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High Court Authorises Entry Onto Neighbouring Land To Undertake Repairs

September 2019

Situations occasionally arise where a landowner wishes to gain access over their neighbour’s land for the purpose of undertaking repairs or alterations to their property.  Such situations typically arise because there are physical impediments that prevent the landowner from undertaking the relevant work from their own land.  Normally, the owners of the neighbouring properties are able to come to mutually satisfactory arrangements for such access to be granted, or alternatively the landowner seeking access is able to make alternative arrangements for the work to be undertaken without accessing their neighbour’s land.

Many would assume that a landowner has the absolute right to decline permission for an adjoining landowner to access their land for such purposes.  However Sections 319 and 320 of the Property Law Act 2007 (“the PLA”) enable an owner or occupier of land who wishes to enter onto or over any neighbouring land for the purposes of undertaking repairs, alterations or demolition of any structure on the applicant’s land, or to undertake any other necessary or desirable action in relation to the applicant’s land, to apply to the Court for an order authorising the applicant to enter onto or over the neighbouring land.  

Perhaps surprisingly, cases involving this section of the PLA are relatively rare.  However, a decision concerning these sections of the PLA was recently issued by the High Court in Body Corporate 329331 (In Administration) v Escrow Holdings Forty – One Limited and Anor [2019] NZHC 600.

Factual Background

The applicant owned a six story apartment building, which adjoined a two story parking building owned by the respondent.  The two story parking building provided vehicular and pedestrian access to the ground floor of the apartment building, which had four accommodation floors above and an additional parking floor below.  

The applicant’s apartment building suffered from weathertightness issues and the contractor engaged to undertake the repairs was wanting to use the upper floor of the respondent’s carparking building for a laydown area for a crane when needed, a goods lift and for material storage.  Negotiations between the applicant and the respondent for the terms upon which the applicant’s building contractor could gain access over the respondent’s carparking building ultimately failed.  The applicant therefore gave notice to the respondent of its intention to apply to the Court under Section 319 of the PLA and subsequently made an application to the High Court.

The Legal Principles 

The High Court noted that there was a paucity of case law on the relevant sections or their predecessors, which were expressed in broadly similar terms.  The Court noted that the PLA empowers the Court to permit entry onto adjoining land for specific activities, and that the order is required to authorise what would otherwise be a clear trespass.  Specified activities are erecting, repairing, adding to or painting any 

building, or fence or other structure on the applicant’s land or was otherwise regarded as necessary or desirable thing in relation to the applicant’s land.

The Court went on to note that the applicant’s notice addressed the mandatory procedural requirements by specifying the nature of the proposed work, how it was to be undertaken and the times during which the work was to be undertaken as well as the measures that were proposed to be taken to maintain adequate access to the respondent’s land.

Outcome

The Court concluded that on the facts of the case it was just equitable that the applicant be authorised under the PLA to enter the respondent’s land for the purposes of undertaking the repairs to the building.  However, the terms and conditions upon which access was to be granted were, however, to be the subject of further discussion between the parties and, if necessary, a subsequent application to the High Court for determination. 

Summary

As noted above, these sections of the PLA have not been the subject of a great deal of judicial consideration over the years.  It may be that this is because most situations where access is required are able to be resolved by agreement between the parties or alternatively the landowner seeking access finds another solution.   Landowners faced with a refusal of such a request may have thought that their neighbour had the final word on the matter.  However, as the case demonstrates, that is not necessarily the case and the PLA may provide a solution. 

Obviously, any landowners facing difficulties in obtaining access over neighbouring property to undertake necessary repairs should seek legal advice.