Crown Beach Executive Villas Ltd v Landowners of Vaitamanga [1998] CKCA 2; CA 1 of 1998 (12 August 1998)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND

C.A. No 1/98

IN THE MATTER of the Declaratory Judgments Act 1908

BETWEEN

CROWN BEACH EXECUTIVE VILLAS LIMITED
Appellant

AND

THE LANDOWNERS of Vaitamanga
Section 88F2A Aorangi, Raratonga
Respondent

Coram: Casey J
Hillyer J
Dillon J

Counsel: Mr A M Manarangi for the Appellant
(Mr E Nia represented himself and other Landowners)

Date of Hearing: 16 July 1998
Date of Judgment: 12 August 1998

JUDGMENT OF THE COURT DELIVERED BY CASEY J

This appeal concerns the interpretation of a grant of right of way by the respondents to the appellant giving it access from a road, the question being what access it has to the seashore adjacent to, but not abutting, its land. On 10 July 1973 the respondents granted a lease to the appellant's predecessors of 1 acre of their land now described as Sec 88F2A. The lease was assigned to the appellant in May 1997. The land is rectangular, lying close to the sea and its boundary at that Western end is the respondents' land between it and the shore, described as a "private reservation" on the plan annexed to the lease. From there it runs back to other land of the respondents lying between it and the road to the East, sub-divided into another four sections. Along the Southern side of the subject land is a right-of-way in favour of the appellant over a strip of land belonging to the respondents and giving access to the road. On the plan it is shown as running as far as the private reservation, but there is no boundary line shown between it and that reservation.

The grant of right-of-way is in the following terms:

"THE LESSORS DO HEREBY GRANT unto the lessee its servants agents workmen and visitors and all persons having business with the lessee a free right-of-way ............in and over that portion of VAITAMANGA SECTION 88F2 containing firstly twelve feet wide and secondly twenty feet wide and extending from the main road to the said demised land and thereon to the shore as the said parcel of land and right-of-ways are more particularly delineated and described in the plan thereof and drawn hereon."

The appellant says that when the lease was being negotiated, the parties were aware that it intended to build a beach resort on the land and that access to the shore was essential. At the time legislation zoning the foreshore for public recreation and enjoyment was being implemented, with provision for reserves over the seaward part of sections fronting the shore, from the line of vegetation at the edge of the land. The appellant says that in anticipation of this development and the consequent loss of that part of the land to public recreation, the lessors agreed that its seaward boundary would be the line of vegetation rather than the mean high water mark. However, the seaward part was not zoned as expected and remained in the respondent's ownership, constituting the private reservation shown on the plan. Mr Nia for the respondent told us that family members had wanted the reserve kept for their own private use. The land below it between mean high and low water marks is Crown land.

The High Court was asked to declare that the lease granted the appellant a right of way over the reserve from and along the common boundary between it and the demised land; or alternatively that it granted such a right of way over the reserve to the shore. McHugh J held that the grant did not give the lessee access over the reserve at any point, but only through it to the shore beyond the reserve by a 12-feet wide strip as an extension of the right of way shown on the plan. In this Court the appellant abandoned its contention in the High Court that the word "shore" used in the lease should be construed as a reference to the reserve, and accepted that it means the area between mean high and low water marks belonging to the Crown. For their part the respondents do not challenge the provision for access made by the Judge and we gained the impression that Mr Nia would like to reach an accommodation with the appellant for more liberal use of the family reserve, but was constrained by the objections of other members.

The Court's task is to ascertain the terms of the agreement from the language used in the lease and from the accompanying plan, in the light of the surrounding circumstances known to the parties at the time. It is common ground at least that the land was wanted for a beach resort, and that access to the beach would be essential for that purpose. Mr Manarangi referred us to Mellor v Walmsley [1905] UKLawRpCh 77; [1905] 2 Ch 164, but it is not really in point, being concerned with the position of a boundary to a number of plots of residential land described as "the seashore", whereas the present case involves the ascertainment of rights of way to the shore. Mr Manarangi relied on comments of Stirling J, one of the majority, to the effect that in order to satisfy the expectations of the landowners in Mellor v Walmsley to have access to the sea, the grantor could not use the intervening strip of land which remained vested in him for any purpose which would prevent them having sea access over that strip. A similar approach in this case would justify the High Court's recognition of the extended right-of-way across the reserve as providing adequate access to the sea. In Mellor v Walmsley the plots lay right along the intervening strip so that access over its whole length was necessary for each to enjoy the grant. In the present case there is sufficient access to the sea from the leased land along the 12-feet wide strip. It must be borne in mind that only access to the shore is in issue, not the ability to use the reserve for recreational purposes. If that had been granted, there would be a strong case for implying a right to access across the length of the land's Western boundary.

We are satisfied that the terms of the lease are not to be construed as containing such a grant. Although there is some confusion in the way the dimensions of the right-of-way are expressed in the lease, it is clear from the plan that its width from the road to the demised land is 20 feet, and thereafter 12 feet. The expression "and thereon to the shore" in the passage quoted above from the lease is plainly a reference to the 12-foot section of the right-of-way after it reaches the demised land. Accordingly we see no reason to disagree with the conclusion reached by the High Court and the appeal is dismissed. Mr Nia is entitled to his reasonable travel and accommodation and other expenses to be fixed by the Registrar if the parties cannot agree.

By the Court

(Rt Hon Sir Maurice Casey)