High Court spat over Remuera driveway

The disputed shared driveway. Photo / Nick Reed

A Bank of New Zealand director and Treasury board member has lost a High Court driveway spat with her neighbours in the upmarket Auckland suburb of Remuera.

Susan Macken, who has also served as a director of Southern Cross Healthcare, lives on a $1.6 million home at the front of a site she subdivided in 2010.

When this project was taking place, the former World Bank economist intended for two strips of land to be created for a common driveway.

One of these strips would be part of the Macken property and the other would be part of the house at the back, which is now owned by Ronald and Kathleen Jervis.

It was the plan that both parties would have mutual rights of way over the strips so they could both reach and park at their homes.

However, an accidental omission from the subdivision plan meant while the Jervises can use both strips, Macken can only use her one.

Although both sides involved "intelligent people", Justice Paul Heath, said they were unable to resolve the situation in a "pragmatic matter" and ended up in a four-day High Court hearing in December.

Part of the problem, according to Justice Heath's decision on the issue, appeared to be that the Jervises had kept a gate at the end of their driveway.

As well as this, Macken requires the whole width of the driveway to get her car into the garage because of a tight angle.

While the parties negotiated over access, the judge said they reached an impasse when the Jervises wouldn't allow their neighbour to use her vehicle over their driveway strip "seemingly as a result of Dr Macken's refusal to agree to the gate remaining in place".

The trustees that own Macken's property applied during the December hearing for "reasonable access" to the site.

The trustees wanted Macken to be allowed to drive directly into her garage and for vehicles to travel to the boundary of the Jervis' property, so items could be loaded or removed from the rear of her property.

While the Macken trustees argued her property had become landlocked, this was disputed by the Jervises.

Justice Heath, in his decision, took the view the property was not landlocked and mentioned there was pedestrian, bicycle and motorcycle access to it.

"It is difficult to see why the court should regard land as 'landlocked' when the problematic situation in which the occupier of the land seeking access
has found herself has been self induced...vehicular access over Mr and Mrs Jervis' property must be purchased at a price to be agreed," the judge said.

Given the property was not landlocked, Justice Heath said he did not have the jurisdiction to grant the application and dismissed it.

He reserved costs.