Ruby & Rata Ltd v Reed Trustee 2018 Ltd

• Jurisdiction: New Zealand
• Judge: O'Gorman J
• Judgment Date: 30 November 2023
• Neutral Citation: [2023] NZHC 3462
• Court: High Court
• Docket Number: CIV-2022-404-724

UNDER Section 313 Property Law Act 2007

Between

Ruby & Rata Limited

Plaintiff

and

Reed Trustee 2018 Limited and Anthony Privett Reed (as trustees of the Eagle Trust)

Defendants

[2023] NZHC 3462

O'Gorman J

CIV-2022-404-724

IN THE HIGH COURT OF NEW

ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Property — application for an order to create additional access points along a rural right of way — interpretation principles — relevance of further potential uses of the land — Property Law Act 2007

Appearances:

R O Parmenter for Plaintiff

J W Maassen and B D Mead for Defendants

The application was granted. RRL was entitled to have accessways at points specified.

JUDGMENT OF O'Gorman J

This judgment was delivered by me on 30 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

1 The parties are neighbouring landowners, in dispute about a right of way (ROW) involving two rural blocks of land in Pukekohe, Auckland:

• (a) The plaintiff, Ruby & Rata Ltd (Ruby), owns the land at 87 Ruebe Road (Lot 1, DP 443412), the land benefiting from the ROW easement. The plaintiff took title to 87A Ruebe Road on 7 May 2021.

• (b) The defendants are trustees of the Eagle Trust, which own the burdened land at 87A Ruebe Road (Lot 2, DP 443412). The trustees are Reed Trustee 2018 Ltd and Anthony Privett Reed. They took title to 87 Ruebe Road on 15 October 2021.

2 The full length of the ROW easement from the road to the other end is approximately 176 metres. There is already one accessway from the shared driveway onto Ruby's property, at location “X” on the annotated photo below (point X). The length of the easement from the road to point X is 55.5 metres. The photo shows a perspective from east at the bottom of the picture, to west at the top where the ROW driveway joins Ruebe Road. In the photo, Ruby's land is on the left (to the south), Eagle Trust's land is to the right (to the north). Eagle Trust's title includes the ROW, which is shown bounded in red.

3 This dispute is about whether Ruby is entitled to create another gated entry point to Ruby's property further along the shared driveway at a new point marked “Z” on the above annotated photo (point Z). The length from the road to point Z is 130.1 metres. Creating a gated entry at point Z would incidentally include removing a pūriri tree at the location marked “T”. Ruby wants to form new vehicular carriageways from the shared driveway to its own land at points X and Z. The intended works are described in the amended statement of claim (the intended works):

• (a) Remove the tree marked T, which, unreasonably, blocks Ruby's intended access at point Z.

• (b) Remove part of fence (posts and rails) as required but of approximately 12 metres width at each of points X and Z.

• (c) Form carriageways from the existing formed and sealed driveway to the boundary:

  • (i) for point Z, almost in a straight line up the driveway from Ruebe Road, from the existing formed driveway to the boundary; and

  • (ii) for point X, at an angle convenient to Ruby, from the existing formed driveway to the boundary which works are to be formed according to “Waikato District Council Approved Engineering Plan for Subdivision SUB0068/22 & ENGA0068/22” dated 20 October 2022.

4 Ruby claims that the above works are reasonable because Ruby is unreasonably inconvenienced by the present situation with only one accessway at point X. Examples of the impact on its present farming operations include:

• (a) Having to move stock around the back of its property instead of the shorter route through point Z.

• (b) Being unable to build a connecting farm track from point Z to meet with an existing track to the hay shed.

• (c) Being unable to access the hay shed, water tank and other areas of the land except by going the long way round.

• (d) Being unable to build cattle yards adjacent to the connecting farm track.

• (e) Having to run stock about one kilometre along road to neighbour's cattle yards with attendant risks and requiring at least five staff.

5 The defendants oppose the changes. Eagle Trust's position is that an accessway at point X in its current form is all that is reasonably necessary for Ruby's enjoyment of its own land and rights under the ROW. Given that point X already provides a point of entry to the Ruby land, Mr Reed does not see any further entry point as reasonably necessary for a single lot farm. Further, Mr Reed is concerned that Ruby is using this application as a backdoor implementation of future needs for:

• (a) a consented subdivision, to serve as an entry point for a future Lot 4; and

• (b) a consented commercial helicopter business that might be operated from a hangar planned to be located on the Lot 4 area of land.

6 Mr Reed considers that both those uses would be excessive and outside the scope of the existing easement. To address those issues, the defendants pursue a counterclaim, seeking to modify the existing easement by changing how the costs of maintaining the driveway are shared, limiting any further access points, and constraining ancillary services.

7 Ruby's position is that it currently owns only one lot, and its case in this proceeding is based on the changes being reasonable for its present farming operations. While Ruby may wish to proceed with the consented subdivision and helicopter business in the future (and it contends those uses would fall within the scope of the present easement), those are not matters for determination in this proceeding. It has many years to decide whether to carry out those future works, they may never occur, and Ruby has not addressed those speculative issues with evidence in this proceeding, because it is irrelevant. Ruby contends that the defendants' counterclaim to address those issues is premature, and orders of that nature would amount to a pre-emptive injunction without any proper basis.

Legal principles

8 The plaintiff's application is brought under s 313 of the Property Law Act 2007 (PLA). Section 313 confers on the Court the jurisdiction to make an order, on any conditions the Court thinks fit, concerning a question or dispute about the existence or effect of an easement, positive covenant, or restrictive covenant. That jurisdiction includes questions or disputes about:

• (a) the existence of an easement;

• (b) the enforceability of an easement;

• (c) the question of whether any work is required to be done under the terms of the easement, and the nature and extent of such work;

• (d) who should bear the cost of any required work;

• (e) the entry onto any land for the purpose of doing any required work and the use of vehicles or machinery on that land for the purpose of carrying out that work; and

• (f) any other matters arising in relation to a question or dispute concerning the existence or effect of an easement.

9 The defendants' counterclaim seeks orders modifying the existing easement under s 317 of the PLA. Section 317 confers on the Court a power to modify or extinguish (wholly or in part), an easement or covenant, if it is satisfied of matters specified in s 317(1).

10 The ROW in this case is subject to the Land Transfer Regulations 2002. 1 Regulation 10 implies certain rights and powers into different classes of easements, by reference to those set out in sch 4. Clause 6 of sch 4 sets out the rights and powers implied in rights of way:

6 Rights of way

• (1) A right of way includes the right for the grantee in common with the grantor and other persons to whom the grantor may grant similar rights, at all times, to go over and along the easement facility.

• (2) The right to go over and along the easement facility includes the right to go over and along the easement facility with or without any kind of—

  • (a) vehicle, machinery, or implement; or

  • (b) domestic animal or (if the servient land is rural land) farm animal.

• (3) A right of way includes—

  • (a) the right to establish a driveway, to repair and maintain an existing driveway, and (if necessary for any of those purposes) to alter the state of the land over which the easement is granted; and

  • (b) the right to have the easement facility kept clear at all times of obstructions (whether caused by parked vehicles, deposit of materials, or unreasonable impediment) to the use and enjoyment of the driveway.

[11] More general rights implied in all classes of easements are set out in cls 10-14 of sch 4.

[12] In addition, s 297 of the PLA implies further terms. 2 Section 297(1) provides that every grant of a vehicular right of way contains the implied covenants in sch 5,

subject to s 297(2) (which allows the implied covenants to be negatived, varied or extended). Clauses 1 and 2 of sch 5 of the PLA are particularly relevant in this case:

• 1 Right to pass and re-pass

• (1) The grantee and the grantor have (in common with one another) the right to go, pass, and re-pass over and along the land over which the right of way is granted.

• (2) That right to go, pass, and re-pass is exercisable at all times, by day and by night, and is exercisable with or without vehicles, machinery, and equipment of any kind.

• (3) In this clause, the grantee and the grantor include agents, contractors, employees, invitees, licensees, and tenants of the grantee or the grantor.

• 2 Right to establish and maintain driveway

  The owners and occupiers of the land for the benefit of which, and the land over which, the right of way is granted have the following rights against one another:

• (a) the right to establish a driveway on the land over which the right of way is granted, and to make necessary repairs to any existing driveway on it, and to carry out any necessary maintenance or upkeep, altering if necessary the state of that land; and

• (b) any necessary rights of entry onto that land, with or without machinery, plant, and equipment; and

• (c) the right to have...