HER MAJESTY'S ATTORNEY-GENERAL IN RESPECT OF THE DEPARTMENT OF CONSERVATION V JOHN DAVID HOLLAND AND ROSELEI ELIZABETH HOLLAND HC HAM CIV 2006-419-1650

HER MAJESTY'S ATTORNEY-GENERAL IN RESPECT OF THE DEPARTMENT OF CONSERVATION V JOHN DAVID HOLLAND AND ROSELEI ELIZABETH HOLLAND HC HAM CIV 2006-419-1650 16 May 2007IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2006-419-1650IN THE MATTER OF an appeal from a decision of the District Court at Hamilton (CIV 2005-024-82) BETWEEN HER MAJESTY'S ATTORNEY- GENERAL IN RESPECT OF THE DEPARTMENT OF CONSERVATION Appellant AND JOHN DAVID HOLLAND AND ROSELEI ELIZABETH HOLLAND Respondents Hearing: 7 May 2007 Appearances: M T Parker and G Gardner for appellant G H J Brant and R J T Robertson for respondents Judgment: 16 May 2007 at 11.30 a.m.JUDGMENT OF POTTER JIn accordance with r 540(4) High Court Rules I direct the registrar to endorse this judgment with a delivery time of 11.30 a.m. on 16 May 2007.Solicitors: Crown Law Office, P O Box 2858, Wellington Stace Hammond, P O Box 19-101, HamiltonTABLE OF CONTENTSIntroduction [1] Parties [3] Factual background [6] Relevant Causes of Action in the District Court [13] District Court judgment [15] The deed of easement [20] Easements – the common law [25] The easement in this case [34]Section 21 Water & Soil Conservation Act 1967 [57]Interpretation of the deed of easement [62] Private nuisance [71] Result [78] Costs [80]Introduction[1] This judgment concerns an appeal against parts of the judgment of the District Court at Hamilton dated 19 October 2006 in CIV 2005-024-82, in particular the findings made by Judge I B Thomas on the respondents' fourth cause of action and the appellant's second and alternative counterclaim cause of action. [2] The grounds of appeal stated in the notice of appeal and agreed by counsel for the appellant and the respondents to be the issues on appeal, are that: a) The Judge erred in holding that a private nuisance had been committed by the appellant; b) The Judge erred in finding that the entitlement of the respondents to use water from the servient land of the appellant was not limited to the purposes of allotment 471.Parties[3] The appellant, the Attorney-General in respect of the Department of Conservation ("the Department") was the second defendant in the District Court proceeding. [4] The respondents, Mr and Mrs Holland ("the Hollands") were the plaintiffs in the District Court proceeding. [5] Robert Van der Kaap ("Mr Van der Kaap") who is the owner of Allotment 360 which adjoins the property of the Hollands known as Allotment 471, was the first defendant in the District Court proceeding. The issues which concerned Mr Van der Kaap determined in the District Court judgment are not the subject of this appeal.Factual background[6] The District Court proceeding focused on a dispute between the Hollands and Mr Van der Kaap which concerned a number of issues including water supply to their respective properties. The Hollands own 1.8010 hectares being Allotment 471, Pepepe Parish comprised and described in Certificate of Title 69A/648 (previously 37B/615) (South Auckland Land Registry). The Hollands own adjoining farm land comprising 50.54 hectares, part Section 4 Block III Newcastle Survey District known as the Mortimer Block. They also own 80.7398 hectares being part Lot 12 DP 1278. [7] Mr Van der Kaap's Allotment 360 which comprises 1090m2 is surrounded on three sides by Allotment 471, on the east, west and southern boundaries of Allotment 360. [8] Also adjoining Allotment 471 on the eastern boundary, is part of Allotment 223 of which the Crown is registered as proprietor. It is known as the Hakarimata Scenic Reserve and is designated a scenic reserve under the Reserves Act 1977 ("the reserve"). [9] The Hollands have an easement appurtenant to Allotment 417 to take, convey and use water from a stream on the reserve, pursuant to Deed of Easement dated 2 October 1989. They admit there is no other contract or document they rely on to provide them with rights in terms of the easement. [10] Having sold in early 1994 Allotments 360 and 471 which they had purchased in 1993, in 1997 the Hollands applied to the Department for an easement to allow the taking of water to "our other land". This land included at least the Mortimer Block. There was some reference to it also including part Lot 12 DP 1278, which comprises a further 80.74 hectares. There were delays. The easement was never granted. In May 2004 the Hollands re-purchased Allotment 471. The Hollands then piped water from the easement on the servient land (the reserve) to Allotment 471 and from Allotment 471 to the Mortimer Block via underground piping. They ran the Mortimer Block in conjunction with Allotment 471 with six or seven 400 litre watertroughs on the Mortimer Block, all fed from water taken from the easement through Allotment 471. The evidence was that there was one 400 litre water trough on Allotment 471. [11] Mr Van der Kaap had encroached on to Allotment 471 and laid pipes and installed a water tank on the reserve so he could draw water from the stream sourced from a spring on the reserve. [12] The Hollands sought removal of the pipes and tanks installed by Mr Van der Kaap so the water supply they enjoyed pursuant to the easement was not diminished or interrupted by Mr Van der Kaap drawing water for the purposes of Allotment 360. This issue drew the Department into the District Court proceedings.Relevant causes of action in the District Court[13] The Hollands claimed as their fourth cause of action an order that the Department remove Mr Van der Kaap's water pipe and any order the Court deemed necessary to remove the "private nuisance" created by Mr Van der Kaap's water pipe which the Hollands claimed interfered with their easement granted by the Crown. This cause of action was originally framed in negligence but was amended by a third amended statement of claim filed after the conclusion of the hearing by leave of the Court, to plead the claim as founded in private nuisance. The Department did not file a further statement of defence but relied on its statement of defence and counterclaim to the second amended statement of claim. [14] The Department by way of counterclaim sought an order rectifying the deed of easement by including in the description of the dominant tenement, Allotment 360. By way of a second and alternative counterclaim the Department sought an order requiring the Hollands to disconnect pipes carrying water from that part of the reserve designated as subject to the easement via Allotment 471 to the Mortimer Block Part Lot 12 DP 1278 or any other land owned by the Hollands other than Allotment 471.District Court judgment[15] In a reserved judgment dated 19 October 2006 ("the judgment") Judge Thomas declined rectification of the easement (the Department's first counterclaim) on the basis that there was insufficient primary evidence to support Allotment 360 as well as Allotment 471 being the dominant tenement in respect of the easement over part of the reserve. This part of the judgment is not appealed. [16] In relation to the Department's second counterclaim, he held that the use of the water pursuant to the easement is in the possession of the grantee (the Hollands) and: it is his to deal with as he wishes.[17] He held that the Hollands' rights were guaranteed by the deed of easement to take and use the water in an uninterrupted fashion, subject to other persons' common law rights. He rejected the Department's argument that the water taken and used pursuant to the easement must be restricted to use on Allotment 471, the dominant tenement. He said at [25]:Once the plaintiff (the Hollands) has taken the water from the easement in accordance with his free and unimpeded right to do so then it is his water. It is his water to do with as he wishes. In the past it has included a provision of water to Lot 360 as well as provision of water to the Mortimer Block which is of course the adjoining land of the plaintiff. That is for the plaintiff to determine. The use of the water in this way does not extend the dominant tenement.[18] In relation to the claim in private nuisance against the Department, the Judge observed that the Department had acknowledged the use of the water by Mr Van der Kaap was illegal and had previously indicated it would remove the tank and pipes as trespassing structures, but had not done so. He held at [23]:In my view it is arguable on a balance of probabilities that in the particular circumstances the second defendant (the Department) should have taken steps to remove the first defendant's (Mr Van der Kaap's) structures and can be ordered by this Court to do so. In other words such a duty can be implied.He further stated that the order may in any event be unnecessary because of the finding that the Hollands had the right to enter and remove Mr Van der Kaap's trespassing structures. [19] That has occurred. The Hollands have entered upon the reserve and have removed Mr Van der Kaap's tank and pipes. However, while no positive action is any longer required of the Department in this respect, the Department pursues its appeal against the finding in the District Court that in failing to have removed Mr Van der Kaap's structures the Department has acted in breach of the easement and has created a nuisance (interference with the easement). The Department's appeal is relevant to the issue of costs awarded in the District Court in favour of the Hollands.The deed of easement[20] The easement was created by deed in 1982 but a further deed dated 2 October 1989 was executed between the Department and the then registered proprietor of Allotment 471, Peter Reginald Geddes. The deed of easement, which grants rights to take, convey and use water, was registered on 4 October 1989 ("the easement"). [21] The easement was granted pursuant to s 48 of the Reserves Act 1977. Section 48 was amended by the Reserves Amendment Act 1996 and now provides that easements granted under s 48 must be subject to the Resource Management Act 1991. [22] The easement is shown on CT69A/648, the Certificate of Title for Allotment 471 issued on 2 March 2000 in place of CT37B/615, as appurtenant to Allotment 471. The memorial on CT69A/648 records:Appurtenant hereto is a right to convey water created by Deed of Grant of Easement 44C/705 (affects Allotment 471 Parish of Pepepe).[23] Under the easement the servient tenement is part of Allotment 223 being the reserve, as is shown on a plan attached to the easement. The easement provides for the right to draw water from "the stream situated within that part of the servient land as the same as shown marked "A" and outlined by bold black lines on the planannexed hereto". There was some considerable discussion in the District Court proceeding about the fact that the Hollands draw water pursuant to the easement from a spring on the reserve which may or may not be situated within the area marked "A" on the plan attached to the deed of easement. The Judge described the use of the terms "spring" and "stream" as tautological and said that a stream must include its source. Apparently there is uncertainty as to whether an early plan showing the spring outside the area marked "A" is incorrect or whether the spring has in fact moved its position. At the appeal hearing Mr Parker, counsel for the Department, confirmed that the Department does not pursue this issue nor the Judge's finding in relation to it. [24] The deed of easement is at the heart of this appeal and is set out here in full:DEED OF EASEMENT BY WAY OF GRANT OF RIGHTS TO TAKE AND CONVEY WATER (Pursuant to the provisions of Section 48 of the Reserves Act 1977) THIS DEED is made the Second day of October 1989 BETWEEN THE MINISTER OF CONSERVATION (called "the Grantor") AND PETER REGINALD GEDDES of Huntly, Farmer (called "the Grantee") WHEREAS HER MAJESTY THE QUEEN is the owner of ALL THAT parcel of land containing 742.7722 hectares more or less being part Allotment 223 Pepepe Parish situated in Block III Newcastle Survey District (South Auckland Land District) being scenic reserve under the Reserves Act 1977 by New Zealand Gazette 1979/2582 (called "the servient land") AND WHEREAS the Grantee is registered as proprietor of an estate in fee simple in ALL THAT parcel of land containing 1.8010 hectares more or less being Allotment 471 Pepepe Parish situated in Block III Newcastle Survey District and being all of the land comprised and described in Certificate of Title No. 37B/615 (South Auckland Land Registry) (called "the dominant land") AND WHEREAS the servient and dominant lands adjoin and the Grantor at the request of the Grantee has agreed to give and grant to the Grantee certain water and other rights over the servient land on the terms and conditions following NOW THEREFORE THIS DEED WITNESSETH that pursuant to the provisions of Section 48 of the Reserves Act 1977 AND IN CONSIDERATION of these presents the Grantor TRANSFERS AND GRANTS to the Grantee subject to the provisions of Section 21 of the Water and Soil Conservation Act 1967 the full free uninterrupted and unrestricted right liberty and privilege from time to time and at all times to take convey and use water in free and unimpeded flow (except during any periods of necessary cleaning and repairing) from the stream situated within that part ofthe servient land as the same is shown marked "A" and outlined by bold black lines on the plan annexed AND for such purpose to place erect keep cleansed repaired and maintained a water tank and to place lay keep cleansed repaired and maintained a line of water pipes in and along that part of the servient land as the same is shown marked "A" and outlined by bold black lines on the plan annexed and to otherwise do all acts matters and things reasonably necessary to enable water to be taken conveyed and used as aforesaid AND for such purposes to enter upon the servient land on foot only with or without engineers and workmen and with or without any necessary implements tools pipes and materials and to remain upon the servient land from time to time and for such periods as may be reasonably necessary for cleansing repairing and maintaining the water tank and the line of water pipes TO THE INTENT that the rights hereby conferred shall be forever appurtenant to the dominant land UPON the terms and conditions following: 1. THAT Grantee his engineers and workmen the exercise of all or any of the rights hereby granted: (a) shall effect all work with reasonable dispatch and (b) will cause as little damage as possible to be done to the surface of the servient land and (c) shall where any damage is done to the surface of the servient land restore the same as to the satisfaction of the Grantor as near as possible to its original state and (d) will not injure damage cut down or destroy any native vegetation upon the servient land and (e) shall not take vehicles of any description onto the servient land and (f) shall not further modify the pipeline or water tank once the same are layed or erected without the approval and consent of the Grantor. 2. THIS grant is intended to take effect as an easement under Section 48 of the Reserves Act 1977 and the provisions of that Act and of any regulations made thereunder applicable to such an easement shall be binding in all respects upon the parties hereunto in the same manner and if such provisions had been fully set out herein.Easements – the common law[25] It was common ground between the parties that the four essential qualities of an easement under the common law are as defined by Danckwerts J in Re Ellenborough Park [1955] 2 All ER 38 (Chancery Division). They are:a) There must be a dominant and a servient tenement; b) An easement must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit; c) The dominant and servient owners must be different persons; and d) The right claimed must be capable of forming the subject-matter of a grant. [26] With the exception provided in s 122 of the Property Law Act, those essential requirements have been applied in New Zealand. [27] Section 122 of the Property Law Act permits easements in gross to be permitted. It provides:An easement over land may be created without being attached or made appurtenant to other land, and such an easement shall run with and bind the land over which it is created, and all persons claiming title to that land by, through, or under the person creating the easements; and the easement so created shall be to all intents and purposes an incorporeal hereditament, and shall be assigned accordingly.[28] The four qualities defined by Danckwerts J were confirmed on appeal in Re Ellenborough Park [1955] 3 All ER 667. At 676 of the judgment, Evershed MR distinguished between the nature of an easement and the grant of a personal privilege, a passage which Mr Parker cited to the Court:In our judgment, the language of the deed of 1864 is clear to the effect that the right of enjoyment of the garden was intended to be annexed to the premises sold, rather than given as a privilege personal to their purchaser. The enjoyment was not exclusive to those premises alone; it was to be held in common with the like rights annexed to the other houses in (and in some few cases in close proximity to) the square or crescent. But it was not contemplated that like rights should be otherwise extended so as to belong in any sense to premises not forming part of (or at least closely connected with) the square or their owners.[29] Mr Parker also referred to Dukart v District of Surrey 86 DLR (3d) 609 and quoted from Estey J at 616: There is the requisite relationship between a dominant and servient tenement wherein the dominant tenement is accommodated, serviced or supported by the servient tenement; between them there is a connection of real benefit to the former, and which is of such a character as would ordinarily be classified as a right or condition running with the land and not merely a contractual right enduring to the benefit only of persons who are parties thereto at its inception.[30] On the basis of those authorities Mr Parker submitted that an easement which is appurtenant to a dominant tenement confers on that land a real and practical benefit and not merely a personal benefit on the owner of the land. He said that while an easement appurtenant to dominant land has always to be used personally in some sense by the grantee, the owner of the dominant tenement, (he could not think of any easement that excludes a personal use component by the owner of the dominant tenement; even a party wall easement has that component), the essence of an easement (other than an easement in gross) is that it confers a benefit on the dominant land. [31] Mr Brant for the Hollands also referred to Dukart and the citation from the judgment of Estey J at 616, for authority that easements confer both real and personal benefits. He analysed that the easement in this case is real because the water on the servient land can be taken; the water once taken is conveyed via a water system laid over the servient land; and the registered proprietor of the dominant land has access to and over the servient land to clean and maintain the system and, with the consent of the servient owner, alter the system. And, he said the easement is also personal because the registered proprietor of Allotment 471, the dominant tenement, can "use", that is consume, the water. He submitted that once the water is taken into possession, the water is the property of the person possessing it for as long as that person continues to have possession and that while in possession of the water the owner has discretion as to its use. [32] He cited Laws of New Zealand Interpretation of Deeds and Other Documents, at para 45:At common law, water which has been appropriated or taken into possession was the subject of property, being the property of the person having possession of it as long as he or she continued in possession Water is in the class of things capable of being stolen.[33] Counsel also referred to Embrey v Owen (1851) 6 EX 353:Flowing water is publici juris in this sense only, that all may reasonably use it who have a right of access to it, and none can have any property in the water itself, except in the particular portion which he may choose to extract from the stream and take into his possession, and that during the time of possession only.The easement in this case[34] I propose to deal first with the second ground of appeal because a consideration and determination of the nature and extent of the easement is a necessary prerequisite to determination of the second ground of appeal, whether there has been interference with the easement which constitutes an actionable private nuisance against the Department. [35] It was common ground that the scope of an easement is a matter of construction of the relevant grant in the light of the circumstances existing at the time of the grant and known to the parties, or within their reasonable contemplation. [36] There is no dispute that the deed of easement grants to the grantee (subject to s 21 of the Water & Soil Conservation Act 1967 to which I shall return shortly), appurtenant to Allotment 471: the full, free uninterrupted and unrestricted right liberty and privilege from time to time and at all times to take, convey and use water in free and unimpeded flow from the stream situated in the servient land.[37] The issue is whether the Hollands, being the registered proprietors of Allotment 471, are entitled pursuant to the easement to take, convey and use the water for the benefit of land adjacent to Lot 471 but clearly not the dominant land to which the deed of easement confers the rights as "forever appurtenant". [38] Mr Brant submitted that the rights are expressed to be "full, free, uninterrupted and unrestricted", and that the words of the deed are clear and can be interpreted in their plain, ordinary and popular sense. He submitted that the right to take, convey and use water in free and unimpeded flow "from time to time and at all times" indicates that the easement grants to the grantee at any time rights ofpossession, ownership, transportation and use over the water and that no restriction as to the use which may be made of the water or of the time at which it may be accessed is expressed or can be implied. It was submitted that the personal rights conferred on the owner of the dominant tenement by the easement include the right to use water within the Hollands' possession and ownership. Further, that there is by the deed no limitation on the volume or quantity of water which the owner of the dominant tenement is able to take pursuant to the easement, and no limitation of volume of water was pleaded or put in evidence by the Department. [39] This is an argument which apparently found favour with the District Court Judge, as is demonstrated by his findings set forth at [17] above. [40] Mr Parker submitted that the effect of the judgment was to create an easement in gross, but accepted after discussion with the Court that this was not an appropriate analogy because an easement in gross which may be created pursuant to s 122 of the Property Law Act 1952, is not attached or made appurtenant to other land, whereas in this case, Allotment 471 is the dominant tenement. [41] He then contemplated that the rights advocated for the owners of the dominant tenement pursuant to the easement, were more in the nature of a profit à prendre and cited Alfred F Beckett Ltd v Lyons [1967] 1 All ER 833 (which concerned the taking of sea-borne coal from the foreshore by inhabitants of the county who resided inland from the villages on the foreshore). Mr Parker referred to the judgment of Winn LJ at 851 where he distinguished sea-borne coal from water which, he said, was not capable of being owned, from which it followed that a right to take water is not a profit à prendre. Winn LJ then referred to the distinction between easements and profit à prendre and stated: an easement only confers a right to utilise the servient tenement in a particular manner, or to prevent the commission of some act on that tenement, whereas a profit àprendre confers a right to take from the servient tenement some part of the soil of the tenement or minerals under it or some part of its natural produce [42] Mr Brant agreed that the grant at issue here is not of a profit à prendre. He submitted that water is a different commodity from coal and does not permit ofownership until it is "taken". He went on to submit, however, that once taken, the water is "owned" by the party in possession. [43] Mr Parker, accepting that neither an easement in gross or a profit à prendre was apt to classify the rights claimed for the Hollands as owners of the dominant tenement, submitted that the outcome of the determination of the judgment was to confer on the owners of Allotment 471 contractual rights which exceeded those to which they are entitled pursuant to the easement. [44] He noted that for easements which are not in gross and therefore have a dominant tenement, s 69 of the Land Transfer Act 1952 provides:Whenever any easement is created for the purpose of being annexed to, or used and enjoyed together with, other land under this Act, the Registrar shall enter a memorial of the instrument creating that easement upon the grant or certificate of title of the other land, and that memorial shall, as from the date of entry thereof, have the effect of including the easement or incorporeal right in the grant or certificate of title as appurtenant to the land therein described.[45] Accordingly the Certificate of Title to Allotment 471 includes a memorial recording that appurtenant to the land in that Certificate of Title is a right to convey water created by deed of grant of easement 44C/705 (which is the Land Registry Office reference given to the deed of grant of easement). [46] Mr Parker then submitted that a servient tenement should not be exposed to the risk of any significant, additional or different burden from that implicit at the point of creation of the easement. He referred to Simpson v Mayor of Godmanchester [1897] AC 696. The Corporation of Godmanchester was permitted by easement to open locks belonging to the appellant at times of flooding to prevent damage or injury to lands owned by the Corporation. When the locks were opened the flood relief extended to lands beyond the dominant tenement being the lands owned by the Corporation. At 702 Lord Watson said:If the appellant had been able to shew that the corporation had carried out their operations beyond what was necessary to protect their own lands, so as to clear other lands of flood-water when their own were neither flooded nor threatened with inundation, the appellant would be entitled to restrain the respondents from doing more than was reasonably necessary in order to protect their dominant lands. But he has made no such complaint [47] Counsel argued by analogy with Godmanchester that there would be no breach of the easement in the circumstances of this case had there been, for example, seepage from the use on Allotment 471 of water taken and conveyed pursuant to the easement. However, in this case the easement in favour of Allotment 471 was being deliberately used by the owners substantially to benefit other land, namely the Mortimer Block. Mr Parker referred to evidence that on the approximately 50 hectares of the Mortimer Block there were six or seven water troughs for stock compared with one such trough on Allotment 471. [48] Mr Parker also referred to the doctrine of "ancillary use" pursuant to which an easement in favour of a specified dominant tenement may not be used "in substance" for the benefit of non-dominant land. He cited Macepark (Whittlebury) Ltd v Sargeant [2003] 1 WLR 2284 where Gabriel Moss QC (sitting as Deputy High Court Judge) considered at [50] that:On the basis that I have accurately understood the current standing of the "ancillary" doctrine, the following propositions now seem to be accurate. (1) An easement must be used for the benefit of the dominant land. (2) It must not "in substance" be used for the benefit of non-dominant land. (3) Under the "ancillary" doctrine, use is not "in substance" use for the benefit of the non-dominant land if (a) there is no benefit to the non-dominant land or if (b) the extent of the use for the benefit of the non-dominant land is insubstantial, i.e. it can still be said that in substance the access is used for the benefit of the dominant land and not for the benefit of both the dominant land and the non-dominant land. (d) [sic] "Benefit" in this context includes use of an access in such a way that a profit may be made out of the use of the non-dominant land, e.g. as a result of an arrangement with the owner of the dominant land.[49] Counsel submitted that the use in issue here could not be described as ancillary because the provision of water to the Mortimer Block was not for the benefit of the dominant land, Allotment 471, but was in substance for the benefit of the Mortimer Block which is non-dominant land. The use to which the Hollands as owners of the dominant tenement were applying the water to which they have access pursuant to the easement, is predominantly to benefit the Mortimer Block, a fact that is obvious, submitted Mr Parker, from the evidence of the greater size of the Mortimer Block by comparison with Allotment 471 and the provision of water troughs in a ratio of 7:1.[50] On the subject of extension of user to non-dominant land the Department also referred in submissions to Elements of Land Law by K & SF Gray (4th edition) at para 8.84:In an era of increasingly intense land use and housing development, it is predictable that awkward questions should arise over the extent to which an easement created or acquired for the benefit of one tenement, Greenacre, may also be used for the benefit of an adjacent tenement, Redacre. While it may often seem "bloody-minded" to object to a sensible diffusion of the benefit of certain easements, there has always been enormous judicial resistance to the idea that a designated dominant tenement should be effectively capable of extension in a manner never bargained for by the parties. It is frequently emphasised that in the law of easements it is "property rights which are at issue" and that legal solutions should not foist upon servient owners "a change to their ownership rights". To allow an unauthorised extension of the dominant tenement would be to "exceed" (or, indeed, to reformulate) the terms of the original grant, with the consequence that the additional user becomes an actionable trespass. It is, moreover, almost always the case that to permit Redacre to enjoy a benefit conferred upon Greenacre is to impose a significantly increased burden of user upon the servient land.[51] At para 8.86 the authors state that the rigour of the common law rule relating to extension of user to non-dominant land has been qualified by the doctrine of "ancillary use" and states:Under this doctrine an easement created for the benefit of Greenacre may properly serve Redacre also if the user for purposes of Redacre is merely "ancillary" to the enjoyment of the easement for purposes of Greenacre. The courts are, however, extremely reluctant to expand the concept of "ancillary use" and, indeed, the definition of "ancillary use" has proved somewhat elusive.[52] The text continues at 8.87:The core of the "ancillary use" proviso is the idea that, whilst an easement for Greenacre must not be used "in substance" for the benefit of Redacre, certain forms of user for purposes of Redacre are properly classified as "mere adjuncts to the honest user" of the easement for Greenacre and do not therefore constitute any unlawful extension of the original dominant tenement.[53] Among the authorities cited in support of these propositions is Macepark in respect of which the authors state:Quite clearly, if a dominant owner's essential purpose is to use a legitimate access to Greenacre in order to obtain access to Redacre, the user is unlawful.That was the essence of the factual situation in Macepark where an easement of right-of-way was used by the owner of the dominant tenement for access to land other than and beyond the dominant tenement. [54] Mr Brant submitted that it is impossible to apply the principle of "ancillary use" to the water easement in this case where there is no restriction on the use of the water accessed, taken and used pursuant to the easement. He said thatGodmanchester and Macepark concerned easements which differed in kind from that before the Court and were distinguishable on their facts. He cited a passage fromGodmanchester at 702:In the case of many easements it is from their nature possible to confine their benefit to the dominant tenement; but in cases where the easement relates to water, or to light and air, it would be simply impossible to do so.[55] He submitted that in contrast to the factual situation in Godmanchester where the easement provided relief from the burden of flooding, the water involved in the easement in this case is of a beneficial character and can be conveniently separated from the land via the water system and pipes, to be put to a "use". At the point where the water is separated from the servient land by the water system and pipes it becomes the personal property of the registered proprietor of the dominant land (citing Embrey v Owen) and thereafter, he submitted, there is no limitation to the use that the registered proprietor of the dominant land may put the water to. [56] He submitted Macepark is distinguishable because of the nature of the easement, and that the "ancillary" doctrine does not apply in this case because the owners of Allotment 471 have the right to unrestricted use of the water in their possession. In Macepark the right-of-way was not in the physical possession of the dominant land owner because that would have been impossible. The area defined as the right-of-way cannot be separated from the land which is the servient tenement because it is part of the land. In contrast, the easement in this case enables separation and confinement of the water which is transportable and not physically attached to either the servient land or the dominant land. He submitted that the principle that use of the easement must not in substance benefit the non-dominant land was established by cases on easements of a different type to that before the Court and does not apply to the use in this case.Section 21 Water & Soil Conservation Act 1967[57] The easement: TRANSFERS AND GRANTS to the Grantee subject to the provisions of s 21 of the Water & Soil Conservation Act 1967 the full, free, uninterrupted and unrestricted right, liberty and privilege from time to time and at all times to take, convey and use water in free and unimpeded flow from the stream [58] Section 21 of the Water & Soil Conservation Act vests in the Crown the sole right to dam any river or stream or to divert or take natural water or to discharge natural water or waste into any natural water or to use natural water. There are two provisos, the second of which is relevant in the context of this case:Provided also that it shall be lawful for any person to take or use any natural water that is reasonably required for his domestic needs and the needs of animals for which he has responsibility and for or in connection with fire- fighting purposes:[59] It was argued for the Department in the District Court that the grant being made subject to s 21 and its successor, s 14(3) of the Resource Management Act 1991, limited the quantity of water that could be taken under the easement to that required for domestic needs, needs of animals and fire-fighting purposes. The Judge found the argument difficult to accept because, he said, it appeared to limit the usage of the grantee to the same use that any other common law or statutory user may have had, who had access to the land in which such water might flow. He held that the Hollands' rights were guaranteed by the easement to take and use the water in an uninterrupted fashion and that those rights were subject to other persons' common law rights. [60] This argument was also developed before this Court in written submissions for the Department, in conjunction with an argument about the omission from the deed of easement of the words "in any quantity" in Schedule 7 of the Land Transfer Act 1952. However, those arguments were not pursued in oral submissions before this Court.[61] I consider the words "subject to the provisions of s 21 of the Water & Soil Conservation Act 1967" qualify the transfer and grant to the grantee, so the grant is subject to the rights of any person, including the Department, to take or use water in the stream for the purposes referred to in the proviso. Except to that extent, those words do not limit or quantify the volume of water the grantee may take, convey and use. Mere reference to s 21 of the Water & Soil Conservation Act would have been a crude and unsatisfactory method of attempting to qualify or limit the quantity of the take. If there had been an intention to place a specific limit on the quantity of the take, it could have been expected that in the terms of the grant there would have been reference to a maximum take rate, a maximum volume per day and protection of the minimum flow in the stream, or similar specific provisions. The Department would have had available to it information about the flow in cubic metres from the spring. For example an internal memorandum in 1997 states that Environment Waikato confirmed entitlement, if authorised, at a take for Allotments 360 and 471 of 15 cubic metres of water per day at an extraction rate of no more than 10% of the stream flow at the point of take.Interpretation of the deed of easement[62] The terms of the grant clearly limit the purpose for which the grantee may take, convey and use water from the servient land. This is made clear in the deed of easement by the words: "TO THE INTENT that the rights hereby conferred shall be forever appurtenant to the dominant land". The grantee may exercise its rights under the easement for the purposes of the dominant land to which the easement is appurtenant, and only for those purposes. [63] It follows that the grantee under the easement is not entitled to take, convey and use water for the purposes of the Mortimer Block. Nor is the grantee permitted by the easement to place a water tank and a line of water pipes on the servient land other than for the purpose of conveying water from the stream on the servient land to Allotment 471, the dominant land. [64] I agree with the submission for the Department that by extending the pipeline through Allotment 471 to serve the Mortimer Block the Hollands have extended thedominant land in breach of the deed of easement and have placed on the servient land a burden that is greater than was accepted by the grantor, the Minister of Conservation, when he made the grant of rights to take and convey water in October 1989. [65] Nor does the doctrine of ancillary use apply in this case. The provision of water for the purposes of the Mortimer land, is to take a significant, substantial, indeed predominant, benefit for non-dominant land. [66] Such personal rights as are conferred on the registered proprietors for the time being of Allotment 471 by the easement must be exercised by them only in terms of the easement. While it may be appropriate to describe the water while in the possession of the owner of the dominant tenement as his property while he continues to have possession of it, he can only ever use the water pursuant to the rights granted to him by the easement, that is for the purposes of the dominant land to which the easement is appurtenant. [67] Considerable attention was paid in submissions for the Hollands to the absence of any evidence about volumes of water taken and used in respect of Allotment 471 and the Mortimer Block respectively. In my view, it matters not.Any taking, conveying or using of water other than for the purposes of Allotment 471, including for the purposes of the Mortimer Block, breaches the terms of the easement. The Hollands admit they have taken, conveyed and used water from the stream for the purposes of the Mortimer Block, it being their position that they were entitled to do so. In any event, as Mr Parker said, it speaks for itself that the water required to service the Mortimer Block of approximately 50 hectares carrying stock with six or seven troughs, in addition to that required to service Allotment 471 comprising approximately 1.8 hectares carrying stock with one trough, exposes the servient tenement to the risk of an additional and different burden from that accepted when the easement was granted. [68] For the sake of completeness, I refer to the judgment in Wheeler Forrest Associates Limited v Farquhar [2001] 2 NZLR 417 which was referred to in submissions by both parties. In that case Chisholm J adopted a purposive approachto reconciling the rights and powers of Schedule 7 of the Land Transfer Act and s 14 of the Resource Management Act. He said at [17] that in most situations persons relying on a water source located on someone else's property will have to be careful to ensure that there is both a water permit and an easement:While the water permit may confer the requisite authority to extract the water over one's own land, it cannot confer the necessary authority over someone else's land. Conversely an easement conferring rights over someone else's land cannot override the requirements of the Resource Management Act.[69] The Hollands as the owners of Allotment 471 have the right to take, convey and use water from stream on the servient tenement (the reserve) in free and unimpeded flow. But were they to contemplate a more intensive or extensive use for Allotment 471 requiring water supply beyond that for domestic and stock watering purposes permitted by s 14(3) Resource Management Act, they would need to meet the requirements of that Act. Compliance with the terms of the easement and compliance with the Resource Management Act are separate and distinct requirements. [70] In submissions Mr Brant referred to condition 1(f) in the deed of easement which states that the grantee shall not further modify the pipeline or water tank once the same are layed or erected, without the approval and consent of the grantor. He submitted that by this "right to veto" the Department could limit the water in the system, but he maintained, the water in the system pursuant to the existing pipeline and water tank could be used "at will" by the grantee. As I have determined above, I do not accept the submission that the water taken and conveyed pursuant to the easement can be used "at will". It must be used in terms of the easement for the purposes of Allotment 471. But I would have thought that the power of approval and consent in condition 1(f) could not operate as a "veto", but would need to be exercised by the Department consistent with the terms of the grant. Were the Department to attempt to exercise a veto or control by refusing approval for modification of the pipeline or water tank such as would deprive the grantee of the rights to take, convey and use water within the terms of the grant, it could be argued that the Department was acting in derogation of its grant.Private nuisance[71] The plaintiffs have acted pursuant to the order of the District Court and have removed Mr Van der Kaap's water tank and pipes on the Department's land (Allotment 223). No practical consequences therefore arise from this point on appeal and I propose to deal with it quite briefly. [72] A private nuisance, which is the cause of action pleaded by the third amended statement of claim against the Department in relation to Mr Van der Kaap's water tank and pipes on Allotment 223, is an unreasonable interference with a person's right to the use or enjoyment of an interest in land. An action in nuisance requires proof of actual harm: Todd et al The Law of Torts in New Zealand 4th ed, 2005 para 10.1. The legal standard is one of reasonableness. [73] The Judge held at [23] of the judgment that while there would ordinarily be no requirement on the Department to do a positive act, where there is an acknowledged illegal action (the laying of the pipes and placing of the water tank on the Department's land), with which the Department had acquiesced when it indicated an intention to remove such illegality, it was: arguable on a balance of probabilities that in the particular circumstances the (Department) should have taken steps to remove (Mr Van der Kaap's) structures and can be ordered by this Court to do so. In other words such a duty can be implied.He observed that such an order might be unnecessary giving the finding that would give rise to a right in the Hollands to enter and remove the structures. [74] The evidence was that Allotment 360 has always drawn water from the stream but only by means of the overflow from the water supply to Allotment 471. In fact, Mr Holland would facilitate the supply to Allotment 360 by turning off the taps on his property once his tanks were full, to enable the overflow to be enjoyed by Allotment 360. [75] In those circumstances it seems to me contradictory to suggest that the Department caused a substantial interference with the Hollands' rights pursuant tothe easement to take, use and enjoy water from the stream. Further, during the first half of 2005 before proceedings were issued in response to a letter from the Hollands' lawyers, the Department tried to resolve issues in relation to the easement and Mr Van der Kaap's lack of alternative supply. In February 2005 the Department required Mr Van der Kaap to disconnect his water supply. In April 2005 Mr Van der Kaap through his solicitors advised he would not. The Department notified the Hollands it was seeking legal advice. The Hollands issued proceedings in May 2005. [76] The matter had a lengthy history. The intervention of the Department was comparatively recent. I do not consider the Department acted unreasonably in failing to have Mr Van der Kaap's structures removed. [77] That is more so the case given my finding that the right of the Hollands pursuant to the easement to the use of water from the servient tenement is a right that is appurtenant to Allotment 471 comprising approximately 1.8 hectares. Beyond use of the water for the purposes of Allotment 471, the Hollands do not have the right to take, convey and use water from the stream on Allotment 223. The Department would be at liberty to grant other water easements that do not derogate from the grant in favour of Allotment 471. The water drawn by Mr Van der Kaap to service Allotment 360 could not be regarded as a substantial interference with the easement in favour of Allotment 471, to the extent that it was unreasonable for the Department not to have taken steps to have removed Mr Van der Kaap's structures.Result[78] The appeal is allowed, and the judgment on the fourth cause of action and the second counterclaim cause of action is set aside. [79] There will be an order that the respondents disconnect any pipes carrying water from the easement land (Allotment 223) via Allotment 471 to other land owned by the respondents other than the dominant land (Allotment 471) including part Section 4, Block III Newcastle Survey District and part Lot 12 DP 1278.Costs[80] The Department has been successful and is entitled to costs on this appeal which I award on a 2B basis. [81] Costs awarded to the Hollands as plaintiffs in the District Court should be adjusted to reflect the result of this appeal. However, in the District Court the Department was not successful in relation to its first counterclaim (relating to rectification of the easement to include Allotment 360) and appropriate allowance will need to be made for that, as Mr Parker acknowledged. [82] I expect counsel should be able to resolve costs issues by constructive discussion. If not, the issue of costs is to be remitted back to the District Court for determination, preferably by the trial Judge. I understand Mr Van der Kaap has a current appeal against the District Court judgment in relation to costs. The Judge may wish to consider the outcome of that appeal in re-determining costs. Any application is to be filed in the District Court within 21 days of the date of this judgment.