The recent case Rodney District Council v Friends of Mahurangi Incorporated confirms that the words of a Deed of grant of right of way will be interpreted as to the "natural meaning of the words at issue construed within the context of the deed [of grant] as a whole and against the surrounding circumstances, including the purpose for which the right of way was granted".

The right of way in question was created over 12 properties (the servient tenements) to provide access to a Council owned area of esplanade reserve (the dominant tenement) adjacent to the foreshore. The actual right of way was surveyed and formed by following the path of an existing limestone track. The track has since been concreted by property owners. Access to the esplanade reserve is also available by road. As the settlement developed over the years, there was a substantial increase in right of way traffic. Adding to the problem is the fact that the right of way itself is narrow and steep in parts. The property owners became concerned at the increase in use and applied to the Court for declarations limiting the nature and extent of public entitlement to use the right of way.

The owners argued that the word 'visitors' should be limited to those who visited the reserve at the invitation and with the permission of the Council, such as independent contractors engaged to maintain the reserve. Members of the general public visiting the reserve, the owners claimed, had no right to use the right of way. The fact that the owners had sole responsibility for maintaining the right of way supported the limited definition of the word 'visitor'. They further argued that a consequence of a wider definition of 'visitor' was the use of the right of way as though it was a public road and if that was the intention the parties would have agreed to vest the original access way as a road.

However, the Court concluded that the word 'visitors' extends to and includes all members of the general public who use the right of way for the purpose of access to and from the esplanade reserve, and is not restricted to mean only those persons who visit the reserve pursuant to a contractual arrangement with the Council. This confirms the general principle that a right of way may be used by anyone who is expressly or impliedly authorised to do so by the person entitled to possession of the dominant tenement, provided that the user is consistent with the quality and purpose of the user contemplated by the grant, i.e. in this case, 'visitors' in the natural and plain meaning of the word.

This is a general summary only and should not be taken as a substitute for specific advice.

For further information Susan Hesp, solicitor:
susan.hesp@phillipsfox.com
Web site: Phillips Fox