Executive Summary: Key Legal and Evidentiary Issues

• Enforceability of a statutory right-of-way registered in 1973 over residential property (Lot 23) was challenged by the landowner on grounds of vagueness and uncertainty.

• The Utility argued it should not bear the cost of restoring the right-of-way surface after the landowner unilaterally upgraded it from gravel to recycled asphalt.

• Deliberate obstruction of the right-of-way by the landowner using her truck, rocks, cones, cement, and other obstructions was characterized as retaliatory "self-help," which the court distinguished from lawful preventative self-help.

• Application of s. 35 of the Property Law Act to cancel or modify the right-of-way was sought by the landowner under the "obsolescence" and "no injury" grounds.

• Good faith obligations of both parties in exercising their respective property rights under the easement were at the center of the court's interpretation framework.

• Notice requirements for access and the permissibility of a locked gate on the right-of-way area were disputed between the parties.

The facts of the case

Sheringham Water Works Ltd. ("the Utility") is a water utility that holds a statutory right-of-way over part of a residential lot belonging to Judy Lorraine Penner ("the Landowner") in the town of Shirley, British Columbia. The right-of-way was registered against title to Lot 23 on January 4, 1973. The historical grantor of Lot 23 was Sheringham Estates Ltd., and the historical grantee was Brian Robert Diamond. The grantor reserved for itself an easement over a right-of-way area on the northern portion of Lot 23, which provides access to a water tank on a neighbouring property (Lot 3, directly to the east of Lot 23) and covers a buried watermain running underneath it. The deposited instrument in the Land Title Office grants the Utility the right to enter the right-of-way area with machinery, materials, vehicles, and equipment for the purposes of maintaining, inspecting, altering, and repairing the watermain and accessing the water tank. In return, the Utility's predecessor covenanted to "as far as practicable [...] restore the surface of the said easement to the same condition as existed prior to any such entry or entries."

History of the property and the dispute

From 1973 until the last eight years or so before the judgment, Lot 23 was densely forested and uninhabited, and no conflicts arose during this period. In or about 2018, the previous owner of Lot 23 decided to turn the parcel into a residential lot. The present house was relocated from somewhere else and fixed to the land, situated quite close to the right-of-way area. Access for that project, and subsequently to the house, was by way of a dirt driveway from the road at the centre of the property. In 2019, the Utility upgraded the surface of the right-of-way area by putting in a gravel road for access to the water tank, although the gravel road encroached off the surveyed right-of-way area. Ms. Penner purchased the property in December 2021 and shortly afterwards made improvements, including resurfacing the gravel access with recycled asphalt and getting rid of the previous dirt driveway. She advised the Utility of the resurfacing and asked it to contribute financially, but the Utility did not agree to contribute and did not object to the resurfacing.

Escalation of the conflict

In 2022, the Landowner installed a gate across the driveway entrance. The Utility subsequently agreed it would give 24 hours' notice of access except in case of emergency, and the Landowner agreed that she would give the Utility a key to the lock. On July 18, 2023, the Landowner wrote to the Utility seeking a number of things, including agreement to 24 hours' notice prior to access and waiver of her residential water fees. The Utility rejected the demands, except that it agreed to provide notice of intention to access where feasible. In the Fall of 2024, the parties became aware that the access route, as constructed, encroached outside the right-of-way area. They tried to negotiate a resolution but were ultimately unable to, leading the Utility to clear and flatten a new access to the right-of-way area from Woodhaven Road. The dispute came to a head in the Fall of 2025. On Friday, September 19, 2025, the Utility's administrator advised the Landowner of its intent to access the right-of-way area that Sunday. But when the Utility's operator and administrator arrived to perform an inspection on the water tank, they could not do so because the Landowner had blocked the way with her truck. The Utility wrote the next day to say it would no longer provide advance notice because this had led to its access being frustrated. When it tried to access again that Wednesday and on the following Sunday, the driveway was blocked with rocks, cones, cement, and other obstructions.

The competing petitions

Two petitions were brought before the Supreme Court of British Columbia. In its petition, the Utility sought a declaration that its right-of-way was enforceable, and an order enjoining the Landowner from interfering with its access and permitting it to remove obstructions or barriers if they exist. The Landowner wanted a declaration that the right-of-way was unenforceable or, alternatively, that it required the Utility to restore the surface to the state it was immediately prior to each entry. The Landowner also asked for an order restricting the Utility's ability to access the right-of-way without notice to defined emergencies and permitting her to maintain a locked gate, so long as she provides the Utility with a key.

The court's analysis of enforceability

Justice Morley rejected the Landowner's argument that the easement terms were too vague to be enforceable. The court drew an important distinction between vagueness, in the pejorative sense, and generality, noting that a general principle or standard can be applied in multiple ways, and if it provides the resources to do so, it is not impermissibly vague. The court observed that a utility's statutory right-of-way over presently-undeveloped land has to be stated in general terms because future uses are inherently unpredictable, and it would generally be unwise to set out detailed rules that are likely to become obsolete. The court found the principles set out in the right-of-way instrument to be clear enough: the easement holder has a right to access for the designated purposes, and the property owner is entitled to have the surface restored to the state it was in before entry, so far as practicable. The court also emphasized that this was a utility with a statutory right-of-way clearly necessary to provide an essential public good, which made it particularly difficult to dismiss general language as "vague" rather than "general."

The restoration obligation

On the question of surface restoration, the court held that the Utility was bound by the plain words of its predecessor's covenant to restore the surface "to the same condition as existed prior to any such entry or entries." The Utility's argument that it did not need to restore the surface of the right-of-way area to its improved state because the Landowner's improvement was "unilateral" and made restoration more expensive was rejected as flying in the face of the plain words of the easement. The court found that back in 1973, it would have been impossible to know what the condition of the surface would be fifty years later, but it was clear from the text adopted that the grantor was well aware of its lack of knowledge and committed to restoring to the same condition, whatever it might happen to be, subject to the express limit that it did not need to do so if it was not "practicable." The court noted the onus is on the Utility to demonstrate that restoration to the condition prior to a specific entry is impracticable. The court also applied the principle from Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, that contractual discretion must be exercised in good faith. In the court's view, this principle applies to the right of the property owner to improve the surface: the Landowner must provide notice of such changes to the Utility and must make a good faith effort to accommodate concerns, but ultimately has every right to improve the land in their own interest.

Access rights and the rejection of "punitive self-help"

The court held that the Landowner cannot substantially interfere with the Utility's access to the right-of-way. Justice Morley drew a critical distinction between preventative self-help and punitive self-help. The court acknowledged that a property owner may take proportionate self-help measures to prevent a right-of-way holder from going beyond what the right-of-way actually entitles them to do — for example, fencing off a portion of the property that the easement does not reach. However, what the Landowner did was different: she prevented the Utility from doing what it undeniably had a right to do — access the route over the watermain — in retaliation to what she viewed as its wrongful position about its rights. The court characterized this as punitive self-help, not preventative self-help, and found that Collinson v. Laplante does not authorize punitive self-help, stating it would be corrosive of the rule of law if it did. The court declared that a gate is permissible, but it can only be locked if the Landowner provides the Utility with a key or access code.

Section 35 of the Property Law Act

The court declined to cancel or modify the right-of-way under s. 35 of the Property Law Act. The Landowner argued the right-of-way should be modified either under s. 35(a), on the basis that changes in the character of the land rendered the registered charge obsolete, or under s. 35(d), on the basis that modification or cancellation would not injure the Utility. Justice Morley found that neither ground applied. Although there had been changes in the character of the land since 1973 — from forested to the site of a home — these changes did not render the right-of-way obsolete because the water utility infrastructure was still there, and the text of the charge had anticipated changes in the surface uses. As for s. 35(d), cancellation would clearly injure the Utility, and all of the Landowner's legitimate interests could be addressed through interpretation without modification. The court further stated that even if the preconditions were met, it would decline to exercise its discretion to modify, as s. 35, being a modification of existing property rights, can only be resorted to when delineating those rights does not provide an adequate remedy.

The ruling and outcome

Justice Morley issued a series of declarations. The statutory right-of-way registered in the Victoria Land Title Office on January 4, 1973, under No. B3805, was declared enforceable in accordance with its terms. The Utility was declared obligated to restore the surface of the right-of-way area to the state it was in immediately prior to each entry, unless such restoration is not practicable, or improvements to the surface by the owner of Lot 23 were done in a manner not consistent with the occupant's duty to exercise good faith and that failure materially increases the cost or inconvenience of restoring the surface. Good faith requirements were spelled out for both sides: the Landowner must provide notice of surface improvements at least 28 days before initiating physical changes, and the Utility must provide 24 hours' notice to the owner of Lot 23 prior to access, unless the circumstances are an emergency, in which case the Utility must provide an explanation of the emergency within 24 hours of its being addressed. The court defined an emergency as an event such that a delay of 24 hours would materially affect the ability of the holder to prevent or mitigate damage to human health, property, or the water supply. Deliberate or negligent blocking of access to the statutory right-of-way was declared an actionable breach of the obligations of the owner. The Landowner was declared entitled to maintain a gate on the surface of the right-of-way provided the gate is not locked or, if the gate is locked, the owner provides a working key or access code to the holder of the right-of-way. The court declined to make any injunctive orders in light of the declarations and the fact that there did not appear to be a specific problem with access or restoration at the time. Since success was divided, each party was ordered to bear its own costs, and no specific monetary amount was awarded to either side.