Developers Pragma Homes and Rentrezi were ordered to pay $20,000 damages for nuisance and trespass after disrupting use of a residential right-of-way when constructing new houses on Hillary Street in Chedworth, Hamilton.
Norman and Margaret Austin challenged use of a shared right-of-way following the 2018 subdivision and development of neighbouring land. From the time of their Hillary Street purchase thirty-two years previously, the Austins had enjoyed exclusive use of the existing right-of-way. It was only after other sections down the right-of-way were later subdivided and built on did the relatively narrow access way with its dog-leg corner come to be used by multiple owners now living in six different properties.
The Austins fought plans for subdivision from the off. They objected, without success, to Hamilton City Council giving consent to redevelopment of the neighbouring land. In court, they argued, again without success, that neighbours in the newly subdivided properties had no right to use the right-of-way for access. They then argued neighbours use of the right-of way was excessive, amounting to a legal nuisance; claiming damages totalling $150,000. Justice Wylie ruled neighbours conduct fell within the bounds of normal use. The Austins’ opposition to neighbours legal use of the right-of-way and to the existence and occupation of the new residential units had become unreasonable, he said.
Pragma Designer Homes Ltd and Rentrezi 2 Ltd developed the neighbouring properties. The two companies are associated; they share a common parent and a common director. Justice Wylie ruled their misuse of the right-of-way during construction amounted to both trespass and nuisance. There was evidence of construction vehicles parked on the right-of-way for extended periods, debris including concrete slurry left on the right-of-way and damage to the road surface itself. A telephone line, a gas line and a water line, all providing utility services to the Austins’ property, were at various times accidentally cut. The court was told issues were raised with both Pragma and Rentrezi at the time. Both the trespass and nuisance during construction were prolonged and went beyond what the Austins could reasonably have been expected to tolerate, Justice Wylie said. Pragma and Rentrezi were held jointly liable to pay damages of $20,000.
Austin v. Rentrezi 2 Ltd & Pragma Designer Homes Ltd - High Court (10.05.21)
21.077