Arguments over an upgrade for a Havelock North residential right-of-way proved fruitless as David Cornes and Rei Jones attempted to block redevelopment of a two hectare block of land sitting between them and Lucknow Road.
Hawkes Bay developer Village Residential Ltd has Hastings District Council approval to redevelop the two hectare Lucknow Road property, with subdivision into five separate lots. Council consent required the right-of-way shared with Cornes and Jones to be upgraded as part of the development; it was in a state of disrepair, primarily disintegrating seal and loose metal. Cornes and Jones objected to the proposed Village development, annoyed it would affect their privacy. The court was told Mr Cornes at times parked his car on the right-of-way, attempting to impede contractors’ access.
Legal challenge to the development centred on wording of the easement creating the right-of-way. Cornes and Jones said standard rules in the Property Law Act create mutual obligations to ‘maintain and repair’ rights-of-way. That does not extend to an upgrade, they said. Attempts to upgrade should be treated as a trespass and blocked by the court, they claimed.
Upgrading an existing right-of-way was compatible with Property Law Act rules for maintenance and repair, the Court of Appeal ruled. Village Residential was allowed to upgrade the Lucknow Road right-of-way as required by Hastings District.
Terms of the right-of-way require Cornes and Jones to pay half the upgrade cost. This creates an unfair burden, the court said, given that three of the newly subdivided properties would become entitled to use it. It would be wise for Village Residential to negotiate with Cornes and Jones for a modification of payment obligations, the Court of Appeal warned.
Cornes & Jones v. Village Residential Ltd – Court of Appeal (31.05.21)
21.092