Winter v Short - [2013] NZHC 778

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…

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 Winter v Short

Details

AGLC: Winter v Short [2013] NZHC 778
Case: [2013] NZHC 778
Decision Date: 19 April 2013

CaseChat Overview and Summary

In the case of Winter v Short, Helen Winter, the plaintiff, sought a declaration that a fence proposed by Robert and Pamela Short, the defendants, along the northern alignment of a parking easement would constitute a breach of the easement. The defendants, on the other hand, raised a counterclaim seeking a declaration that the parking easement was invalid. The High Court of New Zealand, Dunedin Registry, was tasked with determining the validity of the easement and whether the proposed fence would breach the easement. The court found that while the defendants were entitled to erect a fence, it must be subject to certain conditions to ensure pedestrian access and the removal of a concrete structure that currently precludes vehicular access to Ms Winter's property from the shared access way. The defendants were also ordered to pay the costs of the fence.

The court first assessed whether the proposed fence would breach the parking easement. The court found that vehicular access directly onto Ms Winter's property was not reasonably necessary to enjoy the parking easement, as the primary purpose of the easement was to provide parking space when there was no ability to park on the dominant tenement. However, the court held that pedestrian access must be provided to enable the comfortable enjoyment of the parking right of way. The court also found that the fence was 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.

The court then turned to the validity of the parking easement. The court rejected the defendants' argument that the easement was void, stating that a registered interest in land is indefeasible, except for fraud. The court found that there was no suggestion of fraud in this case and that the expectations of the parties, as purchasers of land, must have been that their landholdings would be circumscribed by the terms of the registered interest in land. The court also disagreed with the contention that the parking right of way extinguished any residual proprietary interest that the Shorts may have in the parking lot, stating that the significant underlying benefit of the parking area still subsists.

In conclusion, the court held that a fence is permissible subject to certain conditions, including pedestrian access directly to Ms Winter's property through the northern alignment of the parking easement, payment by the Shorts of the reasonable costs of the removal of the concrete structure, and payment by the Shorts of the costs of the fence. The defendants' counterclaim was dismissed, and the costs were ordered to lie where they fall.

Orders