In a decision delivered on 7 November 2008, the High Court has ruled that the Earthquake Commission must pay compensation to a couple whose right of way access over a neighbour's property was damaged in a natural disaster.

In Earthquake Commission v Winch 7/11/08, Heath J, HC Auckland CIV 2008-404-1386, a couple owned a property (Lot 1) on Pomare Avenue in Russell. Lot 1 can only be accessed from Pomare Avenue. Because the property is landlocked, the couple accessed it by exercising rights of user over their neighbours' property (Lot 2) under an easement granted in their favour.

The right of way provided the couple's main access to the building situated on Lot 1.

On 29 March 2007, heavy rainfall caused a landslip. As a result, the driveway to the couple's property suffered damage. They notified the Earthquake Commission and sought compensation to restore the right of way to its previous state. The claim was declined.

However, because the law was not certain, the Earthquake Commission decided to ask the High Court to rule on the issue, namely whether the right of way was part of the land covered by the statutory insurance scheme created by the Earthquake Commission Act 1993 (the Act).

The Court followed another decision, Auckland City Council v Man'O War Station Ltd [1996] 3 NZLR 460 (HC), which ruled that an easement comes within the definition of "land", and extended that to the meaning of "land" found in s 2(1) of the Valuation of Land Act 1951.

The Court said that:

"having confirmed cover to owners of residential land, and in including a "main access way" within its definition, it would be strange if Parliament had intended that cover would be given to those with access over their own property but not to those with landlocked land who were dependent on access over the property of another."

and ruled that the couple were entitled to cover under the Act because the right of way was part of their "land holding".

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