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[2006] ZASCA 103
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Aventura Ltd. v Jackson and Others (290/05) [2006] ZASCA 103; 2007 (5) SA 497 (SCA) (15 September 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Not reportable
CASE NO
: 290/05
In the matter between :
AVENTURA LIMITED
Appellant
and
JACKSON, HUGH STANLEY
First
Respondent
JACKSON, MARTIN BRIAN
Second
Respondent
JACKSON, LYNDA-ANN
Third
Respondent
_________________________________________________________________________________
Before: HARMS, NUGENT, CONRADIE, LEWIS & MAYA JJA
Heard: 15 AUGUST 2006
Delivered:
15 SEPTEMBER
2006
Summary: Right of way of necessity
â granted conditionally upon applicable environmental authorisation
being obtained.
Neutral citation: This judgment
may be referred to as Aventura Ltd v Jackson N.O. [2006] SCA 102
(RSA)
_________________________________________________________________________________
J U D G M E N T
_________________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The respondents in this appeal are the trustees of the Rondeklip
Investment Trust. In 1992 the Trust acquired a portion of
undeveloped
land known as Portion 36 of the farm Hangklip No 305 in
the division of Knysna. The land is adjacent to the Keurbooms Forest
Reserve
on the hills that rise from the Keurbooms River near its
estuary and it is covered by pristine indigenous forest and bush. (I
will
refer to it as the Rondeklip property.)
[2] The Rondeklip property has no direct access to a public road and
in that sense it is landlocked. Access to the property is capable
of
being obtained only by crossing either one or both of two adjoining
properties. One is a large, undeveloped portion of land, known
as
Portion 10 of the farm Hangklip that is owned by Catwalk Investment
341 (Pty) Ltd. (It was described throughout the evidence as
the
Catwalk property). The other is Farm 509, which is owned by the
appellant, and which has been developed as a recreational resort.
(I
will refer to the appellant as Aventura and to its property as the
Aventura property).
[3] The Trust sought, and was granted, an order by the Cape High
Court (Zondi AJ) compelling Aventura to register a right of way
over
its property in favour of the Rondeklip property, subject to âthe
plaintiffâs compliance with the provisions of the Environment
Conservation Act 73 of 1989 and the
National Environmental Management
Act 107 of 1998
relating to the construction of the road.â The
court below also ordered that âthe question of the reasonable
compensation payable
by [the Trust] to [Aventura] is to be determined
at a later dateâ. Aventura appeals against those orders with the
leave of the
court below.
[4] Because the appeal was argued before us on decidedly narrow
grounds it is not necessary to delve into the evidence in any detail:
the following synopsis of those parts of the evidence that are
material will suffice for present purposes.
[5] The Aventura property is situated alongside a national road.
From the national road a private road has been constructed to the
entrance of the recreational resort that has been established on the
property. The resort comprises, amongst other things, a group
of
chalets. From the entrance to the resort there is a
lightly-constructed tarred road leading to the chalets. Beyond the
furthermost
chalet is a natural watercourse, situated mainly on the
adjoining Catwalk property, that extends into the surrounding hills.
The
right of way that was afforded to the Trust by the court below
allows for passage from the national road, along the private road
I
have described, to a point short of the furthermost chalet. From
that point the right of way diverges from the tarred road, by-passes
the furthermost chalet, crosses about 30 m of land, and then enters
the Catwalk property near the foot of the watercourse. From
there it
proceeds up the watercourse, along the route of a servitude of right
of way over the Catwalk property, until it enters the
Rondeklip
property. It is contemplated that the Trust will construct a road
over the last 30 m of the Aventura property and along
the remainder
of the route up to the Rondeklip property.
[6] The construction of the road along the watercourse on the Catwalk
property will necessarily disturb the natural flora that exists
at
present along that route. Moreover, while the relevant town planning
regulations permit the Rondeklip property to be used for
agriculture,
and thus permits one residence to be built on the land, the
development of the land for one or more of those purposes
will also
disturb the natural flora.
[7] All the land that is now in issue falls within an area that is
demarcated for environmental protection. It is not disputed that
the
use of the Rondeklip property for the purposes for which it is zoned,
and the construction of an access road, will require prior
authorisation from the various authorities contemplated by the
Environment Conservation Act 73 of 1989 and the
National
Environmental Management Act 107 of 1998
. The relevant authorisation
has not yet been sought.
[8] A court may grant a right of way over the property of a
non-consenting owner (subject to the payment of appropriate
compensation),
but only where it is shown that the right of way is
necessary to provide access to a public road (see, for example,
Van
Rensburg v Coetzee
1979 (4) SA 655
(A) and the authorities
collected in that judgment). It was not disputed before us by
Aventura that the Trust would ordinarily be
entitled to the right of
way that is now in issue in accordance with that principle. But it
submitted (and that was the only submission
that was made before us)
that until such time as the Trust has obtained authorisation from the
relevant environmental authorities
to put the Rondeklip property to
the use for which it is zoned, and to construct a road along the
proposed access route, the necessity
for a right of way has not been
established. I do not think that is what is meant by ânecessityâ
as a requirement for the grant
of a right of way against the will of
an owner. What is meant by ânecessityâ is that the right of way
must be the only reasonably
sufficient means of gaining access to the
landlocked property and not merely a convenient means of doing so
(
Trautman N.O. v Poole
1951 (3) SA 207
(C) 207D-208A). That
there are restrictions to be overcome before the land may be used for
its intended purpose does not seem to
me to be relevant to whether a
right of way is necessary.
[9] It seems to me that the submission that was made on behalf of
Aventura raises questions of practicality rather than of legal
principle. For without first establishing a right to the access
route the Trust can hardly be expected to be in a position to
approach
the relevant environmental authorities. But that practical
conundrum is capable of being overcome by making the grant of a right
of way conditional upon the appropriate authorisation being obtained.
While a way of necessity ordinarily comes into being upon
the order
of a court to that effect, it is usually desirable for this to be
followed by the registration of a servitude to ensure
that third
parties have notice of the right of way, and in the circumstances of
the present case it would be convenient for the right
of way to come
into effect only if and when a servitude is registered.
[10] There are certain other matters that the order ought to take
account of for convenience in the present case. The route that
the
right of way should take has yet to be precisely defined and reduced
to a servitudinal diagram. It would be as well not to
attempt at
this stage to define the route that the right of way is to follow,
but instead to leave that to be agreed upon by the
parties, but
bearing in mind that the Trust is entitled to reasonable access, and
that Aventura is entitled not to be unreasonably
disturbed in its use
of its property. Neither party was opposed to the order being framed
in those terms. Furthermore, the Trust
is entitled to its right of
way only upon payment of appropriate compensation to Aventura, the
amount of which has yet to be determined,
and that ought also to be
provided for in the order.
[11] In order to take account of the matters that I have referred to
the order of the court below ought to be altered but that is
a matter
of form. The Trust has been successful in sustaining its claim to a
right of way and is entitled to the costs of the appeal.
[12] Accordingly the orders of the court below are set aside and the
following orders are substituted:
â1. Subject to the owner of Portion 36 of the farm Hangklip No 305
in the division of Knysna (âthe dominant tenementâ)
(a) obtaining all necessary permissions and authorisations to develop
the dominant tenement in accordance with its permitted use
as
provided for in the applicable town planning regulations, and to
construct an access road to the dominant tenement from Farm 509
in
the district of Knysna (âthe servient tenementâ);
(b) paying to the owner of the servient tenement such compensation
for the grant of the right of way as may be agreed upon by the
owners
of the two properties or otherwise established by a court
the owner of the servient tenement is ordered to take all reasonable
steps to register a servitude of right of way over the servient
tenement in favour of the dominant tenement, at the cost of the owner
of the dominant tenement, substantially in accordance with
the terms
set out in paragraph 2 below.
2. (a) The servitude is to follow a route to be agreed upon by the
owners of the two properties, or in the absence of agreement,
to be
determined by a court, which route is to provide reasonably direct
and convenient access from the national road to the dominant
tenement
via Portion 10 of the farm Hangklip.
(b) The right of way may be used only to obtain access to the
dominant tenement for its use for the purposes that are permitted
by
the applicable town planning regulations at the time of this order.
3. The costs of the proceedings are to be paid by the first
defendant.â
Save as set out above the appeal is dismissed with costs.
____________________
R W NUGENT
JUDGE OF
APPEAL
HARMS JA )
CONRADIE JA ) CONCUR
LEWIS JA )
MAYA JA )