If a neighbour’s structure doesn’t actually block you from using a right of way, is it really a breach?

The Circumstances

Wimax New Zealand Limited (“Wimax”) and the Fuge family (“the Fuges”) own properties that share a common driveway on land owned by Wimax, which is subject to a right of way in favour of the Fuges.

The right of way area is about 6.2 metres wide. A sealed driveway was formed on the right of way in the early 1960s, which does not take up the right of way’s entire width. An easement instrument was registered in 1964 and was updated in 2017 without making any changes to the right of way area itself.

A number of historical structures owned by Wimax encroached on the right of way area, but not on the sealed driveway. In 2018, the Fuges discovered this fact and requested that Wimax remove them. Wimax declined to do so, and the dispute was referred to arbitration.

The Dispute

It was agreed that for the Fuges to have a cause of action for nuisance, Wimax’s structures needed to substantially interfere with the Fuges’ use the right of way for its intended purpose. It was also agreed that neither the Fuges nor the previous owners of their land had any difficulties in using the sealed driveway to access their property, despite the encroachment of the structures on the right of way area.

The arbitrator found in favour of Wimax, but on appeal the High Court found in favour of the Fuges. Both parties took the matter to the Court of Appeal.

At the Court of Appeal the judge noted that the arguments between the parties had evolved into a question of whether the Fuges were entitled to succeed in a claim for nuisance in circumstances where Wimax’s structures did not interfere with the current use of the right of way, but might impact the Fuges’ possible future plans to develop their property (the Fuges argued that the presence of Wimax’s structures would prevent a widening of the sealed driveway).

The Court of Appeal reversed the High Court’s decision, finding that the Fuges would only have a cause of action in nuisance if Wimax’s structures:

(a) substantially interfered with the Fuges’ use of the right of way, and

(b) interfered with the Fuges’s use of the right of way at the time of the offending action.

Since neither of the above applied, the Court of Appeal reversed the High Court’s decision and found in favour of Wimax.

The Fuges have appealed to the Supreme Court, who will address the question of whether it is necessary to decide the issue by reference to the Fuges’ present requirements, and not the “reasonable possibility of future development.”

The Supreme Court heard the appeal on 17 February 2026, but as at the time of writing has yet to issue its judgment.

Takeaways

The mere presence of the structures on the easement area, even though they were found not to interfere with the neighbours’ easement rights, has led to lengthy and costly litigation and has no doubt degraded the relationship between the neighbours.
The Court of Appeal emphasised that its analysis of whether there was substantial interference with the Fuges’ use and enjoyment of the right of way was one of “fact and degree” – in other words, something not necessarily cut-and-dried or immediately obvious to everyone involved.
Although Wimax was successful at the Court of Appeal and may still prevail at the Supreme Court, it would be prudent for landowners to avoid encroachments on easement areas, where possible.
If you have land that is either burdened by, or has the benefit of, a right of way or any other type of easement, it is vital that you understand its terms, your rights, and your obligations. Talk to the Property Team at Glaister Keegan if you have any questions or concerns about your own property.

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