Byrne v Palmer
[2024] QSC 46
•22 March 2024
SUPREME COURT OF QUEENSLAND
CITATION: Byrne v Palmer [2024] QSC 46 PARTIES: STEPHEN TREVOR BYRNE AND JANE CHRISTINE BYRNE
(applicants)
vTERRENCE ALFRED PALMER AND MURIEL LINDA PALMER
(respondents)
FILENO/S: BS No 7909 of 2023 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Brisbane DELIVEREDON: 22 March 2024 DELIVEREDAT: Brisbane HEARINGDATE: 12 December 2023; 15 February 2024 JUDGE: Crowley J ORDER: 1. The application for relief pursuant to s 196 of the
Property Law Act 1974 (Qld) is granted.
2. The applicants and respondents are to prepare a minute of the orders necessary to give effect to my reasons for granting the relief under s 197 of the Property Law Act 1974 (Qld).
3. The application in respect of the alternative relief sought is dismissed.
CATCHWORDS: REAL PROPERTY – BOUNDARIES OF LAND AND
FENCING – where the parties own adjoining properties with shared boundaries – where the parties are not connected to the mains water supply – where there was an agreement for shared ownership and benefit of the water bore to be sunk on the shared boundary – where a water bore was sunk wholly on the land of the respondent – where there was a mistake in where the bore was sunk – where the mistake was not known until recently – where owners of both adjoining properties jointly made lasting improvements to the water bore – where there was shared use of the water bore for nearly 40 years –
whether the applicant is entitled to a property vesting order under s 197 of the Property Law Act 1974 (Qld).
REAL PROPERTY – EASEMENTS – EASEMENTS
GENERALLY – CREATION – where the respondents purchased the property in 1991 – where the respondents are the registered proprietors of a lot with a fee simple interest in the land – where the easement was not in existence when the respondent’s lot was first registered – where the easement particulars have never been recorded in the freehold land register against the lot – where the applicant uses their property as a family holiday home and short-term holiday rental – where there may be alternative water sources available to the applicant – where the bore is used primarily to water the garden and for outdoor purposes – whether the applicant should have a statutory right of user to access and use the respondent’s bore or have acquired an easement by prescription through long user.
Acts Interpretation Act 1954 (Qld), s 14A(1), s 32C
Land Title Act 1994 (Qld), s 184, s 185(1)(c), s 185(3) s 200,
s 201Property Law Act 1974 (Qld), s 180, s180(1), s180(3), s 196, s 197, s 198, s 198A
Water Act 2000 (Qld), s 27, s 101(1)(c), s 1046
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited
Connellan Nominees Pty Ltd v Camerer [1988] 2 Qd R 248, considered
Delohery v Permanent Trustee Co of New South Wales Ltd(1904) 1 CLR 289, cited
Lang Parade Pty Ltd v Paluso [2006] 1 Qd R 42, cited McClymont v Nelson [2023] QSC 59, distinguished Newman v Powter [1978] Qd R 383, cited
Western Australia v Manando (2020) 270 CLR 81, considered2040 Logan Road Pty Ltd v Body Corporate for Paddington Mews CTS 39149 [2016] QSC 40, cited
COUNSEL:
M J McDermott for the applicants
S McNeil with R Varshney for the respondents
SOLICITORS:
Simpson Quinn Lawyers for the applicants Colville Johnstone Lawyers for the respondents
Teewah is a little beachside village within the locality of Noosa North Shore. The township is comprised of a small number of residential dwellings, many of which are used as holiday homes. It is only accessible by ferry, boat or four-wheel drive. There are few permanent residents.
Due to its size and location, properties in Teewah are not connected to the mains water supply. Consequently, some property owners have water bores which they use to access underground water sources.
The parties to this application own adjoining properties at Teewah. The Palmers own the property at 11 Tailor Street. They have owned their property since 1991. They initially purchased it as a holiday home for family and friends. They have never used it as their principal place of residence. The Byrnes are relative newcomers to Teewah. Mrs Byrne is the registered owner of 8 Tarwine Street. She and her husband purchased the property in early 2021. They intended to use it as a family holiday home and as a short-term holiday rental.
The dwellings on the adjoining properties are relatively close to each other, being no more than about ten metres apart. There has never been a back fence marking the shared rear boundary between the properties. The area between the rear of their respective dwellings is simply covered by a patch of grass that at some point ceases to be the land owned by one neighbour and becomes the land owned by the other. The imaginary line of the property boundary had at one time been marked out by survey pegs, but that seems no longer to be the case.
The current controversy is historical in its origin. Almost forty years ago, previous owners of the adjoining properties decided to sink a water bore for their mutual benefit. They agreed that: they would each share the costs of installing the bore and a pump; the bore would be placed on the boundary between their two properties; and they would each then share in its use and contribute to the running and maintenance costs.
It seems it was good enough back in the day for the bore hole to be drilled at a location estimated, by reference to the location of survey pegs, to be on the shared rear boundary between the adjoining properties. So, that is what was done. A pump was then attached to the bore and a block and timber box enclosure was built to house the bore and pump.
It is now apparent that whilst the pump enclosure was positioned so that it straddled the boundary, the bore was actually sunk at a location that is just within the boundary of the property now occupied by the Palmers.
For many years, successive owners of the adjoining properties shared the use of the bore and the costs of running and maintaining the bore pump, seemingly without much thought or care as to the nature of any rights or interest they may have in the bore and its use.
That position has now changed. Around the time Mrs Byrne assumed ownership of her property, the Palmers began padlocking the pump enclosure to prevent access, asserting that other persons had been using it without authority. After a subsequent disagreement arose between the Byrnes and the Palmers as to who owned the bore and on what terms it could be used, the Palmers obtained a survey which confirmed the bore is in fact positioned seven centimetres on their side of the rear boundary they share with the Byrnes.
The Palmers say they are the owners of the bore as it is situated on their land. Consequently, they have disconnected the pump and restricted access to it and the bore from the Byrnes’ side. They have also dismantled and modified the original pump enclosure so that it now also sits wholly within the boundary of their property and can only be accessed by them. The Palmers say that any prior use of the bore by
others, including the Byrnes, was only ever with their agreement and consent, as a neighbourly gesture, which they have now withdrawn.
The Byrnes say that use of the bore was always intended to be shared. They say the Palmers’ actions are contrary to the original agreement between the previous owners and inconsistent with the subsequent usage of the bore by successive owners of the adjoining properties. They say the bore was obviously mistakenly positioned on the land now owned by the Palmers and it was never intended that its placement on their land would confer exclusive ownership. They claim the Palmers are not entitled to unilaterally restrict their access to, and use of, the shared bore and pump.
Accordingly, the Byrnes seek relief by way of property vesting orders under s 197 of the Property Law Act 1974, (‘PLA’), in respect of the land upon which the bore was said to have been mistakenly placed. Alternatively, they seek an order granting them statutory rights of user under s 180 of the PLA, or an order, in the exercise of the Court’s equitable jurisdiction, confirming they have an easement over the subject land that will allow them to access and use the bore and pump, which they have acquired through the lengthy period of past use of the shared bore.
Issues
The issues for consideration are:
1.Whether a property vesting order can, and should, be made in favour of the Byrnes?
2.If not, whether an order, can, and should, be made in favour of the Byrnes’ land for a statutory right of user by way of an easement over the Palmers’ land?
3.If not, whether the Byrnes have acquired an easement by prescription through long user?
Evidence
Because the issues are intertwined and cannot be discretely addressed absent an understanding of the full context of the dispute between the parties, it is necessary to first summarise the key evidence adduced at the hearing.
The primary evidence was by given by affidavits from various witnesses. Several of the witnesses were required for cross-examination.
Applicants’ evidence
Wayne Plant
Mr Plant was the original owner of 11 Tailor Street. He lived there from around 1980 to 1984. He built the house on the property. His rear neighbour was Mr Mills, who lived at 8 Tarwine Street. Mr Mills is now deceased.
In around 1983, Mr Plant proposed to Mr Mills that they sink a water bore on their shared boundary. The boundary between their respective properties was marked by survey pegs. Mr Plant suggested that the bore be put on the boundary so they could share the use of the bore. He further suggested that they would each equally share the cost of sinking the bore. Mr Mills agreed to the proposal.
Mr Plant then arranged for a contractor to sink the bore and sourced a petrol pump to extract the water. He believed the bore was sunk on the boundary, in line with where the existing survey pegs were then situated. He then built a concrete block
enclosure to house the pump. Mr Mills reimbursed Mr Plant half of the costs of the expenses for the bore, pump and enclosure.
Mr Plant recalled the survey pegs for the boundary between the properties were still visible when he built the pump enclosure. He built it across where he believed the boundary line was, with the intention that about half of it would be on each side of the boundary.
Mr Plant confirmed that he never intended that the bore would be solely on the Palmer property. To the best of his knowledge, he thought the bore was sunk on the boundary line between the neighbouring properties. He is now aware that a recent survey shows that the borehole is actually a few centimetres onto the Palmers’ property. He was not aware of this at the time the bore was sunk. His instructions to the bore contractor who drilled the hole were to sink it on the boundary. His instructions reflected his agreement with Mr Mills.
Once the bore was sunk and the pump installed, both Mr Plant and Mr Mills used the water from the bore and there were no disputes between them. They would each contribute petrol to use the pump.
Sometimes Mr Plant and Mr Mills would give permission to another resident of Teewah to draw water from the bore. Their established practice was that either Mr Plant or Mr Mills could give permission to a third party to use the bore water.
According to Mr Plant, about a year after the bore was put in, he sold his property to Kevin and Cynthia Jones. On this point, I note that it was agreed between the parties that 11 Tailor Street was actually owned by Mr Plant between 6 August 1980 and 5 November 1987 and thereafter by Kevin and Cynthia Jones between 5 November 1987 and 16 May 1991.
In cross-examination, Mr Plant agreed that the physical work in respect of sinking the bore was carried out by a contractor which he had arranged. He agreed that he had organised for the pump to power the bore. He further agreed that the survey pegs were in place, designating what he thought was the boundary between his property and Mr Mills’ property at the time.
As to the placement of the bore, Mr Plant agreed that he gave instructions to the contractor about where to drill. He accepted he had pointed to the position for the bore and had asked the contractor to sink it in that spot. He further agreed that he had built the enclosure to house the pump, connected the pump to the bore and had built an exhaust pit for the pump. He described the exhaust pit as being an old five- gallon keg, which he placed in a hole in the ground, with an exhaust pipe connecting it to the pump.
When it was put to him that the exhaust pit was actually situated entirely on his own property, Mr Plant disagreed. He stated that the exhaust pit was on Mr Mills’ side. He demonstrated the location by reference to photographs shown to him, identifying a point on the neighbouring property, behind the pump enclosure, where he said the exhaust pit had been located.
Mr Plant was also shown a diagram drawn by Ashley Palmer, which was said to depict the pump enclosure and exhaust pit. The diagram showed the exhaust pit was on the Palmers’ land. It also showed the hinged lid to the pump enclosure opened from the Palmers’ side and lifted back towards the Byrnes’ side. Mr Plant stated that the configuration shown in the diagram was different to how it was when he first installed the pump and exhaust pit. He stated that the lid was hinged such that it
opened from left to right, not front to back, and the exhaust pit was not in the location shown on the diagram, but was instead where he had indicated, behind the pump enclosure and situated on the neighbouring property.
Neil Summerson
Mr Summerson has had a long association with Teewah. He knows Mr Plant and he knew Mr Mills. He was in Teewah when the bore was sunk and remembered seeing both Mr Plant and Mr Mills on site with a drilling apparatus mounted on a trailer or vehicle.
Mr Summerson’s wife owned 8 Tarwine Street between 2005 and 2021. She had purchased the property from Mr Mills in 2005. Mr Summerson managed the property for his wife. She sold the property to Mrs Byrne on around 31 March 2021. The Palmers were the neighbours immediately to the rear, at 11 Tailor Street, when Mrs Summerson owned 8 Tarwine Street.
During the time Mr Summerson managed his wife’s property, the bore was used mainly for gardening and other non-potable water uses. The pump for the bore was originally petrol powered and both the Palmers and the Summersons jointly maintained it. He and his wife replaced the original pump with a further petrol pump when the original became unworkable.
In 2010, Leslie and Mary Leatham became the tenants and caretakers at 8 Tarwine Street. In 2011, the Leathams and the Palmers discussed the bore and decided to install an electric motor to replace the petrol motor. Mr Summerson was aware of this arrangement as Mr Leatham had asked him for permission to replace the pump. Mrs Summerson agreed to the arrangement, provided that the cost was to be shared equally between the Summersons and the Palmers. A new electric motor for the pump was purchased and installed and the Summersons paid half of the cost.
The Palmers did not have power connected to their property at the time the electric pump was installed. The electric pump was therefore connected to the power outlet on the Summersons’ property. Whenever the pump was run for the bore, electricity from the Summersons’ property was used. Consequently, when the Palmers used the pump, they used the Summersons’ power. They would occasionally leave cash in the pump box to reimburse the Summersons for the cost of their electricity use. This arrangement continued for approximately ten years, until Mrs Summerson sold her property to the Byrnes.
Mr Summerson’s opinion and belief was that the bore was always jointly owned and used as a shared bore. Until 2021, the Palmers had never said anything to him, or to anyone else to his knowledge, to the effect that they solely owned the bore.
Amongst other things, Mr Summerson believed it was a shared bore because a pop- up sprinkler system was permanently connected to the pump when his wife bought her property. The sprinkler system consisted of pipes and a lever which could be used to water the Summersons’ property. The sprinkler lines were partly buried and partly exposed.
Before the present dispute arose, Mr Summerson never checked where the bore pipe was actually located in relation to the boundary between the two properties. He saw no reason to do so as he, and everyone he encountered, behaved as if it was jointly owned.
In cross-examination, Mr Summerson denied that he would have had to seek the permission of the Palmers to do something in relation to the pump. He instead stated that he would not have needed to seek permission because it was always commonly known that it was a shared pump. He agreed that before he and his wife purchased their property in 2005, he had not had any conversations with the Palmers relating to the pump.
When it was put to him that he had formed his opinion based on what other people might have told him about ownership of the pump, he stated that he had certainly had conversations with Mr Mills and had himself been there when the bore was put down, so he was well aware of its history. He agreed that he had not had any conversation with the Palmers about who owned the bore, adding that he did not see that he needed to have any such conversation. He ultimately agreed that his opinion and belief as to the bore always being a shared bore was based entirely upon what Mr Mills had said to him about the matter.
Mr Summerson further agreed that he was particularly interested when he heard about the dispute about the bore, and so much so that he went to the property and inspected the bore and housing for himself. He disagreed however that his interest in the case was because he had told the Byrnes before they purchased the property that they had half-ownership of the bore. He further denied that he had told the Byrnes’ real estate agent that he considered that they would have half ownership of the bore. He explained that he told the agent that there was a shared bore which was not on the title.
Leslie Leatham
Mr Leatham and his wife Mary Leatham lived at 8 Tarwine Street from about October 2010 until 2021. During that time, Mr Leatham was the tenant and caretaker of the property for the Summersons.
Mr Leatham recalled there was nothing marking the boundary between the adjoining properties. He knew there was a water bore on or around the boundary with the property owned by the Palmers. The bore was comprised of a single shaft, descending down into the ground, powered by a single pump. The pump drew water up and discharged it through one of two valves. Each valve pointed towards one of either the Palmers’ property or the Summersons’ property. There was a lever valve that allowed the water to be shut off to one property or the other while the pump was operating. The bore water was used predominately by the occupants of each of the properties to irrigate their respective gardens, wash cars and for other general domestic uses of non-potable water. Mr Leatham stated that in times of drought, they might also fill their water tanks with the bore water and use it for drinking and washing as it was good quality water.
When the Leathams first moved in the bore was served by an old petrol-powered pump. The pump was housed in a concrete pump enclosure on or around the boundary between the properties. Throughout the time the Leathams lived there, petrol and oil for the pump was provided and paid for by both sides. Whoever used the pump would top it up with petrol afterwards.
In or around 2011, the old petrol pump was replaced with an electric pump, which Mr Leathem sourced. The Summersons paid half of the costs for the new pump. Mr Leatham installed the electric pump as well as a weather-proof power outlet and an underground cable that ran from the outlet to the dwelling on the Summersons’ property. After the installation, all power used to run the new pump was provided
by the Summersons. The Palmers did not have mains electricity connected to their property. They did not have any ready alternative to run the pump save for using the Summersons’ electricity supply. The Palmers would contribute to the electricity costs in various ways. They would send up boxes of vegetables to the Summerson property or Ashley Palmer would occasionally leave cash on the pump box.
In about the last six months or so that the Leathams lived at the Summersons’ property, Ashley Palmer brought a petrol generator up to the Palmers’ property and ran an extension lead from it to the electric pump. This meant that the Palmers no longer needed to use the Summersons’ electricity. From that time onwards, whoever used the pump connected their own power supply to run the pump.
Mr Leatham performed some work to maintain the electric pump. This included replacing a capacitor and also installing a pressure tank on the pump. He personally paid for these expenses and never asked, nor received, any contribution from the Palmers or from the Summersons.
In about the last year or so that the Leathams lived at the Summersons’ property, Mr Leatham’s relationship with Ashley Palmer soured. By this time Ashley Palmer’s parents were no longer living at 11 Tailor Street very often. However, Ashley was a frequent visitor as he also owned the block of land adjacent to his parents’ property. Mr Leatham would often see Ashley at 11 Tailor Street, using water from the bore to water his parents’ garden and his own property next door.
According to Mr Leatham, his relationship with Ashley Palmer soured because Ashley objected to Mr Summerson and Mr Leatham allowing other owners of neighbouring properties to use the bore water to water their properties. Ashley Palmer thought that the Summersons were the only ones other than the Palmers who were entitled to use the bore water and that the Summersons could only use it for their own property.
Mr Leatham recalled having many contentious discussions about these matters with Ashley Palmer around this time. He understood there was a long practice of shared use of the bore water by other neighbouring properties, provided they had the permission of the owners of either the Summersons’ property or the Palmers’ property. His understanding was based on many years occupying the Summersons’ property and the numerous conversations he had in that time with other neighbouring residents and owners, including the prior owners Wayne Plant and Mervyn Mills.
For the entire 11-year period that he resided at the Summersons’ property, no one ever suggested to Mr Leatham that the bore was owned by the Palmers or solely formed part of the Palmers’ property. He recalled having various conversations about the bore with Ashley Palmer, but Ashley never mentioned that it belonged to the Palmers. The first time that he heard of such an assertion being made by the Palmers was about three months after he moved out of the Summersons’ property. It was around this time that he one day saw Ashley Palmer putting a chain and padlock on the bore pump enclosure. When he asked him what he was doing, Ashley told him that he was doing it because one of the other properties, not being the Byrnes’ property, was using too much water. When Mr Leatham responded that he thought Ashley was doing the same thing by using the bore water to water his own property, Ashley told him that was different. Mr Leatham then asked Ashley whether he had given the Byrnes a key to the pump enclosure to which Ashley
responded, ‘No, she has to ring me first’. According to Mr Leatham, at no stage during that exchange did Ashley mention that the Palmers owned the bore.
Later that same day, Mr Leatham had a further conversation with Ashley Palmer. Mr Leatham had seen a surveyor in Teewah and around the Palmers’ property. Mr Leatham asked Ashley whether he had had the boundary surveyed. Ashley did not directly respond to that question but during their conversation he said the bore pipe was on the Palmers’ property and he could prove it. This was the first time Mr Leatham recalled Ashley Palmer saying that the bore was solely on the Palmers’ property.
Mr Leatham remembered that the pump enclosure straddled the boundary between the two adjoining properties. He recalled that this was evident when standing next to a survey peg at the boundary and looking towards the survey peg at the other end of the boundary. In his view, whilst the bore pipe into the ground would have been difficult to judge with the naked eye, the pump enclosure was obviously across the common boundary. In his opinion, when viewed with the naked eye, the bore looked like it was on the boundary line between the properties. Mr Leatham recollected that the petrol pump and later the replacement electric pump were positioned such that they sat on top of the boundary line between the properties running lengthwise along and a-top of the boundary line.
According to Mr Leatham, he was never in control of the bore, rather control was shared between the Summersons’ property and the Palmers’ property.
As part of his responsibilities as caretaker and tenant, Mr Leatham was responsible for watering the gardens at 8 Tarwine Street. He did this regularly, using water from the bore. When Mr Leatham lived there, the pump enclosure had a small hole in the block wall on the Summersons’ side. A permanently plumbed pipe fixed to the bore pump extended through the hole to a pipe which connected via underground piping to a tap outlet on the western side of the house at 8 Tarwine Street. The tap had a dual lever fixture connected to it which activated an underground pop-up sprinkler system on the property. To operate the sprinkler system, the dual lever system within the pump enclosure first had to be activated to allow water to be piped to the Summersons’ side. There were initially five pop-up sprinklers connected to the underground sprinkler system. Four were located on the Summersons’ property but one was actually situated on the neighbouring property owned by the Wilkinsons. At some stage, Mr Leatham disconnected one of the sprinklers on the Summersons’ property as well as the sprinkler on the Wilkinsons’ property.
From photographs shown to him of the pump enclosure, Mr Leatham identified that the enclosure had since been modified. He observed that the original pipe extending out of the hole through the block wall on the Byrnes’ side had been disconnected. Further, a steel plate and wooden sideboards had been constructed, physically shutting off access to the disconnected pipe from the Byrnes’ side of the pump enclosure.
In cross-examination, Mr Leatham agreed that he had suggested that the old petrol pump be replaced because it was noisy and leaking oil. He agreed that he had proposed the replacement of the pump to both Mr Summerson and the Palmers and each had agreed.
When it was put to him that the reason he spoke to the Palmers was because he knew he needed to get their permission to do anything with the pump, Mr Leatham
stated that he did so because it was his understanding that the pump and the bore were shared and they were going to have to halve the costs.
Mr Leatham was asked about when the Wilkinsons had occupied the neighbouring property to 8 Tarwine Street. His recollection was that they were living there from 2019 onwards. He agreed however that he could be mistaken and they may have lived there from 2015 onwards. However, he said that before they lived there permanently the Wilkinsons had used their property as a holiday home and had been visiting there for many years.
Mr Leatham agreed that he had given the Wilkinsons permission to use the bore and had not asked the Palmers if it was okay to do that. He denied that he considered that he was in control of the bore.
Mr Leatham denied the suggestion that Ashley Palmer had spoken to him at some time in 2015, objecting to the Wilkinsons, or anyone staying at the Wilkinsons’ property, using the bore. He rejected the proposition that he had told Ashley that he was in control of the bore, and not the Palmers, during this supposed discussion. He denied that it was from around 2015 that his relationship with Ashley had soured, reiterating that it would have been later than 2015.
Mr Leatham agreed that he had replaced the roof on the pump enclosure when he was living at 8 Tarwine Street. He accepted that he had attached the roof to the existing hinges that were in place on the enclosure. He agreed that the existing hinges were on the side closest to the Summersons’ property.
Jane Byrne
Mrs Byrne became the current owner of the property at 8 Tarwine Street on 27 April 2021. Although she is the sole owner, both she and her husband made the decision to purchase the property jointly. They bought the property from the Summersons to use it as their holiday home and as a short-term holiday rental.
The Byrnes’ neighbours at the rear of their property are the Palmers, who live at 11 Tailor Street. Mrs Byrne has never met Terrence and Muriel Palmer. She understood their son, Ashley Palmer, was the person who makes most of the day-to- day decisions about the property. She had spoken to Ashley on the telephone but had never met him.
The Byrnes’ property is not connected to the mains water supply. They get their water from rainwater that fills the water tanks on their property or via the bore located on the Palmers’ property.
At the time she became the owner of 8 Tarwine Street, Mrs Byrne saw that the pump enclosure was situated on the boundary between her property and the Palmers’ property. The bore pump could be accessed by lifting the hinged metal sheet roof that sat on top of the enclosure. Mrs Byrne has never actually operated the pump herself and is unfamiliar with how exactly the bore water flows from the bore to her property.
Mrs Byrne arranged for a neighbour, Mel Byrne (no relation) to manage 8 Tarwine Street. Mel Byrne lives at 4 Tarwine Street. As property manager, Mel Byrne operated the bore pump to water the Byrnes’ garden and to fill the Byrnes’ water tanks whenever they were low. When Mrs Byrne initially bought her property, both the Palmers and the Byrnes used water from the bore and the pump on a shared
basis. Without water from the bore she would have serious concerns about the reliability of the water supply to the property.
According to Mrs Byrne, part of her decision to purchase the 8 Tarwine Street property was because there was shared use of the bore and pump. She became aware of the shared bore and pump through an email Mr Summerson had sent to Byrnes’ real estate agent in November 2020, which stated:
I presume Les mentioned the bore is jointly owned with neighbour behind.
It is in the boundary and we jointly use the electric pump but there is nothing stopping each owner having their own pump
The contract (if we proceed) should reflect thisMrs Byrne understood that previously the only electricity for the pump came from the connection to 8 Tarwine Street. By the time she purchased the property however, the Palmers had their own separate electricity connection via a generator.
Mrs Byrne was aware the bore pump had been operated by her other neighbours, the Wilkinsons, who live at 10 Tarwine Street. According to Mrs Byrne, that only occurred when they watered her garden. On those occasions she permitted them to use the bore water to also water their own garden in return.
The Leathams continued to occupy 8 Tarwine Street for a time after Mrs Byrne had purchased the property. There was no padlock or restriction upon access to the pump enclosure during that period as far as she was aware. However, by the time the Byrnes first visited the property in April 2021, a padlock and chain had been applied to the pump enclosure, preventing access. During that visit, Mrs Byrne met a man who said he was Ashley Palmer’s father-in-law. He came over to the Byrnes’ property to introduce himself and speak to the Byrnes. He told them that one of the neighbours had been using the bore without permission, so they had felt the need to put a padlock on the pump enclosure. He then gave them a key for the padlock.
In around late 2021, Mel Byrne telephoned Mrs Byrne and advised her that she had been unable to use the bore water because the padlock on the pump enclosure had been replaced with a new padlock for which she did not have a key. Mrs Byrne instructed Mel Byrne to cut the chain so they could access the bore. According to Mrs Byrne, this scenario repeated a number of times, through until around June 2022. On each occasion she instructed Mel Byrne to cut the chain off the pump enclosure so that she could access the bore.
On 17 August 2022, Mrs Byrne had a telephone conversation with Ashley Palmer about the matter. During that conversation, Mrs Byrne raised her concerns about the continual installation of padlocks on the pump enclosure and asked him why it was continuing without the Byrnes being given a key. She recalled he responded by referring to his history with Mr Leatham and the Wilkinsons. He told her that he believed the Wilkinsons had used the bore water without permission and mentioned some hassle he had had with Mr Leatham.
Mrs Byrne explained to Ashley Palmer that she did not allow other persons to access the pump. She advised him that she only gave permission to Mel Byrne to use the bore to water her garden or fill the water tanks when needed. She further advised him that she also gave permission to the Wilkinsons to use water from the bore to water their garden in return for them watering her garden on occasions. In response, Ashley told her that the Palmers owned the bore and that it was likely on his side of the boundary. Mrs Byrne replied that they could get it surveyed,
however it was still a jointly owned bore in her view, as she had been advised by the Summersons at the time she purchased the property.
After some further discussions, Mrs Byrne asked for a key to the latest padlock which had been placed on the pump enclosure. She requested that it be provided to Mel Byrne. Ashley Palmer said he did not want to give the key to Mel Byrne. According to Mrs Byrne, she told him that he could leave the key at the Byrnes’ property somewhere and let her know where it was, to which he agreed.
Despite that discussion and Ashley Palmer’s agreement to provide a key to the pump enclosure, the Byrnes were never given a further key. As a result, the Byrnes’ continued to be locked out and unable to access the bore. Mrs Byrne again instructed Mel Byrne to cut the chain on the pump enclosure so that she could access the pump and bore.
According to Mrs Byrne, before the August 2022 telephone conversation with Ashley Palmer, no one had ever described ownership of the bore as anything other than it being shared between the adjoining properties.
Subsequently, in late November 2022, Mel Byrne again phoned Mrs Byrne and advised that the pump enclosure now had a new large chain and padlock on it. Mrs Byrne telephoned Ashley Palmer to speak to him about the matter. Her call was not answered so she left a message. On 3 December 2022, Ashley sent her a text message which read:
Hi Jane, sorry I didn’t get back to you sooner, I guess you were calling about the bore, I have had the property surveyed and it confirms that the bore is inside our boundary…the existing shelter of the bore encroaches on your property and I will rebuild the shelter so it doesn’t cross the boundary…due to the unfortunate circumstances there will no longer be any access to the bore…
In response, Mrs Byrne sent a text message to Ashley Palmer, advising him that she did not agree that the Palmers had the right to disconnect the shared bore and that he should not move any of the pump enclosure structure.
Later that day, Mel Byrne telephoned Mrs Byrne to advise her that Ashley Palmer and another person were performing works on the pump enclosure. Mel Byrne subsequently informed Mrs Byrne that the bore water pipe from the pump onto the Byrnes’ property had been disconnected and the pump had been entirely relocated to the Palmers’ side of the boundary and enclosed in a re-built pump enclosure.
On 14 December 2022, Mrs Byrne received an email from Eagle Surveys, attaching a copy of a survey which had been carried out at the Palmers’ property and a notification of encroachment, advising that the pump enclosure encroached onto the northern boundary of the Byrnes’ property by 0.47 metres.
Mrs Byrne and her husband had never complained about any such encroachment and were unaware of it. According to Mrs Byrne, even if they had been told about it, they would never have requested that the pump enclosure be moved.
In relation to other persons using the bore water, Mrs Byrne recalled that she had been told by the Leathams and by Mel Byrne that it was established practice that each owner of the adjoining properties could authorise other Teewah residents to use the pump and draw water from the bore.
Mrs Byrne confirmed that since the date the pump enclosure had been altered the enclosure has remained padlocked and they have had no access to the bore or the pump.
On 8 December 2022, solicitors acting for Mrs Byrne sent a letter to the Palmers demanding that the original arrangement regarding the pump enclosure and access to the bore be restored. The letter also requested that the Palmers agree to register an easement on their title, permitting the Byrnes to access the bore, so as to remove any doubt about the matter.
On 3 February 2023, the Byrnes received a letter from the Palmers’ solicitors, advising that the Palmers denied there was any prior practice of shared use of the bore and that they did not agree to consent to any registration of an easement on their land. The letter further advised that the Palmers maintained there was no agreement for any shared use of the water bore, which was wholly on their property, and that whilst certain indulgences had been granted to neighbours from time to time by them, such indulgences did not create a proprietary right to access the Palmers’ property and use the bore on their land. The letter stated that the relationship in the past was more akin to that of a licence to use the water or pump, which had been revoked by the Palmers as of right, in or about November 2022.
In February 2023, the Byrnes attended their property at Teewah. They observed a number of changes had been made to the pump enclosure. In particular, Mrs Byrne noted the pump enclosure had been partly demolished, moved and rebuilt so that it appeared to now be entirely constructed on the Palmers’ property. The water pipe from the pump to the Byrne property had been detached and the pump was disconnected from the electricity point on the Byrnes’ side of the pump enclosure. Further, a divider had been placed in the middle of the pump enclosure preventing the Byrnes from being able to access the pump and the rebuilt pump enclosure was now encased in steel sheeting and secured with a padlock.
Mrs Byrne confirmed that she and her husband had decided to purchase the property at 8 Tarwine Street in the belief that there was shared access to the bore. She further confirmed that the water supply from the bore is important for filling their tanks during drought and watering the garden. According to Mrs Byrne, they will be unable to purchase water to be supplied by a truck as it would be unable to get into Teewah.
Mrs Byrne obtained a verbal quote from Brandt Logan of Titan Drilling Group for the costs of sinking a new bore on her property. He advised it would cost about
$20,000 for the bore itself and there would be additional costs for a pump. He further advised the due to the space requirements for a new bore, it would have to be sunk in the Byrnes’ front yard and that may cause access problems because of the trees they had there.
In cross-examination, Mrs Byrne agreed that she had not spoken with the Palmers at all prior to purchasing 8 Tarwine Street. She agreed that her assumption about having joint ownership of the bore and her claim that she had a right to access water from it were based upon what Mr Summerson and the real estate agent had told her about having a right of ownership in the bore.
Mrs Byrne disagreed with a suggestion put to her that Ashley Palmer had telephoned her to speak to her about use of the bore on the evening of the day when she had been given a key for the pump enclosure. Mrs Byrne denied there was any such call or conversation. She further denied that during the supposed conversation
Ashley had told her they were letting her use the bore for her property only and that they had put a lock on the pump enclosure because Ashley had had troubles in the past with the Wilkinsons and Mr Leatham.
When asked about the telephone conversation with Ashley Palmer in August 2022, Mrs Byrne agreed that he had told her then that there was a prior history between himself and the Wilkinsons from before she had purchased the property. However, she added that she told Ashley that she and her husband were new owners and the Wilkinsons did not have free access to the bore.
In response to a proposition put to her that Ashley Palmer never suggested to Mrs Byrne that she was an owner of the bore and pump during any conversation he had with her, Mrs Byrne stated that he had implied that they were joint owners. She explained this was the implication in her view because Ashley’s only concern was the Wilkinsons accessing the bore. She reiterated that she assured him that the Wilkinsons did not have free access and that the only reason they were allowed to use the bore was when they watered the Byrnes’ garden. She agreed that on the occasions when the Wilkinsons were permitted to use the bore to water their garden that she had arranged for them to have the key to access the pump enclosure.
Mrs Byrne denied saying to Ashley Palmer words to the effect of, ‘I want access to this water’ during the August 2022 conversation. She said that she had told Ashley that they just wanted their rights as landowners of the shared bore. She said that she told him it was a shared bore and that she did not understand why they were not given keys to access it. She denied that they had failed to reach any agreement in that conversation, reiterating that Ashley had said he would give her a key and leave it at the property. She further denied that Ashley had told her that it was his opinion that the Palmers owned the bore. She said he did not think that he owned it but thought maybe it was on their property.
Mrs Byrne agreed that at no stage had she ever asked the Palmers for permission to use the bore, adding that she did not need permission because it was a shared bore.
When asked about her evidence that they were unable to purchase water to be supplied by truck as it would be unable to get in to Teewah, Mrs Byrne conceded that she had not actually made any inquiries about the matter.
As for the quote obtained from Mr Logan for drilling a new bore, Mrs Byrne agreed that she had only obtained a verbal quote for the bore itself and had not made any inquiries about the cost of a pump. When it was put to her that this was because she was not very serious about the possibility of putting in her own bore, she answered ‘No, because we already have a joint bore.’ Mrs Byrne accepted that she had not obtained a quote from any other bore subcontractor for sinking the bore and that she had not investigated what trees might need to be removed from her front yard to install a bore.
Brandt Logan
Mr Logan operates a bore drilling business called ‘Titan Drilling Group’. He has thirteen years’ experience in the drilling industry.
He confirmed he provided Mrs Byrne with a verbal quote of approximately $20,000 plus GST for the cost of drilling a new bore at 8 Tarwine Street.
According to Mr Brandt, because a new bore must be drilled at least ten metres from any existing bore, it would not be possible for a new bore to be sunk in the
Byrnes’ backyard. It would instead have to be drilled in the front yard, which was filled with trees that would first need to be removed to allow access for a drilling rig. He confirmed Titan Drilling Group did not have a drilling rig small enough for the job. He believed a smaller drilling rig could do the job if the front yard was first cleared of trees and other obstacles.
Christopher Anderson
Mr Anderson is a professional valuer. He provided a valuation report concerning the effect of a potential boundary realignment or easement in respect of the Palmers’ property at 11 Tailor Street. His report concerned only the land value and did not consider any added value for the bore infrastructure.
Mr Anderson noted that each of the adjoining properties was comprised of a 610m2 lot, zoned for residential use, upon which modest, semi-modern residences had been constructed. He described the section of land where the bore is situated as being a small area, adjacent to the rear western corner of both 8 Tarwine Street and 11 Tailor Street.
Mr Anderson considered that the option of a boundary realignment, such that the rear boundary of the properties would be redrawn so that the bore hole is squarely on top of it, would excise approximate 7cm2 of land from the south-western corner of the Palmers’ property and add it to the Byrnes’ property. In his opinion such a realignment would not have any notable impact upon the value of either property as it would be unlikely to result in a change in the surveyed land area for either property.
Mr Anderson assessed the value of the land at the 11 Tailor Street property as
$1,500/sqm. He calculated the value of the potential loss of a 0.07m2 piece of land by reason of the suggested boundary realignment as $105.
With respect to the option of an easement, Mr Anderson concluded that the registration of an easement over such a small portion of land would not have a negative impact on the appeal, marketability or value of 11 Tailor Street and would not enhance the value of 8 Tarwine Street. His opinion was that compensation of
$100 would be appropriate for the granting of an easement over the Palmers’ property to permit the Byrnes to access the bore and draw water from it.
Overall, Mr Anderson determined a ‘compensation assessment’ amount of $100.
In cross-examination, Mr Anderson agreed that for the purposes of his valuation, the area of land in question was seven centimetres in depth and approximately one metre in width. He accepted that his original calculation of the land being 7cm2 in area was incorrect and that it should actually be 700cm2 or 0.07m2. However, he agreed that his valuation for a potential boundary realignment was based on 0.07m2.
Mr Anderson further agreed that whilst he had referred to recent sales evidence in his report for the basis of his valuation, he had obtained that information from third- party sources and was unable to verify the accuracy of their information.
With respect to the option of an easement, Mr Anderson agreed that his assessment was based solely upon the area of the easement being 700cm2 or 0.07m2 and did not take into account any actual effect on the use and enjoyment of the 11 Tailor Street property by reason of the presence of an easement.
Respondents’ Evidence
Terrence Palmer
Terrence Palmer and his wife Muriel jointly own 11 Tailor Street. They purchased the property from Kevin and Cynthia Jones on or about 16 May 1991. According to Mr Palmer, the property they purchased comprised land and improvements, namely a residential dwelling and an operational bore. The bore is situated towards the rear boundary of the property which adjoins the Byrnes’ property. There is no registered easement on the title for 11 Tailor Street in respect of the bore.
The Palmers purchased their property to use it as a holiday home for family and friends. They have never lived in it as their principal place of residence, however, when their children were younger, they would regularly visit and stay at the property. The property has never been connected to mains electricity. They use solar power to charge batteries to power the house and a generator for back-up and to run the bore pump.
The Palmers have no knowledge about the facts and circumstances relating to the sinking of the bore or when that was done. The bore was fully operational when they bought the property. Neither the previous owners, the Jones’, nor their real estate agent for the purchase, mentioned anything about the use of the bore by third parties. They were not told of any existing or historic proprietary right or formal agreement of any kind which required future owners of the property to provide access for neighbours to use the bore.
After they purchased the property, their neighbour, Mr Mills, used the bore with their knowledge and consent. Because the bore was located near the boundary at the rear of their property, there was virtually no interference to their use and enjoyment of their own property.
According to Mr Palmer, it was customary for whoever used the bore to refill the pump with fuel after its use. Mr Mills always contributed to any required maintenance costs for the bore pump. He did so of his own initiative, and it was never necessary for the Palmers to seek any contribution from him. Mr Palmer considered it was a relationship of cooperation between them and there was no obligation for Mr Mills to contribute to the costs of maintenance or fuel.
When Mr Mills sold his property to the Summersons in 2005, the arrangements for the use and enjoyment of the bore continued without any actual discussion taking place. According to Mr Palmer, the Summersons’ tenants (i.e., the Leathams) were respectful of the Palmers’ property when using the bore, so there was no interruption to the peace and quiet enjoyment of their land. Further, maintenance costs were shared as and when required, so there was no reason to challenge the status quo.
In recent years Mr Palmer has had little to do with managing or maintaining 11 Tailor Street due to his age. Both he and his wife are now 80 years old. Their son, Ashley Palmer, looks after the property for them. He has been responsible for maintaining and dealing with all matters regarding their property for the past 26 years. Ashley is also the registered owner of the vacant land block next door at 9 Tailor Street. Ashley regularly visits 11 Tailor Street to attend to general maintenance of the gardens. He also has full and complete use of the bore to attend to his own property.
According to Mr Palmer, there has recently been interference with the Palmers’ right to enjoy their property and claims have been made in respect of a proprietary interest in their land and rights to access their bore. Mr Palmer considers these claims to be a consequence of the ‘neighbourly conduct’ they have shown to the various owners of 8 Tarwine Street.
In cross-examination, Mr Palmer agreed that the bore and pump enclosure were in place on his property when he bought it. He agreed that a bit of the enclosure was across the boundary but denied that was obviously so. He stated that when he bought the property, Mr Mills had a hose connected from the pump to his own yard. He agreed that at some later point in time a valve was installed on the pump.
As to his knowledge of the location of the borehole at the time he purchased the property, Mr Palmer said that going by survey pegs that were in place then there was ‘no question’ that it was not on his property. He recalled the survey pegs were right next to the borehole.
With respect to Mr Mills’ use of the bore, Mr Palmer agreed that Mr Mills had continued to use the bore after the Palmers had purchased 11 Tailor Street, albeit he maintained that was with his permission. However, he further agreed that he had never spoken to Mr Mills about needing permission and Mr Mills had not sought permission to use the bore. He said he did not think Mr Mills needed to, and as a friendly neighbour he did not expect him to do so.
Similarly, Mr Palmer agreed that the Summersons had continued to use the bore after they acquired 8 Tarwine Street from Mr Mills, and they also had not sought his permission to do so. When it was put to Mr Palmer that the Summersons did not need to seek his permission, Mr Palmer stated ‘They did if they wanted to be legal, but as a friendly…neighbourly thing, they were allowed to carry on where Merv Mills left off’. He denied that they used the bore ‘as of right’, stating that their use was ‘as a privilege’. He denied the suggestion that the bore was shared.
As to the Leathams’ use of the bore, Mr Palmer agreed that when they became the tenants of the Summersons they also continued to use the bore. He agreed that they did so without seeking his permission but added that they were ‘allowed to use the bore’.
Mr Palmer agreed that the Summersons continued to contribute to the cost of running the petrol pump, stating that if they wanted to water their garden they would put petrol in the pump. When it was put to him that he did the same when he used the pump, he stated ‘Exactly, because it was my pump’.
Regarding the replacement of the petrol pump, Mr Palmer agreed that the Summersons and he had each paid half of the costs of the new electric pump. He said that it was the Summersons’ idea to put in an electric pump and that he and his wife had allowed that. He agreed that when the electric pump was first installed it was run on electricity from the Summersons’ property. He stated that they now run it using their generator.
Mr Palmer agreed that half of the pump had belonged to the Summersons but added ‘but not the borehole’. He accepted that the pump was now locked away on his property, stating ‘access to the pump should only be…allowed if they ask permission to come onto our place…to turn it on.’ He stated that the privilege to use the water had been ‘locked up’.
When asked about any problems with neighbours, Mr Palmer stated that there had been no problems with the Leathams. In response to the proposition that it was only after Mrs Byrne had purchased the neighbouring property that Ashley Palmer had started locking up the pump enclosure, Mr Palmer stated ‘After the trouble started, yes’. When asked if the trouble had started in 2015, as Ashley Palmer had claimed in his affidavit, Mr Palmer stated he could not answer that question. When pressed further about whether the trouble with the neighbours had started in 2018, Mr Palmer stated ‘I never had any trouble with anyone…Except now, we get a letter from someone claiming that they own the bore. That’s where my trouble started. Never before, except that…the neighbours were abusing the use of it…’ When asked whether the neighbours abusing the use of the bore had started happening in 2021, Mr Palmer stated ‘Can’t say exactly. But…if that’s when…the neighbours moved in, and they sent this letter…I guess they allowed the neighbours to use the pump all the time, which they did…’
When asked more directly whether the trouble he was talking about was with the Byrnes, Mr Palmer stated ‘The trouble is with the overuse of the bore…no respect for the owner – which is us – who had the bore. No one asked permission. And we didn’t give it…’ He agreed with the suggestion that the bore had been locked away because he did not want other people using it without the Palmers’ permission. He further agreed that had probably occurred after the Byrnes purchased their property. He disagreed with the suggestion that the bore had always been shared until the Palmers had obtained the survey, stating ‘It wasn’t the survey that changed it at all…It was people’s attitude’.
Mr Palmer agreed that the Byrnes had initially been given a key to the locked pump enclosure. He accepted that they had not asked for a key, adding that he thought it was the neighbourly thing to do.
Ashley Palmer
Ashley Palmer is the son of Terrence and Muriel Palmer. For the past 26 years he has been responsible for all matters pertaining to 11 Tailor Street, including the maintenance of the dwelling on the land, the gardens and the bore pump and housing. He is the person who has dealt with the neighbours about the maintenance and the use of the bore during that period.
He is also the registered owner of the neighbouring property at 9 Tailor Street. He confirmed that he uses the bore, with his parents’ knowledge and consent, to attend to the garden on his own land.
Mr Palmer confirmed that he has no knowledge of the facts and circumstances relating to the sinking of the bore as outlined by Wayne Plant. He recalled it was present on his parents’ property when they purchased it. He confirmed it is currently used, and has been used since May 1991, to water the gardens and for general cleaning. It is not used for household purposes or to fill the water tanks.
According to Mr Palmer, ever since his parents purchased 11 Tailor Street they have permitted the owners and occupants of 8 Tarwine Street to use the bore on their land.
Mr Palmer recalled that his parents had a good neighbourly relationship with Mr Mills and they had no objection to him using their bore to water his garden and for other non-household uses.
Mr Palmer stated that it was always his understanding, based on discussions with his parents and his own experiences in dealing with their neighbours, that there was a mutual understanding between his parents and their neighbours for the time being at 8 Tarwine Street that they were permitted to use the bore and they would contribute towards the maintenance of the pump as consideration for the use and benefit obtained. His understanding was that it was not and never has been a joint liability to maintain or replace jointly owned property.
According to Mr Palmer, at no time did Mr Mills or Mrs Summerson claim to use the bore as of right and he did not believe there was any claim to any proprietary right as a consequence of use.
Mr Palmer confirmed that the owners of 8 Tarwine Street have, at various times, contributed to the cost of maintaining the bore pump. The Summersons contributed towards the cost of replacing the original petrol motor pump to an electric motor pump in or about 2011. The pump was replaced at the request of Mr Leatham, who was then the occupant of 8 Tarwine Street. The Summersons’ property was then connected to the mains electricity, whereas the Palmers’ property was not. The Palmers’ used solar panels and a back-up generator to power their home. The generator is now also used to run the bore pump.
Mr Palmer recalled that in 2015, the Wilkinsons’ purchased the property at 10 Tarwine Street, next door to the Summersons. According to Mr Palmer, after the Wilkinsons purchased their property, Mr Leatham unilaterally decided that they, or the occupants of their property, could use the bore and he ostensibly gave them permission to do so. As a result, the Palmers have since encountered unreasonable interference with their use and enjoyment of their property, as well as additional wear and tear on the bore pump.
By way of example, Mr Palmer recalled that during the Christmas holiday period in 2015 to 2016, people staying at the property owned by the Wilkinsons turned on the bore pump and as a result the sprinkler system on the Palmers’ property unexpectedly activated, causing water to go through their vehicles and through their downstairs bedrooms. Mr Palmer spoke to the occupants at the Wilkinsons’ property, advising them that they were not to use the bore, however they continued to do so. According to Mr Palmer, he raised his objection with Mr Leatham, who took umbrage and stated that he was in control of the bore, not the Palmers.
By way of further example, Mr Palmer recalled another occasion, in November 2018, when he was visiting at 11 Tailor Street for a few nights and had the bore running whilst he visited a neighbour. When he returned about half an hour later, he observed the bore pump had been unplugged from the generator, but it was still running. He did not know why the bore pump had been unplugged.
As a result of these and other similar incidents and the continual disregard for the Palmers’ right to control access to their property, Mr Palmer installed a chain and padlock to the bore pump enclosure in early 2021.
Whilst reasonable necessity does not require proof that something is essential or absolutely necessary, it does in this context require more than a mere preference, desire or convenience. It is of course a question of degree, but I consider the circumstances here do not go beyond mere desire, preference or convenience on the part of the Byrnes to use the Palmers’ water bore. Although it would no doubt be beneficial for the Byrnes to have access to and use of the Palmers’ bore as a source of water for their property, that does not demonstrate reasonable necessity in my view.
Accordingly, I am not satisfied that the Byrnes have established the necessary requirements for me to consider granting relief under s 180 of the PLA.
Have the Byrnes acquired an easement by prescription?
The final aspect of the Byrnes’ application concerned their claim that through long use of the bore they had acquired an easement by prescription.
Under the common law an easement may be acquired by prescription in certain circumstances where there has been open, uninterrupted use of the servient land by another for at least twenty years, and where such use occurred to the knowledge of the servient landowner and absent any permission by them for such use. In such a case a trespasser may acquire rights in respect of the servient land, by way of an easement, consistent with the use. There is no express grant of the easement. Rather, the right is acquired through the legal fiction of the lost modern grant, which assumes the existence of an express grant that cannot be found.8
Use with the permission of the dominant landowner at any stage during the period of at least twenty years will preclude the acquisition of an easement by prescription. Permission may be express or implied.
The Byrnes say that in the circumstances arising here they have established the requirements for an easement by prescription.
The Palmers’ primary opposition to this aspect of the Byrnes’ claim relies upon the operation and effect of s 198A of the PLA, which they say expressly precludes acquisition of an easement by prescription.
Section 198A provides:
Delohery v Permanent Trustee Co of New South Wales Ltd (1904) 1 CLR 289, 308-309 (Griffith CJ).
198A Prescriptive right of way not acquired by user
(1)User after the commencement of this Act of a way over land shall not of itself be sufficient evidence of an easement of way or a right of way having been acquired by prescription or by the fiction of a lost grant.
(2)If at any time it is established that an easement of way or right of way over land existed at the commencement of this Act, the existence and continuance of the easement or right shall not be affected by subsection (1).
(3)For the purpose of establishing the existence at the commencement of this Act of an easement of way or right of way over land user after such commencement of a way over that land shall be disregarded.
The effect of s 198A was an issue in dispute between the parties. Both parties agreed that the provision has not been authoritatively considered.
The Palmers say that easements by prescription have been extinguished by s 198A. They rely on a statement made by Nettle J in Western Australia v Manando,9 where his Honour noted that in most Australian jurisdictions the doctrine of lost modern grant did not operate, citing s 198A by way of example.
Irrespective of the application of s 198A, the Palmers argued that no easement by prescription could arise here as the Byrnes had not established that prior use of the bore was without permission.
The Byrnes say that s 198A does not preclude an easement by prescription in this case. They say the provision is, by its clear terms, confined only to ‘easements of way’ and that is not the nature of the easement they say they have acquired here. They submit that the remarks of Nettle J in Manando were clearly obiter and are not binding.
They also point to Connellan Nominees Pty Ltd v Camerer,10 as an example of a case where this Court has accepted a claim based on prescription was capable of succeeding, notwithstanding s 198A of the PLA.
As to the issue of permission, the Byrnes say that it is clear on the evidence that they Palmers never gave permission, either expressly or impliedly, for the use of the bore.
Consideration
I do not consider it is necessary to resolve the dispute as to the proper interpretation of s 198A of the PLA and whether it has extinguished the doctrine of lost modern grant in respect of an easement of the kind in issue here.
In my opinion there is a much simpler reason why this aspect of the Byrnes’ claim cannot succeed. That is, that the suggested acquisition of an easement by prescription cannot impugn the Palmers’ indefeasible title to their land.
The Palmers are the registered proprietors of a lot in which they have the fee simple interest under the Land Title Act 1994 (Qld) (‘LTA’). Although they became
(2020) 270 CLR 81.
[1988] 2 Qd R 248 (‘Connellan’).
registered proprietors of their lot before the commencement of the LTA, by virtue of ss 200 and 201 of the LTA their interest in their land was automatically taken to be a registered interest under the LTA when that Act commenced. Thus, unless a relevant exception applied, by virtue of s 184 of the LTA, they enjoy indefeasibility of title in respect of their land, free from all other interests, including the suggested easement by prescription. The only possible exceptions to the indefeasibility of their interest are those provided by s 185. The Byrnes do not contend that any of those exceptions arise in this case.
At best for the Byrnes, it might be suggested (but was not) that the easement is an ‘omitted’ easement within the scope of s 185(1)(c). However, even if I were to accept that the requirements for an easement by prescription were satisfied here, the suggested easement would not constitute an ‘omitted’ easement. As s 185(3) makes plain, an easement is taken to have been omitted for the purposes of s 185(1)(c) only when, relevantly, the easement was in existence when the lot burdened by it was first registered, but the easement particulars have never been recorded in the freehold land register against the lot.
That is not the situation here. Any easement by prescription could not have arisen before the Palmers’ registered interest in their land was brought under the LTA. The Palmers purchased their property in 1991. From that date, the minimum period of twenty years necessary for acquisition of an easement by prescription would have been 2011 at the earliest. The LTA commenced operation in 1994. From that time onwards the Palmers have held indefeasible title in respect of their land under the provisions of the LTA. Even if the period of user dated back to the original owners of the adjoining properties, such an easement could not have been acquired before 2003, again after the Palmers had acquired indefeasible title under the LTA.
The case of Connellan supports my conclusion. That was a decision given on a strike out application where the issue of whether an easement by prescription might qualify as an ‘omitted easement’ under the former Real Property Acts 1861-1986 (Qld) was considered. The plaintiffs had filed a statement of claim which pleaded, amongst other things, that they had acquired by prescription an easement of way over the land of the defendants. The plaintiffs argued that no such easement could arise because of the operation of certain legislative provisions, including s 198A of the PLA and s 44 of the Real Property Acts, which provided a similar ‘omitted easement’ exception to indefeasibility of title as that now provided by s 185(1)(c) of the LTA.
In refusing to strike out the plaintiffs’ claim, Master Weld accepted that an easement by prescription could be acquired through long user according to the doctrine of lost modern grant, provided that the easement existed before 1 December 1975, being the date that s 198A of the PLA commenced.11 In other words, the period of at least twenty years of long use must have accumulated before that date. Similarly, Master Weld accepted that such an easement might be an ‘omitted easement’ for the purposes of s 44 of the Real Property Act, provided that the easement by prescription had existed when the land was brought under the provisions of that Act.12
The circumstances of the present case are dissimilar on both points.
Ibid, 253.
Ibid, 255.
Accordingly, I am satisfied that there is no basis to consider whether an easement by prescription may have been acquired by the Byrnes.
Conclusion
The water bore in issue in this case is situated on the land owned by the Palmers. They are therefore the present owners of the bore.
However, this state of affairs is a windfall for the Palmers. They only became owners of the bore because of a mistake made by Mr Plant and Mr Mills when the bore was originally sunk. It was only after the Palmers had their property surveyed that they knew for sure that the bore was on their land and that they could claim exclusive ownership over it. Before that time, they knew the bore had been used as a shared bore for nearly forty years and they had never sought to assert exclusive ownership over it.
I find that the original intention of Mr Plant and Mr Mills was to sink the bore on the shared rear boundary of their respective properties, so that they would each own it and have the benefit of it. Contrary to their intentions at the time, Mr Plant directed that the bore be sunk at a point that was actually on his property, seven centimetres from the shared boundary. In doing so, both Mr Plant and Mr Mills made a lasting improvement on the land owned by Mr Plant, under the genuine but mistaken belief that it was being made on both of their properties.
In these circumstances, I am satisfied that relief in the form of a property vesting order may be granted under s 197. I am further satisfied that it is just and equitable for such an order, and necessary consequential orders, to be made in this case. The effect of the property vesting order and consequential orders to be made will be that the rear shared boundary will be slightly realigned so that the bore is situated on the boundary and will be jointly owned by both the owners of the adjoining properties, as had originally been intended by Mr Plant and Mr Mills. In return, the Byrnes will be required to pay compensation to the Palmers in the sum of $105.
It seems to me that the consequential orders to be made to give effect to the property vesting orders will necessarily include orders:
(a)for the Byrnes to prepare a transfer instrument in registerable form in respect of that portion of the Palmers’ land that is to vest in Mrs Byrne;
(b)directing the Palmers to execute the transfer instrument once prepared;
(c)for the preparation and execution of mutual easement instruments in registerable form to enable the Palmers and the Byrnes to enter upon each other’s land so that the owners and agents of each property may access, use and maintain the bore, pump and pump enclosure;
(d)directing the Palmers and Mrs Byrne to execute the mutual easement instruments once prepared; and
(e)that the Byrnes pay the costs and expenses associated with each of the above matters, including any legal costs.
I am not satisfied that the Byrnes have established a basis for either of their alternative claims for relief by way of an order for a statutory right of user under s 180 of the PLA or to recognise acquisition of an easement by prescription.
Orders
I make the following orders:
1.The application for relief pursuant to s 196 of the Property Law Act 1974 (Qld) is granted;
2.The applicants and respondents are to prepare a minute of the orders necessary to give effect to my reasons for granting the relief under s 197 of the Property Law Act 1974 (Qld); and
3.The application in respect of the alternative relief sought is dismissed.
I will hear the parties further as to any other orders that may be required and on the issue of costs.