Legal Updates

New High Court Decision on Right Of Way Easements

In a recent High Court case, an order was made compelling the owner of a private driveway to allow their neighbour to install a new gate on that driveway. This decision, made in response to a dispute between Ruby & Rata Ltd (“Ruby”) and the Eagle Trust, highlights the importance of carefully reviewing the record of title for a property prior to the purchase of land and clarifies the rights of grantees of rights of way to install new entry points as these may be reasonable for use by a grantee.


The parties involved, Ruby and the Eagle Trust, possessed neighbouring rural properties in Pukekohe, Auckland. Primary access to both properties was provided by a fenced tree-lined driveway on the Eagle Trust’s land over which Ruby had the benefit of a legal right of way easement. Ruby sought a court order to confirm its right to place an additional gate on this driveway closer to the road, and generally, an order that it may place further gates in the future wherever it determined they were reasonably required.

Ruby's reasons for requiring the installation of the additional gate were varied, including allowing for more efficient movement of stock and vehicles within its property. The placement of the new gate would incidentally require removal of a pūriri tree.

Legal Dispute

The Eagle Trust’s opposition was based on the argument that the existing access point which was further from the road was sufficient for Ruby's current farming operations, and that an additional access point was unnecessary. Furthermore, The Eagle Trust expressed concern about increased traffic on the driveway and the potential impact on their property's value.

The High Court reviewed the terms of the easement, which granted Ruby the right to establish a driveway, repair and maintain an existing driveway, and, if necessary for these purposes, alter the state of the land. There was no limitation or proviso specified in the easement regarding access points, removal of obstacles or volume of traffic. The High Court further noted that the easement area included the entirety of the grass verges on which the pūriri trees were planted.

The High Court further considered the circumstances surrounding the easement’s creation and the degree to which the current fence and tree were permanent or semi-permanent when making its decision as to whether the requested access was reasonable.

Court's Decision

The High Court affirmed Ruby's right to establish the additional gate under the existing easement and remove the pūriri tree. Additionally, recognising the adverse effects on Ruby's farming operations caused by The Eagle Trust’s denial of access, the Court awarded Ruby $15,000 in general damages.

The High Court declined Ruby’s request for a declaration that it was entitled to install gates to access its land from any part along the easement area that it considered reasonable. Any access would need to be agreed between Ruby and the Eagle Trust or failing agreement,  determined by the Court.

Seeking legal assistance

This case emphasises the importance of reviewing a title and what interests are registered on that title carefully and seeking legal advice before entering into a property purchase, particularly in the context of purchasing a rural property which, due to their nature, often have complicated arrangements for access and other interests on their titles, such as water rights.

If you are contemplating buying a property or find yourself in a dispute related to your rights under an easement, the team at Ford Sumner can assist you. We are experts in property law.  Please do not hesitate to contact Sarah Churstain or Maggie Knowles for more information.



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