What is Reasonable Access to Land? The Court of Appeal recently considered this issue in the case of Murray and Tuohy v BC Group (2003) Limited and Ors [2010] NZCA 163. The appellants and their neighbours owned adjoining properties in the Wellington hillside suburb of Ngaio. The properties were created by a subdivision in 1963. The appellants purchased their property in 1989 with the only access to the property via a steep council owned pedestrian footpath. Twenty years later and suffering health problems, the appellants sought an order under Section 129B of the Property Law Act 1952 requiring their immediate neighbours to provide access to their property through a right of way easement, on the basis that their land was landlocked. Section 129B is the remedial provision available to a landowner whose land is landlocked. The Court of Appeal said that the approach in Section 129B cases is well settled and involves three stages (briefly) stated as: • deciding whether the claimant’s land is landlocked within the meaning of the section, • if yes, determining how the discretion given to the Court by the section should be exercised, and • if the Court decides to grant access to the landlocked land, to determine the terms of access. The High Court, from which the appeal came, held in February 2009 that the appellant’s property was not All information in this newsletter is to the best of the authors’ knowledge true and accurate. No liability is assumed by the authors, or publishers, for any losses suffered by any person relying directly or indirectly upon this newsletter. It is recommended that clients should consult a senior representative of the firm before acting upon this information. August 2010 – October 2010 Page 2 of 4 © 2010 landlocked for the purposes of Section 129B (and accordingly there was no need to consider the second and third stages). Under section 129B(1)(a) a “piece of land is landlocked if there is no reasonable access to it”. It was the appellant’s case that taking into account modern day community expectations and standards, a residential property without vehicular access does not enjoy reasonable access and is therefore landlocked. In the Court of Appeal, Justice Gendall, who delivered the reasons of the Court, stated “we cannot accept that it is necessarily the case that under modern day community standards vehicular access on to the site of a residential property is necessary for it to enjoy reasonable access”. Further into the judgement Justice Gendall stated “obviously, if people cannot get onto their property it has no reasonable access. If they can access it from a public roadway or walkway through a suitable pedestrian route then such access may be reasonable, depending on the circumstances”. In this case there was evidence from the respondents that this was typical of access to properties in Wellington’s hilly suburbs. The Court of Appeal agreed with the High Court’s conclusion that, as a matter of fact having regard to contemporary standards, the present access was reasonable and that vehicular access was primarily a matter of convenience for the appellants. Accordingly the appeal was dismissed.