Harb Trading Limited v Rodney District Council HC Auckland M794-AS01 [2002] NZHC 145; [2002] 2 NZLR 800; (2002) 4 NZ ConvC 193,562 (28 February 2002)

Last Updated: 15 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M794-AS01

IN THE MATTER of an Application under section 3 of the Declaratory Judgments Act 1908

BETWEEN HARB TRADING LIMITED, GLENN KERRY McCREADY, SIEW HEAN RICHARDS, IAN JOSEPH BILLINGS, ESTELLE IRENE JEAN BILLINGS, ATHOL JOSEPH RALPH GIBSON, FORTUNE MANNING TRUSTEE COMPANY LIMITED, ALAN CHARLES GRIBBLE, DESLEY MAREE EDWARDS, JOHN CAMPBELL, JANET GLADYS WILLIAMS, BARBARA ANNE FORBES, RAYMOND ELLIOTT PRIME, KENNETH DONALD PRIME, CHRISTINE JOY WILSON, SHERIN LOUISE COOPER, JACQUELINE MICHELE BELL, IAN GORDON ROBERTSON, CRAIG WAYNE ROBERTSON, TREVOR MALVIN AGNEW, CYNTHIA ROBYN AGNEW, GEORGE TINSLEY WADSWORTH, EDWARD WILLIAM LENG, NATALIE JOY LENG, CHARLES ROBERT ROWSELL, JENNIFER EDITH ROWSELL, PETER JOHN DEW, CHARLES LESLIE STEVENSON, RUTH EVELYN STEVENSON, DESMOND ALFRED WRAGGE, IVAN WALTER WRAGGE, GORDON NATION BARRATT, GLORIA DAWN BARRATT, ANTHONY CHRISTOPHER EDWARD, NORMAN JAMES HOULGRAVE, JAMES ROSS BEVIN, MARGARET ANNE BEVIN, KNIGHT COLDICUTT TRUSTEES LIMITED, BARRY JOHN WILLIAM DONOVAN, GERALDINE VIOLET DONOVAN, JOHN RICHARD WILLIAM STILL, GABRIELLE WHEELER, JEAN MARION JENNINGS, JONE MARY COUTTS, JOHN GODDARD McCARTHY, SUSAN OLDHAM McCARTHY, GREGORY THOMAS WALKER, JOHN DEREK KINGSLEY NORTH, ALISON NORTH, JOHN MARK WINDER, JENNIFER MARY WINDER, HUGH ALLEN MULLIGAN, VERONICA ANNA MARIA MULLIGAN, MARK JAMES BINNS, JOHN WILSON BARCLAY, ALBERT HARRISON WAALKENS, ANNE LOUISE BINNS, ALLAN JOHN DIGBY, SUSANNE MARGARET DIGBY, MURRAY GRANT BELL, JANET KAYE WINTERBOTTOM, RONALD FRANCIS GIBSON, ZELDA GIBSON, WILLIAM EDWARD TWEED, CAROL JOAN TWEED, REBECCA RAE WHITAKER, PETER RAYMOND GRIBBLE, GWENYTH DORIS GRIBBLE, ROGER WILLIAM SCHERER, ALEXANDER KENNETH RODGERS, GILLIAN ROSEMARY RODGERS, FINN BROGGER JORGENSEN, JOHN KEVIN SPURR, BARBARA MARGARET SPURR, GRAEME HENLEY OVERTON, MARGARET LOUISE ROOKE, PETER WEBSTER WILSON, DAVID JOHN WARRICK NICOLL, ALFRED CONWAY ANSELL, DESLEY ANSELL
Plaintiffs

AND RODNEY DISTRICT COUNCIL
First Defendant

AND FRIENDS OF MAHURANGI INCORPORATED
Second Defendant

Hearing: 18 and 19 February 2002

Counsel: Richard Brabant and Gareth Lewis for Plaintiffs
Graeme Palmer for First Defendant
Robin Espie for Second Defendant

Judgment: 28 February 2002

JUDGMENT OF HARRISON J

Solicitors:
Shieff Angland (Auckland) for Plaintiffs
Simpson Grierson (Auckland) for First Defendant
Robin Espie (Whangaparaoa) for Second Defendant

Introduction

[1] Jamieson Bay is a small coastal settlement on Mahurangi West peninsula, less than an hour’s drive from Auckland. It was originally farmland. But, like many desirable areas of coastline, the bay was subdivided for residential development in the late 1950s. Most owners used their properties as holiday houses or baches. However, increasing numbers are now permanent residents.

[2] The Rodney County Council (“the Council”) owns a two acre area of esplanade reserve adjacent to the foreshore, known as Lot 13. In legal terms, the reserve is the dominant tenement of certain rights-of-way over 12 other properties within the bay (“the servient tenements”). The rights-of-way are physically formed by a carriageway. The same carriageway also provides rights-of-way to other properties. The subdividing owner granted all easements by identically worded deeds of transfer.

[3] The Mahurangi Improvement Society (“the Society”) comprises 39 of the 43 private property owners in Jamieson Bay. Those 39 members have become concerned about a recent increase in the numbers using the carriageway to obtain access to the esplanade reserve. Included among them are the owners of the servient tenements. All 39 have applied to the Court for declarations against the Council for the purpose of limiting the nature and extent of public entitlement to use the rights-of-way.

[4] It is common ground between counsel for the parties that determination of this application hinges on the definition of the word “visitors” used in the original deed of transfer of Lot 13 (“the deed”) to grant the rights-of-way in favour of the esplanade reserve. Does the word limit rights of use to those visiting the reserve on Council business, such as maintenance contractors, as the plaintiffs submit? Or does it extend those same rights to all members of the general public who lawfully visit the reserve, as the Council submits?

[5] Originally the Council was the sole defendant in this proceeding. Later an entity known as the Friends of Mahurangi Incorporated applied successfully to be joined as second defendant. At least three property owners in the bay are members. They oppose the plaintiffs’ application.

[6] To answer the primary issue in this case it is necessary for me first to review the background facts, before summarising the competing arguments for the parties, identifying the relevant legal principles and then applying them to the terms of this deed in its factual setting.

Background facts

[7] The parties filed a large number of affidavits - some were from surviving members of the Jamieson family and property owners; others were from a surveyor and a traffic engineer. The Council also filed an affidavit from one of its senior officers. While these affidavits traversed a broad range of material, the essential facts were not in dispute and none of the deponents were cross-examined at the hearing.

[8] The relevant evidence, in chronological or historical sequence, is as follows:-

[a] Some time in the late 1850s Govan Jamieson acquired the land which is now Jamieson Bay. The land was farmed by successive generations of the Jamieson family. At least one owner also operated scows as a business providing maritime transport up and down the peninsula;

[b] By the 1950s the then owner, George Gilbert Jamieson, had leased six sections on the waterfront to third parties. The lessees obtained access to those sections by a limestone track, which they formed, running down across the hill into the bay. This track was the predecessor of the accessway to Lot 13;

[c] In the early 1950s Mr Jamieson decided to subdivide the land for residential purposes. Between 22 October 1954 and 25 July 1957 he submitted at least three draft scheme plans of subdivision to the chief surveyor for approval. In 1957 he submitted a final version which the chief surveyor recommended for approval on 12 December 1957. The Minister approved the plan on 14 March 1958. I shall discuss the relevant correspondence in more detail shortly;

[d] On 4 September 1959 Mr Jamieson’s scheme plan of subdivision was formally deposited. On 21 December 1959 Mr Jamieson executed the deed transferring Lot 13 in favour of the Crown. I shall also discuss its terms in more detail shortly. Lot 13 was later vested in the Council pursuant to the predecessor of the Reserves Act 1977. By virtue of this vesting process the Council is now legally the grantee under the original deed. Mr Jamieson was bound to set aside an esplanade reserve as part of the scheme plan of subdivision pursuant to s 11 Land Subdivision in Counties Act 1946 which was then in force. Section 11(1) materially provided:

“On every scheme plan submitted under the foregoing provisions of this Act there shall be set aside as reserved for public purposes a strip of land not less than sixty-six feet in width along the mean high-water mark of the sea and of its bays, inlets, or creeks, . . .

Provided that the Minister may approve the reduction of the width of the strip of land to a width of not less than ten feet if in his opinion the reduced width will be sufficient to give members of the public reasonable access to the sea . . .”

[e] The subdivision was roughly triangular in formation. It was bounded by Jamieson Road on one side and by Barr Road on the other. Mahurangi harbour provided the natural third boundary. The topography was relatively steep. The limestone track was formed lower down the hill, from the toe of Jamieson Road bisecting the middle of the subdivision round to its eastern boundary;

[f] The right-of-way was surveyed and formed by following the path of the limestone track. The right-of-way itself followed a generally north-south alignment from Jamieson Road, before forking into two arms - one following an east-west alignment and the other following a north-east/south-west alignment to the esplanade reserve. It provided the only means of vehicular access to a number of the subdivided lots located adjacent or near to the foreshore;

[g] Barr Road terminates well inland. Jamieson Road terminates a short distance from the sea. The only means of access from there directly to the foreshore is by a steep and poorly formed walking track;

[h] In due course the track was metalled. In the 1970s owners concreted the accessway. According to Mr John Winder, one of the plaintiffs:-

“The driveway is steep in parts and is only wide enough for one vehicle. It is much narrower than the public roads in the area. In certain parts it does not follow the right of way designated on the plan. The part of the driveway leading to lot 13 provides access to a boat ramp. Many property owners in the subdivision store dinghies in a dinghy rack near to the boat ramp. There are a number of boat moorings in Jamieson Bay itself.”

[9] I have referred briefly to the deed. Its terms are critical to resolution of this dispute. It recited, first, that the area of land being transferred was two acres (described as the dominant tenement), second, that Mr Jamieson as grantor was registered as proprietor of a number of Lots being 2, 3, 5, 6, 7, 8, 9, 10, 11, 42, 43 and 44 on the relevant deposited plan (collectively described as the servient tenement) and, third, that Mr Jamieson had:-

“. . . for good consideration agreed to grant certain rights of way over the servient tenement to the grantee appurtenant to the dominant tenement on the terms and conditions following . . .”

[10] The operative part recorded that Mr Jamieson:-

“. . . HEREBY TRANSFER AND GRANT unto the Grantee her successors and assigns and her and their servants agents workmen and visitors and all persons having business with her or them a free and perpetual right of way ingress egress and regress on horseback or on foot and with or without implements and vehicles of every description loaded or unloaded by night as well as by day in over and upon that part of the servient tenement as is coloured yellow on the said Deposited Plan Number 46283 such easement of right of way hereby created being in common with that of any other person or persons from time to time entitled to any easement of right of way over the servient tenement or any part thereof to the intent that such easement of right of way hereby created shall be forever appurtenant to the dominant tenement AND IT IS HEREBY AGREED AND DECLARED that the execution of this Agreement shall not impose on the Grantee any liability for the formation and maintenance of the said rights of way which shall continue to be the responsibility of the Grantor.”

[11] I have also referred briefly to the correspondence relating to Mr Jamieson’s submission of his various scheme plans of subdivision. All parties agreed that it was necessary to examine the letters in some detail. The relevant documents are as follows:-

[a] On 17 April 1956 Mr Jamieson’s surveyors, Tripp Andrews & Partners, wrote to the clerk of Rodney County, the Council’s predecessor. Mr R H Buckton, an experienced surveyor based in Warkworth, has deposed that at the time subdivision consent was obtained from the Minister of Lands. The local authority was consulted as an interested party but was not the decision maker. The surveyors submitted a plan of an amended scheme, inquiring whether it would overcome Council’s previous adverse reaction to the location of the proposed roads and noting that:

“It is proposed the yellow right of way shall be appurtenant to all of the lots. This right of way will provide the physical access to the eastern group of lots which will overcome the necessity of forming steep entrances [presumably from Barr Road].”

[b] On 17 May 1957 the county clerk wrote in reply to Tripp Andrews, endorsing the amended plan and recommending that:-

“. . . the part of Lot 6 east of Right of Way be added to the Esplanade Reserve. This Reserve as shown on your plan may not be acceptable to the Chief Surveyor and the addition of the part of Lot 6, would give a piece of ground adjacent to beach where (sic) section holders or public could use for picnics etc.”

[c] On 25 July 1957 Tripp Andrews then wrote to the chief surveyor noting that:-

“The County’s suggestion led to the designing of the recreation reserve as shown on the plan. This area is undoubtedly the most desirable area in this subdivision for public purposes . . .”

The plan referred to shows a physical right-of-way over Lots 2, 3, 5, 6, 7, 8, 9, 10 and 11 leading to a recreation reserve. The proposed reserve was about two acres, and comprised a large area in the subdivision running back from a narrow entrance to the foreshore. It was quite different from the esplanade reserve eventually set aside. The column of memorandum of easements running down the left hand side of the plan did not then include within its memorials Lot 13 as a dominant tenement. By inference, Mr Jamieson did not then intend that the right-of-way would enure for the benefit of the existing recreation reserve.

[d] On 21 August 1957 the county clerk advised the chief surveyor that he approved the then existing scheme plan:-

“. . . subject to Reserve requirements being fully met.

While Recreation Reserve has access from the legal road through the foreshore reserve, it is recommended that an access to the Recreation Reserve should be given over the right of way through Sections 2, 3, 5, 6, 7, 7 [should be 8], 9, 10 and 11.

As the plan is at present, there appears to be no physical access to reserve (sic), and the public may not be able to use right of way.

The Council from Land Subdivision in Counties Fund could help in maintaining the right of way.”

The clerk’s letter contained a handwritten notation:-

“Area between sections 12 and 14 not practicable.”

The clerk was referring to a circuitous means of access available from the end of Jamieson Bay, down the track leading to the foreshore, and along the beach to the then proposed recreation reserve. He was advocating more direct access across the existing limestone track. He also observed that the proposed right-of-way access, directly off Jamieson Road through Lots 12 and 14 to the recreation reserve, would not be suitable. His plain concern was to ensure that the plan provided for greater public access to the proposed recreation reserve.

[e] On 6 November 1957 Tripp Andrews wrote to the surveyor, referring to a conference on 29 October attended by a number of leading dignitaries including the Commissioner of Crown Lands, the Assistant Chief Surveyor, the County Clerk, and Tripp Andrews. The letter recorded the parties’ agreement reached at the conference that the scheme plan should be amended by deleting the recreation reserve. Instead, the southern boundary of the esplanade reserve should be extended. In addition, Mr Jamieson’s surveyors recorded a further agreement that:-

“The land which was formerly shown as recreation reserve be reschemed into residential lots, but reserving rights of way in favour of every lot in the subdivision, including lot 13, Esplanade Reserve, to provide access to the foreshore.

The rights of way agreements must specifically exclude the Crown (in whom lot 13 will vest) from any liability for maintenance of the rights of way.”

[My emphasis]

[f] Tripp Andrews enclosed the further amended scheme plan with their letter. It showed the rights-of-way in their final form. It also showed Lot 13 in its final form, as two acres of esplanade reserve running along the foreshore. In contrast to its predecessor, the column of memorandum of easements listed Lot 13, out of numerical sequence, as a dominant tenement over Lots 2, 3, 5, 6, 7, 8, 9, 10 and 11.

[g] Finally, on 14 March 1958 the Minister gave written approval conditional upon:-

“. . . the Rights of Way shown on this plan being duly granted, the Right of Way appurtenant to Lot 13 being granted immediately upon deposit of the Land Transfer Plan of this subdivision. HM the Queen being excluded from all liability for formation & maintance (sic) of the Right of Way.”

[12] To complete the narrative, I shall refer briefly to the events which triggered this litigation. As noted, the right-of-way as formed has a concrete surface. It is about 300 metres long. Its width varies between 2.7m and 3.2m but is suitable for one way traffic only. It is formed through steep terrain. There is a sharp bend about two thirds of the way along the accessway, creating a significant blind spot.

[13] The plaintiffs provided an affidavit from Mr Brett Harries, an experienced traffic engineer. In his opinion the right-of-way as formed reflects its function as serving a limited amount of traffic as distinct from a public thoroughfare. It creates hazards because motor vehicles and pedestrians must share the same space. These problems are compounded when boat trailers use the right-of-way, effectively occupying its full width. When vehicles meet, as frequently occurs, one must reverse into a private driveway or onto Jamieson Road. In Mr Harries’ opinion, the accessway is only just adequate to accommodate traffic generated by residential owners at Jamieson Bay. He concludes that:-

“Unrestricted public use of the right of way . . . would create an intolerable situation by causing a level of traffic demand that could not be properly and safely accommodated.”

[14] The prospect of unrestricted use arose for residents in early 2000. Mr Winder deposes that:-

“In the past year I have noticed a significant increase in members of the public using the right of way to access the boat ramp. From early 2000 the Council allowed a considerable number of new moorings in Jamieson Bay. As the owner of a mooring myself I am aware that the Council has sent notices to the owners of moorings telling them to use the beach access at the nearby Opahi Bay to launch boats . . . [Signs do] not appear to have deterred people using the right of way. During Easter 2001 there was a particular increase in non-resident traffic using the right of way and boat ramp.

Since early 2000 members of the Society have expressed concern to me and at Society meetings about the increasing use of the right of way through the subdivision by members of the public.”

[15] As noted, a great majority but not all residents of the bay share this view. Mr Michael Cole is one of the dissentients and a spokesman for Friends of the Mahurangi Incorporated. He disagrees with the plaintiffs’ collective view that the formed right-of-way is private and unavailable for use by the general public. In his opinion this is symptomatic of a view held by some that the bay itself is private. He also notes that:-

“While I have lived here (since 1973) there has been a gradual change towards high-quality substantial houses, sometimes for retirement purposes. . .”

He also observes that:-

“. . . to my knowledge there has not been a single case of even a minor two vehicle collision, nor a vehicle-pedestrian accident in all the time I have lived here.”

[16] Since January 2001 the Council has actively attempted to assist the parties to resolve their differences over use of the accessway. Mr Craig Davis, its parks and coastal planning engineer, swore an affidavit. He has confirmed Mr Cole’s evidence about the demographic changes in Jamieson Bay. Since 1959 road access has improved significantly; visitor numbers have therefore increased. Also the population of the community has changed, from those using it as a holiday destination to an increasingly permanent residential location.

[17] Under Mr Davis’ auspices, the Council has convened a number of meetings, both public and private, with interested parties. He deposes that those meetings progressed from January 2001 through to June 2001. However, they came to an end on 26 June 2001 when the plaintiffs filed this proceeding. Whatever is the outcome of this application, Mr Davis confirms the Council’s anxiety to continue to assist the parties to resolve their differences over use of the right-of-way. In that respect the Council has taken into account its obligations not just to local residents but to the wider public entitled to use the esplanade reserve.

Plaintiffs’ case

[18] Mr Richard Brabant appeared for the plaintiffs. He identified the meaning of the word “visitors” where it appears in the deed as the critical question. Drawing upon the Shorter Oxford Dictionary, Mr Brabant submitted there is a distinction in principle between visitors to [a] a person; and [b] a place. He submitted that the former are included within the definition in the deed; the latter are not. Consequently, Mr Brabant submitted, only those who visit the reserve at the invitation and with the permission of the Council, such as independent contractors engaged to maintain the reserve, are entitled to use the right-of-way; conversely, members of the general public visiting the reserve in accordance with their statutory entitlement have no such right.

[19] To support this distinction, Mr Brabant advanced the following arguments:-

[a] First, there is an important distinction between private and public rights-of-way. These rights-of-way were created by private contract, namely a memorandum of transfer associated with the sale of individual lots in the subdivision. The extent of the easement rights are the product of individual drafting of each memorandum of consent. They were part of the contractual arrangements involved in completing the subdivision and sale by purchasers. By contrast, public rights of access, for example vesting a public road or public walkway, rely on statutory provisions requiring that private land be vested for public access at the time of subdivision;

[b] Second, all the easements for both the Crown and private owners were identically drafted with one minor exception. If the Crown and Council were seeking a right of general public use, it is most improbable that the wording of the deed in favour of the Crown would follow the same wording used for all residential properties. Instead a specific form of words would have been employed for the Crown easement;

[c] Third, the word “visitor” is limited to one who pays a visit to another person as opposed to a place. This is supported by the use of the words “the grantee” where used in the deed. Accordingly, this is a grant to a person and not to a place. - see McGeown v Northern Ireland Housing Executive [1995] 1 AC 233 per Lord Keith at 246, and other authorities dealing with claims under occupiers’ liability statutes. Private rights-of-way are created by deed granting personal rights. By contrast, public rights-of-way arise from the vesting of land in a pubic agency. “Visitors” using a private right-of-way are visiting the grantee by express or implied permission;

[d] Fourth, if the correct interpretation of the deed is to give a general and unrestricted right of public access, then the arrangements made to extend the rights-of-way grants for a succession of residential properties down the right-of-way would have been unnecessary. The owners and their visitors could simply and lawfully rely on the public rights in favour of Lot 13;

[e] Fifth, the grant of right-of-way in favour of Lot 13 is general. If the term “visitor” creates general public right of use, then that right is unrestricted. For example, there is no restriction on hours. That would be appropriate for a grant of right-of-way in favour of residential properties but not if general public use was intended over the subject right-of-way;

[f] Sixth, if when concluding agreement with Tripp Andrews in 1957 the Crown and the Council were seeking public access from a public road other than what was then available from the end of Jamieson Road, evidence about other coastal subdivision arrangements suggests that the Crown and the Council requested at least a public walkway, if not a public road. In all other cases the Council required public accessway provisions to esplanade reserves. By contrast, this was a private right-of-way.

[20] In oral argument Mr Brabant emphasised two other factors. First, he relied on the agreement embodied in the deed exempting the Council from any liability for the cost of forming and maintaining the right-of-way. Those liabilities remained with the owners of the servient tenements. Effectively those owners would have to bear the cost of maintaining the right-of-way for members of the general public. Mr Brabant submitted that this obligation was entirely consistent with his limited or restricted definition of the word “visitor”.

[21] Second, Mr Brabant equated the consequence of a wider definition of “visitor” to a right of use of the accessway as though it was a public road. He submitted that in 1957 the parties would have agreed to vest the accessway as a road if that was their true intention.

Defendants’ case

[22] Mr Graeme Palmer appeared for the Council. His balanced approach reflected the Council’s role as guardian of the wider public interest. The essence of its defence was that the word “visitors” where used in the deed extended to and gave rights of access for all members of the public who used the esplanade reserve. He did not accept a distinction of the type central to Mr Brabant’s argument between a visitor to a person and a place.

[23] Mr Palmer relied on the definition contained in the New Oxford English Reference Dictionary of a visitor as “a person who visits a person or place”. Adopting this composite definition, he argued that members of the public would be said to ‘visit’ the reserve, and therefore be ‘visitors’ of the owner. Mr Palmer relied also on Lord Denning MR’s definition of a “visitor” in Greenhalgh v British Railways Board [1969] 2 QB 286, at 292-293 as follows:-

“A person is a single ‘visitor’ if at common law he would be regarded as an invitee or licensee; or be treated as such, as for instance, a person lawfully using premises provided for the use of the public, e.g., a public park . . .”

[24] Greenhalgh (supra) was an occupiers’ liability case. However, Mr Palmer argued that it would be surprising if the concept of “visitor” in an occupiers’ liability case, where the consequences are potential liability, had a different meaning from the case of a grant intended to confer broadly expressed property rights on a grantee.

[25] Mr Palmer drew attention to Mr Brabant’s concession that a person using the esplanade reserve is a “visitor” to it. He asserted an inconsistency between this acknowledgement and Mr Brabant’s denial that the same person would fall within the same definition where the same word was used in the deed.

[26] Mr Palmer spent some time reviewing the correspondence and scheme plans discussed above. He submitted that these documents were unequivocal evidence of an agreement that members of the general public who visited the esplanade reserve would be entitled to access over the right-of-way. Mr Palmer argued that the obligation assumed by owners of other dominant tenements to maintain the accessway was not inconsistent with the Council’s argument; and that, based on the correspondence, it was apparently the trade-off or price paid by Mr Jamieson for approval of the plan.

[27] Mr Robin Espie supported the Council. He submitted additionally as follows:-

[a] The construction advanced by Mr Brabant, limiting “visitors” to those who were invited by the Council such as lawn mowing or maintenance contractors for the esplanade reserve, would render the word “visitors” superfluous. Those persons already covered by the other categories included in the transfer, namely “. . . servants, agents, workmen . . . and all persons having business with [the Council] . . .”;

[b] Interpreting the word “visitors” more restrictively than and to exclude the general public would give it an unnatural meaning, creating a conflict with the purpose and context in which the transfer for Lot 13 was created. Accordingly, as the only vehicular access to the reserve is over the right-of-way, exclusion of the general public from the word “visitors” would effectively create a private beach out of the reserve. Lawful activities within the reserve involving vehicles, such as launching and retrieving trailered boats, would be rendered impossible for sections of the public;

[c] The Council’s offer in its letter dated 21 August 1957 to assist in maintaining the right-of-way by contributing public funds was consistent only with an intention that members of the public were entitled to use it.

Legal principles

[28] All parties accepted that the terms of the deed are to be interpreted according to the following principles (Butterworths Land Law in New Zealand, edited by Hinde, McMorland and Sim, at para 6.018):-

“Where an easement of right of way has been created by express grant or reservation, the extent of the rights conferred depends upon the construction of the words used in the instrument. The common law approach to the construction of grants of rights of way appears to have been followed in construing grants of rights of way which are registered under the Land Transfer system. An instrument creating or reserving a right of way must be construed according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances existing at the date when the instrument was executed. It is not until the instrument and the surrounding circumstances have been considered in conjunction that the process of construction is concluded, although there may be words so unambiguous that no surrounding circumstances could affect their construction . . . In construing a right of way the Court will consider (inter alia):

(1) The physical circumstances of the servient land at the date of the grant;

(2) The nature and description of the land or buildings comprising the dominant tenement;

(3) The purpose for which the way is intended to be used.”

[29] In addition (Butterworths (supra) at para 6.017):-

“A right of way may be appurtenant to a dominant tenement, or, like any other easement in New Zealand, may exist in gross. A right of way which is appurtenant to a dominant tenement is a right to use the servient tenement as a means of access to or egress from the dominant tenement for some purpose connected with the enjoyment of the dominant tenement according to the nature of that tenement . . .”

[30] Also (Butterworths (supra) at para 6.021):-

“The general principle appears to be that a right of way may be used by anyone who is expressly or impliedly authorised to do so by the person entitled to possession of the dominant tenement, provided that the user is not inconsistent with the quality and purpose of the user contemplated by the grant . . . The classes of persons entitled to use a right of way may be expressly limited by the terms of the instrument, but in this respect a grant is not construed strictly. Thus, where the classes of individuals entitled to use the way are enumerated, prima facie such classes are not intended to be read as exhaustive, but rather as illustrative of the classes of individuals entitled to use the way, with the result that a grant of right of way normally extends to all licensees of the grantee lawfully going to and from the dominant tenement.”

[31] It is unnecessary for me to discuss the principles in any greater detail except when considering particular authorities on which these principles are based.

Decision

[32] On a literal reading of the deed Mr Brabant’s restrictive argument has superficial appeal. However, it does not withstand scrutiny. I accept that the deed grants rights-of-way “unto the Grantee, her successor [the Council] and assigns . . . their visitors . . .”. But nothing decisive turns on this description; all grants of easements are expressed to be in favour of the owner of the dominant tenement at the relevant time. For reasons which I shall set out shortly, I am satisfied that all members of the public who use the right-of-way for the purpose of obtaining access to the reserve are the Council’s “visitors”.

[33] I have based my conclusion principally on the plain meaning of the words of the deed. This conclusion is supported by considering, first, the purpose of the grant and, second, the words of the deed against the factual context in 1959. I shall discuss each of these approaches separately.

(a) Plain meaning of “visitor”

[34] According to counsels’ research, there is only one authority on the meaning of the word “visitors” where used in a deed of grant of easement. It is the decision of Kekewich J in Thornton v Little 23 TLR 357, on which Mr Palmer relied. The issue in that case was different but the reasoning supports my conclusion.

[35] In Thornton’s case the question was whether pupils at a girls school fell within the meaning of “visitors” in a deed of easement granting access to the school by way of a footway. The servient owners argued that the word ought to be restricted to those who came to the girls school voluntarily; it should not include pupils who attended daily for long periods of time. Kekewich J refused to read down the meaning of the word “visitors”; there was no reason to limit “visitors” to those who came and went voluntarily. The Judge emphasised that, as here, the easement was appurtenant to the dominant property. Accordingly, it could be used legally “. . . by all persons using it for any purpose connected with the use, occupation and enjoyment of the premises.”

[36] The same reasoning applies here. A “visitor” is somebody whom the law regards as an invitee or licensee of the owner of the dominant tenement; somebody who is lawfully entitled to use the land, such as a public reserve, to which he or she is invited (Greenhalgh (supra) at 292-293). Members of the public using the reserve for the purposes of sailing or swimming have the Council’s licence or permission; so, too, do those engaged to maintain the reserve. All are the Council’s “visitors” within the meaning of that word as used in the deed. The terms of the grant do not express or imply any distinction for determining status according to the purpose of the visit.

[37] Mr Brabant accepts that members of the public are properly described as “visitors” to the reserve. However, he does not accept that those same individuals are the Council’s “visitors” within the meaning of the deed when using the accessway. With respect to Mr Brabant, this is a distinction without a difference. His argument is based upon a misconstruction of the definition of the word “visitor” found in the New Shorter Oxford English Dictionary as follows:-

“3 A person who pays a visit to another person; a person staying as a guest . . .

4 A person who visits a place, country, etc, s as a sightseer or tourist.”

[38] In my view the dictionary was simply providing alternative but not mutually exclusive definitions of the word “visitor”. A person normally visits both the place and its owner. But the person visiting is no less a “visitor” if the owner is not physically present, providing the visitor has the owner’s licence or permission to be there.

[39] Mr Brabant sought to distinguish the authority of Lord Denning’s definition of “visitor” in Greenhalgh by reference to this passage from the speech of Lord Keith in McGeown (supra) at 246:-

“The concept of licensee or visitor involves that the person in question has at least the permission of the relevant occupier to be in a particular place. Once a public right of way has been established, there is no question of permission being granted by the owner of the solum to those who choose to use it. They do so as of right and not by virtue of any licence or invitation. . .”

[40] This statement was, of course, made in a very different legal context; for the purpose of determining liability in tort under an occupiers liability statute. Public policy plays a significant part in that area of jurisprudence (see the speech of Lord Browne-Wilkinson at 247). The plaintiff sued a public housing authority which coincidentally owned both the dominant tenement, a housing estate where her husband was the formal tenant, and the servient tenement, the public pathway leading to the estate. She claimed for damages for injury suffered while using the pathway. The House of Lords held that the plaintiff was not the authority’s visitor in its capacity as the servient owner.

[41] Similarly, the plaintiff could never be described as the “visitor” of any of the servient owners in Jamieson Bay when using the rights-of-way to obtain access to the reserve. This fundamental distinction was highlighted by Oliver LJ in another occupiers liability case, Holden v White [1982] 2 WLR 1030 at 1034G-H. With respect, Lord Keith’s speech sheds no light on the meaning of “visitor” to the Council in its capacity as dominant owner.

[42] In my opinion, all members of the public who are legally entitled to visit the esplanade reserve are similarly entitled to use the right-of-way for access purposes. While physically visiting the reserve, they are doing so with the Council’s licence. They are all the Council’s “visitors” to the dominant tenement. There is no warrant for limiting the class of lawful users of the right-of-way to those who visit the reserve for Council purposes or at its express invitation to undertake maintenance or related work.

(b) Purposive Construction

[43] The same result is reached through the purposive route. The purpose of the esplanade reserve is to provide the general public with reasonable access to the sea; the purpose of the grant is to provide access, including by vehicle, to the reserve. The grant of rights-of-way is expressly appurtenant to the reserve (see Thornton’s case (supra)).

[44] As noted, Mr Brabant accepted that those members of the general public who visit the reserve for the purpose of exercising their statutory rights are “visitors” to it. Consistency and logic require that the word has the same meaning in a document which serves the sole purpose of ensuring access to the same reserve. To adapt what one of my former colleagues rather famously asserted in another forum, the visiting public cannot be visitors for one purpose but not for others, especially where the purposes are so obviously interrelated. This point does not involve a gloss on the words used in s 11 Land Subdivision in Counties Act 1946.

[45] I agree with Mr Espie that any other interpretation would have the effect of interfering with the public’s statutory rights. They would be unable, for example, to use the reserve to launch trailer-borne boats. As Eve J observed in Hammond v Prentice Brothers Limited [1920] 1 Ch. 201 at 216:-

“In this case, unless I adopt this view, no visitor, no doctor, no tradesman, no traveller, and no apprentice can approach the defendant company’s premises under this grant. After all the grant is appurtenant to the dominant tenement, and in my opinion in the absence of special circumstances ought to be so construed as to secure to the grantee all that is necessary for the reasonable enjoyment of the dominant tenement, and I think the case of Baxendale v North Lambeth Liberal and Radical Club [1902] 2 Ch. 427 is a sufficient authority for this proposition.”

[46] I agree also with Mr Espie that Mr Brabant’s interpretation would reduce the word “visitor” to surplusage. Independent contractors such as those engaged by the Council to maintain its reserve would fall squarely within the definition of “agents [and] workmen . . .” in the operative clause of the deed. The use of the word “visitors” would be superfluous if it was limited to that particular class of visitors; it must be intended to include an additional group, and be given meaning accordingly.

(c) Factual Context

[47] Strictly speaking, given my conclusion that the meaning of the word “visitors” is plain and unambiguous, it is unnecessary for me to consider the circumstances surrounding execution of the deed on 21 December 1959. However, the factual context only serves to confirm my interpretation.

[48] The contemporaneous correspondence is clear evidence that, when Mr Jamieson submitted his draft scheme plans of subdivision, the Council was concerned about the general question of securing rights of public access to the reserve. I accept, of course, that Mr Jamieson’s scheme plan was substantially altered following a conference on 29 October 1957 to delete the recreation reserve. Nevertheless, Tripp Andrews’ letter to the chief surveyor dated 6 November 1957 expressly records that the amendments to the scheme plan creating rights-of-way in favour of every lot in the subdivision including the esplanade were designed “to provide access to the foreshore”.

[49] I agree with Mr Palmer. These circumstances are direct evidence of the parties’ agreement by early November 1957 that the mechanism of a formal right-of-way was necessary to ensure rights of public access to the reserve. The express inclusion of “vehicles of every description” is further evidence that the parties contemplated and intended that the right-of-way would provide the public with vehicular access. There was no suggestion in any of the contemporaneous correspondence of an intention to limit the category of lawful users to those on contractual business with the Council.

(d) Miscellaneous arguments

[50] I do not mean any disrespect to Mr Brabant in dealing briefly with his remaining arguments as follows:-

[a] I do not see any importance in a distinction between private and public rights-of-way in the context of this dispute. The source of the grant, whether by private contract in the case of individual owners or statutory vesting in the case of the Council, is irrelevant. What is critical is the natural meaning of the words at issue construed within the context of the deed as a whole and against the surrounding circumstances, including the purpose for which the right-of-way was granted;

[b] This deed does not create a public roadway. Nor does it give unrestricted rights of use to the general public. In reply, Mr Brabant accepted that the right-of-way can only be used for the purposes of access. It is clearly distinguishable from a public road which entitles users to park, except in restricted areas. The fact that there is no restriction on hours of use is entirely consistent with the rights of the general public to use the esplanade at any time of the day or night;

[c] The existence of this deed does not render unnecessary or superfluous arrangements which were made to extend right-of-way grants for owners of residential properties. I do not agree with Mr Brabant that those owners and their visitors could simply and lawfully rely on the public rights in favour of Lot 13. Clearly they are not visiting the reserve and are not entitled to the benefit of the subject easement. They would have to rely, as they do, on private grants;

[d] I do not attach any significance to Mr Jamieson’s assumption of the burden of formation and maintenance costs for the reserve. It does not lead to a contrary interpretation. The county clerk’s memorandum dated 21 August 1957 identifies the Council’s ability to use public funds to assist in the cost of maintaining the right-of-way. However, by 6 November 1957 Mr Jamieson’s surveyors acknowledged the parties’ agreement that the deed must specifically exclude the grantee from any liability for maintenance. I agree with Mr Palmer. The inference to be drawn from this letter is that as part of the negotiating process Mr Jamieson, who was then the grantor, not the existing owners, had agreed to assume the burden. It was a price he was prepared to pay for the benefit of official consent to his scheme plan.

[e] Mr Brabant emphasised that the companion provisions in the deeds of grant to private owners of dominant tenements were identically drafted, as a basis for an argument that these parties simply adopted an existing precedent without adaptation and thought. I cannot draw that inference. The correspondence is compelling evidence to the contrary. The parties were clearly conscious of this particular issue. The companion provision of deeds in favour of private owners is immaterial.

[51] I confirm my construction of the word “visitors” in the deed extends to and includes all members of the general public who use the rights-of-way for the purpose of access to and from the esplanade reserve; the word is not restricted to mean only those who visit it pursuant to a contractual arrangement with the Council.

Conclusion

[52] Accordingly, for the reasons set out above, I dismiss the plaintiffs’ application for declaratory relief. I should add that, even if I had found for the plaintiffs, I would have granted relief only within the terms of para (a)(iii) of the prayer set out in the amended statement of claim dated 20 August 2001, and even then on an amended basis.

[53] The defendants are entitled to judgment. At the conclusion of the hearing, both Messrs Brabant and Palmer advised that the plaintiffs and the Council would not seek costs if successful. If I may say so, these positions are responsible and conciliatory, and should engender the necessary goodwill to enable the parties to advance the process of dialogue initiated by the Council but terminated by the plaintiffs when this proceeding was issued. I trust that, with this determination of the contentious legal issue, the parties are able to work constructively together to resolve outstanding practical problems.

[54] This leaves the position of the second defendant. Mr Espie advised that it would seek costs. It is entitled to make a formal application for this purpose but I recommend that it reviews its position. The fact that the second defendant applied to join, when the Council was already cited as primary defendant to represent the interests of those opposing the plaintiffs, will be an important factor in exercising my discretion.

[55] These observations are not meant to imply that the second defendant’s participation in the hearing was unnecessary. To the contrary, as will be evident from the terms of this judgment, I derived considerable assistance from Mr Espie’s succinct and well thought out submissions, just as I did from those of Messrs Brabant and Palmer.

[56] I reserve leave to the second defendant to file a memorandum on costs within 14 days. In that event, I reserve the plaintiffs a further 14 days within which to file a memorandum in answer, and the second defendant an additional seven days to reply.