Bankside associate member John Hannan and Bankside barrister Nic Lawrence recently secured a High Court victory by successfully opposing an appeal concerning a disputed right of way easement, in Shores v Howden, Withers and Others [2026] NZHC 1515.
The case centred on a right of way that had been used for many years. The burdened property owner, Ms Shores, wished to subdivide their property and build an accessway over the right or way easement in a way that would have prevented its use by the Howdens.
The Howdens purchased 28 Glengarry in 2003. Ms Shores inherited the neighbouring property in 2018 and later sought to subdivide it.
Ms Shores claimed the registered right of way benefiting the Howdens no longer existed and advised that she intended to remove the driveway and prevent further access. Despite receiving a cease-and-desist letter, she removed the concrete driveway over the easement and erected fence posts blocking access.
The Howdens applied to the District Court under the Property Law Act 2007 for orders requiring the obstructions to be removed and the driveway reinstated. Ms Shores cross-applied for an order extinguishing the easement.
The District Court granted the Howdens' application, dismissed the cross-application, and ordered Ms Shores to remove the obstructions and reinstate the driveway. Ms Shores appealed against those decisions, arguing that the easement had ceased to exist following an earlier subdivision.
The High Court case involved technical argument about the manner in which a right of way can be surrendered or extinguished, the effect of incorrect memorials on right of way easements which are duly registered on the land transfer register, and the ability of the burdened property owner to get a right of way extinguished in order to carry out a subdivision of their land in the way they wish.
In his judgment, Justice MacGillivray stated that the easement existed for the benefit of the dominant land, not to provide a shared driveway for the burdened landowner: "While as the burdened landowner, Ms Shores has a right to pass over RoW E, that does not mean that RoW E needs to provide the same level of amenity and benefit to 30 Glengarry as to the benefited land. RoW E was created and situated to confer a benefit to 28 Glengarry. It was not created or situated to act as a shared driveway."
Justice MacGillivray dismissed the appeal on all points.
Comment