Bade v Rural City of Murray Bridge
[2008] SASC 9
•18 January 2008
Supreme Court of South Australia
(Land and Valuation Division)
BADE v RURAL CITY OF MURRAY BRIDGE & ANOR
[2008] SASC 9
Judgment of The Honourable Justice Debelle
18 January 2008
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL
Development approval for dwelling erected over boat shed - nature of development - whether council assigned correct category - whether plaintiff entitled to notice - whether development approval should be set aside.
Supreme Court Rules 2006 r 117, r 200; Development Act 1993 s 35, s 38, s 86; Development Regulations 1993 reg 3, reg 16, reg 32 sch 9, referred to.
Manna Hill Resources Pty Ltd v South Australia (2001) 82 SASR 18; Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, applied.
Jackamarra v Krakouer (1988) 195 CLR 516; Hall v City of Burnside (2006) 245 LSJS 440; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475; Australain Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532; Baker v City of Norwood, Payneham and St Peters (2003) 127 LGERA; Hutchens v City of Holdfast Bay (2007) 98 SASR 412, considered.
TORTS - TRESPASS
Trespass – wall encroaching on to adjoining land – whether encroachment should be demolished – nature of appropriate relief.
Encroachments Act 1944 s 2, referred to.
Plenty v Dillon (1991) 171 CLR 635; Entick v Carrington (1765) 19 St Tr 1030, 95 ER 807; Simpson v Bannerman (1932) 47 CLR 378; Holmes v Wilson (1839) 10 Ad & El 503, 113 ER 190; Konskier v B Goodman Ltd [1928] 1 KB 421; Rodrigues v Ufton (1894) 20 VLR 539; Perry v Clissold (1906) 4 CLR 374; Newington v Windeyer (1985) 3 NSWLR 555; Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334; Burton v Winters [1993] 3 All ER 847; Williamson v Friend (1901) 1 SR (NSW) Eq 133, applied.
JN Taylor Holdings Pty Ltd (in liq) v Bond (1993) 59 SASR 432; Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd (2005) 238 LSJS 93, considered.
BADE v RURAL CITY OF MURRAY BRIDGE & ANOR
[2008] SASC 9Land and Valuation Division
DEBELLE J: These proceedings arise out of the fact that part of a building erected by the second defendant encroaches on to the plaintiff’s land.
The plaintiff, Mrs Janice Bade, is the lessee of an allotment of land with a frontage to the River Murray. In the proceedings the allotment was referred to as “allotment 16”.
The second defendant, Mrs Melissa Davies, is the lessee of an adjoining allotment of land immediately to the east of allotment 16. In these proceedings it was called “allotment 15”.
The first defendant is the Rural City of Murray Bridge (“the Council”). Beyond entering an appearance, the Council did not take any part in these proceedings. At the outset it stated that it would abide the order of the court and did not wish to be heard other than on the question of costs.
The leases held by Mrs Bade and Mrs Davies are but two of a number of adjoining leases of land along the River Murray at a point called “Greenbanks”, a little distance from Murray Bridge. It seems that on 2 July 1963 a Mr WH Whalland divided a large parcel of land that he owned into a number of allotments which were leased for a term of 99 years, the leases expiring on 30 June 2062. On 6 October 1988, the leases were extended to a term of 999 years from 30 June 2062. The means by which theses leases were created and later extended was not explored in the evidence. For present purposes, it is sufficient to note that Mrs Bade and Mrs Davies each hold a lease of adjoining allotments of land.
The Witnesses
A number of affidavits including affidavits sworn by Mr Bade and Mr Davies were tendered by consent. Apart from the affidavits of Mr Bade and Mr Davies, they dealt with uncontentious facts. Much of what is contained in the affidavits of Mr Bade and Mr Davies is common ground. However, there are areas of disputed fact. Both Mr Bade and Mr Davies also gave oral evidence. I found Mr Bade to be an honest witness endeavouring to recall to the best of his ability the relevant events. He gave his evidence in a straightforward and unadorned manner. I accept his evidence. I was not impressed with Mr Davies. On occasions his evidence was tailored to suit his wife’s case and obviously given in an attempt to advance their common interest. At times he became an advocate for their cause. Where his evidence conflicts with that of Mr Bade I prefer the evidence of Mr Bade. The only other witness to give evidence of was Mr Butler. I deal with his evidence later in these reasons.
The Davies Buy Allotments 14 and 15
Mrs Davies has held an interest in allotment 15 since December 1997. At that time, Davies Electrical Pty Ltd purchased the leasehold interest in both allotment 15 and another allotment adjoining allotment 15 on the western side. It is allotment 14. Davies Electrical Pty Ltd had purchased the allotments as trustee of the Davies Family Trust. The two allotments were subsequently transferred to MJ Davies Enterprises Pty Ltd which had been substituted as trustee of the Davies Family Trust. Allotment 14 has since been sold. It was sold in July 2005. It is an agreed fact that Mrs Davies is now the registered proprietor of the leasehold interest in allotment 15. The parties did not prove how Mrs Davies had acquired that interest or for what consideration.
Development Approval for Additions
When allotments 14 and 15 were purchased in 1997, a dwelling was constructed on allotment 14 and allotment 15 was unimproved vacant land. On 3 June 1999, the Davies applied to the Council for consent to construct a building on allotment 15. In the development application form, Mr Davies described the building as “Additional Bedrooms, New Boat Shed”. In the development application Mr Davies said that he was the owner/builder. It is apparent from the plans which accompanied the development application that the proposed building was intended to be an extension of the dwelling on allotment 14. Presumably the rooms were described as “additional bedrooms” because they were in addition to those in the dwelling already existing on allotment 14. On 3 August 1999, the Council granted development approval.
The building approved by the Council was a two-storey building. The boat shed was to be constructed at ground level with the bedrooms and a living area constructed above it. Because the ground slopes deeply to the riverbank, the rear of the first floor level was at the ground level. When referring to the front of these allotments, I refer to that part of the allotment which has a frontage to the River Murray. The rear of the allotment has a frontage to the private road by which access is gained to the allotment.
Construction Not in Accord With Approval
Construction commenced in November 1999. The Davies constructed the boat shed but did not construct the rest of the building. The boat shed was constructed as a separate building. It is of solid construction, the walls being constructed with Besser Blocks. The construction of the boat shed did not comply with the plans of the approved development in two respects. First, the boat shed was constructed closer to the banks of the River Murray than shown on the plans. Secondly, the boat shed was constructed so that the north-eastern corner of the shed encroached on to the land leased by Mrs Bade. Although the Davies had caused a survey to be made of allotments 14 and 15 in February 1999 and held a copy of the survey plan, they did not take care to ensure that the development on allotment 15 occurred wholly within allotment 15. The nature and extent of the encroachment is depicted on the plan below. The plan is part of a plan of a survey which the Bades had caused to be made after they had purchased the lease of allotment 16. In that plan, the allotment marked “A” is allotment 16, that is to say, it is the land occupied by Mrs Bade. Allotment 15, which is the land occupied by Mrs Davies, is the allotment to the east (that is to say, to the left as shown in the plan) of allotment A.
As is apparent from the plan, the encroachment is gradual and is a consequence of the boatshed not being constructed parallel to the boundary of the allotment 15 as had been depicted on the plans approved by the Council. The greater extent of the encroachment is a little over one half of one metre (a distance of 0.56 metres to be precise) on the north-eastern corner of the boat shed.
Mrs Bade Discovers Encroachment
Mrs Bade purchased the lease of allotment 16 in December 2003. Mr and Mrs Bade were not then aware of the encroachment. In February 2005 the Bades caused a survey to be made of allotment 16. The survey disclosed that the boat shed encroached on to the allotment and the extent of the encroachment. The Davies do not dispute the existence of the encroachment nor the extent of it.
By letter to the Council dated 11 April 2005 Mr Bade gave notice of the encroachment on behalf of his wife. The letter was in these terms:
I would like to bring to your attention building works carried out on lot 15 Greenbanks Drive also known as lot B of block 2 of section 162 HD Burdett. I believe works have not been undertaken according to plans approved by The Rural City of Murray Bridge. This has also caused considerable encroachment into the downstream boundary of my block lot 16 Greenbanks Drive. We ask council to inspect the site and look into this issue.
Enclosed in that letter was a copy of a survey plan showing the encroachment. Mr Bade subsequently spoke to two employees at the Council concerning the encroachment. They informed him that the Council would not act because encroachments were a matter to be resolved by neighbours.
In late 2004, the Davies decided that they would try to sell allotments 14 and 15 as separate allotments. Mr Bade sent a copy of his letter to the Council to Raine and Horne, real estate agents at Mannum, who were acting for the Davies, who had by then advertised their allotments for sale. Mr Bade sent the letter to Raine and Horne because he did not know the address at which Mr and Mrs Davies usually reside. The letter was drawn to the attention of Mr Davies. Mr Davies gave evidence that he was not aware of the encroachment until he received the letter. After receiving the letter, Mr Davies arranged to meet Mr Bade on the site on the two allotments.
A Meeting to Discuss the Environment
The meeting occurred in April 2005. Both Mr Bade and Mr Davies gave evidence of the conversation between them at that meeting. Their evidence is to similar effect but differs on one or two important details. For the reasons already expressed, I accept the evidence of Mr Bade as to those facts on which their evidence diverged.
Bade informed Davies that he and his wife intended to redevelop allotment 16. He said that they had intended to build along the common boundary but had discarded those plans because of the encroachment. For his part, Davies told Bade that he and his wife intended to build on top of the boat shed. The Davies had had plans of their proposed development drawn in January 2005. The plans are dated 13 January 2005. However, Davies did not have plans of the proposed development with him. His evidence was that he referred Bade to the website of Raine and Horne which had copies of proposals for the redevelopment of the site. Bade denies that Davies informed him of those plans or where he could inspect them. I accept Bade’s evidence. Davies said that he explained the development intentions of himself and his wife in some detail. I do not accept that evidence. I find that he described them in broad terms only.
Bade’s response was that he did not think it fair and reasonable that the Davies should build on top of the encroaching wall. He informed Davies that he was opposed to any further encroachment on allotment 16 and expressed concern that construction over the boat shed would impair views of the river from allotment 16. He also said that he did not wish to lose any river frontage. I find that a development on top of the boat shed had a real potential to impair views from allotment 16.
In response to a question from Davies as to how far forward it was reasonable to build, Bade said that any building on top of the boat shed should not be any further forward than the front wall of the dwelling on allotment 14, that is to say, the wall facing the river. That wall was set back further than the front wall of the boat shed.
Bade did not ask Davies for a copy of his plans because he did not know any plans existed. He did not ask Davies to supply a copy whenever they came into existence. He believed that the Council would give him notice of any development proposal. He also believed that Davies would give him copies of the plan.
In the course of the conversation, Davies suggested a realignment of the common boundaries. Bade rejected that proposal because he believed it might prejudice the value of allotment 16. In his affidavit, Davies deposed that in the course of the meeting he proposed that Bade enter into an underleasing arrangement by which the boundaries could be realigned. Bade denies that underleasing was mentioned but he agreed that a realignment of the boundaries was discussed. It is unnecessary to decide whether the underlease was in fact proposed. It is sufficient to note that the realignment of boundaries was discussed.
In the course of the meeting, Davies said that he and his wife were not willing to remove the encroachment. For his part, Bade told Davies that he and his wife would prefer that the Davies remove the encroachment. I find that Davies told Bade that the wall had been constructed on a substantial foundation. The meeting concluded without any resolution of how the issues associated with the encroachment should be resolved. I find that
1Bade knew that the Davies intended to erect a dwelling over the boat shed but Davies did not show Bade any plans or inform him where he could inspect the plans;
2Davies informed Bade that he and his wife were unwilling to remove the encroachment; and
3Davies knew that the Bades wanted the encroachment removed.
Bade and Davies did not discuss the encroachment again until early in December 2005. I will come to that discussion in a moment.
A Second Development Approval
In the meantime, the Davies proceeded with their proposal to redevelop allotment 15. On 22 September 2005 they lodged a development application with the Council to construct a dwelling on top of the boat shed. The plans accompanying the application were the plans dated 13 January 2005. The dwelling comprised three bedrooms, a large living and dining area with attached kitchen, and a large balcony. The balcony extended beyond the front of the boat shed. The rear of the dwelling extended beyond the rear of the boat shed. The plans attached to the development application did not disclose the encroachment. Instead, the plans indicated that the proposed dwelling was within and adjoined the eastern boundary of allotment 15 and that the boat shed was also within the boundary of allotment 15.
The Davies did not inform the Bades that they had applied for development approval nor did the Council give the Bades notice of the development application. On 24 November 2005 the Council granted development approval. The Bades were entirely unaware both that the Davies had applied for development approval and that the development approval had been granted.
The Letter of 6 December 2005
On or about 6 December 2005, Mr Davies sent to Mr Bade by facsimile transmission a letter to be signed by Mrs Bade acknowledging the encroachment and consenting to it. Mr Davies explained that he had sent the letter because there was a potential purchaser for allotment 15. Davies said that the intending purchaser sought a letter acknowledging the encroachment and consenting to it. The letter was in these terms:
6th December 2005
Mrs TM Davies
7 Gleenwood Road
SPRINGFIELD SA 5062Dear Mrs Davies
RE…Encroachment from lot “B” unto Lot “A”
I Janice Kaye Bade the undersigned hereby acknowledge that improvements constructed on allotment “B” presently owned by you encroaches unto allotment “A” owned by me.I undertake to allow the encroachment to remain and agree to take no legal action against you or any person or corporation taking title to lot “B” both now or in the future as long as the encroachment remains.
I undertake when selling my Allotment “A” to sell it subject to this encroachment and have the purchaser sign a similar letter of undertaking as this one.
Yours faithfully
……………………………..
Janice Kaye BadeBefore sending the letter, Davies had telephoned Bade to tell him that he was sending the letter. He did not state either then or at any later time that he and his wife had applied for development approval for a dwelling over the boat shed and had been granted development approval.
On or about 8 December 2005 Davies telephoned Bade to enquire if Mrs Bade was willing to sign the letter. Bade said that she would not sign the letter. A number of telephone conversations between Mr Bade and Mr Davies followed. In the course of the conversation on 8 December and in the later conversations reference was made to amounts of money. The evidence of Bade and Davies differs as to how those amounts of money came to be mentioned or the purpose of them. Davies said that Bade was seeking compensation. Bade denies that. It is sufficient to find that Bade asked to be paid $10,000 but Davies was prepared to pay only $5,000. There is some dispute as to who first raised the issue of monetary compensation. Again, it is unnecessary to decide that issue. Bade’s evidence was that his primary objective was the removal of the encroachment. Bade and Davies were not able to compromise their differences. There was no further contact between them thereafter.
Mr Bade Again Seeks the Council’s Assistance
The next event occurred on 21 August 2006 when Mr Bade delivered a letter to the Council informing it of his concerns about any development on allotment 15. I find that when Bade delivered the letter, he and his wife were still unaware that development approval had been granted for the construction of a dwelling on allotment 15. Work on that development did not commence until sometime in September 2006. The letter sent by Bade to the Council on 21 August was in these terms:
Building and Planning Department
Att Trevor Smith, Mark Muziarle
Previously I have discussed with Trevor and Mark regarding the boat shed building on lot 15 Greenbanks. I would like to bring to your immediate attention that the original building approval has expired, therefore new plans would need to be submitted. New plans are likely to vary from the originals as lot 14 has been sold.
I again bring to the councils attention the following issues regarding the proposed building.
1 The misrepresentation of the front of the existing dwelling on lot 14 in the plans submitted for the building of the boat shed and upstairs residence on lot 15. In the building plans for lot 15 the balcony of lot 14 was misrepresented as the front of the existing dwelling, which has enabled the building of the solid concrete boat shed to be built forward on the block. This has greatly blocked my view and has enhibited the design and view of my future dwelling on lot 16 Greenbanks.
2 The boat shed on lot 15 has not been built according to the plans submitted and approved by council. The plans show the building alignment to be built parallel to and on the boundary, however this is not the case! Due to the fact that the building is not parallel to and on the boundary, this has caused an encroachment to the river front section of my lot. This intern has considerably restricted the size and design of future dwelling.
I require council to scrutanize (sic) and thoroughly investigate any future plans submitted for lot 15 Greenbanks, to ensure that previous misrepresentations and errors in the building of the concrete boat shed are not continued.
What is the councils regulation regarding future planning approval for second storey additions to an existing building where there is unresolved encroachment (sic) onto the neighbouring lot?
I request acknowledgment of this letter detailing your response to the issues raised.
Sincerely
Derek Bade
On behalf of Janice Bade
The Council did not respond to the letter.
On 3 October 2006 Mr Bade delivered another letter to the Council in which he complained that the Council had not replied to his letter of 21 August 2006. That letter was in these terms:
Building and Planning Department
Attention Trevor Smith, Gloria Booker
On 21/08/06 I personaly (sic) delivered letters to Trevor and Gloria Booker outlining concerns regarding the building and possible future extensions on lot 15 Greenbanks. In this letter I asked that certain issues be investigated and questions answered. I was told that as soon as possible I would be contacted regarding a convenient time to schedule a meeting to discess (sic) my concerns. Over 1 month has past with no contact regarding a meeting or issues raised in my letter or even agnowlegement (sic) of recipt (sic) of my letter. I hereby request urgent attention to this matter previously braught (sic) to your attention with no reply.
Sincerely
Derek Bade
On behalf of Janice BadeI find that at the time the letter was delivered Bade was still unaware that the Davies had obtained development approval to construct the dwelling on the boat shed on allotment 15. I find that, had Bade been aware of the redevelopment, he would have mentioned that fact to reinforce the indignation he is expressing in his letter of 3 October.
The Bades Become Aware of the Development
Mr Bade gave evidence that neither he nor his wife became aware that the Davies were redeveloping the boat shed until 3 or 4 October 2006 when he saw a crane lifting steel girders into position to support the floor of the dwelling. It was the Davies’ case that Bade would have seen building work in early September 2006. As the letter to the Council had been delivered on 3 October, I find that Bade saw the building work for the first time on 4 October. My reasons follow.
Mr and Mrs Bade carry on the business of horticulturalists on elevated land not far distant from the river frontage at Greenbanks. They use water from the River Murray for irrigation. The pumps for the water are located on allotment 16. Mr Bade goes to allotment 16 to grease the pump about once in each month. The pump operates automatically and Mr Bade is able to ascertain from his farming property whether the pump is operating. It is not necessary for him to attend allotment 16 for any purpose associated with the pump other than to grease it. In addition to going to allotment 16 to grease his pump, it was Bade’s practice to go to allotment 16 to maintain the allotment about once a month or once in every two months. In September 2006, he and his wife were particularly busy as that was the time of the peak production of their onion crop. Mr Bade said that on 3 or 4 October he had gone to allotment 16 to grease the pump. When doing so, he saw the crane lifting steel girders into position on allotment 15. That was the first occasion on which he had seen any building work being performed on the site.
Mr Davies gave evidence that in early September 2006, a septic tank was being installed on allotment 15 and electrical work was being undertaken. In his affidavit, Mr Davies did not say when in September the tank was installed. In his oral evidence he said that it was installed on 1 or 2 September. Mr Davies said that Bade had seen that work in early September. Davies himself had not seen Bade but his evidence was that Bade was seen by an electrician on at least one occasion. The electrician was called. He was Mr SJ Butler who is a partner of Mr Davies in an electrical contracting firm. Mr Butler said that he had met Bade on earlier occasions when he was visiting the Davies at their house on allotment 14. Mr Butler’s evidence was that he was assisting in the installation of underground wiring on the site at the same time as the installation of the septic tank. While working there, he saw Bade come to attend to the pump on allotment 16. He was unable to specify the date when he saw Bade or the day or days when he was engaged on the electrical work, other than to say that it was in September when the septic tank was being installed. Mr Butler had also done other electrical work on the site on later occasions between September and late November.
I find that Bade did not see any evidence of building work until after he had delivered his letter to the Council on 3 October. That was on either later 3 October or on 4 October. Had he seen any evidence of building work he would have mentioned it in his letter to the Council dated 3 October. There are other reasons for these findings. Bade serviced the pump about once a month. Given that he went to service the pump on 4 October, it is reasonable to infer that he last serviced it at the end of August or very early in September. If he had serviced it in late August, it was before the installation of the septic tank. If he had serviced it in very early September, he may have serviced it before the installation of the septic tank. There is no precise evidence when the septic tank was installed. Given the importance of such evidence for the Davies, that is a surprising omission. I do not accept Mr Davies’ evidence that it was installed on 1 September. He did not depose to that date in his affidavit but in his oral evidence. His oral evidence is, in my view, a recent invention in an attempt to assist his case. Mr Butler was unable to give any date when he was installing the underground mains at the same time as the installation of the septic tank. That information could have been obtained from a diary but it was not. The second defendant’s evidence on this topic is altogether too vague. I do not accept it. In my view, Mr Butler’s evidence as to the date is either mistaken or false. In any event, the installation of the septic tank is equivocal. It does not necessarily point to the fact that a new dwelling is to be constructed. It could be an improvement of an existing facility.
As soon as Bade became aware that building work was being carried out on allotment 15, he informed his wife of that fact. On the same day he went to the Council’s offices and spoke to Ms Booker, an employee of the Council, who informed him that development approval had been granted for a dwelling as an addition to the boat shed. On 4 October or very shortly after, Mr Bade and his wife instructed solicitors to act on their behalf. The solicitor who handled the matter for them was Ms M Cale. On 8 October Ms Cale went to Greenbanks and took a number of photographs of the building work. Ms Cale was therefore instructed sometime between 4 and 8 October.
Letter Requesting that Work Stops
On 9 October Ms Cale wrote to the Council seeking copies of relevant documents. On 9 October she wrote to the Davies. The letter asked the Davies to stop the building work. It was in these terms:
RE Boat shed – construction of second storey addition
We act for Ms Bade, the owner of the land known as Lot 16 Greenbanks.
Our client is most alarmed at the construction of what appears to be a second storey addition to the existing boat shed building on Lot 15 Greenbanks.
Our client has only recently become aware of this construction work, which we assume has received Development Approval from the Council.
We advise that it is our client’s position that the approval for the second storey addition has been issued unlawfully – and is consequently invalid – as our client did not receive notice, as required by section 38 of the Development Act 1993 of the lodgement of the Development Application. This defect is the fault of the local council, but nevertheless, has deprived our client of the rights arising under the Development Act.
In addition, the approval is also invalid as the land upon and over which construction is to occur includes a portion of our client’s land – Lot 16. Enclosed is a copy of a plan prepared by my client’s surveyor, evidencing the encroachment of the building on Lot 15 upon our client’s land.
For the above reasons, we put you on notice that our client intends to institute judicial review proceedings, setting aside any approval issued to you for the second storey addition.
We further advise you that we are not in a position to as yet institute these proceedings only because so far the Council has declined our client’s reasonable request for copies of its file documents in relation to this matter.
As a result of the above, we request the following.
1. That you cease immediately the construction of the second storey addition.
2. That you immediately provide to our office a copy of all previous Development Applications, plans, notes and Development Approvals in relation to the existing building upon Lot 15, and the second storey addition.
The purpose of this request is for intended judicial proceedings, and we provide you with our undertaking that any documents you provide to our office pursuant to this request will not be further used, copied or otherwise disseminated, other than for the purpose of legal proceedings.
Your urgent attention to this request is sought.
We put you on notice also that we reserve the right to tender a copy of this correspondence in any legal proceedings our client instructs us to institute.
On 10 October the Davies were residing in the house on allotment 14. They did not return to Adelaide until 13 October. It was then that they read Ms Cale’s letter of 9 October.
Proceedings Issued
These proceedings were issued on 13 October 2006. On 17 October I granted leave to serve the originating process and affidavit in support. On 20 October those documents were served on Mr Davies. Attempts to serve Mrs Davies personally were unsuccessful. No issue is taken as to service. On being served with the papers, Mr Davies telephoned Ms Cale and informed her that development approval for the work had been granted.
On 20 October the construction was advanced. According to Mr Davies, the construction of the walls, windows and doors, roof frame, eaves and timber decking had been completed. The roof cladding had not been attached. The render on the outside of walls had been completed but the internal gyprock lining and the internal fit out of the premises remained to be done. The building work was completed on 7 November.
It is against that background that Mrs Bade has issued these proceedings. It is not necessary to recite all of the orders sought. Essentially, the redress which Mrs Bade seeks is
1a declaration that the existence and maintenance of the boat shed constitutes a trespass to her land;
2a declaration that the grant of development approval for the dwelling above the boat shed is invalid; and
3an order in the nature of certiorari quashing the grant of development approval.
Thus, she seeks orders in the nature of a declaration as well as judicial review of the Council’s decision granting development approval. The claim for orders in the nature of declaration may be joined with the application for judicial review: see Rule 200(7) of the Supreme Court Rules 2006 and Manna Hill Resources Pty Ltd v South Australia (2001) 82 SASR 18.
Extension of Time
These proceedings were commenced on 13 October 2006. They are therefore governed by the Supreme Court Rules 2006. Mrs Bade seeks orders in the nature of a declaration and orders for judicial review. Rule 200(2) provides that an action for judicial review must be “commenced as soon as practicable after the date when the grounds for the review arose and, in any event, within six months after that date”. Among other things, Mrs Bade seeks a review of the decision of the Council on 24 November 2005 granting development approval. The date when the grounds for review arose was 24 November 2005. As these proceedings were commenced long after the six months prescribed by Rule 200(2), it is necessary to determine whether there are grounds on which to extend the time limit for the application for judicial review. Rule 117 permits the court to extend the time within which to commence these proceedings.
When the court is asked to exercise its discretion and grant an extension of time, there are, generally speaking, four factors to consider, namely, the length of the delay, the reason for the delay, whether the applicant has prospects of success, and the extent of any prejudice suffered by the respondent to the application: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946. Although those principles did not directly apply in the particular circumstances of Jackamarra v Krakouer (1998) 195 CLR 516, they were referred to with approval: see Brennan CJ and McHugh J at 520-521 and Kirby J at 542-543. As Kirby J pointed out, those four factors are not exhaustive. In this case, they are sufficient.
The delay is long. Although these proceedings were commenced some eleven months after the grant of development approval, the delay is readily explained by the fact that the Bades were entirely unaware both that the Davies had applied for development approval and that the Council had granted development approval. They first became aware that building work had commenced on 3 or 4 October 2006. On learning of that fact, they instructed solicitors either immediately or within the next day or two. Their solicitors acted with proper expedition. The letter asking Mrs Davies to stop the building work was sent by the solicitors to Mrs Davies on 9 October 2006 and read by Mr Davies on 13 October. These proceedings were commenced on 13 October. On 20 October the Davies had notice of these proceedings when they were served on Mr Davies. It is readily apparent that the Bades and their solicitors acted with all reasonable expedition immediately when they became aware that building work had commenced. They were not aware the building work had, in fact, commenced at some time in September 2006.
The real explanation for the delay lies in the fact that the Davies did not commence the building work within a reasonable time after receiving development approval. Although the development approval had been granted on 24 November 2005, they did not commence the building work until September 2006, a delay of some nine months. They had initially hoped to sell the lease with the building approval. On being unsuccessful, they then decided to proceed with the construction themselves. It is reasonable to infer, as I do, that, had the Davies commenced building work soon after the grant of development approval, the Bades would have instituted proceedings claiming similar relief to that claimed in these proceedings and would have done so promptly. The prompt action of the Bades on learning that building work had commenced is eloquent testimony to support that conclusion.
It is relevant to note also that neither the Davies nor the Council gave notice to the Bades of the application for development approval nor of the grant of development approval. It is reasonable to infer also, as I do, that, had notice been given, the Bades would have issued proceedings reasonably promptly. In that respect, it must be noticed that, when Mr Davies contacted Mr Bade in December 2005, he did not inform him of the grant of development approval. Had he done so, the validity of the grant of development approval could have been examined before the Davies commenced the building work. Although the delay is long, it is clear that the reasons for the delay lie to a large extent at the door of Mr and Mrs Davies and, to a lesser extent, at the door of the Council because the Council had notice of the encroachment and that affected the development application.
For reasons to be given shortly, Mrs Bade has reasonable prospects of succeeding on this application. The Council has failed in its legal obligation to give notice of the development application to the Bades. The only issue which might prevent Mrs Bade from succeeding is whether the Court will in exercise of its discretion grant the relief she seeks.
The power to extend the time limit for instituting proceedings for judicial review was considered by the Full Court in Hall v City of Burnside (2006) 245 LSJS 440. Although that decision concerned Rule 98.06 of the Supreme Court Rules 1987, the views expressed by the Full Court are apposite because Rule 200(2) is expressed in terms which are to the same effect as Rule 98.06. Doyle CJ with whom Duggan J agreed set out a number of factors for consideration when determining whether it was appropriate to extend the time limit of six months. I summarise them in this way.
1A six months time limit for proceedings by way of judicial review is common in Australia and in some jurisdictions the time limit is even shorter: see Aronson, Dyer, Groves, Judicial Review of Administrative Action (3rd ed, 2004) at 718-719. The six month limitation period is the general rule: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 per McHugh J.
2The reasons for a relatively short limitation period were expressed by Doyle CJ in these terms at [49]:
The relatively short limitation period reflects the fact that judicial review is concerned with the validity of decision making by individuals and bodies exercising statutory and other powers that must be exercised in the public interest. Such decisions often have direct and consequential effects on persons other than those immediately affected. In a range of circumstances it will often be a matter of significance for other persons and authorities to know whether or not such a decision is valid or has been subject to a legal challenge. There is a substantial public interest in being able to say, after a specified time, that such a decision can be treated as beyond attack. The very fact that the standing rules permit challenges to validity to be made by persons other than those directly involved in the decision making process is a reason why there should be a relatively short period within which any such attack should be mounted.
Doyle CJ added at [51] that, when considering whether the interests of justice require that an extension be granted, substantial weight should be given to the fact that the time limit has been imposed, and to the public interest and any relevant private interest.
3The grant of an extension of time deprives a party holding a development approval of the benefits of that approval because it puts the development approval at risk on grounds not previously raised: see Doyle CJ at [53].
When agreeing with those remarks Duggan J added further comment at [70] and [80]. Doyle CJ and Duggan J allowed an appeal against an order extending the time prescribed by Rule 90.08. Gray J dissented. He was not prepared to give the same weight to the time limit of six months.
With respect, while the reasoning of Doyle CJ and Duggan J is apposite to the issues in Hall v City of Burnside, it is, I think, of limited application in a case such as this. I also think that the reasoning gives undue weight to the time limit prescribed by the Rule and over emphasises the public interest. There will, no doubt, be cases where the public interest looms large but, to a very large extent, if not as a general rule, questions as to the validity of planning consents are issues between neighbours where one neighbour perceives that the other has secured an unfair, if not, unlawful advantage. Thus, it is essentially private issues, not the public interest which are at stake. Most importantly, the reasoning fails to have regard to those cases where a person who is entitled to notice of a development proposal is not given that notice and is entirely unaware of any development approval until building work commences and then promptly issues proceedings seeking to challenge the development approval. Taken to its logical conclusion, the reasoning of the Full Court could deny that person the ability to seek to set aside a development approval even where the development approval was plainly invalid and where the only reason for the lapse of time between the grant of development approval and the issue of the proceedings is the result of inaction by the developer not the plaintiff. The facts in Hall v City of Burnside were of a particular kind so that the principles expressed in that decision are not, I believe, of general application in cases where the delay in issuing proceedings is the result of inaction by the developer. In this case, a good deal of weight must be attached to the fact that the delay is essentially a consequence of the inactivity of Mrs Davies and the failure to give notice to Mrs Bade.
There will be obvious prejudice to the Davies. If the grant of development approval is set aside, there is a risk they will not obtain a development approval in which event their dwelling will have to be demolished. Equally, there will be prejudice to Mrs Bade because, if an extension of time is not granted, she will be denied the opportunity to pursue her entitlement to seek to prevent the development from proceeding. This is a case where it is proper to grant an extension of time. The questions of prejudice will be included in the factors relevant to the question whether the court should in the exercise of its discretion grant Mrs Bade the redress that she seeks.
The Council’s Obligation to Give Notice
I turn to the question whether the Council had a duty to give Mrs Bade notice of the development application by the Davies. The resolution of that question depends upon the category of the development into which the proposed development fell: s 38 of the Development Act 1993 and see Polites v City of Holdfast Bay (No 2) (1998) 72 SASR 475 at 478-480. If the development the subject of the application lodged by Mr Davies fell into Category 1, it was not necessary to give Mrs Bade notice. If the development was either a Category 2 or a Category 3 development the Council was required to give Mrs Bade notice of the development application. The Council classified the development as a Category 1 development. For the reasons which follow, it erred in making that classification. It obviously proceeded on the ground that the application was for a single storey dwelling.
The determination of the appropriate category of a development is regulated by s 38(2) and (2a) of the Development Act. For present purposes it is necessary to notice only s 38(2) which provides:
(2)Subject to subsection (2a), the following provisions apply in relation to the assignment of developments to those categories:
(a) the regulations or a Development Plan may assign a form of development to Category 1 or to Category 2 and if a particular form of development is assigned to a category by both the regulations and a Development Plan, the assignment provided by the Development Plan will, to the extent of any inconsistency, prevail within the area to which the Development Plan relates; and
(b) any development that is not assigned to a category under paragraph (a) will be taken to be a Category 3 development for the purposes of this section.
In this case, there is nothing in the Council’s Development Plan which assists in determining the category of the development. It is necessary, therefore, to examine the relevant provisions of the Development Regulations 1993.
When determining the category of a proposed development, the Council must first determine the nature of the development: s 35 of the Act and Regulation 16. The manner in which that task should be discharged was examined in Australian Waste Pty Ltd v Compaction Application Tips Pty Ltd (2001) 79 SASR 532 at [19]:
The object of the Development Act is to provide for proper, orderly and efficient planning and development in the State: s 3 of the Development Act. With the intent of achieving that purpose, the Development Act provides for the creation of development plans with the object, among others, of enhancing “the proper conservation, use, development and management of land and buildings”: s 3(c) of the Development Act. The task of providing proper, orderly and efficient planning and development is vested in planning authorities whose task it is to determine whether to grant development approval. That task usually requires the planning authority to determine the nature of the application with assistance from either the Development Regulations or the Development Plan, to assess the proposal against any relevant requirements prescribed by the Development Regulations or the Development Plan, to assess the proposal against the amenity of the locality and the overall objectives of the Development Plan, and then to determine whether or not to grant development approval. Not infrequently, that task will require the planning authority to consider the proposal against existing land use and development in either the neighbourhood or the locality of the proposed development. The planning authority does not have a choice but an obligation to discharge that latter task and that obligation is imposed by the joint operation of the Development Act, the Development Regulations and the relevant Development Plan. The manner in which a planning authority discharges the task of determining whether to grant development approval is outlined in City of Mitcham v Freckmann (1999) 74 SASR 56 at 62-63.
It is implicit in those remarks that the planning authority should not simply rely on the description of the proposed development in the development application. Instead, the planning authority, in this case the Council, has a duty itself to examine the plans which accompany the development application and any other information provided with the development application and determine the nature of the development.
Four pages of plans accompanied the development application lodged by Mr Davies. They depicted a dwelling to be constructed over the boat shed. Significantly, the first sheet of those plans clearly stated in bold letters the nature of the proposal in these terms:
Proposed single storey extension on existing boat garage.
The plans unambiguously show that the nature of the proposal is the construction of a dwelling over the boat shed and in a way which makes the proposed building an integrated whole. The resulting structure was a two storey building.
The provisions in the Development Regulations which determine into which categories a development falls are Regulation 32 and Schedule 9. Regulation 32 is in these terms:
32.(1) Subject to subregulation (2), the various forms of development specified in Part 1 of Schedule 9 are assigned to Category 1 for the purposes of section 38 of the Act.
(2) The assignment of various forms of development to Category 1 does not extend to developments that involve, or are for the purposes of, any activity specified in Schedule 22, other than where the development is, in the opinion of the relevant authority, of a minor nature.
(3) That following forms of development are assigned to Category 2 for the purposes of section 38 of the Act:
(a)the various forms of development specified to in Part 2 of Schedule 9; and
(b)developments that involve, or are for the purposes of, any activity specified in Schedule 22 and that would, but for subregulation (2), be assigned to Category 1.
(4) Each clause of Schedule 9 is to be read separately so as to constitute a distinct assignment to a relevant category that should not be taken as being subject to satisfying any other clause of the relevant part of the Schedule.
A development which is neither a Category 1 or Category 2 development is a Category 3 development: s 38(2)(b) of the Act. As is apparent from Regulation 32, it is necessary to consider Schedule 9 which lists the kinds of development which are either Category 1 or Category 2. Schedule 9 is a lengthy document. It is too long to quote in these reasons. It is sufficient to state that an examination of Schedule 9 shows that a dwelling constructed over a boat shed is neither a Category 1 nor a Category 2 development. The proposal is, therefore, a Category 3 development.
In reaching this conclusion, I have not overlooked sub-paragraph (c) of paragraph 2(1) of Schedule 9 which classifies as a Category 1 development any development which comprises:
(c)a change in the use of land to residential use that is consequential on the construction of, or conversion of a building to, a building of a kind referred to in paragraph (a), or on the resumption of use of such a building.
This provision applies where the whole of the building is intended for residential use. That is not what the Davies proposed. The development application shows the boat shed was to be retained for use as a boat shed.
Mr Tredrea, who appeared for Mrs Bade, submitted that the proposed development was in the Flood Zone prescribed by the Council’s Development Plan. The provisions for the Flood Zone permit the replacement of existing dwellings but do not permit the construction of new dwellings. A new dwelling would, therefore, be a non-complying use and as such a Category 3 development. However, an examination of the Council’s Development Plan discloses that allotment 15 is not in the Flood Zone but in the Fringe Zone. This submission therefore fails.
Mr Henry, who appeared for Mrs Davies, submitted that the development was a Category 1 development. He relied on the provisions of paragraph 2 of Part 1 of Schedule 9 of the Development Regulations which lists forms of Category 1 development:
2(1) Except where the development is classified as non-complying under the relevant Development Plan, any development which comprises -
(a)the construction of any of the following (or of any combination of any of the following):
(i)one or more detached dwellings;
(ii)one or more single storey dwellings;
(iii)one or more sets of semi-detached dwellings, provided that no such dwelling is more than two storeys high;
(iv)three or more row dwellings or one or more additional row dwellings, provided that no such dwelling is more than two storeys high.
The proposed development is not a non-complying development so that there is no barrier to the proposal falling within paragraph 2(1)(a). However, there are at least two reasons why the proposal is not a Category 1 development.
The first is that it is implicit in paragraph 2 that the proposed development is to be constructed at ground level and not over an existing development. Indeed, that same implication applies to most, if not all, of the other forms of development listed in Schedule 9. It is not intended to classify as Category 1 developments dwellings which are erected on top of other buildings.
The second reason why Mr Henry’s submission must fail is that the development is neither a detached dwelling or a single storey dwelling. It is a proposal for a dwelling incorporating an existing boat shed or, alternatively, the construction of a dwelling over a boat shed. The expressions “detached dwelling” and “dwelling” are both defined in Schedule 1 of the Development Regulations in these terms:
“detached dwelling” means a detached building comprising one dwelling on a site that is held exclusively with that dwelling and has a frontage to a public road, or to a road proposed in a plan of land division that is the subject of a current development authorisation.
“dwelling” means a building or part of a building used as a self-contained residence.
Neither definition refers to any kind of development other than a building used for residential purposes. Neither definition includes outbuildings or other building attached to the dwelling. That is because other provisions in the Development Regulations (and, Schedule 3 in particular and paragraph 2(1)(ca) of Part 1 of Schedule 9) deal with outbuildings and the like. See also Baker v City of Norwood, Payneham and St Peters (2003) 127 LGERA 200. When referring to “detached dwellings” and to “single storey dwellings”, the intent of paragraph 2(1)(a) is that the building comprises no other form of development. In any event, the dwelling cannot be a detached dwelling as defined in that it is not a detached building comprising one dwelling. It is a dwelling which is attached to a boat shed.
For all these reasons, the proposed development was a Category 3 development and the Council was required to give Mrs Bade notice of the proposed development. Mrs Bade would then have been entitled to make representations to the Council in respect of the application and, on approval being granted, to appeal to the Environment, Resources and Development Court (“the Environment Court”): see s 38(10) and (12) and s 86(1)(b) of the Act.
Mr Tredrea also contended that the development approval granted to the Davies in 1999 had lapsed. Given the conclusion that the proposed development is a Category 3 development, it is unnecessary to consider that argument.
The Appropriate Remedy
If these proceedings had been instituted soon after the grant of development approval and before building work had commenced, Mrs Bade would have been entitled to an order setting aside the decision of the Council granting development approval. If the Davies had wished to proceed with the development, it would have been necessary for them to lodge a fresh application for development consent. However, given the state which the development had reached on 13 October 2006 when the Davies received the letter from the Bades’ solicitors giving notice of these proceedings and the subsequent completion of the dwelling, it is necessary to consider whether it is appropriate to quash the grant of development approval. The issue is difficult to determine.
The Davies have done little, if anything, to encourage the court to exercise its discretion in their favour. The Davies must have known that one consequence of the development application was to aggravate the existing encroachment. They knew that the course preferred by the Bades was that the encroachment should be removed. They knew that the Bades did not wish a first floor to be built over the encroachment and that Mr Bade had asked that the front of the first floor be set back from the encroachment. Notwithstanding all of those considerations, they did not inform the Bades that they had lodged the application for development approval. They failed to inform Mrs Bade that they were intending to lodge the development application or that they had already lodged it. Had they done so, Mrs Bade would have been able to take whatever action was necessary to have the Council deal with the development application according to law and on the footing that it was a Category 3 development. I am satisfied that, if legal proceedings had been necessary, Mrs Bade would have instituted them promptly. The conduct of both Mrs Bade and her husband in the prosecution of these proceedings is ample testimony to justify that conclusion. The Davies deliberately proceeded with the application without alerting the Bades of their intention beyond making the general remarks made by Mr Davies at the meeting with Mr Bade in April 2005. It is, however, necessary to weigh against those considerations the fact that the Davies were not under any legal obligation to give notice to Mrs Bade. The weight to be given to the absence of any obligation to give notice is, I think, offset by the fact that, when he contacted the Bades in December 2005, Mr Davies did not in any of the conversations with Mr Bade disclose the fact that development approval had been granted. At that time, the Davies were not intending to build. They were hoping to sell the land with the development approval. The failure of Mr Davies to make a frank disclosure prevented Mrs Bade from issuing proceedings before the building work had commenced.
Another factor which weighs against an exercise of discretion in favour of the Davies is their failure to disclose the encroachment on the development application. The plan showed that the boat shed was wholly within allotment 15. Had they disclosed the true position, it might have caused the Council to give notice to the Bades. The Council might not have given notice under the Development Act but have given informal notice of the development application.
The question of prejudice involves difficult issues. The Davies acted, albeit belatedly, on a grant of development approval and had substantially commenced construction before they had notice of these proceedings on 13 October 2006. By that time the building work was considerably advanced. The work that remained was to roof the dwelling, line the walls with gyprock and complete the fitting out of the interior of the dwelling, works that were relatively substantial and costly. Notwithstanding the request from the Bades’ solicitors to desist from further building work, the Davies proceeded in the knowledge that the Bades intended to apply for an order setting aside the grant of development approval. It was reasonable for them to proceed to roof the dwelling since that provided protection from the elements for the building work which had already been completed. In my view, it was not reasonable to proceed with the other work and complete construction. I find that the Davies deliberately decided to complete the construction notwithstanding the risk that the development approval might be set aside.
It is necessary to consider also the conduct of the Bades. They had known of the existence of the encroachment since February 2005. At the meeting with Mr Davies in April 2005, Mr Bade learned that the Davies intended to construct a dwelling over the boat shed. Notwithstanding that fact, the Bades took no action beyond Mr Bade writing letters to the Council. When Mr Bade wrote those letters, he knew that the Council was not willing to assist in relation to the encroachment. It is reasonable to infer, as I do, that the Bades took the view that, having given the Council notice of the encroachment, the Council would give them notice of any development application to erect a dwelling over the boat shed. They therefore adopted a “wait and see” approach. That was not an unreasonable view to adopt especially as the Council was obliged to give them notice of this Category 3 development. However, as the events leading to these proceedings demonstrate, that course carried with it the risk that building work might commence and be well advanced unbeknown to them and before any proceedings might be issued. They took that risk and may have to abide the consequences. Another relevant consideration is that the encroachment existed when Mrs Bade purchased the lease.
The considerations which are more germane to the exercise of the discretion are those relating to the question whether, if the approval was set aside, the Davies would ultimately obtain another grant of development approval. If an order was made setting aside the grant of development approval, the Davies would be entitled to ask the Council to reconsider the development application lodged on 22 September 2005. The Council would be required to give notice of the application to Mrs Bade and others as well as to give public notice of the application: s 38(10) of the Act. Mrs Bade would be entitled to make representations to the Council opposing the development. Given the events which have already occurred, it is likely that the Council would again decide to grant development approval. Mrs Bade would then be entitled to appeal to the Environment Court. If the Council decided not to grant development approval, Mrs Davies would be entitled to appeal to the Environment Court: s 86(1)(b) of the Act. Thus, whatever decision the Council made, there would have been an appeal to the Environment Court.
On the hearing of the appeal, the Environment Court would not be concerned with the encroachment. It has no jurisdiction to make orders in relation to encroachments. Instead, the Environment Court would direct its attention to the planning issues involved, issues which to a large extent turn on the relevant provisions of the Council’s Development Plan. It is not the task of this court to decide whether the Environment Court would uphold a decision of the Council granting development approval or whether it would reverse a decision of the Council refusing development approval. Instead, its task is to assess whether there is a reasonable prospect that the Environment Court would make a decision which had the consequence that there would be no grant of development approval with the consequence that the dwelling erected by the Davies would have to be demolished. I am not satisfied that there is a reasonable prospect of such a result. In reaching that view, I am especially influenced by the fact the Council’s Development Plan contains little, if anything, which speaks against the kind of development which the Davies have undertaken. The Development Plan contains no provision requiring a set back of buildings from the river frontage nor any provision which protects the views of neighbours. These are perhaps surprising omissions given that one significant reason why people resort to the River Murray is to enjoy views of the river and its environs. However, in the absence of any provision to protect views of neighbours, it is unlikely that the Environment Court would make a decision which would have the effect of denying the grant of development approval to the Davies. Generally speaking, a view will be protected only if the Development Plan contains provisions to that effect: Hutchens v City of Holdfast Bay (2007) 98 SASR 412.
One provision in the Fringe Zone which might assist the Bades is Objective 3 which states that residential development should enhance the natural character of the river front and provide opportunities for public access to the river front area in the form of a small number of discreet groups of dwellings in appropriate locations. However, the discussion which follows the statement of that objective is devoted to other issues than requiring set backs or protecting views. It would, therefore, seem to be of little assistance. The principles for development control for the Residential Zone apply also in the Fringe Zone. Mr Tredrea referred to principle of development control 10 for the Residential Zone. It provides:
Development should be designed to be compatible with the existing built-forms in terms of external materials, colours and set backs.
That provision might assist the Bades but I think it is of limited utility.
For these reasons, there is a real likelihood that an order setting aside the grant of development approval would be futile. I am, therefore, not prepared to make an order setting aside the grant of development approval. I reach that conclusion with a great deal of reluctance because it denies Mrs Bade the entitlement to be heard in opposition to the proposed development. The Davies have done little to justify a favourable exercise of the discretion in their favour. They have acted in, complete disregard of the reasonable interests of their neighbour.
In reaching this conclusion, I have had regard also to the fact that the encroachment constitutes a trespass by the Davies upon the land occupied by Mrs Bade and to the appropriate means by which to remedy that trespass. I turn to consider those issues.
Remedying the Trespass
It is common ground that part of the wall of the boat shed encroaches on to the land occupied by Mrs Bade.
Every unjustified entry directly by a person on land in possession of another, which is carried out either intentionally or negligently, is an actionable trespass: Halsbury’s Laws of Australia, vol 26, para 415-480 and the cases there cited. Trespass to land is actionable without proof of special damage: Plenty v Dillon (1991) 171 CLR 635 at 639 citing Entick v Carrington (1765) 19 State Tr 1029; 95 ER 807 at 1066. Any form of entry, however slight, is a trespass unless it falls within the scope of a licence, expressed or implied: Simpson v Bannerman (1932) 47 CLR 378. Mrs Davies has no licence nor any other authority to allow a building to encroach on to the land occupied by Mrs Bade.
A building erected on another’s land without permission is a trespass: Holmes v Wilson (1839) 10 Ad & El 503, 113 ER 190. Where the wrongdoer does not remedy the trespass, the trespass is a continuing trespass: Holmes v Wilson (supra). The cause of action is, therefore, renewed on each day that the trespass is not remedied: Konskier v B Goodman Ltd [1928] 1 KB 421.
Although Mrs Bade is not the owner of allotment 16, that fact does not prevent her from maintaining an action for trespass against Mrs Davies in respect of the encroachment. That is a consequence of the fact that trespass is an injury to possession: Rodrigues v Ufton (1894) 20 VLR 539 at 543-544; Perry v Clissold (1906) 4 CLR 374 at 377. Thus, a person who is in possession of land is entitled to bring an action for trespass: Newington v Windeyer (1985) 3 NSWLR 555 at 563. A tenant in possession may sue for trespass: Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334. The entitlement to bring an action for trespass must be a fortiori in the case of a person who like Mrs Bade holds a lease for a term of 999 years.
The encroachment constitutes a trespass and is a continuing trespass. The encroachment was the result of the negligence of the Davies in failing to ensure that the boat shed was erected within the boundaries of allotment 15, boundaries which they had themselves had caused to be surveyed. Mrs Davies is liable for her own acts and is vicariously liable for the negligent acts of her husband. As the person in possession of allotment 16, Mrs Bade is entitled to bring proceedings seeking a declaration that the encroachment is a trespass. In his submissions, Mr Henry expressly admitted that the encroachment constitutes a continuing trespass.
The encroachment of the wall of the boat shed on to allotment 16 is an encroachment within the meaning of the Encroachments Act 1944. However, Mrs Bade cannot bring proceedings under the Encroachments Act as the remedies under that Act are available only to a person who is an owner of a freehold estate in the land. Section 2 of the Encroachments Act defines an owner in these terms:
“owner” means any person entitled to an estate of freehold in possession –
(a) whether in fee simple or for life or otherwise;
(b) whether at law or in equity;
(c) whether absolutely or by way of mortgage;
and includes a mortgage under a registered mortgage of a freehold estate in possession in land under Real Property Act 1886.
Mrs Bade is not a person entitled to an estate of freehold in possession. Instead, she is entitled only to an estate of leasehold in possession.
Mrs Bade seeks a declaration that the encroachment constitutes a trespass but seeks no other remedy in respect of the encroachment. At the commencement of this hearing, Mr Henry applied for leave to make a counter-claim seeking the following orders:
1.That the plaintiff execute in favour of the second defendant an underlease of the plaintiff’s interest in that portion of lot 16 upon which the second defendant’s building on lot 15 encroaches.
2.That the second defendant pay to the plaintiff such compensation as this Honourable Court determines on account of the encroachment.
The counter-claim is made in answer to the application by Mrs Bade for a declaration that the encroachment is a trespass. In seeking leave to make the counter-claim, Mrs Davies is seeking to resolve all issues relating to the encroachment. It is appropriate to grant leave to do so but, for the reasons I will give in a moment, it will be necessary to adjourn the hearing of the counter-claim. One further reason for granting leave is that it will avoid a multiplicity of proceedings between these parties.
This court has a wide power to grant an order in the nature of a declaration: JN Taylor Holdings Pty Ltd (in liq) v Bond (1993) 59 SASR 432; Allianz Australia Insurance Ltd v National Jet Systems Pty Ltd (2005) 238 LSJS 93 at [59] and [63]. An equally important consideration is that the court has a wide discretion both whether to grant the equitable remedy of a declaration and whether to grant orders of judicial review. In the exercise of that discretion, it is proper to consider what in all the circumstances is the most suitable remedy. It is not appropriate simply to make an order in the nature of a declaration that the encroachment constitutes a trespass. There can be no doubt that the encroachment is a trespass and a bare declaration does nothing to remedy the consequences of the encroachment or lead to any practical resolution of the issues between the parties. Mr Tredrea submitted that the declaration would assist on appeal to the Environment Court. For the reasons already expressed, I reject that submission. In my view, the proper course in these proceedings is for the court to declare that the encroachment is a trespass upon the land occupied by Mrs Bade as part of a package of orders which will resolve the issues concerning the encroachment.
The victim of a trespass may apply for a mandatory injunction requiring the trespasser to remove the encroachment: Burton v Winters [1993] 3 All ER 847 at 851; Williamson v Friend (1901) 1 SR (NSW) Eq 133. In considering whether such an order should be made, the court will have regard to the nature and extent of the encroachment. If the encroachment is relatively minor, the court will as a general rule order that the trespasser compensate the victim in damages. In this case the encroachment is relatively minor. This is a case where it is appropriate to compensate Mrs Bade with an award in damages. It is not appropriate to require removal of this substantial wall with its substantial footing beneath. Those damages will include compensation for the land lost as a result of the encroachment and for any consequential loss. There were some assertions in the course of the evidence that the encroachment impaired the capacity of Mrs Bade to construct a dwelling along the border of the allotment. At this stage there is no clear evidence of the extent to which, if at all, the encroachment will interfere with her capacity to do so. If that fact is established, Mrs Bade will be able to recover damages under that head. Mrs Bade will also be entitled to damages for any other consequential loss. There may be other heads of damage. I prefer to say no more on the question of damages at this stage. The principles are well settled and are set out in the textbooks. Neither party led any evidence on the question of damages. Instead, they focused their attention on the questions whether the grant of development approval should be set aside.
In these circumstances the most appropriate course is first to make an order extending the time within which Mrs Bade may institute these proceedings but dismiss her application to quash the decision of the Council granting development approval. There will be a further order adjourning these proceedings to enable evidence to be led on the question of damages. I adjourn also the counter-claim by Mrs Davies for an underlease. That is another issue to which scant attention was given in the course of the hearing. It will be necessary for the parties to consider whether an underlease or some other kind of redress is suitable.
I will hear the parties as to the terms of the orders.
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