Mission Bay driveway battle hits court: truck access to development site in dispute

Mission Bay, the suburb where the homes at the centre of the dispute are. Photo / Greg Bowker

A battle over a Mission Bay right-of-way has gone to the High Court, with claims that trucks accessing a luxury development site daily are trespassing.

Antony Franklyn McInness, Susanne Mavis McInness and Henry William Cranefield are suing Peter Allan Keith Jones, Judith Ann Jones, Timothy John Burcher and 161 Tamaki Drive Ltd in the case set down for a three-day hearing from November 26.

"The case involves a dispute about the use of a right-of-way," said Associate Judge Roger Bell in an oral decision on an application for documents.

The parties taking the action own the residential property at 24 Selwyn Ave.

Read the oral decision here.

They are suing trustees of a trust which owns the neighbouring 26 Selwyn Ave, "which is currently a vacant lot" but a luxury residential home is being built there. The Joneses are also shareholders in the second defendant, 161 Tamaki Dr, which owns 20a and 20b Selwyn Ave.

"That land is being developed into three high-end residential apartments," the judge said, noting that the scale of work was "very extensive" and citing the purchase price of the land as well as the cost of works. Three "high-end apartments" are being built on the 161 Tamaki Dr land.

"All of the properties...are accessed from a common driveway. The plaintiffs say that trucks accessing the 161 site are trespassing on the 24 Selwyn Ave share of the driveway. The trespasses continue on an almost daily basis. The 18 and 26 Selwyn Avenue shares of the driveway are not wide enough for trucks to access the 161 site without trespassing," the judge said.

"There are disputes of fact whether trespasses are happening, the extent of trespass and whether trucks using the 24 Selwyn Avenue share of the driveway are going to the 161 site or to 26 Selwyn Avenue.

"The defendants accept that there have been occasions when trucks accessing the 161 building site have used the 24 Selwyn Avenue share of the driveway. But they say that they have taken steps to avoid that by erecting signs and painting a pink strip to show the trucks which part of the driveway they can use," he said.

But the plaintiffs don't accept that and sought a permanent injunction.

They applied for discovery of documents including invoices and delivery slips and budgeted development costs.

The judge said proposals to use smaller vehicles to deliver goods to the sites seemed "implausible."

"I find it hard to consider how concrete could be delivered other than in conventional concrete trucks. The fact is that carrying out development on 26, 20a and 20b Selwyn Avenue requires the driveway to be used. It seems to be an unavoidable but unfortunate effect of use of the driveway that trespasses have occurred from time to time," Associate Judge Roger Bell said.

He directed the Joneses to disclose building consent applications and consent for 161 Tamaki Dr and 26 Selwyn Ave and to provide copies of delivery dockets for the developments at 20a, 20b and 26 Selwyn Ave.

But he also ordered the plaintiffs to file an amended statement of claim to give better particulars of the damages they seek.