If your land is subject to an easement granting rights to the neighbouring land you need to tread carefully.
The recent case of Wimax New Zealand Limited v Fuge involved a dispute over a driveway (or a right of way easement). The Court of Appeal was tasked with determining whether structures erected on an easement area constitute an actionable interference with a neighbour’s rights under an easement instrument.
1. The Facts
Wimax owned a property that included a driveway shared with a neighbour. A right of way easement was registered on both titles in respect of the driveway, meaning the neighbour had the free and unimpeded right to use it to access their land.
Wimax carried out some alterations to its property, including building retaining walls, a planter wall and drainage — all on its own land, but within parts of the easement area.
2. The Dispute
The neighbour believed these alterations interfered with their rights, so took the matter to arbitration. The arbitrator found in favour of Wimax, concluding that the structures did not substantially interfere with the use of the driveway. This decision was overturned by the High Court on appeal, holding that the structures constituted a substantial interference.
3. Court of Appeal Analysis
The Court of Appeal agreed with the arbitrator, emphasising that an actionable interference requires a substantial interference with the neighbour’s current use of the easement. The neighbours could access their property as they had for over 60 years. They had no plans to develop their land. The right to establish a driveway is subject to reasonableness and does not entitle the neighbour to insist on the entire easement area being kept clear.
Although the Court of Appeal decision meant that the neighbour lost their claim, the Court acknowledged the complexity of the factual situation, suggesting the possible need for further and / or expert evidence where structures built may have an impact on future development.
4. Conclusion
The structures erected by Wimax did not constitute an actionable interference as the driveway was adequate for current needs.
This decision underscores the principle that an actionable interference with an easement requires a substantial interference with its current use, and reinforces the reasonableness requirement, balancing the interests of the landowner and the neighbour.
This is a useful reminder that just because you own the land doesn’t mean you can use it however you like. If there is an easement, even one underground (e.g. a drain), you may be restricted in what you can build or plant in that area if it creates an actionable interference with another party’s rights.
Keep in mind:
DO:
- Think about how your plans might affect your neighbour’s rights (current and future).
- Get legal advice before starting work that might impact shared areas.
- Negotiate with your neighbours and document consents to avoid costly disputes.
DON’T:
- Build over or obstruct an easement area without checking the legal implications.
- Ignore your neighbour’s concerns — it could lead to drawn out litigation.
- Being informed and cooperative can save you time, money and stress in the long run. When in doubt, get legal advice before picking up the shovel.
Chloe Wilson
Associate
Chloe.wilson@swlegal.co.nz
STEINDLE WILLIAMS LEGAL, Level 2, Suite 2.1, 18 Sale Street, T: 09 361 5563, www.swlegal.co.nz
