Bourke v Guo [2016] NZHC 2932 (6 December 2016)

Last Updated: 21 February 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-1527 [2016] NZHC 2932

BETWEEN	GARY EDWARD BOURKE AND BENJAMIN WILLIAM MCALPINE TOTHILL Applicants
AND	QINGYAN GUO Respondent

Hearing:	25 May 2016, 7 July 2016 Additional memoranda filed 13 & 14 July 2016 15 July 2016
Counsel:	W J Hamilton for Applicants D K Wilson for Respondent
Minute:	6 December 2016

_{JUDGMENT OF DUFFY J}

This judgment was delivered by me on 6 December 2016 at 11.30 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors / Counsel: Loo & Koo, Auckland

Duncan Cotterill, Christchurch

D K Wilson, Auckland

BOURKE & TOTHILL v GUO [2016] NZHC 2932 [6 December 2016]

[1] This judgment should be read together with the judgment I delivered in Guo v

Bourke (Guo v Bourke (No 1)).¹

[2] Mr Bourke and Mr Tothill (the applicants) are the owners of the property at

131 Mountain Road, Epsom. Ms Guo is the owner of the adjacent property, which is situated at 129 Mountain Road, Epsom. There are two right of way easements on the driveway and adjacent strips of land that serve those properties. They are right of way A and right of way B. The latter is the subject of this proceeding. The applicants seek the removal of impediments which they contend interfere with their use of right of way B.²

[3] Right of way B is the same right of way that features in Guo v Bourke (No

1) .³ The present application was heard at the same time.

[4] The parties have found themselves in court because Ms Guo brought an originating application seeking orders requiring the removal of a set of dual opening gates which Mr Bourke had erected across the upper part of the driveway, and accordingly blocking the two right of ways that service the two properties.

[5] The factual background concerning the establishment of right of way B and the extent to which there are now impediments on right of way B is set out in Guo v Bourke (No 1). Those impediments include:

(a) the block wall that serves as a boundary fence but which presently occupies a portion of the respondent’s property and which partly intrudes on right of way B; and

(b) vegetation growing on right of way B, in particular a large palm tree.

[6] There is common acceptance that the impediments intrude more than 50%

_{into the legal scope of right of way B. However, they do not intrude on the actual}

¹ _{Guo v Bourke [2016] NZHC 2240.}

2. With right of way B, the servient tenement is lot 2 (Ms Guo’s property) and the dominant tenement is lot 1 (the applicants’ property).

³ I dismissed Ms Guo’s application.

formed driveway. Accordingly, they do not physically interfere with the applicants’

present ability to access their property using the driveway.

[7] The applicants brought their application out of concern that if the gates they had erected across the driveway were ordered to be removed, then their ability to access and to fence off their property would need to be revisited. In this regard it needs to be acknowledged that the physical location of the existing boundary fence (the block wall) between the properties does not follow the legal boundaries of those properties. The gates which featured in Guo v Bourke (No 1) from part of this boundary fence.

[8] Following their success in Guo v Bourke (No 1), the applicants requested that I refrain from delivering judgment on their application. In short, they were happy with the status quo. Before the question of whether that could be done was resolved Ms Guo gave notice that she would be appealing the judgment against her. This led to the applicants seeking a judgment on their application.

[9] The Amended Notice of Originating Application states that the application is brought under s 317 of the Property Law Act 2007. However, at the hearing, all parties proceeded on the basis that the application had been properly brought under s 313 of that Act. I proceed on that basis.

[10] In Iakapo v Rutherford, I considered the law regarding obstruction of a right of way:⁴

[15] A wrongful interference with a right of way constitutes a nuisance: see McKellar v Guthrie [1920] NZGazLawRp 58; [1920] NZLR 729 (SC); and Emmons Developments (NZ) Ltd v RFD Investments Ltd HC Christchurch CP 42/01, 4 July 2001. However, unless the interference is substantial, no action will lie: Pettey v Parsons [1914] 2 Ch 653 (CA); McKellar v Guthrie; and Emmons Developments (NZ) Ltd.

[16] In Emmons Developments (NZ) Ltd, the defendant proposed to build a wall along the right of way that effectively prevented the plaintiffs from direct access to the right of way. William Young J stated at [43] that:

It is certainly the law that a right of way does not necessarily entitle the grantee to go over every pall of the surface of the

land over which the right of way exists. As well, not every obstruction of a right of way amounts to an unlawful interference .... [T]he rights of the grantee lie in nuisance and an action in nuisance will only lie if the alleged obstruction involves a substantial interference with the easement granted.

[17] As that particular easement had the purpose of creating a foot roadway and to permit a foot roadway to be used for all the purposes for which such a foot roadway might be used, the erection of a wall was found to be in breach of the covenant to allow public access to that right of way. William Young J, therefore, granted an injunction to stop the construction of the wall.

[18] A potential substantial interference can be actionable. In Hurley v Harvey HC Auckland HC170/98, 20 May 1999, Cartwright J found that a swimming pool surround which was constructed in part over a grant of a right of way that was not presently used as part of the driveway but which was intended for possible future use for turning vehicles if the dominant land was developed more intensively amounted to a substantial interference with the grant.

[19] The Property Law Act 2007 implies certain specified rights attaching to a vehicular right of way. This includes implied rights to have the land over which the easement is granted 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: see McMorland on Easements, Covenants and Licences (LexisNexis, Wellington, 2010) at [4.1.9], citing s 297 of the Property Law Act and Schedule 5, cl 2(c). This applies to the subject right of way. Section 297(2) provides for exceptions to the implied rights; none of the exceptions is applicable here.

[11] I consider that there are some similarities between the facts of the present case and those in Hurley v Harvey, mentioned in the extract above.⁵ If the existing gates are ordered to be removed and the applicants want to maintain a barrier between their property and Ms Guo’s, there will need to be some significant changes to allow the barrier to be constructed along the legal boundary between the properties. This is likely to affect the physical ability of motor vehicles to access the

applicants’ property. The present lie of the formed driveway may not provide sufficient scope for the applicants to manoeuvre motor vehicles once they reach the top of the driveway, because for them to reach their garage requires the motor vehicle to make a tight left hand turn, which takes the vehicle past the residence to the garages at the back of it.

[12] Ms Guo argues that despite intrusion of the impediments onto right of way B, they do not impinge on the formed driveway. This is correct. However, I consider that the impact of the intrusion needs to be assessed in terms of its effect on the legal boundaries of right of way B. When considered from this perspective the intrusion takes up at least 50 per cent of the width of the right of way and for the most part this intrusion runs along the length of the right of way. I consider that such intrusion is well beyond what is tolerable and reasonable and constitutes a substantial interference with the applicants’ right to utilise right of way B. The applicants understandably want to have use of the full range of right of way B in case they need to design and construct a new alternative boundary fence and gate. The tight turn I referred to earlier (at [9]) may be ameliorated by increasing the width of the formed driveway. This can only be done if the applicants have full use of all of right of way B. Further, I can see no proper basis for denying the applicants the orders they seek.

[13] Accordingly, I find that the applicants are entitled to the orders sought in

[1.1] and [1.2] of their application.

Result

[14] Ms Guo must remove all impediments to the right of way easement

designated ‘B’ on the Certificate of Title and referred to in Easement Certificate

375233.2 including all block walls, rock walls and other vegetation.

[15] Ms Guo must remove or relocate the portion of the block wall that

encroaches on the applicants’ land in the western boundary of Ms Guo’s property.

[16] Leave is reserved to the parties to file memoranda as to costs.