by virtue of one additional property using the right of way and the old logging track. They have no intention of developing their land other than for construction of a home and would not subdivide it even if that were possible. They were prepared to bear a fair and just proportion of the costs of maintenance and repair of the right of way as well as that of the logging track that links it to their land.

[4] The plaintiffs had a valuation made which recommended certain compensation to owners of land affected by their possibly having access over the right of way and the old logging track. The plaintiffs agreed to meet such compensation and to contribute to the reasonable legal costs of those of the defendants who sought them and further to contribute $2,000 to the costs of maintaining the right of way.

[5] Not all of the owners affected have sought costs. Three of the defendants have pursued costs and compensation with the plaintiffs and they will be referred to hereafter. Two other of the defendants have reached personal agreements with the plaintiffs and seek to take no further steps. One defendant, to whom I will refer later, is the only one who has pursued the matter, and that defendant, a Mr Hardwick, does not own any of the land over which the right of way or the logging track proceed. He himself has a right of way over part of the right of way. I will note his concerns hereafter. Others of the defendants did not file statements of defence so it is clear that they did not object to the order being sought, subject to the conditions specified in the agreements reached with them being met.

[6] I am satisfied that the plaintiffs have established that their land is landlocked in the sense that there is no reasonable access to it in terms of the definition in s 129B(1)(a) of the Act. Their only possible access other than by the right of way and the old logging track is by air or by canoe or kayak up the Wairoa River at high tide. Such access could hardly be regarded as reasonable. Although it is clear that the plaintiffs knew that the land was landlocked when they purchased it, they did not have time to pursue the issue prior to the auction with the relevant land owners. In fact, access had been granted by the relevant land owners for the purpose of viewing the property. Equally relevant is the fact that all with rights over the land or right of way affected by the present application, with the muted exception of Mr Hardwick, consent on due terms to access being granted. The fact that the land was previously abandoned means that the circumstances in which it became landlocked are not as relevant as they might otherwise be. The conduct of the relevant parties and their relative hardship are hardly matters for consideration in the present case, considering that agreement has been reached with all but Mr Hardwick.

[7] There are no other particular relevant matters relating to the application.

[8] It is appropriate that the application be allowed and that the orders sought be made. However, the orders will be made upon conditions as agreed with certain of the defendants. Those conditions are:

“1. The plaintiffs shall pay to Mr Banks the sums of $767.55 and $1,014.28.

2. The plaintiffs are to pay to Mr Mark Riley the sums of $915.00 and $1,014.28.

3. The plaintiffs are to pay to Mr Burgess the sums of $214.30, $800.00 and $1,600.00.

4. The plaintiffs are to pay to Mr Hardwick the sum of $250.00 towards his legal costs.”

[9] It is a further condition of the order that, in addition to the sums just ordered to be paid, the plaintiffs will pay such additional amount as is required to bring their total contributions towards the right of way to $2,000.00 within one year of the date of this order. I am advised from the Bar that a substantial part of the total agreed to be paid has already been used in respect of the right of way.

[10] I turn to the position of Mr Hardwick. He has put a memorandum before the Court in which he expresses certain concerns. Part of them relate to the possible commercial use of the plaintiffs’ property. That is a matter that would be dealt with under the Resource Management Act 1991 and cannot be dealt with in this proceeding.

[11] A further concern of Mr Hardwick is that the Court should consider applying a formula for contributions to the maintenance of the right of way, depending upon the nature of the usage. It is simply beyond the Court’s powers to consider such an approach. In any event, the agreement of all other persons having rights in respect of the right of way would have to be sought and taken into account. There is no justification for holding up this matter any longer in respect of that issue.

[12] In addition, Mr Hardwick sought his legal expenses but had put no figure before the Court. He appears for the most part to have represented himself, and thus an allowance has been made above for a contribution to the costs that he might have incurred with solicitors.

[13] Mr Hardwick also seeks compensation. However, he was not the owner of any part of the land over which the right of way is formed. The sums in the valuer’s report, upon which payments of compensation to the owners of land have been based, have been met by the plaintiffs. There was no suggestion in that report that those with a right of way over the right of way, as opposed to those who owned the land, be entitled to compensation. There is no basis for any award to Mr Hardwick in respect of compensation.

[14] Further Mr Hardwick seeks that the plaintiffs spend the sum of $2,000.00 on the upgrading of the existing right of way. That is in accord with the order already made and does not have to be addressed again.

[15] There will be an order that the plaintiffs be granted an easement over the existing right of way as shown on the plan marked B annexed to the plaintiffs’ statement of claim on the same terms and conditions as the existing right of way. There will be an order that the plaintiffs be granted an easement over the old logging track shown on the same plan on the same terms and conditions as relate to the right of way shown on that plan.

[16] The result is that the plaintiffs will be granted an easement upon the same terms as apply to the existing right of way in respect of what is shown on the plan from the point A to the point L marked on it.

[17] There will be a supplementary order that the plaintiffs may submit separate orders for sealing in respect of the two parts of the orders just made, one relating to the existing easement as there is an existing deposited plan, and the other relating to the logging track, where a survey plan would have to be prepared. The orders should be in a form suitable for registration as an instrument under the Land Transfer Act 1952.

[18] Except as already provided, there will be no order as to costs in these proceedings. The sums of money ordered to be paid include certain allowances for costs in respect of the defendants to whom the monies are to be paid.