Easement removed after stoush over repairs
A long-running property dispute over a $1 deal going back to the 1980s has led to the High Court quashing any rights given to a nearby landowner to use it.
The dispute related to Cessna Place, a private roadway in an industrial part of Palmerston North.
Pauline Kingsbeer has been fighting to have the agreement extinguished for several years after Ron Okey bought land from her father, Don Kingsbeer.
A deal was made between the men’s trusts that allowed Okey to use Don Kingsbeer’s driveway to access his land.
Pauline Kingsbeer applied to the High Court to have the easement removed after it found the order invalid in 2017.
The Court of Appeal had overturned that decision the same year and instead ordered Okey and his associated trust to pay 75% of any repairs to the road. The remaining 25% was to be paid by the landowner.
This was because Okey’s tenants had damaged the road with their heavy vehicles.
In 2024, the road had not been repaired despite the parties going back to court twice and agreeing to end the dispute.
A recently released High Court decision, titled “A right of way gone wrong”, said Pauline Kingsbeer, on behalf of the PAK Trust, had had enough.
She had made efforts to implement the court’s order but had been met with delays and obstructions, it said. This was despite the upgrade of the road not being for her benefit, and now the cost of repairs had “skyrocketed”.
“Absent the Court’s intervention there is no prospect of any court’s orders being complied with, it is unlikely the respondents can meet their share of the cost of the necessary works, and therefore extinguishment of the easement is now the necessary and just result,” the decision said.
The roadway provided access to Pauline Kingsbeer’s home and a company specialising in large pre-cast concrete panels that operated nearby until 2022.
The decision said the current tenants of the warehouse, Mirage Visual, had large trucks and vehicles on the roadway, and council buses also used the route. They were now unable to use the roadway.
On the day the decision was released, Okey applied for a stay of proceedings until any appeal was finalised, but this was denied.
Where it all began
Okey was found to have bought rights to use the driveway for $1 from Don Kingsbeer, who was described as old and frail at the time.
The High Court said Okey had failed to disclose his plans to build a large warehouse on the land he bought.
A company leased the warehouse from 2010 to 2013, during which time large commercial trucks used Cessna Place.
Okey tried to get the right of way put on a title on Don Kingsbeer’s land, which was transferred to a trust after he died in 2012, but the state of the road meant that could not happen.
Okey had some work done on the driveway, but it was never done to the standard of the city council.
In 2013, a report was commissioned by Pauline Kingsbeer, and later that year she applied to the High Court to determine if the easement existed.
In 2017, the High Court ruled it was invalid under the Local Government Act.
But that ruling was overturned because the Court of Appeal disagreed a change in the use of land since the easement was created warranted its removal. It also found the easement did not impede her “reasonable use” of the road.
After costs were ordered, Pauline Kingsbeer obtained a quote for the repairs from Higgins for $271,108.
Okey sought clarification on this sum and queried if the council had approved the upgrade.
Other than this, he did not respond and trucks continued using the road.
After some back and forth between the parties in court, it was finally ordered in 2019 that the full width of Cessna Place be upgraded to council standards for trucks “without delay”.
But the parties could not agree on a project manager, and throughout 2020 various companies were approached about the job.
A letter was sent to Okey via his solicitor about two potential companies, but after further delays one withdrew its offer in 2021.
That left engineering firm GHD, but Okey was not keen. GHD then upped its quote by more than $45,000 and Okey was told it would continue to increase the longer the wait.
In April 2021, Okey’s solictors sent out another report, this time by Peter Coulston, that said Okey would make all decisions about any future work and would cover all costs.
It did not mention the earlier court order.
The decison said the parties reached an impasse and in December that year Pauline Kingsbeer made her application to the High Court for amended orders.
Okey agreed to use GHD if the plans for repairs were amended to say 6 metres of the road had to be fixed, rather than the full width.
The court agreed to change the consent orders in favour of Pauline Kingsbeer after Okey took no further action.
GHD was employed and said it would revise the orders.
But it then declined to do the work, citing “resourcing” issues.
Higgins was again contacted but said it would cost $1.1 million to bring the road up to standard.
The company could not go ahead with the work without a “design phase”, so a settlement offer was sought from Okey instead.
Two days before the offer expired, Okey revealed via his lawyer that he was retiring.
He also argued he had stopped using heavy trucks 12 months prior and did not feel the works were necessary.
Pauline Kingsbeer then lodged her latest application with the court in February 2024.