Breslin v Lyons [2013] NZCA 161 (17 May 2013)

Last Updated: 22 May 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA189/2012 [2013] NZCA 161

BETWEEN MARTIN PAUL BRESLIN AND SHAYLE CHAMBERS Appellants

AND PETER JOHN LYONS AND SUSAN MAREE LYONS Respondents

Hearing: 12 March 2013

Court: Harrison, Stevens and White JJ

Counsel: P J Dale for Appellants K A Muir and L G Cox for Respondents

Judgment: 17 May 2013 at 2.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

2. The appellants must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.
   

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellants, Martin Breslin and Shayle Chambers,[1] and the respondents, Peter and Susan Lyons, own adjoining residential properties in Milford on Auckland’s North Shore facing over the Hauraki Gulf. Vehicular access to both properties is from Kitchener Rd down a long, shared driveway formed over rights of way granted reciprocally over the titles to each property. However, unlike the Lyons, Mr Breslin is physically unable to drive a vehicle on to his property or park one there. His attempts to overcome this problem have generated an escalating dispute with the Lyons over rights of access.
[2] In the result the Lyons issued a proceeding in the High Court. Following a nine day trial, Priestley J delivered a comprehensive judgment in the Lyons’ favour.[2] Mr Breslin now appeals against the Judge’s dismissal of his cross-applications for (a) a declaration that the right of way easement granted over his title entitles him to park vehicles permanently on that land; or (b) an order under s 327 of the Property Law Act 2007 (the PLA) granting reasonable access to his property because it is landlocked.
[3] At the parties’ request, Priestley J twice viewed the properties.[3] Mr Dale requested us to follow the same course. Mr Muir initially opposed[4] but by consent we viewed the properties with counsel. That step was appropriate in the circumstances of this case, particularly given that Priestley J’s views formed part of the evidence in the High Court,[5] but will not necessarily be so in all cases involving similar issues. In this case our view also assisted in understanding the factual context for the appeal.

Facts

[4] The undisputed facts are narrated in detail in Priestley J’s judgment: we are able to recite them in more summary form for the purposes of this appeal. For ease of reference we have appended the same diagram of the area as was incorporated in Priestley J’s judgment.
[5] Mr Breslin owns 31 Kitchener Rd, Milford; the Lyons own 33 Kitchener Rd. Both properties are served by adjacent rights of way from Kitchener Rd which were created by the same instrument of transfer in 1945. The Lyons and Mr Breslin each own parallel strips of land about 75 metres long and 2.13 metres wide, together forming a common driveway to the boundaries of their respective properties. The instrument entitles each owner to “go, pass, and repass, through, over and along the right of way” granted by the other. In effect, each party enjoys an identical or mirror right to use the other party’s strip of land for access to their properties. The Lyons’ title includes a garage on Kitchener Rd abutting the entrance to Mr Breslin’s side of the rights of way.
[6] Both parties were physically unable to drive vehicles onto their properties when they were purchased in 2008. That is because there was a vertical three metre drop where the end of the rights of way abutted the boundary to the Lyons’ land. And legal and physical constraints affect Mr Breslin’s property. There is no direct access to the dwelling from the end of the rights of way where it abuts the boundary; access is restricted to an 18 metre long and 2.13 metre wide walkway running at a right angle across the face of the drop. Occasional vehicle access remains available to both properties along a public coastal walkway in front of the properties under an existing arrangement with the Auckland City Council.[6]
[7] Mr Breslin’s property is also subject to an easement created in 1952, giving an appurtenant right of way to the four owners of the freehold and leasehold interests in an adjoining property (25 Kitchener Rd). It is separated from the shared rights of way by a high fence penetrated only by a pedestrian gate. Its purpose is to provide emergency access for ambulances and fire engines. But this restriction does not apply to the Lyons’ property.
[8] Mr Breslin took legal advice before signing the agreement to purchase. He knew when he was negotiating its purchase that he had no drive-on access to his property. Mr Breslin and the Lyons later entered into what Priestley J called desultory discussions about resolving access problems. Among the proposals raised were for one party to buy out the other or for possible boundary adjustments. However, nothing eventuated.
[9] During 2009 the Lyons began to construct a new home on their property. Tensions arose about the use of the shared driveway. Following a defended hearing in March 2010, Ellis J granted the Lyons an interim injunction after confrontations between their contractors and Mr Breslin’s tenant.[7] As construction proceeded, the Lyons formed a steep curving driveway from the end of the mutual rights of way, allowing them to drive vehicles on and off their property. In the result the Lyons enjoy direct vehicular access from the end of the rights of way on to their property but Mr Breslin and his invitees do not.
[10] Mr Breslin’s case at trial was focussed primarily on his application for an order granting reasonable access to his property. However, at a late stage he was granted leave to apply for a declaration that he and his visitors are entitled to park vehicles permanently on his strip of the shared rights of way providing that such parking does not substantially obstruct the Lyons’ right of access over that land.

Issues

(a) Rights of way

[11] The first issue is whether Priestley J erred in declining Mr Breslin’s application for a declaration relating to the rights of way. The Judge captured the rationale for Mr Breslin’s application in this way:

[32] Mr Breslin’s asserted right to park motor vehicles permanently on the right-of-way relates to whether number 31, for landlocked land purposes, has reasonable access. The undoubted inconvenience facing occupiers of number 31 of having to park their vehicles on Kitchener Road, Audrey Road, or neighbouring streets and return to their home by walking, would be mitigated somewhat if occupants’ vehicles could be parked permanently at the end of the right-of-way. Indeed Mr Dale accepts that if Mr Breslin can so park, number 31 will have reasonable access.

[12] The Judge identified two apparent obstacles to Mr Breslin’s application. One lay in the wording of the transfer and grant of easement which relevantly transferred and granted:

... unto [the other party] and the registered proprietor for the time being ... and to his/her and their tenants, servants, agents, workmen, and visitors from time to time and at all times hereafter at his/her or their will and pleasure the full and free right and liberty to go, pass, and repass, through over and along [see relevant portion of the deposited plan] to the end and intent that the right-of-way hereby created shall be forever hereafter appurtenant to [the other party’s lot].

[13] The other obstacle was in the evidence, for this reason:

[34] An obvious reason for excluding permanent parking from the ambit of the easement is the likelihood of obstruction, which would be totally inconsistent with the freedom and ease of passage that the easement creates. Certainly on the evidence (to which I shall return), there has been a history in recent years of various occupants of number 31 parking motor vehicles overnight on the right-of-way. The width of the right-of-way would allow a vehicle to remain parked on it without causing obstruction only in certain circumstances. Those circumstances would include the vehicle being of modest width; probably its wing mirrors being retracted; and certainly one side of the vehicle being very close to a right-of-way fence – so close that the door closer to the fence could not be significantly opened. Even if those criteria were met, however, a larger motor vehicle would find it difficult to drive past the parked vehicle.

[35] The issue of obstructing the right-of-way is critical. Clearly the rights of passage conferred by an easement would be nugatory if there were obstructions. The requirement for a right-of-way to be free of obstructions is reinforced by cl 2(c) of schedule 5 of the Property Law Act. ...

(Footnotes omitted)

[14] In the event Priestley J found against Mr Breslin on both grounds. He was satisfied that (a) properly construed, the wording of the easement excluded the right of the owner of the servient tenement to park;[8] and (b) in any event, as a matter of fact, vehicles parked in that area cause and were likely to cause an unreasonable impediment to its use and enjoyment.[9]
[15] Mr Dale mounts a wide-ranging challenge to Priestley J’s findings. On analysis, it seems to narrow to two grounds.
[16] First, Mr Dale submits that as owner of his strip of the right of way (in legal terms, the servient tenement) Mr Breslin and his invitees are entitled to park vehicles there; that Mr Breslin’s right as proprietor effectively trumps the Lyons’ contractual right to use his land (the dominant tenement); and that the easement was intended to restrict its benefit to a personal right to the owner of the dominant tenement to use the driveway for vehicular access because of a family relationship, but that this right was not intended to run with the land and carry through to a subsequent owner.
[17] In elaboration, Mr Dale submits that the correct legal position is that (a) the original owners granted a right of way to the owner of what is now 31 Kitchener Rd to include vehicular access; (b) when 33 Kitchener Rd was formed a right of way without vehicular access was created; and (c) because 33 Kitchener Rd was occupied by a relative named Betty Wright, the parties agreed to give her, solely in her capacity as present owner, rights of vehicular access but that personal right was never noted on the title to 33 Kitchener Rd and did not survive Mrs Wright’s death.
[18] Accordingly, Mr Dale says, the parties likely turned their minds to the question of vehicular access when the rights of way were created, and more probably than not Mrs Wright was given the right to use the driveway on wider terms only because of the family relationship. Such a right was purely personal to her and was not intended to pass to any subsequent owner. If that is so, there is no reason why Mr Breslin as owner of 31 Kitchener Rd cannot park on his land, since the only rights accorded to 33 Kitchener Rd were for pedestrian and not vehicular access.
[19] Mr Dale did not apparently give this argument prominence before Priestley J. As Mr Muir points out, Mr Dale had run the argument earlier – at the interim injunction hearing before Ellis J. She rejected it in these terms:

[52] I do not find this argument persuasive. The terms of the grants clearly indicate to me that they were intended to be equal and opposite; there is no suggestion whatsoever that the residents of 33 Kitchener Road were intended to have fewer rights than the residents of 31 Kitchener Road. The residents of both properties had equal need of the right of way to access their respective dwellings; both were effectively the same distance from the nearest roads. While there are presently restrictions on parking on Kitchener Road around the entrance to the right of way (which mean that the defendants potentially have further to walk from their cars than the plaintiffs, if use of the garage is made) there was no evidence before me as to whether those restrictions existed at the time of the grant.

[53] In these circumstances it is not reasonable to suppose that it was intended that the residents of number 33 would carry their groceries by foot up the 75 metre driveway from the garage while the residents at number 31 would be permitted to drive to and park at the end of the driveway nearest the two houses. I have already referred to established authority for the proposition that vehicular access is to be regarded as encompassed in a general grant of the kind at issue here.

[20] Mr Breslin did not lead evidence at trial on the historical background to the creation of the easements. Thus there is no factual basis for upholding his claim that the parties intended to create a purely personal right in favour of the owner for the time being of 33 Kitchener Rd. The memorandum of transfer creating the easement complied with the relevant statutory requirements then in force;[10] accordingly it permanently binds the title to Mr Breslin’s property. The terms of the grant are unequivocally for the benefit of “... the registered proprietor for the time being ... and his/her [invitees] ... to the end and intent that the right-of-way hereby created shall be forever hereafter appurtenant to [33 Kitchener Rd] ...” (emphasis added). And registration of the easement against the title would have been a futile exercise if the grant was purely personal; as Mr Muir points out, an unregistered personal licence would have sufficed.
[21] Mr Dale’s submission is based upon speculation,[11] not evidence, and cannot displace or vary the plain terms of the easement: it must fail accordingly.
[22] Second, Mr Dale appears to challenge Priestley J’s factual finding that parking vehicles on Mr Breslin’s area of the servient tenement had caused and was likely to cause an unreasonable impediment to the Lyons’ use and enjoyment of it. Mr Dale acknowledges a degree of interference but says that could only have been moderate given its dependence on the type and size of the vehicle. He emphasises that most vehicles are narrower than the width of Mr Breslin’s half of the right of way. He relies on Ellis J’s observation,[12] based on her own view of the property, that it is possible to park a car on parts of Mr Breslin’s land with room for another vehicle to pass. He concludes with the proposition that all that is required is a finding that Mr Breslin is entitled to park vehicles on his land and, given his unassailable right to use it, Mr Breslin can only be prevented from parking vehicles there if there is actual interference – on the facts, that is unlikely to occur.
[23] In our view the terms of the grant must provide the necessary framework for considering Mr Dale’s submission. The grant conferred on the Lyons a “... full and free right and liberty to go, pass and repass, through over and along [Mr Breslin’s land] ...”. The correct legal inquiry then is whether Mr Breslin is seeking a declaratory remedy in derogation of this grant: the principle of non-derogation operates to prohibit a party who has granted another a right of property, by whatever instrument, from doing something inconsistent with the grant and substantially interfering with the property right which has been granted.[13] While the principle is essentially negative in character – that is, the grantor is not required to take positive steps to assist the grantee – it reflects the aphorism that “a man may not give with one hand and take away with the other”.[14]
[24] To the extent of the grant of easement, Mr Breslin has surrendered to the Lyons an ordinary incident of ownership of his property for as long as the easement exists. Mr Breslin can only use his servient land in a way that does not derogate from the Lyons’ right to pass and repass over his property. Parking a vehicle permanently there will create an obstruction to that right if, as a matter of fact, it will hinder the Lyons’ use of the area for access to their property. That would constitute a substantial and thus unlawful interference with the rights of freedom and ease of passage conferred by the grant, amounting in law to a derogation from it.
[25] The Lyons’ contractual right is reinforced by cl 2(c) of sch 5 of the PLA, implied in the subject instrument by s 297 of that Act, which provides the owner of the dominant tenement with the right:

... to have that land at all times kept clear of obstructions, whether caused by parked vehicles ... or unreasonable impediment to the use and enjoyment of the driveway.

[26] Priestley J approached this issue by considering whether the grant created by the easement entitled Mr Breslin to park on his servient land, reviewing the leading authorities and texts on whether the grant of the right (to pass and repass) includes a right to park.[15] However, with respect, the question is not whether the grant created a right to park: the relevant right conferred by the grant is to the Lyons’ benefit to “go, pass and repass”. As grantor, Mr Breslin did not acquire any rights from his own grant in a third party’s favour. The question, as noted, is whether Mr Breslin is seeking to derogate from his grant.
[27] In this regard we note Priestley J’s obiter statement that:

[41] Although not a point submitted by counsel, it might be possible to argue that an owner of the servient tenement, Mr Breslin, is entitled to park on his strip of land comprising the right-of-way. This would accord with the “all-important civiliter principle” that a dominant tenement’s reasonable use of the right-of-way must not interfere with the servient tenement’s rights as owner. Given that the ability to occupy one’s land is an incidence of ownership, perhaps a right-of-way should not prevent Mr Breslin from parking on his land.

(Footnote omitted and emphasis added.)

[28] The Judge’s restatement of the “all important civiliter principle” was drawn from the House of Lords decision in Moncrieff v Jamieson.[16] That decision was given in a very different and factually complex context – the dispute was about whether an instrument of grant, allowing the dominant tenement a right of access from a branch public road, included an accessory right to the grantee to park vehicles on the servient land.[17] In the unusual circumstances, the House of Lords was satisfied that an express grant of the right of vehicular access over servient land entitled the dominant owner to park cars there, because otherwise the right would have been effectively defeated. The decision was primarily one of contractual construction.
[29] It was within this factual setting that Lord Scott in Moncrieff stated that the civiliter principle:

[45] ... limits the [dominant owners] use of the servient land to a reasonable use but enables the [servient owners], subject only to an obligation not to interfere with that reasonable use, to make whatever use they wish of their servient land.

...

[47] ... a qualification I would derive from the all important civiliter principle, is that the right [of limited use of a neighbour’s land] must be such that a reasonable use thereof by the owner of the dominant land would not be inconsistent with the beneficial ownership of the servient land by the servient owner.

(Emphasis added)

[30] With respect, Priestley J stated the civiliter principle too strictly and Mr Dale was correct not to rely upon it. Lord Scott’s qualification on its nature and extent is critical. The principle simply requires that the dominant tenement’s use of the servient land be reasonable. Provided the use is for the agreed purposes of access within the meaning of the grant, it could not be unreasonable or inconsistent with Mr Breslin’s right of beneficial ownership, or to use Lord Scott’s words in Moncrieff “an undue interference with the servient tenement’s enjoyment of his own land”,[18] where the land is expressly subject to that particular burden in the Lyons’ favour. Any interference by Mr Breslin with the Lyons’ proper exercise of that right would constitute an actionable nuisance.
[31] Our conclusion on this point is determinative of this ground of Mr Breslin’s appeal. However, we add that we are not satisfied that Priestley J erred in his factual findings,[19] reaffirmed in part on his own view of the property that:

[47] As Ellis J observed at [15] of her judgment it is possible to park the car on parts of the right-of-way with room for another car to pass. However, as was evident in my own site visit, were a car to be commodiously wide, or to have its wing mirrors extended, or not be parked hard up against the fence, there would undoubtedly be an obstruction. The evidence of the Lyons’ expert witness, Mr W J Edwards, traffic engineer, was to the effect that two 90th percentile cars could pass each other. I accept that evidence. Nonetheless, the size of the two passing vehicles (if one for instance was over the 90th percentile), and the manner in which a stationary vehicle was parked are all critical to whether or not the right-of-way might be obstructed.

(Footnote omitted)

[32] Having had the benefit of the same view, we see no reason to differ from the findings made by Ellis J and Priestley J. Both are consistent with the latter’s conclusion that the reasonable possibility that a car parked on Mr Breslin’s land may prevent the Lyons from driving along the right of way is likely to be enough to interfere substantially with their rights.[20]
[33] We add that, while the point was not made in argument before us, Mr Breslin’s submission is problematic in any event given the separate and additional burden on his title created by the easement in favour of the four properties at 25 Kitchener Rd.[21]
[34] This first ground of appeal must fail.

(b) Landlocked land

[35] The second issue is whether Priestley J erred in dismissing Mr Breslin’s application for a declaration that his property was landlocked land, justifying an order granting reasonable access.[22]
[36] The relevant statutory provisions of the PLA are as follows:

326 Interpretation

In this subpart,—

landlocked land means a piece of land to which there is no reasonable access

reasonable access, in relation to land, means physical access for persons or services of a nature and quality that is reasonably necessary to enable the owner or occupier of the land to use and enjoy the land for any purpose for which it may be used in accordance with any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the Resource Management Act 1991.

327 Owner or occupier of landlocked land may apply to court

(1) An owner or occupier of landlocked land may apply to a court for an order under section 328(1) granting reasonable access to any such land.

...

328 Court may grant reasonable access to landlocked land

(1) A court, on an application under section 327, may—

(a) make an order granting reasonable access to the landlocked land; and

(b) for that purpose, specify in the order that—

(i) any other piece of land (whether or not adjoining the landlocked land) must be vested in the owner of the landlocked land; or

(ii) an easement over that other piece of land must be granted for the benefit of the landlocked land.

...

329 Matters court must consider in determining application for order for reasonable access

In determining an application for an order under section 328, the court must have regard to—

(a) the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:

(b) the circumstances under which the land became landlocked:

(c) the conduct of the parties, including any attempts they have made to negotiate reasonable access to the landlocked land:

(d) the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that would be caused to any other person by the making of an order:

(e) any other relevant matters.

[37] In summary, the Court is required to undertake a two stage sequential inquiry into, (a) whether the subject land is landlocked because it is a piece of land to which there is no reasonable access; and, if so, (b) whether in its discretion it should make an order granting reasonable access after taking into account all the mandatory criteria.
[38] Determination of a claim for this type of statutory relief requires an essentially factual enquiry. On appeal due weight must be given to the first instance findings made by a Judge who has enjoyed the real benefit of seeing and hearing a number of witnesses and evaluating all the relevant evidence. Here, after reviewing the relevant facts and viewing the properties for himself, Priestley J concluded that Mr Breslin failed at the first or threshold step. He was not satisfied that Mr Breslin’s land did not enjoy reasonable access.
[39] Priestley J expressed his conclusions in these terms:

[78] My conclusion is that Mr Breslin’s property at 31 Kitchener Road enjoys reasonable access, being access reasonably necessary to enable its owners and occupiers to use and enjoy the land (s 326). It is therefore not landlocked for the purposes of s 327. My reasons for so concluding, are largely self-evident from my analysis of the evidence and principles and are as follows:

[a] Since 1944, and certainly from the time a house was built on it, number 31 has always enjoyed pedestrian access.

[b] The rights for motor vehicles of owners and occupiers of number 31 to drive up and down the right-of-way created in 1944 and to stop vehicles for the purposes of unloading or loading people and goods are indisputable and secure as a matter of law.

[c] Although drive-on access and parking on-site is not available to the owners and occupiers of number 31, vehicles can reasonably be parked in neighbouring streets (particularly in Audrey Road). While this may be inconvenient, such inconvenience does not diminish in any significant way the use and enjoyment of number 31.

[d] Although, as I have ruled, Mr Breslin has no legal right to park permanently or overnight on the right-of-way, occasional parking, of a non-obstructive nature, has always been a negotiated option available to the owners of numbers 31 and 33.

[e] Although not a disqualifying factor, Mr Breslin was fully aware of the absence of on-site access and parking when he purchased the property.

[f] The requirement to park in Audrey Road or elsewhere and to enter the property by foot along the coastal walkway or down the right-of-way, although occasionally inconvenient and involving a few minutes more time, is not hazardous, nor a hardship, or more onerous than anything faced by thousands of other New Zealand occupiers not blessed with driveways, garages, on-site parking or dedicated car parks.

(Our emphasis)

[40] We have italicised the three passages from Priestley J’s conclusion with which Mr Dale expressly disagrees in support of his argument that the Judge erred by:

• (a) overlooking the fact that while there has always been pedestrian access, there was also a right to park on the driveway, the evidence regarding increasing traffic density on Kitchener Rd and the increasing number of urban dwellings in the area with a corresponding diminution in the availability of car parks;
• (b) failing to recognise the impracticality of driving up the driveway to load and unload and then having to reverse down the driveway and locate a park;
• (c) finding that parking in Audrey Rd is reasonably practicable in circumstances where it is at least 100 yards away from 31 Kitchener Rd and there is limited available parking;
• (d) placing insufficient weight on the evidence that entering the property by foot along the coastal walkway was not practical and hazardous in inclement weather; and
• (e) placing weight on the absence of onsite parking as at the time of purchasing the occupants were permitted to park on the driveway.

[41] We can deal with this ground of Mr Breslin’s appeal shortly. Priestley J found that:

[77] It is important to note that vehicular access to a property is not necessarily the same as drive-on access. It is clear that number 31 is accessible by vehicles, particularly down the right-of-way. What is impossible (and has always been impossible without acquiring land from adjoining property owners) is the ability to drive on to the property. Any assessment of the merits of Mr Breslin’s claim must bear in mind the distinction between vehicular access and drive-on access. As was clear from the valuation evidence I heard (and doubtless reflected in the asking price of number 31, before negotiation, when Mr Breslin was interested in it) the inability to drive on to number 31 inevitably diminishes its value.

(Footnote omitted)

[42] In our judgment the distinction drawn by the Judge is correct and goes to the heart of the case. When stripped to its essence, Mr Breslin’s claim is that his land is landlocked, not because he is unable to drive a vehicle to the boundary, but because he is unable to drive a vehicle from there on to the property. In terms of the statutory definition, Mr Breslin, like his predecessors in title, enjoys physical access of a nature and quality that is reasonably necessary to enable him to use and enjoy the land for any purpose for which it may lawfully be used. He has an absolute and unimpeded right to drive vehicles to his land. That right is different from a right to park a vehicle on his land. The latter is not relevant to whether Mr Breslin has reasonable access in terms of s 326 of the PLA.
[43] In our view, this distinction is decisive. The particular grounds identified by the Judge, including those with which Mr Dale takes issue, are more of circumstantial than actual relevance. In any event, we agree with Priestley J’s identification and reliance on grounds (a), (b), (c) and (f) as reaffirming his primary conclusion that Mr Breslin’s property is not landlocked.[23]
[44] In this respect, we add that if we had concluded that Priestley J had erred at the first stage – that is, on whether the land was landlocked – we would have likely exercised our discretion against Mr Breslin at the second question. His knowledge when purchasing the property that he did not have a right of onsite access and parking is a factor pointing persuasively against an order.[24] Parties who purchase properties knowing that they have no right of vehicular drive-on access cannot reasonably expect to extend their legal rights and improve the value of their asset following purchase primarily for reasons of frustration or inconvenience.
[45] This ground of appeal must fail also.

Result

[46] The appeal is dismissed.
[47] The appellants must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:
Glaister Ennor, Auckland for Appellants
Morgan Coakle, Auckland for Respondents

[48]

Solicitors:

---

[1] Messrs Breslin and Chambers, apparently in their capacities as trustees, are the registered owners of the property but it is generally described as belonging to Mr Breslin. We shall refer to it throughout this judgment as his property.
[2] Lyons v Breslin [2012] NZHC 366, (2012) 13 NZCPR 181.
[3] Evidence Act 2006, s 82; and High Court Rules, r 9.34.

[4] On the grounds that it was doubtful whether this Court could or should do so: see Court of Appeal (Civil) Rules 2005, rr 45 and 47.
[5] Evidence Act, s 82(5).
[6] Lyons v Breslin, above n 2, at [5] and [28]. This walkway runs from Audrey Rd; the walkway is regularly used by Council trucks to access a sewage pumping station which lies to the south of the appellants’ and respondents’ properties. Under the arrangement with the Council the parties have access to a hidden key to unlock the padlocked gate to the walkway.
[7] Lyons v Breslin [2010] NZHC 477; (2010) 11 NZCPR 262 (HC).
[8] At [44].
[9] At [47].

[10] Section 82 of the Land Transfer Act 1915 was then in force. The memorandum of transfer was entered in the Register book on 16 February 1945.

[11] Mr Dale’s written synopsis relies on the memorandum of transfer creating the easement for 25 Kitchener Rd, referred to above at [7], rather than the instrument creating the subject easement. He did not develop a supporting argument based upon the former instrument and his synopsis acknowledges the point as “academic”.
[12] At [15].

[13] Mount Cook National Park Board v Mount Cook Motels Ltd [1972] NZLR 481 (CA); Tram Lease Ltd v Croad [2003] 2 NZLR 461 (CA) at [24]; and Aoraki Water Trust v Meridian Energy Ltd [2005] 2 NZLR 268 (HC).

[14] Southwark London Borough Council v Mills [2001] 1 AC 1 (HL) at 23 per Lord Millett, discussing the principle in a lease context.
[15] At [37]–[40].
[16] Moncrieff v Jamieson [2007] UKHL 42, [2007] 1 WLR 2620.
[17] See at [3] and [20] per Lord Hope.
[18] At [45].
[19] At [34] and [35], set out above at [13].
[20] At [43].
[21] See above at [7].
[22] At [78]–[80].
[23] At [78], set out above at [39].

[24] Priestley J took this factor into account in the first stage of the inquiry but it is not relevant to the question of whether there is reasonable access to the land; its legal relevance is at the second or discretionary stage.