Wimax New Zealand Limited v Fuge - [2025] NZCA 31
Date of Judgment
26 February 2025
Decision
Wimax New Zealand Limited v Fuge (PDF 547 KB)
Summary
PROPERTY LAW TORT LAW — Easement — claim in nuisance of unlawful interference with right of way
The appellant, Wimax New Zealand Limited (Wimax), and the respondents, the trustees of a family trust called the Aberdeen Four Trust (the trustees), are neighbours who share a common accessway governed by a registered vehicular right of way easement. Their dispute concerns structures erected by Wimax that encroach on land subject to the easement but which do not obstruct the formed driveway or impede movement along it. The trustees sought an order requiring Wimax to remove the structures. The trustees’ claim was brough in nuisance for unlawful interference.
The terms of the easement included various rights and covenants derived from sch 4 of the Land Transfer Regulations 2002 (the 2002 LT Schedule) and sch 5 of the Property Law Act 2007 (the PLA Schedule).
The parties arbitrated the dispute and the trustees’ claims were dismissed because, amongst other things, the structures did not impede the functionality of the driveway. The trustees appealed to the High Court. In the High Court, Moore J held that the arbitrator had erred by limiting the rights under the easement to the driveway. In the Judge’s view, correctly interpreted the terms of the easement required the whole of the easement area, of which the driveway was only a part, to be cleared of structures which substantially interfered with its use. The Judge also considered that in light of the permanent and substantial nature of the encroaching structures, the conclusion that they constituted a substantial interference with the trustees’ use and enjoyment of the right of way was inescapable. However, having allowed the trustees’ appeal against the arbitration award, the Judge remitted the matter back to the arbitrator to deal with the issue of remedy.
Wimax was granted leave to appeal Moore J’s decision on two questions of law related to liability, and the trustees were granted leave to appeal the decision to remit remedy issues to the arbitrator.
At the appeal hearing, the arguments of both parties in relation to liability evolved from what they had been at arbitration and in the High Court. On appeal the primary focus was on the claim that the structures constituted a substantial interference with the trustees’ rights under the easement because of possible future plans to sub-divide their property which would likely require a widening of the driveway.
As a result of the change in focus, the Court re-framed the question of law for determination as follows.
Did the High Court err in holding there was an actionable interference with a vehicular right of way easement in circumstances where the encroaching structures did not substantially interfere with the grantee’s current use of the right of way and what was relied on was the effect the structures might have on possible future plans to develop the benefited property? Held: Yes.
After considering established common law principles, the New Zealand case law relied upon by the High Court and the trustees as well as the statutory terms, the Court held the trustees had a right to potentially expand or develop the driveway within the easement area but rejected the implication of the High Court judgment that the whole of the right of way must be kept clear in case of a possible development at some unknown time.
In coming to that conclusion, the Court relied on two established principles. First that a grantee of a right of way easement cannot insist on the entirety of the burdened land being kept free of all structures, and that an intruding structure will only be actionable if it creates a substantial interference with the grantee’s use and enjoyment of the right of way. Because an easement does not grant ownership of land, but only a right to the reasonable use of that land for its granted purpose, the benefited owner can only sustain a claim predicated on substantial interference with reasonable use for that specific purpose. The second principle was the recognition of a temporal dimension to liability, namely that a grantee is only entitled to object to activities that substantially interfere with the use or exercise of the right as for the time being.
Was the High Court wrong to remit the question of remedy back to the arbitrator? Held: No
Because the liability appeal succeeded, the remedy appeal had to be dismissed. But the Court indicated that even if the liability appeal had failed, it would have still dismissed the remedy appeal. The factual issues were unsuited for an appellate court to resolve, especially when further evidence was likely to be required.
Wimax’s appeal was allowed, the trustees’ appeal was dismissed, and the arbitral award was reinstated.
The trustees were ordered to pay costs in respect of both appeals, with costs in the High Court to be fixed by the High Court, in light of this judgment.
The appellant, Wimax New Zealand Limited (Wimax), and the respondents, the trustees of a family trust called the Aberdeen Four Trust (the trustees), are neighbours who share a common accessway governed by a registered vehicular right of way easement. Their dispute concerns structures erected by Wimax that encroach on land subject to the easement but which do not obstruct the formed driveway or impede movement along it. The trustees sought an order requiring Wimax to remove the structures. The trustees’ claim was brough in nuisance for unlawful interference.
The terms of the easement included various rights and covenants derived from sch 4 of the Land Transfer Regulations 2002 (the 2002 LT Schedule) and sch 5 of the Property Law Act 2007 (the PLA Schedule).
The parties arbitrated the dispute and the trustees’ claims were dismissed because, amongst other things, the structures did not impede the functionality of the driveway. The trustees appealed to the High Court. In the High Court, Moore J held that the arbitrator had erred by limiting the rights under the easement to the driveway. In the Judge’s view, correctly interpreted the terms of the easement required the whole of the easement area, of which the driveway was only a part, to be cleared of structures which substantially interfered with its use. The Judge also considered that in light of the permanent and substantial nature of the encroaching structures, the conclusion that they constituted a substantial interference with the trustees’ use and enjoyment of the right of way was inescapable. However, having allowed the trustees’ appeal against the arbitration award, the Judge remitted the matter back to the arbitrator to deal with the issue of remedy.
Wimax was granted leave to appeal Moore J’s decision on two questions of law related to liability, and the trustees were granted leave to appeal the decision to remit remedy issues to the arbitrator.
At the appeal hearing, the arguments of both parties in relation to liability evolved from what they had been at arbitration and in the High Court. On appeal the primary focus was on the claim that the structures constituted a substantial interference with the trustees’ rights under the easement because of possible future plans to sub-divide their property which would likely require a widening of the driveway.
As a result of the change in focus, the Court re-framed the question of law for determination as follows.
Did the High Court err in holding there was an actionable interference with a vehicular right of way easement in circumstances where the encroaching structures did not substantially interfere with the grantee’s current use of the right of way and what was relied on was the effect the structures might have on possible future plans to develop the benefited property? Held: Yes.
After considering established common law principles, the New Zealand case law relied upon by the High Court and the trustees as well as the statutory terms, the Court held the trustees had a right to potentially expand or develop the driveway within the easement area but rejected the implication of the High Court judgment that the whole of the right of way must be kept clear in case of a possible development at some unknown time.
In coming to that conclusion, the Court relied on two established principles. First that a grantee of a right of way easement cannot insist on the entirety of the burdened land being kept free of all structures, and that an intruding structure will only be actionable if it creates a substantial interference with the grantee’s use and enjoyment of the right of way. Because an easement does not grant ownership of land, but only a right to the reasonable use of that land for its granted purpose, the benefited owner can only sustain a claim predicated on substantial interference with reasonable use for that specific purpose. The second principle was the recognition of a temporal dimension to liability, namely that a grantee is only entitled to object to activities that substantially interfere with the use or exercise of the right as for the time being.
Was the High Court wrong to remit the question of remedy back to the arbitrator? Held: No
Because the liability appeal succeeded, the remedy appeal had to be dismissed. But the Court indicated that even if the liability appeal had failed, it would have still dismissed the remedy appeal. The factual issues were unsuited for an appellate court to resolve, especially when further evidence was likely to be required.
Wimax’s appeal was allowed, the trustees’ appeal was dismissed, and the arbitral award was reinstated.
The trustees were ordered to pay costs in respect of both appeals, with costs in the High Court to be fixed by the High Court, in light of this judgment.