Section 327 of the Property Law Act authorizes an owner or occupier of landlocked land to apply to a court for an order granting reasonable access to any such land. Section 327 provides:

327 Owner or occupier of landlocked land may apply to a court

(1) An owner or occupier of landlocked land may apply to a court for an order under section 328(1) granting reasonable access to any such land.

(2) Unless the court directs otherwise, the application must be served on—

(a) the owner of each piece of land adjoining the landlocked land; and

(b) every person who—

(i) has an estate or interest in the landlocked land or in any other piece of land (whether or not adjoining the landlocked land) that may be affected by the granting of the application; or

(ii) claims to be a party to, or to be entitled to a benefit under, any instrument relating to land of the kind specified in subparagraph (i); and

(c) the relevant territorial authority

 

There is a three-stage approach to be taken by the Courts when determining an application for relief from landlocked land.[1] First, the Court must decide if the land is, in fact, landlocked as defined by Property Law Act 2007, section 326.

 

 

326 Interpretation

In this subpart,—landlocked land means a piece of land to which there is no reasonable access

reasonable access, in relation to land, means physical access to persons or services of a nature and quality that is reasonably necessary to enable the owner or occupier of the land to use and enjoy the land for any purpose for which it may be used in accordance with any right, permission, authority, consent, approval, or dispensation enjoyed or granted under the Resource Management Act 1991.

 

Secondly, the Courts would decide whether it should grant relief by making an order for reasonable access under Property Law Act 2007, section 328.

328 Court may grant reasonable access to landlocked land

(1) A court, on an application under section 327, may—

(a) make an order granting reasonable access to the landlocked land; and

(b) for that purpose, specify in the order that—

(i) any other piece of land (whether or not adjoining the landlocked land) must be vested in the owner of the landlocked land; or

(ii) an easement over that other piece of land must be granted for the benefit of the landlocked land.

 

(2) The court must not make an order under subsection (1) granting reasonable access to landlocked land over—

(a) land that is part of a national park within the meaning of the National Parks Act 1980; or

(b) land that is a public reserve or part of a public reserve within the meaning of the Reserves Act 1977; or

(c) a railway line within the meaning of the New Zealand Railways Corporation Act 1981.

(3) The court may decline to make an order under subsection (1) if it considers that the applicant is entitled, and should be required, to seek relief under—

(a) Te Ture Whenua Maori Act 1993; or

(b) the Local Government Act 2002; or

(c) any other enactment.

 

Thirdly, the Courts would consider whether to make the order it grants subject to conditions; a non-exhaustive list of possible conditions is provided in Property Law Act 2007, section 329.

 

 

329 Matters court must consider in determining an application for the order for reasonable access

In determining an application for an order under section 328, the court must have regard to—

(a) the nature and quality of the access (if any) to the landlocked land at the time when the applicant purchased or otherwise acquired the land:

(b) the circumstances under which the land became landlocked:

(c) the conduct of the parties, including any attempts they have made to negotiate reasonable access to the landlocked land:

(d) the hardship that would be caused to the applicant by the refusal of an order, in comparison with the hardship that would be caused to any other person by the making of an order:

(e) any other relevant matters.

 

[1] Squally Cove Forestry Partnership v Wagg [2013] NZCA 463, [2013] 3 NZLR 793 at [20].

 


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