IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2022-404-724
[2023] NZHC 3462	

UNDER	Section 313 Property Law Act 2007	
BETWEEN	RUBY & RATA LIMITED
Plaintiff	
AND	REED TRUSTEE 2018 LIMITED and
ANTHONY PRIVETT REED (as trustees of the Eagle Trust)
Defendants	

Hearing:	6-7 November 2023	
Appearances:	R O Parmenter for Plaintiff
J W Maassen and B D Mead for Defendants	
Judgment:	30 November 2023	

JUDGMENT OF O’GORMAN J

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

Registrar/Deputy Registrar

Solicitors:
Graham & Co, Auckland Langford Law, Wellington

RUBY & RATA LIMITED v REED TRUSTEE 2018 LIMITED [2023] NZHC 3462 [30 November 2023]

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

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

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

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

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

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

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

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

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

(ii)	for point X, at an angle convenient to Ruby, from the existing formed driveway to the boundary

which works are to be formed according to “Waikato District Council Approved    Engineering    Plan    for     Subdivision     SUB0068/22 & ENGA0068/22” dated 20 October 2022.

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

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

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

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

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

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

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

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

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

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

[7]	Ruby’s position is that it currently owns only one lot, and its case in this proceeding is based on the changes being reasonable for its present farming operations. While Ruby may wish to proceed with the consented subdivision and helicopter business in the future (and it contends those uses would fall within the scope of the present easement), those are not matters for determination in this proceeding. It

has many years to decide whether to carry out those future works, they may never occur, and Ruby has not addressed those speculative issues with evidence in this proceeding, because it is irrelevant. Ruby contends that the defendants’ counterclaim to address those issues is premature, and orders of that nature would amount to a pre-emptive injunction without any proper basis.

Legal principles

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

(a)	the existence of an easement;

(b)	the enforceability of an easement;

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

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

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

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

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

[10]	The ROW in this case is subject to the Land Transfer Regulations 2002.1 Regulation 10 implies certain rights and powers into different classes of easements, by reference to those set out in sch 4. Clause 6 of sch 4 sets out the rights and powers implied in rights of way:

6	Rights of way

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

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

(a)	vehicle, machinery, or implement; or

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

(3)	A right of way includes—

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

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

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

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

1	When the ROW was created on 4 November 2011, s 90D of the Land Transfer Act 1952 provided that regulations made under the Act may specify such rights and powers. The Land Transfer Regulations 2002 were revoked by s 249 of the Land Transfer Act 2017, and s 111 of that Act now sets out “rights and powers implied in easements”, in turn referring to current regulations made under that 2017 Act. However, cl 1 of sch 1 to the Land Transfer Regulations 2018 provides that reg 21 of the 2018 Regulations applies only to an easement registered on or after the commencement of those Regulations, “so that the rights and powers implied into an easement registered before that commencement are not affected”.
2	Land Transfer Act, s 297(5) provides that implied terms in that section are “in addition to, and not in derogation of, the provisions of s 111 of the Land Transfer Act 2017”. Subsection (6) goes on to provide that any rights and powers implied under s 111 of the Land Transfer Act prevail if, and to the extent that, they are inconsistent with any covenants implied by s 297 of the Property Law Act.

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

1	Right to pass and re-pass

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

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

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

2	Right to establish and maintain driveway

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

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

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

(c)	the right to have that land at all times kept clear of obstructions, whether caused by parked vehicles, deposit of materials, or unreasonable impediment to the use and enjoyment of the driveway; and

(d)	the right to a reasonable contribution towards the cost of establishment, maintenance, upkeep, and repair of the driveway to an appropriate standard; and

(e)	the right to recover the cost of repairing any damage to the driveway made necessary by any deliberate or negligent act of a person bound by these covenants or that person’s agents, contractors, employees, invitees, licensees, or tenants.

[13]	The extent of the ROW is to be determined “according to the natural meaning of the words contained in the document, read in light of the surrounding circumstances existing at the time when the easement was executed”.3 Relevant to the interpretation

3	Handforth v Komoko Farms Ltd (2010) 11 NZCPR 171 (HC) at [13], citing Masters v Snell [1979] 1 NZLR 34 (HC); and Grinskis v Lahood [1971] NZLR 502 (HC).

task are the physical circumstances of the servient tenement at the date of grant, and the nature and description of the land and/or buildings (existing or intended) comprising the dominant tenement, and the purpose for which the ROW is intended to be used.4

[14]	Underlying this dispute is a general principle that the benefited owner must exercise the right of easement reasonably and without undue interference with the burdened owners’ enjoyment of their own land.5 Therefore:

(a)	the grantee’s right to pass and repass is limited to such use and enjoyment as is reasonable;6 and

(b)	the ancillary right to establish access points is exercisable “for what is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted”.7

[15]	The learned authors of Hinde McMorland and Sim Land Law in New Zealand
summarise the principles about rights to establish access points as follows:8

Where the easement runs along the boundary of the benefited land, in the absence of a specific provision in the terms of the easement, and except where the circumstances otherwise indicate, the burdened owner is entitled to fence the right of way, provided sufficient points of access through gates are allowed to permit reasonable user of the right of way. The prima facie position is that:

(1)	The burdened owner is entitled to fence the right of way in order to secure its property along the whole boundary, but not so as to interfere with reasonable user of the right of way by the benefited owner through gates at such points as meet the benefited owner’s reasonable requirements; and

(2)	The benefited owner may have access through gates at a number of places, and may determine from time to time the points of access, which may vary over the years; but

(3)	The benefited owner is not entitled to have the easement remain unfenced.

4	At [13], citing Paterson & Barr Ltd v University of Otago [1925] NZLR 191 (Compensation Court).
5	DW McMorland and others Hinde McMorland and Sim Land Law in New Zealand (online ed, LexisNexis) at [16.038].
6	Breslin v Lyons [2013] NZCA 161, (2013) 14 NZCPR 144 at [30].
7	Hinde McMorland and Sim Land Law in New Zealand, above n 5, at [16.038].
8	At [16.038] (footnotes omitted).

[16]	Accordingly, the benefiting owner is entitled to add new access points if they are reasonable for the intended use, potentially including for reasons of convenience:9

The right of way granted is not to the gate, but to the piece of land. The plan shows a frontage of the land in question to the extent of ten feet to the way or passage coloured blue, and in my opinion he is entitled to pass from his own land to the way at whatever point of this frontage is most convenient to himself.

[17]	In assessing reasonable use, the specific nature of the property is relevant. For example, in Handforth v Kokomiko Farms the Court summarised:10

…this is a rural right of way specifically designed and created to provide continued access to the respondent for livestock, trucks and farm vehicles to and from Kokomoko Farm’s cattleyards, sheepyards, woolshed, fertiliser store and hayshed i.e. access to and from the main hub of Kokomoko Farm’s operations.

[18]	The rights conferred by an easement can respond to evolving circumstances so that they are sufficient to enable the lawful use of the benefited land at any given time,11 even if those purposes were not anticipated at the time of the grant.12 This may depend on the proper construction of the terms of the easement.

(a)	In Dand v Kingscote,13 the owner of the land on which there were coalmines had a ROW to and from the mines across burdened land. More than 200 years after the original grant, the benefited landowner wanted to construct a railway to transport the coal from the pits across the burdened land. The Court of Exchequer held such modifications came within the grant, because the owner was not confined to the use at the time of the grant, and the railway was convenient for the purpose of the mine.

9	Sketchley v Berger (1893) 69 LT 754 at 755, cited with approval in Handforth v Kokomiko Farms, above n 3, at [38]. See also Butler v Muddle (1995) 6 BPR 13,984, (1996) ANZ ConvR 147 (NSWSC) at 13,986.
10	Handforth v Kokomiko Farms, above n 3, at [43].
11	Cornes v Village Residential Ltd [2021] NZCA 216, (2021) 23 NZCPR 115 at [36].
12	At [35].
13	Dand v Kingscote (1840) 6 M & W 174, 151 ER 370 (Exch), referred to by way of example in
Cornes v Village Residential Ltd, above n 11, at [35].

(b)	In Cornes v Village Residential Ltd, the Court of Appeal focused on whatever purpose for which the land “may be lawfully used”, rather than the historic use at the time the easement was granted.14 However, in that case the easement expressly encompassed any lawful uses of the land.

[19]	The principles that apply when the benefiting land is subdivided have been summarised in Austin v Rentrezi 2 Ltd:15

Where benefited land is subdivided there is a presumption that the easement attaches to the subdivided parts. Similarly, on subdivision of the burdened land, the easement continues to bind each part of the land over which the easement exists. The presumption is subject to three provisos:

(a)	on its proper construction, the easement may benefit the benefited land only in its original form;

(b)	the easement may not in fact accommodate some of the subdivided lots; and

(c)	its attachment to each part of the subdivision must be possible without increasing the burden on the burdened land beyond the terms of the grant and the limits of the right.

[20]	When there is an obstruction on the land in existence at the date the easement was granted, the effect on the grant is a matter for the court’s assessment, considering the circumstances surrounding the creation of the easement and the degree to which the obstruction is permanent or semi-permanent:16
Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to over-ride the obstruction, and (conversely) the more solid and permanent the obstruction,

14 Cornes v Village Residential Ltd, above n 11, at [26]–[28], [32], [36] and [37].
15 Austin v Rentrezi 2 Ltd [2021] NZHC 1027, (2021) 23 NZCPR 77 at [46], referencing Hinde McMorland & Sim Land Law in New Zealand, above n 5 at [16.041]; Elizabeth Toomey (ed) New Zealand Land Law (3rd ed, Thomson Reuters, 2017) at [10.9]; Gallagher v Rainbow [1994] HCA 24 (HCA).
16 Charles v Beach [1993] EGCS 124, cited with approval in Pearlman v Rayden  [2004] EWHC  2192 (Ch) at [39].

the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal.

[21]	A different approach applies for obstructions introduced after the creation of the easement. In Fuge v Mimax New Zealand Ltd, from 2014 onwards the respondent had constructed retaining walls that protruded into an existing ROW easement but did not obstruct the driveway or impede movement up and down it. On an appeal from a decision of an arbitrator, Moore J rejected the submission that structures (or objects) will only be actionable if they inhibit passage.17 He considered the law clear that a structure that is within the area of a ROW easement, but does not interfere with a formed driveway, can constitute an actionable infringement.18 The correct interpretation was that the right conferred by the easement was to pass and re-pass over the entirety of the easement facility, including the driveway.19

[22]	In Synlait v Industrial Park, the owner had applied under s 317 to extinguish or modify two covenants that restricted the use of its burdened land to farming and forestry operations, given that Synlait had built a dairy factory on part of it.20 When the covenants were entered into, the benefited land had potential use as a commercial quarry. The covenants were to support that potential use, which might result in noise, vibration, earth movement, dust, effects of explosion and the usual incidences of quarrying. After the covenants were entered into, there were a number of planning changes permitting intensification of land use in the area, so commercial and residential development was increasing. Applying the two-stage approach,21 the Supreme Court’s assessment was that the proposed modification of the covenants would not substantially injure NZIPL, the reasonable use of the burdened land had changed, and the Court should appropriately modify the covenant to enable Synlait’s new use of the land.22

17	Fuge v Wimax New Zealand Ltd [2022] NZHC 1121 at [57]–[59].
18	At [60].
19	At [68], [76] and [77].
20	Synlait Milk Ltd v New Zealand Industrial Park Ltd [2020] NZSC 157, [2020] 1 NZLR 657.
21	Set out at [90].
22	At [162]–[166].

Factual background

[23]	In 2008, all of the relevant land was on a single title and owned by Ruebe Park Ltd, a company owned by the Siemelink family. In July 2008, that company sought consent to subdivide the land into the two lots that are the subject matter of this proceeding. The application recorded that the proposed ROW met the minimum rule requirements  of  being  at  least  12   metres   wide.    Consent  was   granted  on    17 December 2010, and the subdivided titles were issued on 4 November 2011 (the 2011 subdivision).

[24]	Meanwhile, at some point after the subdivision application was lodged (the defendants’ evidence was that it was between July 2008 and October 2009), pūriri trees were planted along either side of the driveway leading up to the main house. There are 21 pūriri trees planted along the full length of the driveway, with 14 or 15 planted within the area of the ROW easement. Subsequently, as required by the 2011 subdivision   consent,    the    ROW   easement   in   question   was    registered   on  4 November 2011. At the time, both titles were still held by Ruebe Park Ltd. Later in 2011 and in 2012, the title to 87 Ruebe Rd was transferred to other Siemelink family interests, but the Siemelink family continued to reside in the house on Lot 1 (now the Eagle Trust’s property) and to farm Lot 2.

[25]	In 2016, the Siemelink family obtained a further subdivision consent (SUB0047/17) for the land at Lots 1 and 2, 87 Ruebe Road (the 2016 subdivision). Mr Reed was aware of that existing subdivision consent when the Eagle Trust later purchased 87 Ruebe Road in 2021. That consent provided for the creation of ecological areas as shown in plans, dividing the land into further lots, boundary adjustments and upgrading of the ROW.

[26]	By 2021, Lots 1 and 2 were on the market as available for purchase jointly or separately. After a period of negotiation, Ruby bought the property at 87A Ruebe Road (Lot 2). That land was conveyed to Ruby on 7 May 2021. At the same time, an encumbrance was registered on 87 Ruebe Road (Lot 1) preventing any objection by the owner or subsequent owner to the development of a helicopter landing pad and hangar, and the operation a commercial helicopter business, on 87A Ruebe Road.

[27]	On 19 July 2021, the defendants entered into a sale and purchase agreement to acquire 87 Ruebe Road (Lot 1). They confirmed that the agreement was unconditional on or about 9 August 2021.

[28]	On or about 11 August 2021, the vendors’ solicitors (Foley Hughes) wrote to the  defendants’  solicitors  (Powle & Hodson)  seeking  consent   to   vary   the ROW easement to enable a future variation of the 2016 subdivision consent. Subsequently, Powle & Hodson declined to act for the defendants due to a conflict of interest. The defendants engaged a new solicitor, Mr Langford, to act for them on the conveyance and in respect of that request. Following Mr Langford asking for further information about the status of discussions between the vendors and Ruby about the issue, he advised that his clients were not agreeable to any changes being made to the ROW easement. On 9 September 2021, Mr Langford advised that a caveat had been lodged against the property to protect Eagle Trust/Mr Reed’s interest as a purchaser. Eagle Trust took title to 87 Ruebe Road on 15 October 2021.

[29]	Ruby proceeded with its own application to progress the subdivision, relying on the scope of the existing ROW easement. Initially the application was made as an amendment to the 2016 subdivision. Ruby’s 2021 plan of subdivision proposed a new Lot 4 that was separated from three redesigned lots within the Ruby property by a more extensive conservation area running to the boundary. Mr Reed unsuccessfully sought to be involved in the subdivision approval process as an interested party. On 11 November 2021, the Waikato District Council (WDC) granted the non-notified subdivision consent of 87A Ruebe Road (the 2021 subdivision).

[30]	In the hearing, both parties referred to extensive discussions and correspondence between them from October 2021 onwards about Ruby’s request for another accessway, whether on a temporary or permanent basis. This is referred to further below in the summary of witness evidence. None of these communications resulted in any agreement. To the contrary, in early May 2022 Mr Reed issued a trespass notice warning Ruby to “stay off the place known as 87 Ruebe Rd”. This led to the plaintiff’s interim injunction application heard on 2 August 2022.   One of    Mr Reed’s complaints in that injunction hearing was that he needed to understand the

professional engineering detail and implications of any proposed work and its appropriateness.23

[31]	Subsequently, on 25 October 2022, WDC approved the plaintiff’s engineering plans for access to the new lots under that 2021 subdivision. These are the plans that are now used by the plaintiff to specify the nature and quality of the intended works, summarised above at [3].

[32]	On 18 August 2023, WDC granted Ruby consent to establish and operate a rural aerial service/rural industry in the form of a helicopter depot, subject to certain conditions.24

Witness evidence

[33]	The evidence on behalf of the plaintiff was provided by:

(a)	Ms Russell, one of the directors of the plaintiff’s company; and

(b)	Mr Bosgra, a surveying expert and the person who supervised Ruby’s subdivision application to WDC.

[34]	Ms Russell explained why the plaintiff wants to create new access at point Z and to carry out the related works for the purposes of the farming business currently carried out at that property (as a single lot). This was done by reference to the annotated Google Earth image below, in which north is to the left, and east to the top:

23	Ruby & Rata Ltd v Reed Trustee 2018 Ltd [2022] NZHC 2025, (2022) 23 NZCPR 463 at [20].
24	Resource Consent No LUC0527/23.

[35]	She explained that there is a current hayshed/barn on the property, and Ruby wishes to build stockyards beside that (the proposed yards are labelled in yellow, and the existing barn is labelled behind them in teal). Ruby intends to build a track from point Z to connect with an existing track leading to that area of the property (shown with a black arrow). As can be seen from the Google Earth image, that existing farm track leading down from the barn carries on to join the driveway on the Eagle Trust property, but at a part of the driveway beyond the easement, so that route is not useable by Ruby. Following the subdivision into two lots, point Z provides the most convenient spot to reconstitute a connecting farm track to that area, with useable access for Ruby.

[36]	Ms Russell explained that the current absence of yards means that stock has to be walked around the farm (shown by the dotted red line going around the blue conservation area), then down to Ruebe Road and along the road to some yards owned by a neighbour. Ruby cannot build its own yards at the proposed location near the barn until it is able to gain access at point Z. In addition, Ms Russell says that there is no hope of trucking hay and farm supplies to the barn when the ground is soft (which

it is for a substantial period of the year, particularly during the winter rainy season), so access for farm supplies is also critical.

[37]	The creation of a conservation area has impacted on the available routes within the Ruby property for moving stock and supplies. In recent months, Ruby has created a conservation area which has been fenced off from stock. This corresponds with one of the requirements of the subdivision consent (which Ms Russell accepted was a motivating factor for creating that area). This conservation area goes right up to the boundary just beyond point X, essentially splitting the property into two pieces. There is no longer any channel to pass between point X and along the northern side of the Ruby property towards the existing barn. So, in order to get stock and other supplies from entry point X to the northern part of the property, it needs to be walked the long way around the entire conservation area. This is a major undertaking, compared with driving up the ROW and through the proposed access at point Z and along a farm track to the barn and proposed yards.

[38]	Ms Russell adds that, even without the conservation area, Ruby would still want access to the upper areas of the farm through point Z. There is a 176-metre formed ROW for the very purpose of accessing the property, and Ruby does not think it should face the problem of having to drive over pasture (if it is dry enough to do so), if there is a much better option of using the existing ROW. Other than in very dry weather, vehicular access over the Ruby land from point X to the barn area is not possible.

[39]	In terms of the necessity of removing the tree at point T, the reason for the current design is to maintain as straight a line as possible on to the Ruby property, so trucks are able to have easy access, and so there is a straight-line view along the length of the driveway from the road entrance of the ROW through to point Z. This enables better management of potential oncoming vehicle issues.

[40]	Following a complaint about lack of engineering detail during the injunction process, the plaintiff’s proposal now is that the carriageways would be formed and sealed from the shared driveway to the boundary according to the “Waikato District Council Approved Engineering Plan for Subdivision SUB0068/22 & ENGA0068/22”

dated 20 October 2022. Ms Russell confirms that there will be farm gates at these accessways.

[41]	The plaintiff’s application is made on the basis that Ruby’s farm is currently one lot, and the access point at Z and the related works are reasonable for their current farming needs as one lot. The plaintiff’s position is that the application should be assessed on that basis. In cross-examination, Ms Russell readily acknowledged that it is likely the subdivision may proceed in the future, and they would want the proposed Lot 4 on the northern part of the property to inherit the right to use the ROW (including at point Z), but that is a matter for the future “if and when we elect to complete the subdivision”.

[42]	Ms Russell also described Ruby’s various attempts to seek agreement with Eagle Trust about a proposed solution to meet their respective needs, including on an urgent and temporary basis.  During those discussions, the other director of Ruby,  Mr Stening, provided a diagram offering two options for a second access point. The first was the option at point Z, and the second option was an alternative carriageway nearer the end of the easement after the point where the driveway turned towards the house. This second option had the advantage that it would not necessitate removal of any trees, but the disadvantage was that it would not provide straight access onto the Ruby property and there would not be a clear line of sight from the road entrance of the driveway through to the carriageway, increasing the risk of oncoming traffic issues. The response of the defendants was to reject both options, on the basis that access at point X was ample and was all that Ruby required. Ms Russell emphasised that the second option is no longer on the table, because Ruby considers that the proposal for access at point Z is preferable (for the reasons explained).

[43]	Ms Russell also addressed an event that occurred on 6 December 2022 when some cattle on the Ruby farm broke through the fence into the small area of ROW land near the road, beside the formed driveway. Ms Russell complained of the aggressive response from Mr Reed threatening removal or destruction of the cattle the next day at Ruby’s cost. In response, Ruby apologised for the incident and asked for temporary access through point Z, without cutting down a tree or laying down any surface. Eagle Trust did not provide any such consent, nor did it substantively respond to that request.

[44]	Mr Bosgra gave evidence as a surveying expert, and as the person who supervised Ruby’s subdivision application to WDC. The focus of his evidence was the engineering adequacy of the carriageways that Ruby wishes to construct between the formed driveway and the boundary at points X and Z. Ruby asserts that if it builds those carriageways to the standards that are required in its 2021 subdivision resource consent, then it follows as a matter of logic that the carriageways will also be suitable to take or support motor vehicles, including stock trucks, for their current farming needs. Mr Bosgra supported the accuracy of that assertion. In any event, he expressed the view that a failure would not cause any harm to the defendants, because it would only affect Ruby’s ability to access its own property and Ruby would have the responsibility to fix it  under  the  terms  of  the  easement.  In  cross-examination, Mr Bosgra agreed that he had not been asked to address any traffic engineering evidence, nor had he been asked to assess any alternative potential access methods to the northern part of Ruby’s land (Lot 4 in the 2021 subdivision consent). He was also cross-examined about the adequacy of access for the uses referred to in his witness statement. In essence, his overall evidence was that, if WDC accepted these plans as adequate for the intended uses of the subdivision, then those same construction requirements would be adequate for supporting motor vehicles (including stock trucks) for Ruby’s existing farm needs on a single lot.

[45]	The defendants called four witnesses:

(a)	Mr Reed as one of the trustees of the Eagle Trust, the owner of the land at 87 Ruebe Road;

(b)	Mr Sale, an arborist providing expert evidence about the pūriri trees, including the tree for removal at point T;

(c)	Mr Kane, who provided expert evidence about farm management practices; and

(d)	Mr McKenzie, who provided expert evidence on traffic engineering and transportation services.

[46]	Mr Reed gave evidence on behalf of the defendants covering the background to the subdivision and development of 87 and 87A Ruebe Road, including his assumption that the existing trees on the driveway were planted by the Siemelink family with the aim of creating “a grand and pleasant entrance way to the main house”. He said he was aware of the 2016 subdivision consent, but noted that it had not been implemented, and (unlike the 2021 subdivision consent) it provided for the existing access place at point X to service all three new lots. It did not propose any new accessway, whether at point Z or anywhere else along the easement.

[47]	Mr Reed addressed the events in August 2021, when he learnt that his firm of solicitors (Powle & Hodson) had acted both for Eagle Trust and the plaintiff in their respective purchases. After he confirmed the Eagle Trust contract as unconditional on 9 August 2021, Mr Reed saw a letter dated 11 August 2021 advising of the plaintiff’s request for consent to an amended subdivision. Shortly after that, Powle & Hodson declined to act for Eagle Trust on the grounds of a conflict of interest, and Mr Langford took over as Eagle Trust’s solicitor to complete the conveyancing. Mr Reed emphasised that at no stage did he provide his own, or Eagle Trust’s, consent to any changes to the easement or the subdivision for 87A Ruebe Road.

[48]	Mr Reed later become aware of the full details of the plaintiff’s subdivision application in August 2021 for resource consent, including a requirement to surrender the 2016 subdivision consent in some respects. He was not given notice of that surrender application at the time, even though the consent was over land in which Eagle Trust was the unconditional purchaser. After he became aware of Ruby’s application, Mr Reed tried to persuade the WDC that Eagle Trust was an interested party, but without success. The WDC took the position that the 2021 subdivision consent it had granted was separate from the private issues that arise under the easement.

[49]	In terms of the current state of the formed driveway, Mr Reed acknowledges that the driveway is in a comparatively poor state and requires maintenance work. His overall position is that he still does not understand the precise nature and extent of the activities proposed on the Ruby Land, including under the 2021 subdivision and in respect of a commercial helicopter depot. He says it is only with the benefit of that

further information that he could assess what engineering work is required. He considers that both types of use are likely to be excessive and outside the scope of the current easement.

[50]	To accommodate those future uses, his view is that the best solution would be a single access to the four-lot subdivision at 87A Ruebe Road, accommodated via the existing accessway at point X. During the course of the discussions in 2021, Mr Reed offered to sell to the plaintiff a small triangle of land that is part of the easement, between the driveway and Ruebe Road. He had suggested that this small part of land could be transferred for the cost of the conveyancing fee and would widen the access point of the driveway at the entry from Ruebe Road, enabling a safer five degree turn and a straight driveway onto the Ruby land, approximately parallel to the existing driveway, without the removal of any trees and likely with reduced engineering requirements. He says this would be safer for B-Train trucks, which he understood Ruby wanted to use for its farming purposes. He also took the strong view, supported by the defendants’ farm management expert, that it would make more commercial sense to have any proposed yard located close to the road.

[51]	In terms of the plaintiff’s intentions to operate a commercial helicopter business from 87A Ruebe Road, he was extremely concerned that the current proposal for access would not provide safe transport for fuel and other chemicals likely to be transported. He reiterated his concern that the use related to a helicopter business would be excessive and outside the permitted scope of the easement, considering additional staff travel, fuel, and chemical requirements.

[52]	Mr Sale’s evidence as an arborist was to address the age and health of the pūriri tree at point T, and the age and health of the balance of the pūriri trees on the driveway. He gave evidence about the history and significance of this species, the amenity value of the trees individually and collectively, their impacts on the habitat and biodiversity and any other matters impacting on consequences of removal of the tree.

[53]	Mr Sale provided the report that formed the basis of his evidence based on a review of photos, rather than any physical inspection of the trees. His view was that the majority of trees, including the tree at point T, are healthy trees in good condition

with a long expected useful life ahead of them. He observed that this species of tree can grow to thousands of years old, and it has significance to Māori for both practical purposes and spiritual/cultural reasons. It has flowers or fruits all year round and is a major food source for kererū (wood pigeon) and is also a major host of the pūriri moth (New Zealand’s largest moth).

[54]	In terms of amenity value, following a description of the layout, Mr Sale expressed the view that an avenue on a curved driveway such as this acts to frame it and draw the users of the driveway along the drive towards the house providing a “country estate” experience. The effect is enhanced by the similar size and shape of the trees, as well as the regular spacing along the straighter sections, with closer spacing around the curved sections. Accordingly, he concluded that the removal of an individual tree would change the aesthetics of the group, would leave a gap in the avenue, and would change the visual effect of the avenue along the driveway.

[55]	He acknowledged that the spacing was such that the removal of one tree was unlikely to reduce the health of the remaining trees and would have only a small effect on the overall habitat and biodiversity of the area. In terms of recommended mitigation, his view was that the Tree Protection Zone was a circle with a radius from the trunk centre of 12 times the tree’s trunk diameter. With spacings of 19–21 metres between the trees, his view was that access could likely be constructed within that gap without damaging the trees if certain protection measures were taken.

[56]	By the time of an addendum dated 16 October 2023, Mr Sale had completed a site visit and said that his opinion remained the same, subject to a correction that one pūriri tree noted as being in poor health had now died.

[57]	Mr Kane was asked to provide expert evidence about the carrying capacity for sheep, the nature of transport required for sheep, and the ability of a vehicle to make use of the existing access at point X compared with the proposed access at point Z. His assessment was that the effective grazing area of the Ruby land was 34 hectares, with 5.3 hectares likely to be ineffective grazing area, with the land is unsubdivided. Following subdivision, Lot 4 will have an estimated grass effective area of 25 hectares. In his view, the carrying capacity of farmland of this type would be between five and

seven stock units per hectare. One stock unit equals one 55-kilogram ewe rearing one lamb. For Lot 4 subdivided, this would equate to 125 ewes rearing 125 lambs.

[58]	He then went on to assess the transport requirements for that number of sheep. He said he was not a transport engineer, but his assessment was that it may be better to locate any stock yard near the road, and the current state of the driveway would need repair and regular maintenance to cope with the truck movements that he had estimated.

[59]	Under cross-examination, Mr Kane accepted that he had only carried out his assessment from locations on the Eagle Trust property and he had not been on to Ruby’s land. He accepted that he had not seen any sheep on Ruby’s land, only cattle. When asked why he had not analysed use of the farm for cattle, his response was that he had only been asked to address sheep in his report. He accepted that sheep require more transport than cattle. Based on an average of five stock units for cattle, the Lot 4 area would support approximately 25 cattle. His view was that one eight-wheel drive truck would be sufficient to move that number of cattle off the property at once. If a farmer were running a herd of 25 cattle, he accepted that a farmer might decide to rotate them every three years, with maybe around eight cattle taken on and off each year. Even if all 25 were taken on and off in one hit, the transport requirements would be approximately two trucks per year. Fertiliser trucks might also be used, or alternatively this might need to be transported by helicopter. Tractors and hay trucks may go up and down every now and again, and maybe a diesel truck if there was a diesel tank to service. Mr Kane accepted that this did not amount to a “heck of a lot” of movement for a 25-hectare effective area, depending on how the owners farm it.

[60]	Mr McKenzie gave expert evidence as a traffic engineering and transportation services consultant. He described the existing state of the main driveway as being a single lane, roughly sealed carriageway of approximately three to four metres in width, which is only able to accommodate a single line of vehicle movement at any one time. If opposing vehicles encounter each other along the length of the driveway, a passing manoeuvre would necessitate at least one vehicle leaving the roughly sealed surface and moving over the gravelled shoulder onto the grass berm to allow the other to pass. He did not consider that the gravelled shoulder or grass berm had been formed or

designed to carry the load of a car, light vehicle or heavy truck. He observed that the positioning of the existing trees creates an additional obstruction to any such passing manoeuvre, with the trees located with a gap of no more than approximately two metres from the current edge of the main driveway. A typical light vehicle or car is approximately two metres in width and many large and heavy vehicles are two and a half metres in width (the legal on-road maximum).

[61]	He then described a factual assumption that the proposed stockyards could be served by a B-Train vehicle, which could be 2.5 metres wide and up to 23 metres in length, comprised of a truck and two articulated trailers. He did not consider the current driveway surface suitable for such vehicles.

[62]	Mr McKenzie also commented on the feasibility for building a track on the Ruby land to service a helicopter hangar and stockyards, assuming this could involve between six and eight heavy vehicle movements per day. Adopting a broad assessment (without any topographical survey information), he considered that Ruby may struggle to meet recommended gradient requirements without extensive realignment of the track. He also considered that provision would need to be made for passing activity.

[63]	In terms of requirements along the main driveway, he considered there was a need to provide sufficient turning and waiting space for large vehicles, to enable better passing and manoeuvring. For a heavy commercial crossing catering for up to 18-metre long heavy vehicles, a minimum 15-metre curve radius is required between the edge of the carriageway and the edge of the intersecting access way. This would translate to an opening of 34.5 metres in length to serve a 4.5 metre access way from the driveway to the boundary. Accordingly, this would require removal of at least one tree, given that the spacings between the existing trees are approximately 20 metres.

[64]	Mr McKenzie considered that the existing access way at point X, just inside the property nearest Ruebe Road, may be a more suitable alternative that could achieve a reduced overall conflict between the defendants’ and the plaintiff’s traffic movements, at the same time reducing the requirements for upgrading an extension of the main driveway width to manage these potential conflicts. In his supplementary brief, Mr McKenzie described B-Train truck and trailers in more detail and observed

that the current engineering plans do not achieve a requirement of “squaring up” of the connection to Ruebe Road, given that the points at which vehicles would enter and exit the driveway are more parallel to the  centreline  of  the  western  limb  of  Ruebe Road. He does not consider that the consent for the 2021 subdivision meets the requirements of the District Plan Rule/RITS.25 In his view, these require a minimum carriageway width of 6.4 metres and passing bays to enable vehicles to pass each other safely and efficiently. As a matter of traffic safety, he did not support a situation that would necessitate one vehicle to reverse back in the event of meeting another vehicle coming in the other direction. He did not approve of the “give way” sign as a solution for these problems.

[65]	Under cross-examination, Mr McKenzie accepted that it was not currently unsafe to use the driveway between points X and Z for rural purposes. His concerns related to the use of heavier vehicles and the greater damage that could eventuate in the future with that level and type of use. In terms of the safety of a vehicle meeting another coming in the opposite direction, Mr McKenzie accepted that there was visibility along the 130.1 metres between the road entrance and point Z, so one scenario was that a truck driver would look up and down to see if anyone else was coming. He accepted various scenarios of common-sense preventative action that could be taken to address an oncoming vehicle issue (one driver waiting at one of the ends, and/or one driver backing up if necessary).

[66]	In terms of his assessed alternative of using the existing point X and constructing a new track parallel with the existing formed driveway, he accepted that he was solely talking about “traffic function” and had not considered cost and other implications. In terms of his evidence about the detrimental effect of B-Train vehicles, he accepted that if a smaller vehicle were used (such as a six or eight-wheeler), then the effects would be less than what he had outlined in his evidence. As for his concerns about the WDC approval of the subdivision, he agreed that he was potentially saying that WDC had approved something that he would not have approved.

25	RITS stands for Regional Infrastructure Technical Specifications.

Analysis

[67]	An assessment of the rights of Ruby under the ROW easement begins with construing the intended scope of those rights. In this case, the terms of ROW are entirely implied. The wording in the registered easement itself simply says “Right of Way” under the Schedule A heading “Purpose”. The described rights and powers say, “Unless otherwise provided below, the rights and powers implied in specified classes of easements are those prescribed by the Land Transfer Regulations 2002 and/or Schedule Five of the Property Law Act 2007”. There is no limitation or proviso specified in the registered document. The easement itself is identified by way of a reference to registered documents, namely to the easement being marked “A” on   DP 443412, with the servient tenement being Lot 1 DP 443412 and the dominant tenement being Lot 2 DP 443412. The relevant diagram appears in the title documents.

[68]	It is relevant to note that the easement includes the entirety of the grass verges on which the pūriri trees are planted. The trees are neither shown on, nor excluded from, the legal easement.   In fact, it would have been contrary to the minimum      12 metres ROW requirements in the 2011 subdivision to exclude the grass verges (the legal width including those parts is 12.19 metres).

[69]	This does not necessarily mean there is an absolute right to require removal of the pūriri trees, simply because they are located on the easement area. Rather, the principle to be applied is essentially a question of degree, taking into account the circumstances surrounding the creation of the easement and the degree to which the obstruction is permanent or semi-permanent.

[70]	Generally registered documents should be construed without regard to extrinsic evidence particular to the original parties and not apparent on the face of the register. However, the court can consider facts that a reasonable future reader of the document could be expected to be aware of and would recognise as relevant and which they have access to, such as the configuration of land, any physical features to which the document relates, and any material referred to in the document.26

26	Austin v Rentrezi 2 Ltd, above n 15, at [40], referencing Green Growth No. 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 75, [2019] 1 NZLR 161 at [74].

[71]	In this case, both parties purchased their interests from a vendor selling the two lots at the same time, either together or separately. Those facts are also evident from a review of the title documents of the dominant and servient tenements, as expressly referred to in the easement itself. A reasonable reader of the easement in those circumstances would have been aware that the easement was put in place as part of the 2011 subdivision, at a time when the land had been farmed as a single property with the owner residing in the main house and able to use all the integrated farming facilities. The physical feature of the farm track from the existing barn on 87A Ruebe Road leads down to the main driveway on 87 Ruebe Road at a point beyond the easement. If a separate purchaser of 87A Ruebe Road would not have the benefit of all of that track, it is reasonable to assume that the way in which the land on 87A would be farmed, and use of the track from the existing barn, may have to change. There is a related and obvious question, assessing the physical features of the land, of whether the ROW was granted beyond the accessway at point X for the very reason that any separate and new owner of 87A Ruebe Road might need reasonable access at some point further along the driveway to the northern parts of the land. Otherwise, the easement could have stopped at point X.

[72]	Taking into account the specific nature of the property as a rural farm, it is reasonable to construe the ROW as specifically designed to enable access for truck and farm vehicles.27 Given the typical nature of vehicles that might reasonably be used for farm land of this size, traffic safety requirements on a shared driveway, the express 12 metre minimum width of the easement, and the minimum 12 metre easement width for the 2011 subdivision, I find that it would have been foreseeable that one or more trees might present an obstruction to the reasonable use of the easement, in which case one or more trees might one day need to be removed. Accordingly, I reject the defendants’ submission that the pre-existence of the trees at the time the easement was granted automatically precludes removal of any trees. On the other hand, the facts are potentially distinguishable from Fuge, where the obstruction was added later and therefore constituted an actionable infringement, whether or not it inhibited reasonable passage.28

27	Handforth v Kokomoko Farms Ltd, above n 3, at [43].
28	Fuge v Wimax New Zealand Ltd, above n 17. It may be significant that the trees were only planted after the subdivision application was lodged in July 2008, to the extent this is inconsistent with

[73]	I accept the plaintiff’s position that the present application for orders under    s 313 about Ruby’s entitlement to carry out the works is to be assessed in terms of reasonableness on the basis which they advance, namely that those works are reasonable for the present purposes of farming the land as a single lot. In the absence of Ruby so requesting, it is not appropriate to attempt to determine whether potential future uses under different legal configurations of a subdivision would fall within the scope of the existing easement, nor whether the commercial operation of a helicopter business would fall within the scope of the existing easement. That would call for speculation about future changes that may never eventuate. This does not mean that those possibilities are to be entirely disregarded. They form a valid part of the context for assessing the reasonableness of the proposed works at this time and Ruby’s motivations.

[74]	In particular, the defendants criticise Ruby for creating a conservation area up to the boundary. The defendants say this was done (at least in part) to satisfy a condition of the subdivision and therefore Ruby should not rely on that to say it now needs access from point Z, rather than using the existing access from point X and then traversing Ruby’s own land. Similarly, the defendants say that the carriageway plans for points X and Z are over-engineered for existing farm purposes. Designing and building those carriageways now to meet the specifications of the proposed subdivision demonstrates that the subdivision is the true purpose of these works, rather than existing farm use.

[75]	In her evidence on behalf of the plaintiff, Ms Russell accepted that creation of the conservation area and the design of the carriageways were consistent with the 2021 subdivision consent, but she was firm and entirely credible in her position that the proposed works also address immediate farming needs. I find it reasonable and sensible for an owner to make decisions about existing farm requirements with a view to decisions that might be made in the future about ongoing use of the land. It would not make sense to incur the cost now of creating two carriageways to a standard that would not meet likely future requirements and would therefore have to be replaced.

the representation throughout that the right of way “meets” the minimum 12 metre width requirements.

The overarching question for present purposes is whether the benefiting owner is seeking to exercise the right of easement reasonably, given that context.

[76]	It is difficult to see how the defendants could reasonably criticise an over-engineering of the carriageways done at the plaintiff’s own cost unless this has an unreasonable detrimental impact on the burdened land. In this case, the detrimental impacts are:

(a)	the need to remove the pūriri tree (a narrower track turning at an angle between the trees would not necessitate this); and

(b)	whether the second accessway at point Z is not reasonably necessary for current purposes, given that Ruby could use point X and access the balance of the land from its own property (the obstruction of the conservation area being a problem of Ruby’s own making).

[77]	In terms of the tree at point T, I accept Ms Russell’s evidence that removal is reasonably necessary to maintain a straight line down the ROW and onto the Ruby property using the carriageway to be constructed at point Z. This is more convenient for drivers and safest from a traffic management perspective. It maintains a line of sight that maximises the methods of preventative action that can be taken to address issues of oncoming traffic. These observations are consistent with the expert evidence given for the defendants by Mr McKenzie. Mr McKenzie accepted that it was not currently unsafe to use the driveway between points X and Z for rural purposes, and his concerns about the adequacy of the driveway were mainly directed at very large and heavy vehicles, rather than six or eight-wheel trucks that would be entirely suitable for Ruby’s farming needs. Having heard the evidence about the types of vehicles that might reasonably be required to service an existing 25-hectare area with 25 cattle, I accept that Ruby does reasonably want to create a carriageway that could safely accommodate a range of vehicles, and that a narrower angled accessway between the trees would not be best for those existing intended farming purposes, nor would it properly address safety concerns.

[78]	I take into account the detrimental impact that this will have on the aesthetic appearance of a tree-lined driveway up to the main house. However, as addressed in the evidence, there is already some inconsistency in the size and health of those trees. Specialist expertise is not required to appreciate aesthetics and the fact that the trees shown in the photographs produced are of varying sizes and health, with at least one dead. The defendants’ expert accepted that the removal of a single tree will not have any material impact on the health of the other trees, or the overall habitat and biodiversity of the area. My assessment is that the Eagle Trust will still have a significant benefit of a tree-lined driveway with the remaining trees. I do not consider it reasonable for Mr Reed’s aesthetic concerns arising with a single tree gap to override the practical requirements and convenience of Ruby as owner of the benefiting land. In this case, the tree is an impediment to go over that part of the easement. The tree itself is not protected by the full 12-metre-wide easement and the tree is inhibiting Ruby’s ancillary right to establish an access point for what I find is a reasonably necessary place for the effective and reasonable exercise and enjoyment of their ROW entitlements.

[79]	In terms of whether it is reasonable to use a new accessway at point Z, rather than rely solely on the existing accessway at point X, I start from the prima facie position outlined in Hinde McMorland and Sim Land Law in New Zealand that the benefited owner may have access through gates at a number of places, and may determine from time to time the point of access, which may vary over the years.29 I accept that it is for Ruby to make its own assessment of what is convenient access for the way it intends to operate its own farming operations. The overarching question is then whether that is a reasonable exercise and enjoyment of the rights expressly granted and, if so, whether the ancillary right to establish an access point is exercisable and necessary to support that.

[80]	I find it significant that the easement was granted for the full length of around 176 metres and did not end at point X (55.5 metres). This clearly implies the possible reasonable need to create an accessway further along the easement to service the northern parts of the farm at 87A Ruebe Road. I find it unreasonable to suggest that

29	Hinde McMorland and Sim Land Law in New Zealand, above n 5, at [16.038].

Ruby could create its own track parallel to the existing driveway to service the northern parts of its farm when this would be costly and wasteful given the existing shared driveway. I acknowledge the evidence of Mr Reed and other defendant experts that they might prefer an alternative of constructing yards nearer to the road, but I do not accept that this is the only reasonable way to configure the farm. The fact that there is an existing barn in the northern area of the property substantiates a reasonable need to transport supplies to and from that barn. The trade-off of having a yard near the road (as opposed to near the existing barn) is that it still leaves farmers with the problem of moving cattle  from  where  they  graze  down  to  the  road.  I  accept  Ms Russell’s evidence that constructing a yard nearer to the existing barn is valid and reasonable, and that traversing Ruby’s own land all the way from point X to the northern areas is problematic (with or without the conservation area), particularly when the ground is wet, let alone with complications of the terrain.

[81]	For the above reasons, I find that Ruby is entitled to carry out the intended works described above at [3]. I make that declaration accordingly.

[82]	It follows that Ruby is entitled to have accessways at points X and Z. It does not necessarily follow that a declaration should be made in the more general terms sought. Ruby seeks a declaration that it is entitled to access its land from the burdened part “at all reasonable places” but, particularly, at points X and Z (the wider declaration). In many ways, the declaration sought is consistent with my analysis in this judgment. The legal entitlements of the easement have been discussed, including the implied terms conferring the right to pass and re-pass over the land over which the ROW is granted, the right to establish and maintain a driveway, and the ancillary right to establish access points “for what is reasonably necessary for the effective and reasonable exercise and enjoyment of the rights expressly granted”. What amounts to a proper exercise of those rights depends on the facts at any given point in time. In this proceeding, the Court has considered the intended works and found those works to be reasonable in accordance with appliable legal principles, in the context on which the plaintiff relies (namely its current use as a single lot farm). While Ruby will continue to have entitlements under the existing easement to seek different access points from time to time, which may vary over the years, any such changes would require a similar analysis on the facts applicable as those needs arise. Declaratory

relief may be inappropriate when the proposition is general in nature and does not accurately or fully state the legal position or legal principle.30 My concern is that the broader relief sought in the wider declaration falls in this category and might be misconstrued, or it serves no useful purpose beyond the analysis already set out in this judgment.

[83]	That leaves the question of what happens to Ruby’s rights of access, including through points X and Z, if the use of Ruby’s land changes or intensifies. Again, that is something that must be assessed in its factual context at that time. There are established principles that apply (such as the principles with subdivision referred to above), but those matters are not for determination in this proceeding in the absence of Ruby seeking it. For the same reasons, I decline the defendants’ request that I impose conditions to preclude any future use associated with a subdivision or helicopter operations. That would amount to pre-emptive injunctive relief without any proper basis.

[84]	In terms of the defendants’ statement of defence and counterclaim, I do not accept that the plaintiff can be compelled to undertake the further works that would be required if it were to proceed with the 2021 subdivision, beyond what the plaintiff already seeks to do in the intended works. Nor do I accept that its application fails because the plaintiff’s evidence has not sought to substantiate and justify possible future uses that may never eventuate.

[85]	In terms of the defendants’ application under s 317 of the PLA, the defendants have failed to establish that they fall within any of the qualifying paragraphs in         s 317(1)(a)–(f). On the evidence I have seen in this proceeding, there have been no substantial changes to the uses of the burdened or benefiting land that could lead the Court to conclude that the terms of the ROW now “ought to be modified”. The current scope of the ROW does not impede the reasonable use of the burdened land in a different way, or to a different extent, from that which could reasonably have been foreseen by the original parties with the easement at the time of  its  creation.  Section 317(1)(d) cannot apply because the modifications that the defendants seek

30	See Timaru District Council v Minister of Local Government [2023] NZHC 244 at [82]–[86] and [144].

would be detrimental to Ruby. Accordingly, the defendants’ counterclaim fails. During the hearing, counsel for the defendants seemed to accept that this counterclaim would only be pursued to the extent that the Court might seek to make any affirmative findings as to reasonable use of the easement following a completed further subdivision, or for a commercial helicopter operation, were one or both to proceed in terms of their respective consents. As already explained, the subject matter of the plaintiff’s application does not require that type of future speculative analysis.

Damages

[86]	The plaintiff seeks general damages of $15,000 for the adverse effects on Ruby’s farming operation of not being granted access through point Z, despite numerous requests for that over a period of two years. In addition, the plaintiff seeks exemplary damages of $15,000 based on the submission that the defendants should be punished for contumelious disregard of the plaintiff’s rights and taking an indefensible position in brazen defiance of Ruby’s clear rights.

[87]	Ruby has sought $15,000 by way of general damages on the basis that this is a modest sum reflecting the adverse consequences outlined in the amended statement of claim and summarised above at [4], albeit that those have not been quantified by evidence.

[88]	In Austin v Rentrezi 2 Ltd,31 the plaintiffs, Mr and Mrs Austin, contended that the completion of a consented subdivision resulted in use of a ROW that was excessive and outside the proper scope of the original easement, to their detriment. The Court found that the easement survived subdivision, and the resulting level of use was not excessive and did not unreasonably interfere with the use of the ROW by the Austins.32 However, the Court found there had been trespass and nuisance during the construction process.33 The Court awarded $20,000 in general damages for trespass and nuisance that was relatively substantial and beyond what the Austins could reasonably have been expected to tolerate.34 The Court declined to award exemplary

31	Austin v Rentrezi 2 Ltd, above n 15, at [103].
32	At [65].
33	At [97].
34	At [100]–[103].

damages given that the respondents had tried to honour the Austins’ rights, albeit unsuccessfully.35

[89]	In Handforth v Kokomoko Farms Ltd, Wild J observed that the Handforths were entitled to obtain legal advice and, if necessary, commence the appropriate proceedings.36 Exemplary damages were awarded because they chose not to take that course, but instead acted unilaterally to erect obstructions that they knew would be very detrimental to the plaintiff.37

[90]	Based on the above cases, my assessment is that $15,000 by way of general damages is an appropriate sum to address an extended period (since October 2021) during which Ruby has repeatedly asked for use of another access point further along the driveway, including on an interim basis to address its immediate needs. I have found those requests to be reasonable, and I accept they have suffered the adverse consequences outlined in the amended claim and summarised above at [4] for a period beyond what they could reasonably have been expected to tolerate.

[91]	In terms of exemplary damages, however, the defendants were legally advised, and I do not see a sufficient basis to conclude that they did not genuinely believe in the arguments they advanced in this proceeding opposing the declarations sought. I therefore decline to award exemplary damages.

Result

[92]	The plaintiff’s claim succeeds. I make a declaration that Ruby is entitled to carry out the works described in para 10 of the amended statement of claim, and I award $15,000 by way of general damages to the plaintiff.

[93]	I decline to make the wider declaration sought in para (a) of the amended claim, and I do not award exemplary damages.

35	At [104].
36	Handforth v Komoko Farms Ltd, above n 3.
37	At [60]–[62].

[94]	Costs  follow the event.	If the parties cannot agree costs, then I direct as follows:

(a)	any memorandum seeking costs and/or disbursements is to be filed and served within 10 working days of the date of this judgment; and

(b)	any memorandum in response is to be filed and served within a further 10 working days.

[95]	I will then deal with the issue of costs and disbursements on the papers unless I require the assistance of counsel.

O’Gorman J