Porteous v Kaipara District Council

 
FREE EXCERPT

[2013] NZEnvC 021

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge LJ Newhook sitting alone pursuant to s 279 of the Act

In the Matter of an appeal under Section 120 of the Resource Management Act 1991 (the Act)

BETWEEN
GA & LR Porteous (ENV-2012-AKL-000020
Appellants
and
Kaipara District Council
Respondent

and

B & L Money
Applicants
Submissions by:

Mr P Cavanagh QC for the appellants Mr

AMB Green for the respondent Mr JC

Dawson for the applicants

Appeal from a decision by an independent hearing commissioner granting consent to subdivide a property — preliminary issue raised by appellant was whether the use of the existing access lot could be used to service other land owned by the applicants which was proposed to be used in the subdivision — common access lot owned equally as tenants in common by the appellants and the applicants — respondent council had imposed a condition requiring the survey plan to show that the one half share in the access lot was to be held as three undivided shares — whether s298 Property Law Act 2007 (rights of proprietors of access lot that is or includes driveway or proposed driveway) allowed for such access — whether interest in the common access lot could be transferred with the consent of the respondent — whether the Environment Court should determine the interpretation of provisions relating to private property rights.

The issue was whether the common access lot provided access to land beyond that for which it was created.

Held: Interpretation of provisions of law concerning private property rights relating to common access ways and rights of way was not generally the province of the Environment Court “EC”. Such interpretation was in essence what P had asked the Court to do, because he submitted that if the Court was to rule in his favour on this preliminary point, there would be no need for the substantive appeal to proceed to a hearing. The EC would provide a tentative ruling in reliance on its jurisdiction under s220 RMA, in the hope that it might guide the parties as to the efficacy of continuing with the substantive appeal or not. If a formal ruling was needed on the point another Court would have to be approached.

Mikitasov v Collins held that a right of way was breached when the right of way itself was used for a reason other than the reason for which it was created and that the use of the right of way was for the enjoyment of the dominant tenement, not for the enjoyment of other land. The use of the words “subdividing owner” in s220(1)(b) RMA were of note because the Council had imposed a condition affecting rights beyond those of the subdividing owner, that was the rights of P as a tenant in common in the access lot. In any event, the clear operation of s298(2) PLA and clause 1 Schedule 5 PLA, set up the operation of the principle of law discussed and held in Mikitasov. The access strip was unlikely to offer access beyond the existing lots. If confirmed by a court in the civil jurisdiction, the pursuit of the application might be at best an academic exercise.

Applicants directed to advise the Court and parties about whether they wished to pursue their application within 20 days.

  • A. Indication that access strip unlikely to offer legal access to land beyond the existing Lots 2 and 3.

  • B. Costs reserved (subject to the question of whether there is jurisdiction to grant same in any event).

PRELIMINARY INDICATION ON POINT OF LAW
REASONS FOR INDICATION
Introduction
1

The appellants have appealed a decision by an independent hearing commissioner of the respondent granting consent to an application by the applicants to subdivide a property between Claude Street and Kanuka Street, Mangawhai.

2

Part of the land proposed to be subdivided is accessible from the head of Kanuka Street, a cul de sac, by way of a common access lot owned equally as tenants in common by the appellants and the applicants. Another part of the property proposed to be subdivided has legal access from Claude Street which may have been constrained by the building of a house near the street frontage.

3

The appellants oppose the use of the common access lot to service land beyond that for which the common access lot was created.

4

The preliminary legal issue raised by the appellants is as to whether the existing common access lot can, as a matter of law, be used to provide access to that further land previously accessed only from Claude Street.

5

I regret the time that it has taken to provide this preliminary ruling to the parties. It has to be said that the parties somewhat tied themselves in knots over the legal issues, but regrettably by the time they had completed filing their submissions some months ago, the need for a decision had gone off my radar. As I say, this is regretted.

Jurisdiction to make this ruling
6

Interpretation of provisions of law concerning private property rights (as for instance here, relating to common accessways and rights of way), is not generally the province of this Court. 1 Such interpretation was in essence what Mr Cavanagh was asking this Court to do, because it was his submission that if the Court was to rule in his favour on this preliminary point, there would be no need for the substantive appeal to proceed to a hearing.

7

Underpinning his submission was no doubt his perception of the somewhat interlocking nature of some provisions of the Property Law Act 2007 with the Resource Management Act 1991, in particular s 298 of the former, and s 200 of the latter. More about that later.

8

I will proceed to record my tentative findings on the matters argued, drawing on the jurisdiction this Court does have concerning s200RMA, and in the hope that this might guide the parties as to the efficacy of continuing with the substantive appeal or not. Regrettably if a formal ruling is needed on the point I am currently considering, another Court would have to be approached. I hope, however, that I will have been able to take matters far enough to provide some reasonably clear guidance.

Can the common access lot provide access to land beyond that for which it was created?
9

An understanding of this “ruling” will be assisted by providing two attachments:

  • A. A copy of DP 143 076, the 1990 subdivision that created the current configuration of the land.

  • B. The plan of proposed subdivision dated November 2011

10

Looking first at attachment A, the existing pattern of subdivision, the applicant owns lots 1 and 2. The appellants own lot 3. The common access lot serving lots 2 and 3, is the narrow strip, lot 4.

11

As can be seen from attachment B, the applicant now controls the boomerang shaped piece of land that includes the existing lots 1 and 2, and proposes a subdivision of that. Leaving aside the lot that holds an existing dwelling on Claude Street (which dwelling evidently prevents or limits access to the balance of the existing lot 1), would create two lots either partly or wholly not previously served by

the common access lot. The proposed lot 2 is that which was not previously so served, and proposed lot 3, partly so.
12

Submissions on behalf of all parties focussed heavily on s 298 of the Property Law Act 2007, which is entitled “Rights of proprietors of access lot that is or includes driveway or proposed driveway”. The...

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