IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 28 of 2008

IN THE MATTER
of the land comprised in Crown lease No. 82740 in the name of 
Rakesh Chand Kellapan (fn Shankar Kellapan)

AND

IN THE MATTER
of an application for access into Crown lease No. 82740 by Hardip Narayan & Sons Limited, 
being owner of land comprised in adjoining property namely Crown Lease Nos. 
400639 and 129915 and for relief under section 109 of the Property Law Act

AND

IN THE MATTER
of Property Law Act Sections 108 and 109

BETWEEN:

HARDIP NARAYAN & SONS LIMITED
Applicant

AND:

RAKESH CHAND KELLAPAN
Respondent

Cor: Inoke J.

Appearances:	Mr. S. Parshotam and Mr. S. Singh of Counsel for the Applicant
Mr D. Sharma and Mr R. Nand of Counsel for the Respondent

Applicant’s solicitors: 	Parshotam & Co.
Respondent’s solicitors: R Patel Lawyers

Date of Hearing: 	22nd June 2009
Date of Judgment: 	2nd July 2009

JUDGMENT

INTRODUCTION

[1]	The parties are adjoining landowners. The Applicant has a substantial Supermarket building which has one of its walls encroaching upon the Respondent’s land.

[2]	The wall of the Applicant’s building is incomplete in that although built it requires further construction work to complete it. The Applicant cannot do so without access through the Respondent’s land. The Respondent has refused such access so the Applicant now brings this application.

[3]	The matter commenced as an application under section 108 of the Property Law Act, Cap 130 ("PLA") by way of Originating Summons, as required by the section, filed on 24 January 2008. However, after the proceedings commenced the Applicant became aware that the subject wall of its building had encroached upon the Respondent’s land. The Applicant then sought and obtained leave to amend its Originating Summons (on 3 October 2008) to include and order under section 109 PLA that the encroached area be vested in it. The application for access and vesting orders is now before me for hearing and judgment.

THE AMENDED ORIGINATING SUMMONS AND AFFIDAVITS

[4]	The Applicant’s Amended Originating Summons filed on 16 October 2008 seeks the following orders:

1.	That the Respondent give the Applicant or any other persons authorised by it, including but not limited to Builders, Consultants of the Applicant and any other persons acting on behalf of the Applicant access into Crown Lease No. 82740 for the purpose of erecting, repairing, adding to or painting part of the building on the Applicant’s land, and to do on the land so entered such things as may reasonably be considered necessary for such purpose.

2.	That the Applicant be vested with an estate or interest in the area of land in Crown Lease No. 82740 encroached upon or alternatively, an easement be created in favour of the Applicant over the area of land in Crown Lease No 82740 encroached upon or alternatively, the Applicant retain possession of the area of land in Crown Lease No. 82740 encroached upon.

3.	That there be no costs of this application.

[5]	The application is supported by two affidavits of Suresh Kant, one of the directors of the Applicant company, filed on 24 January 2008 and 16 October 2008, (the "24 January Affidavit" and "16 October Affidavit", respectively).

[6]	The Respondent opposes the application and has filed a substantial affidavit in reply by him on 14 February 2008.

[7]	The Applicant filed on 5 March 2008 a further affidavit in response to this latter affidavit, again, sworn by Suresh Kant.

[8]	The Respondent filed a further affidavit on 21 January 2009 in response to the Applicant’s 16 October Affidavit.

[9]	The last in the series of affidavits is that of the Applicant filed on 6 April 2009 in response to the Respondent’s last affidavit.

[10]	Both Counsel have filed Submissions for which I am grateful supplemented by oral submissions.

THE PERTINENT FACTS

[11]	The further construction works that the Applicant requires is set out in paragraph 11 of the 24 January Affidavit, namely, "seal window opening, painting, plaster works to surface, new alucobond aluminum panels on timber frames".

[12]	Paragraph 12 of the same affidavit says that "access is required for construction of a scaffold on the Respondent’s property and the area for wall elevation would be 90.32 square metres (45.150m x 2m). In effect the Applicant will require 2 metres access in the Respondent’s (property) for the aforesaid works". The affidavit further says that "the likely duration of the works, subject to weather conditions, is four months. Scaffolding works will be carried out by professionals and be subject to approval from the Ministry of Labour and the Department of Occupational Health and Safety." There is public liability insurance to cover the works.

[13]	The Respondent in a letter dated 15 January 2008 to the Applicant’s solicitors explained why he was not agreeable to granting access. The letter sets out a series of "grievances". He said that during the construction of the Applicant’s building debris dropped onto and damaged his shop, his car, the pavement was damaged, no safety netting installed and he had suffered years of stress and inconvenience. He complained that no efforts were made by the Applicant to rectify any damage or compensate him for his grievances. His Counsel summarised the problem in this way: "Previously, permission for construction work was given in good faith to the Applicant. The Respondent expected the Applicant and its workers or agents to carry out the works diligently and with due care. The Applicant has breached the trust and has not even had the courtesy to approach the Respondent and explain what building works are needed to complete the project."

[14]	Several attempts to settle the matter including site meetings between the parties, their solicitors and consultants only resolved some of the Respondent’s grievances but the issue of access remained unresolved. Counsel for the Applicant referred me to annexure A of his client’s affidavit of 6 April 2009. This was a letter from the Applicant’s solicitors dated 18 November 2008 to the Respondent’s solicitors which was a "last ditch" effort to resolve the access problem. The letter was not responded to. Counsel spent a substantial time of his oral submissions taking me through this letter, in particular the offering of two options to settle the dispute. I need only refer to the main points in the options.

[15]	Both options involve the engagement of an independent consultant to manage, supervise and protect the interests of the parties. The independent consultant suggested by the Applicant is Ian Macallan & Co (Fiji) Limited ("IMC"). The Applicant’s proposal is that IMC would prepare a Method Statement and supervise the works. The Method Statement would be filed in Court. Counsel for the Respondent says that he has no problem with the appointment of the independent contractor.

SECTION 108 PROPERTY LAW ACT APPLICATION

[16]	Section 108 of the Property Law Act provides:

"(1)	The owner of any land may at any time apply to the court by originating summons for an order authorising him, or any person authorised by him in writing in that behalf, to enter upon any adjoining land for the purpose of erecting, repairing, adding to or painting the whole or any part of any building, wall, fence or other structure on the applicant’s land, and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose aforesaid.

(2)	On any such application the court may make such order as it thinks fit, and any such order, or any provision thereof, may be made upon and subject to such terms and conditions as the court thinks fit."

[17]	Counsel for the Respondent conceded, and rightly so, that the purpose for which the Applicant is seeking access fell within section 108 and this Court therefore has jurisdiction to determine this application.

[18]	Any argument that the Court has no jurisdiction because the Applicant’s building has encroached upon the Respondent’s land and therefore the building is not on his land is easily disposed of by the Court dealing with the section 109 application first, then vesting the "encroached land" in the Applicant. In any event, I think such an interpretation as suggested by Counsel for the Respondent is overly literal and too restrictive and fails to address the purpose of the section and the mischief which it is intended to remedy.

[19]	There is very little case law on the topic. The only case that Counsel for the Applicant was able to refer me to, despite his research and inquiries, was the New Zealand case of De Richaumont Co Ltd v OTW Advertising Ltd [2001] 2 NZLR 831. This was an application under the equivalent New Zealand legislation by an advertising company seeking access via the adjoining land to enable it to fix or change the billboard skin of its billboard on the wall of a building that it had leased. Access could only be obtained by either permission or by trespass. The New Zealand provision is in the same terms as ours as far as the relevant "purpose" for which access is to be allowed. This case was decided on points which are either not relevant or conceded in this application. However, the case is useful for the court’s discussion on the purpose and interpretation of the equivalent of our section 108.

[20]	At page 841 [para44] Priestley J, referred to and accepted a passage from the New Zealand Hansard report explaining the purpose of the New Zealand provision:

 "The new provision enables an owner of property adjoining other land to erect, repair, add to, or paint a building or other structure belonging to him which is close to the boundary-line. The idea of the provision is to get over an awkward position which sometimes occurs when buildings are very close to a boundary-line. When an owner wants to effect repairs or do some painting on such a building, he has often to go on to the adjoining land to carry out this work. Some neighbours are neighbourly and would allow such work to be done, but others are fussy, and in such cases the owner of the building concerned may now go to the Court and obtain the necessary permission".

[21]	And at page 843 [para 56], His Honour said:

 "It goes without saying that the Court Order will only be required in a situation where a neighbour, for whatever reason, declines access. In such a situation the person seeking access has only three options, to do nothing, to trespass, or to seek an order under [s. 108]. With respect, Hardie Boys J is undoubtedly correct when in Blackburn v. Gemmell he describes the section as providing "a method of dealing with the practical difficulties…". It may well be that the neighbour refusing access may be "unco-operative or hostile". But that need not necessarily be the case. The balancing exercise which [s. 108(1)] requires the Court to undertake is to consider whether the order being sought authorises entry which is "reasonably ….necessary for any such purpose…"

[22]	And further at page 844 [para 59]:

"In my view, a correct interpretative analysis of [s. 108] requires the Court, as its starting point, to regard the [Respondent’s] property rights as inviolate. The Court must recognise that the [Applicant] is only entitled to an order if it is for the purpose specified by Parliament. There is the further requirement that the order is reasonably necessary in the circumstances of the case."

[23]	The threshold requirements for section 108 have either been conceded or otherwise met. That is, the Applicant is an owner of land adjoining that of the Respondent’s, the purpose for which he seeks access falls within the section, and the Respondent has refused access.

[24]	I have a wide discretion to make appropriate orders, a discretion which I must exercise judicially. What criteria do I use to decide whether the order that is sought is reasonably necessary in the circumstances of this case?

[25]	Firstly, it is obvious that there must be no other practical way of doing the work unless access is granted. That is, "practical" in the engineering sense and from an economic point of view. Clearly, this case is one of those. There is no physical separation between the two adjoining properties. It is not possible to carry out the works without trespassing on to the Respondent’s land and airspace.

[26]	Secondly, I need to consider whether the rights of the Respondent land owner is sufficiently protected and if there is damage to his land and other property that he can be compensated. Although I take note of and agree with Priestley J in De Richaumont Co Ltd (supra at p. 836, para. 19) that the section does not authorise me to order payment of compensation. That is a matter that has to be pursued in another action should the parties fail to agree on the amount of compensation.

[27]	Thirdly, I think the parties conduct is relevant. As noted above, neighbours can be "fussy", "unco-operative" and even "hostile". I think the Respondent in this case falls within those categories.

[28]	Fourthly, I must ensure that the order that I make does not give rise to further disputation having regard to the history of the relationship between the parties. The relationship had been cordial but has become strained because of what the Respondent calls betrayal of his trust in that his property has been damaged without appropriate compensation.

[29]	Taking these matters into account I find that the Applicant is entitled to access to enable it to carry out the works. However, I do not think that it is the Court’s role to supervise the type of work and how it is to be carried out. The parties must be reasonable and come to agreement with the help of the consultant on the type and extent of access and how the work is to be done. I also leave open the question of compensation in respect of past and future property damage and other claims that either party may have. Hopefully those matters can be resolved without resort to the Court.

[30]	I therefore order that:

a.	The Respondent give to the Applicant, its consultants, agents and servants access to the Respondent’s (Crown Lease No. 82740) land and airspace for the purpose of carrying out construction works on the wall of the Applicant’s building i.e. to seal window openings, do painting, plaster works to surfaces, and install new alucobond aluminum panels on timber frames and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose aforesaid.

b.	The consulting engineers, Ian Macallan & Co (Fiji) Limited ("IMC"), at the Applicant’s expense, are appointed consultants to determine the type and extent of access that is required and to prepare a Method Statement for the carrying out of the construction works and to supervise it. The Method Statement shall include but not limited to the safety measures that will be undertaken to ensure that damage and interference with the Respondent’s land and property is kept to a minimum.

c.	IMC shall provide a copy of the Method Statement to the Respondent at least 7 days before it requires access to the Respondent’s land and airspace.

d.	Access shall be for a period of 4 months from the date the Applicant notifies the Respondent in writing that it requires access and the Respondent shall give access accordingly.

e.	The Applicant shall take out and keep current for the duration of access such insurance cover as is necessary to cover any loss and damage that the Respondent may suffer as a result of the granting of access and carrying out the works.

f.	The parties have liberty to apply.

SECTION 109 PROPERTY LAW ACT APPLICATION

[31]	In the course of the section 108 proceedings, the Applicant found out that part of the subject wall of its building had been built on the Respondent’s land. The extent of encroachment is "7mm at the western end of the boundary and 68mm on the eastern end" running the entire length of that wall amounting to an area of 1.7 square metres. When considering the total area of land and buildings involved, this is a very minor and insignificant encroachment, but an encroachment none the less.

[32]	The Applicant seeks the following orders:

 "that the Applicant be vested with an estate or interest in the area of land in Crown Lease No. 82740 encroached upon or alternatively, an easement be created in favour of the Applicant over the area of land in Crown Lease No. 82740 encroached upon or alternatively, the Applicant retain possession of the area of land in Crown Lease No. 82740 encroached upon".

[33]	Section 109 PLA provides:

(1)	"Where any building on any land, whether erected before or after the commencement of this Act, encroaches on any part of any adjoining land (that part being referred to in this section as the piece of land encroached upon), whether the building was erected by the owner of the first–mentioned land (in this section referred to as the encroaching owner) or by any of his predecessors in title, either the encroaching owner or the owner of the piece of land encroached upon may apply to the court, whether in any action or proceeding then pending or in progress and relating to the piece of land encroached upon or by an originating summons, to make an order in accordance with the provisions of this section in respect of that piece of land;

(2)	If it is proved to the satisfaction of the court that the encroachment was not intentional and did not arise from gross negligence, or, where the building was not erected by the encroaching owner, if in the opinion of the court it is just and equitable in the circumstances that relief should be granted to the encroaching owner or any other person, the court, without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages, and without granting an injunction, may in its discretion make an order –

(a)	Vesting in the encroaching owner or any other person any estate or interest in the piece of land encroached upon; or
(b)	Creating in favour of the encroaching owner or any other person, any easement over the piece of land encroached upon; or
(c)	Giving the encroaching owner or any other person the right to retain possession of the piece of land encroached upon.

(3)	Where the court makes any order under the provisions of this section, the court may, in the order, declare any estate or interest so vested to be free from any mortgage or other encumbrance affecting the piece of land encroached upon, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease or contract affecting or relating to that piece of land;

(4)	Any order under the provisions of this section, may be made upon and subject to such terms and conditions as the court thinks fit, whether as to the payment by the encroaching owner or any other person of any sum or sums of money, or the execution by the encroaching owner or any other person of any mortgage, lease, easement, contract or other instrument, or otherwise;"

[34]	Subsection 2 of section 109 has two limbs in my opinion. The first is where the encroaching building was erected by the encroaching owner, i.e. the current owner of the land and building. The second is where the encroaching building was erected by a predecessor in title. It is important to distinguish the two because what the Court has to decide is different for each case. For the first limb, the Court need only be satisfied that the encroachment was not intentional and did not arise from gross negligence. For the second limb, the Court must be satisfied that it is just and equitable that relief should be granted. Consideration of whether there was intention and gross negligence may come into the determination of whether it is just and equitable to grant relief but not necessarily so in all cases. In this respect I differ from Justice Singh in Patel v Narayan [2008] FJHC 46; HBC 570.2007.

[35]	This is a case where the encroaching building was erected by the "encroaching owner". The first limb of section 109(2) applies and I need only be satisfied that the encroachment was not intentional and did not arise from negligence.

[36]	The Applicant says that before construction works began in 2004, it engaged a firm of surveyors to survey the subject lots and to advise whether the boundary pegs were in order. The surveyors confirmed by letter dated 6 May 2004, that they had surveyed the boundary of the Supermarket site and the boundary pegs found/reinstated were in their correct position. Construction works commenced in August 2004. Construction to the first three levels were completed and approved by a structural engineer and the Applicant moved in and commenced business. The structure has stood and has been used for the past four years. The Applicant became aware of the encroachment after these proceedings commenced and engaged another firm of surveyors to conduct another survey and provide a report. That firm has now confirmed the encroachment referred to above.

[37]	The Applicant "is involved in the retail and trade of food and other grocery items" and is neither a builder nor a contractor. It has engaged a firm of surveyors to do the survey before commencing construction. I think it is entitled to rely on the advice it receives. I do not think that it is neither reasonable nor necessary that the Applicant should have to engage two firms of surveyors to do the survey. I therefore find that the encroachment was not intentional and did not arise from gross negligence on the part of the Applicant.

[38]	Bearing in mind the nature and extent of the encroachment and the overall development, I think a vesting order of that part of the encroached land in favour of the Applicant is justified and more appropriate than an order for easement or possession. As subsection 2 of section 109 allows me to do, I leave the question of how much compensation to be determined by the parties in the first place, but if they are not able to reach agreement then the Court shall decide. I also note that the encroaching part of the land can be vested in the Applicant free of any mortgage and other encumbrance under subsection 3.

[39]	In Patel v Narayan [2008] FJHC 46; HBC 570.2007, the Court granted a vesting order subject to proper survey, the survey to be completed in 14 days. The land in question here is Crown land which may require the consent of the Director of Lands and I direct that the Director give such consent and do all such acts as may be required to give effect to the vesting order so made.

[40]	In respect of the section 109 PLA application I therefore make the following order:

a.	The encroaching part of the Respondent’s land described in Crown Lease No 82740 shall vest in the Applicant free of all mortgage and other encumbrances.

b.	The Applicant shall within 28 days get proper surveys done and shall do all things necessary to enable the Director of Lands to give his consent to such vesting, if required, and the Registrar of Titles to issue new titles.

COSTS

[41]	The Applicant having asked that there be no costs I order accordingly.

ORDERS

[42]	The Orders are as follows:

1. In respect of the section 108 Property Law Act application:

a.	The Respondent give to the Applicant, its consultants, agents and servants access to the Respondent’s (Crown Lease No. 82740) land and airspace for the purpose of carrying out construction works on the wall of the Applicant’s building i.e. to seal window openings, do painting, plaster works to surfaces, and install new alucobond aluminum panels on timber frames and to do on the land so entered upon such things as may reasonably be considered necessary for any such purpose aforesaid.

b.	The consulting engineers, Ian Macallan & Co (Fiji) Limited ("IMC"), at the Applicant’s expense, are appointed consultants to determine the type and extent of access that is required and to prepare a Method Statement for the carrying out of the construction works and to supervise it. The Method Statement shall include but not limited to the safety measures that will be undertaken to ensure that damage and interference with the Respondent’s land and property is kept to a minimum.

c.	IMC shall provide a copy of the Method Statement to the Respondent at least 7 days before it requires access to the Respondent’s land and airspace.

d.	Access shall be for a period of 4 months from the date the Applicant notifies the Respondent in writing that it requires access and the Respondent shall give access accordingly.

e.	The Applicant shall take out and keep current for the duration of access such insurance cover as is necessary to cover any loss and damage that the Respondent may suffer as a result of the granting of access and carrying out the works.

2. In respect of the section 109 Property Law Act application:

g.	The encroaching part of the Respondent’s land described in Crown Lease No 82740 shall vest in the Applicant free of all mortgage and other encumbrances.

h.	The Applicant shall within 28 days get proper surveys done and shall do all things necessary to enable the Director of Lands to give his consent to such vesting, if required, and the Registrar of Titles to issue new titles.

3.	In respect of both applications, the parties have liberty to apply.

4.	There is no order as to costs.

Sosefo Inoke
Judge