Winter v Short
[2013] NZHC 778
•19 April 2013
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV2012-412-000549 [2013] NZHC 778
BETWEEN HELEN RAYMA WINTER Plaintiff
ANDROBERT URWIN SHORT AND PAMELA MARY SHORT
Defendants
Hearing: 11 April 2013
Counsel: D J More and L Mulholland for Plaintiff
R P Bates and J Van Bolderden for Defendants
Judgment: 19 April 2013
JUDGMENT OF WHATA J
[1] Helen Winter and Robert and Pamela Short are neighbours. Ms Winter currently holds an easement allowing her to park on the property belonging to the Shorts. The Shorts, however, want to build a fence with the effect that Ms Winter would no longer have direct access from the parking area to her property. Both parties now seek separate declarations from the High Court as to their respective rights. They agree that any such declaration could be made under s 317 of the Property Law Act 2007.
[2] Helpfully, they have agreed facts and the key legal issue.
Agreed facts
1. THE PLAINTIFF IS THE REGISTERED PROPRIETOR OF
28 Argyle Street, Dunedin. The title to her property is document 1 in the common bundle. The defendants are the registered proprietors of 26 Argyle
Street, Dunedin. ... The defendants’ street frontage is to Ventnor Street,
Mornington, but there is no vehicle access to their property from that street.
...
WINTER V SHORT HC DUN CIV 2012-412-000549 [19 April 2013]
2. THE plaintiff’s property is a rear section and has leg in access on a right of way the majority of which is part of the title to her property. The right of way also provides access to the defendants’ property, and to the property of a Mr George Tombs, whose street address is 21 Ventnor Street.
... Right of way easements are registered against the titles to all three properties.
3. IN 1989 Mr Tombs owned all three properties. His and the defendants’ properties were Lot 8 DP801. On 4 October 1989 Mr Tombs transferred what is now the plaintiff’s property to a Mr and Mrs Taylor. ... That transfer reserved a right of way over the plaintiff’s land in favour of Mr Tombs’ land, and granted a right of way appurtenant to the plaintiff’s land over Mr Tombs’ land. The transfer also created the parking easement which is the subject of these proceedings. The parking easement is appurtenant to the plaintiff’s land.
4. IN March 1991 Mr Tombs subdivided his own land (Lot 8 DP801) into two sections, which became Lots 1 and 2 DP21877. The defendants’ land is Lot 2, and Mr Tombs has retained ownership of Lot 1. It is Lot 2, the defendants’ land, which is subject to the parking easement in favour of the plaintiff. In 1989 and 1991, the minimum area for a residential section in the Dunedin City Plan was 500m². The defendants’ land has an area of 506m², and the area of the parking easement is 33.35m².
5. ... the right of way rises from Argyle Street, initially reasonably steeply, to a more gentle slope outside the plaintiff’s property. There is then a reasonably sharp left hand turn across the top of the plaintiff’s property and the bottom of Mr Tombs and the defendants’ properties, to the parking easement. There is a downhill slope towards the plaintiff’s property from the northern alignment of the right of way and parking easement.
6. THE defendants wish to erect a boundary fence along the northern alignment of the parking easement and the southern boundary of the plaintiff’s property. The plaintiff opposes this. She says she wishes to be able to drive from the parking easement on to her property and vice versa.
...
Legal issues
8. THE common issue is as set out in the prayer for relief in the
plaintiff’s statement of claim:
(a) Whether a fence between the plaintiff’s property and the defendants’ property along the northern alignment of the parking easement between the properties would constitute a breach of the parking easement created by Transfer 739431.2.
9.THE defendants have raised a second issue in their counterclaim as to whether the parking easement created by transfer 739431.2 was validly created, and if not, whether it is void.
[3] The properties are illustrated below. Lot 1 is Mr Tomb’s property. Lot 2 is the Shorts’ property. The parking area is identified as the ‘Existing Parking Easement’. Ms Winter’s property sits to the immediate north of this easement.
[4] A memorandum of transfer dated 4 October 1989 records the transfer of land from Mr Tombs to Mr and Mrs Taylor. In addition to transferring what is now Ms Winter’s land, the following is recorded:
3.Grants to the grantee [the Taylors] and their successors entitle a right to park as defined in Schedule 3 attached over that part of the second described land labelled B [now the Shorts’ property] on the plan annexed as Schedule 2, to the intent that the said right to park shall be forever appurtenant to the first described land [now Ms Winter’s property], and the second described land shall be forever subject to the said right of way.
[5] The right of way is formally described at Schedule 3 of the memorandum of transfer as follows:
The full, free, uninterrupted and unrestricted right, liberty and privilege for the grantee, his servants, tenants, agents, workmen, licensees, and invitees from time to time and at all times by day and by night to park and leave parked vehicles or motor vehicles over the land marked B on the plan annexed as Schedule 2.
[6] The land marked B is now the Shorts land.
[7] I note for completeness that at the request of the parties I made a site visit.
The plaintiff ’s position
[8] Mr More for the plaintiff contends that in considering the proper interpretation of the easement, the Court must have regard to the circumstances existing at the time the easement was created. He then goes on to submit that the easement was created because there was no ability for the registered proprietor of the plaintiff’s land to park vehicles on her property. That is said to be still the case. There is evidence that the plaintiff proposes to undertake work on her property which will enable vehicles to drive on to it from the parking easement.
[9] He goes on to submit that the plaintiff must be entitled to access the carpark from her own property and that the fence proposed by the defendants would preclude that. The short point that he makes is that the easement is clearly in place for the
benefit of the dominant tenement and for the specific purposes of providing access to the dominant tenement to and from the carpark.
[10] Mr More also raised the prospect of a declaration that the fencing Act has no application. I do not pursue that further because it was not pleaded.
The defendants’ position
[11] The defendants submit:
(a) That the easement is void; and/or
(b) A fence is permissible.
[12] The defendants accept that the right to a carpark is capable of being an easement provided that it is made appurtenant to a dominant tenement, and the right is not so excessive as to exclude the servient owner and leave him without any use of the area in question for parking or anything else.1
[13] The defendants submit that the significant principle in play in the present case concerns whether or not the purported easement is so excessive as to exclude the servient owner or leave him or her without any use of the area in question. The defendants then submit that the grant is without any physical or temporal limitation and that it leaves the defendants without residual capacity to use of their land.
[14] Reference is made to the England and Wales Court of Appeal decision of Batchelor v Marlow2 where the Court held that the claimed right of parking would effectively deprive the servient owner of any reasonable use of his land and therefore was not capable of subsisting as an easement.3 Australian authorities are also cited in support of the proposition that an easement is invalid if it in effect robs the
servient tenement of the reasonable use of the land.4
1 Citing J Grant & P Morgan (eds) Gale on Easements (18th ed, Sweet and Maxwell, London,
2008 and Lyons v Breslin [2012] NZHC 366 at [38].
2 Batchelor v Marlow [2001] EWCA CIV 1051, [2003] 1 WLR 764.
3 At [19].
4 Refer Weigall v Toman [2006] QSC 349 at [13].
[15] On the issue of whether the defendants are able to fence the northern boundary, it is said that the plaintiff is effectively changing the nature of the parking easement into a right of way, if the purpose of the parking easement is to enable access directly onto the plaintiff’s property from the parking lot. This requires implying an ancillary right which is necessary for the effective enjoyment of the easement.
[16] The following observation of Lord Hope in Moncrieff v Jamieson5 is cited:
The question is whether the ancillary right is necessary for the comfortable use and enjoyment of the servitude. The use of the word “necessary” and “comfortable” strikes the right balance between the interests of the servient and dominant proprietors.
[17] The defendants state that it is clearly not necessary for the reasonable use of the parking easement for the plaintiff to have access to a property along the boundary of the parking lot. Mr Bates for the defendants says that the plaintiff only has to walk a few metres to enter her property.
[18] The plaintiff says in relation to the validity of the easement, that the indefeasibility of title and the clear words of the easement preclude a declaration of invalidity.
Assessment
[19] Given the shape of the argument before me, I must determine whether a fence that would prevent vehicular access through the northern alignment of the parking easement is allowed or should be allowed. As a first step I must resolve whether vehicular access is enabled by the parking easement.
[20] I take my guidance for the resolution of this matter from statements made by their Lordships in Moncrieff v Jamieson. In that case their Lordships were determining whether or not a right of access included an accessory right to park.
This case involves the reverse proposition, namely whether the right to park carries
5 Moncrieff v Jamieson [2007] UKHL 42 at [29].
with it an accessory right of vehicular access to the dominant tenement. Nevertheless, the same principled framework for assessment applies.6
[21] Lord Neuberger stated:7
Thus, there are cases where a right is implied where it is necessary for ‘the comfortable enjoyment’ or “the convenient and comfortable enjoyment” of the hereditament which is severed (as in Ewart), and there are cases where a right is implied because it is ‘reasonably necessary’ for the ‘exercise or enjoyment’ of an expressly granted right (as in Jones v Pritchard).
[22] He goes on to state in the same paragraph:
In the latter type of case, it seems to me important to focus on the dual nature of the requirement that the alleged implied right be ‘reasonably necessary’. Without the necessity, there would be the danger of imposing an uncovenanted burden on the servient owner, based on little more than sympathy for the dominant owner; without the reasonableness, there would be a danger of imposing an unrealistically high hurdle for the dominant owner. In the former type of case, it seems to me that the test is effectively the same: the references to “comfortable enjoyment” and “convenient and comfortable enjoyment” being equivalent to the reasonableness in the latter type of case.
(Emphasis in original)
[23] His Lordship observes further:8
In fact, it appears to me that these two types of case are no more than examples of the application of a general and well established principle which applies to contracts, whether relating to grants of land or other arrangements. That principle is that the law will imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties.
[24] Lord Neuberger then affirmed that the right test is what was “reasonably necessary for the comfortable enjoyment” of the grant.9
[25] Lord Hope in the same case elaborated on the approach to the key issue in this way:10
6 Though I accept that a right to park might be said to confer superior possessory right than a right to pass - hence the care the Court takes before implying such a right - Lyons v Breslin [2012] NZHC 366 at [35].
7 At [112].
8 At [113].
9 At [116].
10 At [30].
The third point is that, while the express grant must be construed in the light of the circumstances that existed in 1973, it is not necessary for it to be shown that all the rights that are later claimed as necessary for the comfortable use and enjoyment of the servitude were actually in use at that date. It is sufficient that they may be considered to have been in contemplation at the time of the grant, having regard to what the dominant proprietor might reasonably be expected to do in the exercise of his right to convenient and comfortable use of the property. In Pwllbach Colliery Company Ltd v Woodman [1915] AC 634, 643 Lord Atkinson said that what must be implied is what is necessary for the use or enjoyment, in the way contemplated by the parties, of the thing or right granted. Activities that may reasonably be expected to take place in the future may be taken into account as well as those that were taking place at the time of the grant. So the fact that very little, if any, use was being made of the servient tenement at that time for the parking of vehicles cannot be taken as an indication that the need to park vehicles there when Da Store became habitable cannot have been in contemplation.
[26] Accordingly, and in summary, I will examine whether a right of vehicular access directly from the dominant tenement to the parking lot is reasonably necessary for the enjoyment of the grant. This will be assessed by reference to the terms of the grant, the circumstances existing at the time of the grant and by reference to activities which could reasonably have been foreseen to take place in the
future.11
[27] I am grateful to counsel for the various other cases that they have cited to me. But the resolution of the case is essentially a fact specific exercise.
[28] Starting with the terms of the grant; given its significance, it is worth repeating in full:
The full, free, uninterrupted and unrestricted right, liberty and privilege for the grantee, his servants, tenants, agents, workmen, licensees, and invitees from time to time and at all times by day and by night to park and leave parked vehicles or motor vehicles over the land marked B on the plan annexed as Schedule 2.
[29] The memorandum of transfer also refers to “the right to park shall be forever appurtenant” to Ms Winter’s property, and the grant is described as a “right of way”.
[30] As can be seen on the face of the grant, Ms Winter has an unfettered right to park in the identified area. This sets a very broad frame for what might be
11 This coincides with the threshold applied by s371(1)(b) Property Law Act dealing with reasonable use of burdened land.
reasonably necessary in order to comfortably enjoy this right. Nevertheless, while it is broadly framed, it does not expressly refer to a right of passage to and from the servient tenement to the dominant tenement.
[31] The factors in favour of such a right include:
(a) An “unrestricted” right “to leave parked vehicles” connotes on its face
a right of access to, occupation of and egress from the area marked B;
(b) The “right of way” is appurtenant to or incidental to Ms Winter’s land
holding;
(c) A fence located on any part of the parking lot physically encroaches
upon an otherwise “unrestricted” right;
(d) Direct access to the parking right of way from Ms Winter’s property
is, objectively assessed, convenient for her;
(e) Direct vehicular access to the lot will enable Ms Winter to exit her property driving forward, while currently the location of the lot does not allow this without Ms Winter first reversing onto the defendant’s property;
(f) Alternate access from Ms Winter’s property to the shared driveway is
currently precluded by a concrete wall;
(g)When Ms Winter purchased her property, there was open access to the parking right of way with an existing fence separating the right of way from the balance of the Shorts’ property;
[32] Taken together, these facts strongly suggest that direct access to and from
Ms Winter’s property is a logical and reasonable use of the parking right of way.
[33] Balanced against this:
(a) At the time that the grant was made, a fence separated the properties.
A photo included in the common bundle illustrates that the fence was in the order of 1.8 to 2 metres in height. Therefore, at the time of the grant there was no vehicular or other access then in contemplation;
(b)Access to the parking lot has always been provided by way of right of way enjoyed by the plaintiff’s, the defendants’ and Mr Tombs’ lots. That access way was contemplated from the time of the grant and has been used since for the purposes of accessing the properties and the parking lot;
(c) Access directly from the dominant tenement is not strictly necessary for the purpose of use of the parking lot to enable a forward facing exit. The shared driveway abuts Ms Winter’s property and a simple reversing manoeuvre from her property onto the parking right of way could be undertaken (subject to physical improvements that would be needed);
(d)With vehicular access from the parking lot to Ms Winter’s property, the Shorts’ land could become a thoroughfare for vehicles passing across their land;
(e) An implied right to pass and re-pass over the parking lot would leave few residual rights to the Shorts.
[34] Having regard to the abovementioned factors, I am satisfied that it is vehicular access directly onto Miss Winter’s property is not reasonably necessary to enjoy the parking easement. The tipping points are as follows. First, the entire purpose of the parking easement was premised on the inability to park a car on the dominant tenement. Second, it is tolerably clear that at the time of the grant access to the parking lot was to be via the shared driveway. Third, given both these facts, vehicular access from the parking easement to her property could not have been reasonably in contemplation at the time of the grant. Fourth, there is currently convenient access to the parking easement from Ms Winter’s property. Fifth, direct
vehicular access could materially change the character of the effects of the use of the parking easement.
[35] I qualify these observations in the following respects:
(a) Pedestrian access to and from the parking lot is reasonably necessary to enable the comfortable enjoyment of the parking right of way. Objectively assessed, such access could have been reasonably foreseen at the time of grant, including for the purpose of loading and unloading goods. Furthermore, Ms Winter ought not to have to deal with other traffic as she exits her car and direct pedestrian access is reasonable in the circumstances.
(b)The defendants were right to offer up payment for the removal of the concrete structure preventing access from the shared right of way. My assessment of necessity and comfortable use of the parking easement has been influenced by the future capacity to provide alternative vehicular access via the shared right of way.
(c) The fence is an impediment to the reasonable use of the parking easement so the cost of the fence, including pedestrian gateway access, must be borne by the defendants.
[36] These factors are also relevant to whether a fence is a permissible encroachment into the parking easement. A right to fence is not expressly reserved to the defendants and any fencing cannot derogate from the “unrestricted” right to park. I am satisfied that subject to the conditions just mentioned, a fence will not materially derogate from that right.
[37] Accordingly, for the foregoing reasons, I consider that a right of direct access for vehicles from the parking lot on to the dominant tenement is not reasonably necessary for the purposes of enjoyment of the parking right of way. But pedestrian access must be provided, and the defendants must pay the costs of the removal of the concrete structure and the costs of the fence.
Validity
[38] In my view the argument for the defendants on validity must fail. I accept the submission made by Mr More that a registered interest in land is indefeasible, but for fraud. There is no suggestion of fraud in this case. This is important in two respects. Firstly, as a point of principle, a registered interest in land must be recognised and affirmed by this Court, save in respect of residual statutory powers to affect them, for example, under ss 317, 319 or 327 of the Property Law Act. I was not taken to any statutory provision compelling me to set aside this interest. But more importantly, the expectations of the parties in this case, as purchasers of land, must have been that their landholdings would be circumscribed by the terms of the registered interest in land. The terms are clear - a “full, free, uninterrupted and unrestricted right” was
granted.12
[39] Finally, I disagree with the contention that the parking right of way in effect extinguished any residual proprietary interest that the Shorts may have in the parking lot. On the contrary, Mr Tomb’s was able to meet the minimum lot size for the Shorts’ property by including the parking area within it. But for this arrangement, the Short’s freehold might not exist at all. This significant underlying benefit subsists whatever the outcome of these proceedings. It would be perverse in those
circumstances to now set aside the easement.13
Result
[40] A fence is permissible subject to:
(a) Pedestrian access directly to Ms Winter’s property through the
northern alignment of the parking easement. This must be sufficient to enable the loading and unloading of goods.
12 Cf. Weigall v Toman [2006] QSC 349 cited by Mr Bates. The Court in Weigall was dealing with both a registered and unregistered interest. The registered interest, allowing a garage, was deemed to be a proper easement. The unregistered right of way and car park was not.
13 Cf. Batchelor v Marlow [2003] 1 WLR 764 where a right of parking depriving a servient owner of reasonable use of land could not be established by prescription.
(b)Payment by the Shorts of the reasonable costs of the removal of the concrete structure currently precluding vehicular access to Ms Winter’s property from the shared accessway.
(c) Payment by the Shorts of the costs of the fence.
[41] I now invite the parties to agree on the appropriate wording for any declaration, including recognition of conditions stated at [40].
[42] As to costs, both parties indicated that costs according to scale at 2B would be appropriate. On reflection, in my view, both parties have had some partial success in this case. The plaintiff has secured pedestrian access, but the defendants are entitled to a fence. The defendants’ counterclaim has failed. In those circumstances I think costs should lie where they fall. If the parties disagree, they may file submissions.
Final comment
[43] Without in anyway wanting to aggravate matters, it seems plain to me that the circumstances now confronting the parties are considerably different from those confronting the grantor of the easement. Nothing I say in this judgment addresses the different question of whether the easement should be modified to allow restricted vehicular access in light of those changed circumstances, with consequential reduction in or cessation of permanent parking.
Solicitors:
Lucas & Lucas Limited, Dunedin
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