Byron Council v Vaughan & Anor

[1998] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION:	BYRON COUNCIL v. VAUGHAN & ANOR [1998] NSWLEC 158 (14 July 1998)copy [1998] NSWLEC 40
PARTIES:	BYRON COUNCIL v. VAUGHAN & ANOR [1998] NSWLEC 158 (14 July 1998)copy
FILE NUMBER(S):	30164 of 1997
CORAM:	Lloyd J
KEY ISSUES:	:-
LEGISLATION CITED:	Encroachment of Buildings Act 1922, ss 2, 3 Limitation Act 1969, ss 14(1)(d), 23, 27(2), 38(2) Interpretation Act 1987, s 34(1) Real Estate (Limitation of Actions) Act 1837 Real Property Act, 1900, Pt 6, s 45D
CASES CITED:	Breskvar v Wall (1971) 126 CLR 376 at 385; Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 62-63; Amatek Limited v Googoorewon Pty Limited (1993) 176 CLR 471 at 477; Amatek v Googoorewon Pty Limited; Cantamessa v Sanderson (1993) 6 BPR 13,127; Ramsden v Dyson (1866) LR 1 HL 129; Ex parte Beane (1987) 162 CLR 514, at 518, per Mason CJ, Wilson and Dawson JJ; Cantamessa v Sanderson; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193; assumption (Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; Limitation Act, s 38(2); Mulcahy v Curramore Pty Limited [1974] 2 NSWLR 464 at 476; Shaw v Garbutt (1996) 7 BPR 14,816; Seddon v Smith (1877) 36 LT 168 at 169; possession (Harnett v Green (No 2) (1883) 4 LR (NSW) 292 at 301; Knox v Gye (1872) LR 5 HL 656 at 674; Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28, par 70; 72 ALJR 841 at 855
DATES OF HEARING:	22 & 23 June 1998
DATE OF JUDGMENT:	07/14/1998
LEGAL REPRESENTATIVES:	J H H Blackman M J Leeming

JUDGMENT:

HIS HONOUR: This is a claim for relief under the Encroachment of Buildings Act 1922 (the Act). The applicant, Byron Council, is the owner of lots 6 and 7 of Section 3 in Deposited Plan 1623, having a frontage to Manfred Street, Byron Bay. It is also the owner of adjoining land to the north of lots 6 and 7. The respondent is the owner of lots 3, 4 and 5 of Section 3 in Deposited Plan 1623, also having a frontage to Manfred Street. Lots 3, 4 and 5 are to the south of and adjoin the applicants land (lots 6 and 7). The respondent also owns the adjoining land to the west. A house erected, it seems, about forty-five years ago straddles the boundary between lots 5 and 6. An old dividing fence which partly encloses the curtilage of the house is erected within lot 7. The position is best understood by reference to the survey plan hereunder:

INSERT SURVEY PLAN

Relevant Facts

2. Lots 3, 4 and 5 were acquired by Alfred William Vidler on 20 April 1949. Although the applicants records do not disclose when the house was erected, it seems that it was erected by Mr Vidler in the early 1950s. The applicant acquired lots 6 and 7 on 5 November 1973. On 11 September 1987 the respondents entered into a contract to purchase lots 3, 4 and 5 from Mr Vidler. On 15 October 1987 the respondents became registered as joint proprietors of lots 3, 4 and 5.

3. Upon entering into the contract for the purchase of lots 3, 4 and 5, the solicitors acting for the respondents obtained from the applicant a sewerage connection plan. The plan is dated 25 February 1985 and shows the sewerage connection work as executed on 31 April 1974. The plan describes the land as lots 3-5 and shows a house in about the middle of the land and a sewerage connection from Manfred Street to the house at a point 44 feet south of the northern boundary of the land. It seems that the solicitors for the respondents also obtained at about the same time from the applicant a sewerage reference sheet showing the location of sewer mains and which shows a house on the subject land, together with out buildings or sheds and separated from the adjoining land to its north by a dividing fence. Apparently no survey was undertaken before the purchase of the land by the respondents. Mr J B Vaughan, who gave evidence, states that he believed that the house was within the middle of lots 3,4 and 5 as shown in the above mentioned plans.

4. Mr K A Vidler, who is the son of the late Alfred William Vidler, also gave evidence. He states that the dividing fence was always there during his father=s occupation of the land and its location was, until recently, never questioned by anyone. The land enclosed by the fence and surrounding the house was always used by his father as if it belonged to him. The land was maintained by Mr Vidler and his family and no one questioned his occupation of it. The certificates of title for lots 1 and 2 (previously part of lots 9 and 10), owned by the applicant, issued in 1966 show the location of the fence on Lot 7.

5. On 19 October 1981 Alfred William Vidler sent a letter to the applicant asking whether the applicant would be prepared to lease to him lots 6, 7, 8 and B (previously part of lots 8, 9 and 10). It is reasonable to assume that Mr Vidler was unaware of the true location of the boundary between lots 5 and 6. By letter dated 1 December 1981 the applicant advised Mr Vidler that it was not willing to lease the land.

The Relevant Statutory Provisions

6. Section 2 of the Act sets out a number of relevant definitions as follows:

Adjacent owner means the owner of land over which an encroachment extends.

Encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends.

Encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.

Section 3 of the Act relevantly provides as follows:

A3(1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2) On the application the Court may make such orders as it may deem just with respect to -

(a) the payment of compensation to the adjacent owner;

(b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein or any easement right or privilege in relation thereto;

(c) the removal of the encroachment.

(3) The Court may grant or refuse the relief or any part thereof as it seems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters -

(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;

(b) the situation and value of the subject land, and the nature and extent of the encroachment;

(c) the character of the encroaching building, and the purposes for which it may be used;

(d) the loss and damage which has been or will be incurred by the adjacent owner;

(e) the loss and damage which would be incurred by the encroaching owner if he were required to remove the encroachment;

(f) the circumstances in which the encroachment was made.

The Applicants Submissions

7. Miss J H H Blackman, who appears for the applicant, makes the following submissions:

(1) The certificate of title showing the applicant as the owner of lots 6 and 7 is, so long as it is unamended, conclusive of the particulars it contains, since the Torrens System of registered title is not a system of registration of title but a system of title by registration ( Breskvar v Wall (1971) 126 CLR 376 at 385). This principle remains unaffected by the subsequent repeal of s 45 of the Real Property Act 1900 ( Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 62-63).

(2) The respondents cannot claim that they have acquired an estate or interest in Lot 6 by adverse possession. Moreover, a possessory application cannot be made in respect of any estate or interest in land of which a local government council is the registered proprietor ( Real PropertyAct , s 45D(3)).

(3) The applicant is not claiming possession of lot 6. The Encroachment ofBuildings Act is only concerned with buildings and that part of the adjacent owners land over which an encroachment extends ( Amatek Limited vGoogoorewon Pty Limited (1993) 176 CLR 471 at 477).

(4) The applicant merely seeks an order for the removal of the encroachment, or alternatively an order that the respondents pay compensation to the applicant for the encroachment (and, I assume, an adjustment of the property boundary). A removal of the encroachment does not necessarily mean severing the house, which is a timber house on piers and which could be simply jacked up and moved onto new piers to be erected wholly within Lot 5.

The Respondents Submissions

8. Mr M J Leeming, who appears for the respondents, makes the following submissions:

(1) There is no application by the respondents for a title by possession under s 45D of the Real Property Act .

(2) There is no encroachment within the meaning of the Encroachment ofBuildings Act .

(3) Alternatively, the applicant is estopped from asserting its rights as an adjacent owner under the Act.

(4) Further, alternatively, by reason of the adverse possession (of lot 6) by the respondents and their predecessor in title, together with the operation of the Limitation Act 1969, the applicant is statute barred from asserting any rights as an adjacent owner under the Act.

(5) Finally, the Court should in the exercise of its discretion under s 3(3) of the Act dismiss the application.

Since the above mentioned submissions numbered (2) to (5) effectively became the substantial issues in the case, I shall now examine them more fully.

There is no Aencroachment

9. Mr Leemings submissions on this point may be summarised as follows:

(a) Encroachment has been restrictively defined. It does not include a building erected wholly on neighbouring land ( Amatek v Googoorewon Pty Limited ).

(b) The ordinary meaning of encroachment involves the notion of a minor or gradual inroad, (he refers to the Macquarie and Oxford Dictionary definitions), which is a view also adopted by leading commentators on the Act (citing Stein and Stone, Torrens Title (1991), Butterworths, p 337-338).

(c) The mischief which the Act was intended to cure was the blackmailing which occurred upon the discovery of minor encroachments of buildings across boundaries, which is confirmed by the second reading speeches on the Bill for the Act in the Parliament.

(d) Whilst there are many reported cases under the Act concerning encroachments of a few centimetres, there is none which involve a dwelling which substantially straddles the boundary.

(e) The onus is on the applicant to establish that it is an adjacent owner

(cf Cantamessa v Sanderson (1993) 6 BPR 13,127).

(f) The survey reports indicate that in the order of 35-40 per cent of the house is located on lot 6 and that more than 50 per cent of the house would have to be removed. In these circumstances there was no encroachment since the Act does not relate to orders of such a substantial nature.

10. The word encroachmentmeans, according to the Oxford Dictionary, the action of encroaching. That dictionary defines the intransitive verb encroach as, relevantly: A2. To trench or intrude usurpingly ( esp . by insidious or gradual advances) on the territory, rights, or accustomed sphere of action of others. To make gradual introads on, extend (its boundaries) at the expense of, something else. 3. To advance, intrude beyond natural or conventional limits.@

The Macquarie Dictionary defines encroach as: A1. to advance beyond proper limits, make gradual inroads. 2. to trespass upon the property rights of another, esp. stealthily or by gradual advances.

11. Mr Leeming relies in particular on the words insidious and gradual in the Oxford Dictionary definition; and on the words gradual and stealthily in the Macquarie Dictionary Definition. These, he submits, support the ordinary meaning of encroachment as involving a notion of a minor or gradual inroad. The dictionary extracts quoted above do not, however, restrict the meaning of encroachment to that advanced by Mr Leeming. The description in the Oxford Dictionary of to advance, intrude beyond natural or conventional limits and the description in the Macquarie Dictionary of Ato advance beyond proper limits and to trespass upon the property or rights of another are not exclusively restricted to a minor or gradual inroad. The reference by Stein and Stone to the determination of minor encroachments and consequential disputes under the Encroachment of BuildingsAct is based upon early cases under the Act which were concerned with only minor encroachments. The statement by Stein and Stone that more serious disputes are solved through recourse to the laws of real property follows a reference by them to Ramsden v Dyson (1866) LR 1 HL 129, a case in which a building was erected by a person wholly on the land of another.

12. Neither do I think it is permissible in this instance to have recourse to the second reading speeches on the Bill for the Act in the Parliament. Recourse may only be had to the second reading speeches in limited circumstances, that is, to confirm the ordinary meaning conveyed by the text of a provision; or to determine the meaning of a provision if it is ambiguous or obscure, or if the ordinary meaning conveyed by the text of the provision leads to a result that is manifestly absurd or is unreasonable ( Interpretation Act 1987, s 34(1)). Moreover, such second reading speeches are not of themselves determinative and must give way to the text of the Act, even if inconsistent therewith ( Re Bolton; Ex parte Beane (1987) 162 CLR 514, at 518, per Mason CJ, Wilson and Dawson JJ). In any event, to the extent to which it may be permissible to have regard to the second reading speech to confirm the ordinary meaning conveyed by the text, I note that reference is made therein to the need to remedy the mischief of blackmail for the purpose of obtaining exorbitant sums of money from encroaching owners.

13. The major submission of Mr Leeming is that there cannot be an encroachment where the building straddles the boundary as is the case here. I gain some assistance in resolving this issue from the judgment of Powell J in Cantamessa v Sanderson. Part of the application before Powell J concerned a planter-box, one-third of which was on the encroaching owner=s land and two-thirds of which was on the adjacent owners land. Powell J said (at 13,130):

It further follows, so it seems to me, that, even if the wall and planter-box were to be considered as a single building, by reason of the fact that by far the greater part of the bulk of the building was located on lot 5, that building encroached, not from lot 4 onto lot 5 - a classic case of the tail wagging the dog - but from lot 5 onto lot 4, the consequence being that, even on this hypothesis, Ms Cantamessa did not qualify as an >encroaching owner in respect of it.

The same process of reasoning, so it seems to me, would lead one to conclude that, even if the wall and planter-box were to be treated as two separate buildings, the planter-box - two-thirds of which stood on lot 5 - encroached, not from lot 4 onto lot 5, but from lot 5 onto lot 4, so that, even in respect of it, Ms Cantamessa did not qualify as an >encroaching owner.

14. It is to be noted that Powell J in the case of a structure which was one-third on the plaintiffs land and two-thirds on the defendants land, expresses the view that the building encroached from the latters land onto the formers land. That was what disqualified the plaintiff from being an >encroaching owner in that case. Powell J does not say, however, that the defendant is disqualified from being an >encroaching owner in that case. The fact that the encroachment by the structure was relevantly one-third as against two-thirds does not seem to have inclined Powell J to the view that the structure did not encroach from the defendants land onto the plaintiffs land. I am left with the impression that if two thirds of the structure had been on the plaintiffs land then Powell J would have found that the plaintiff was an >encroaching owner in that case.

15. In the present case the building straddles the boundary so that about 35-40 per cent of it is on the applicants land and about 60-65 per cent of it is on the respondents land. It seems to me that if the substantial part of the building is on the respondents land then that makes the respondent an >encroaching owner; if a lesser part of the building is on the applicants land then that makes the applicant an >adjacent owner; and that part of the building which is upon the applicants land is an >encroachment within the meaning of the Act.

Estoppel

16. Mr Leeming submits that if it is unconscionable for the applicant to insist upon its rights as registered proprietor of lot 6 against the respondents, the court will not permit it to do so. An estoppel may lie against a public authority, at least in the exercise of operational decisions, although arguably not in the case of policy decisions ( Minister for Immigration, Local Government and Ethnic Affairs vKurtovic (1990) 21 FCR 193, per Gummow J; Attorney General (NSW) v Quin (1990) 170 CLR 1, at 18, per Mason CJ).

17. The facts which are said to give rise to the estoppel are:

(a) The sewerage connection plan issued by the applicant, to which I have referred in par 3 above, which shows the house entirely within lots 3, 4 and 5 with a sewerage connection 44 feet from the northern boundary of the land.

(b) The certificate issued by the applicant under s 149 of the EnvironmentalPlanning and Assessment Act 1979, annexed to the contract for the purchase of lots 3, 4 and 5, which is said to indicate that the land is not vacant.

(c) The applicant had constructive (if not actual) knowledge of the fact that the fence immediately to the north of the subject dwelling was wholly on lot 7 rather than on lot 5 from at least 1966 when it was issued with certificate of title for lots 1 and 2 as noted in par 4 above.

(d) A compass and chain survey prepared by the Crown Lands Office and which is in the possession of the applicant which shows the dwelling located across the boundary of lots 5 and 6. Mr Leeming concedes, however, that this is not the applicants document and the evidence does not disclose when it was obtained by the applicant.

(e) When the respondents purchased lots 3, 4 and 5 they believed that the subject dwelling was located wholly upon that land and in so doing they relied upon the applicants representations, in particular those described in sub-par (a) and (b) above.

(f) Subsequently, for about ten years, the applicant permitted the respondents to occupy the dwelling until, by letter dated 20 May 1996, it required the respondents to remove that part of it which stood on lot 6.

18. Miss Blackman relies on the evidence of Mrs P A R Dale, an experienced solicitor practising in conveyancing, who states that a sewerage connection plan only indicates where sewerage lines are located in relation to improvements on the land. Mrs Dale states that she would not advise a client to rely upon such a document to establish the boundaries of a property. Mrs Dale further states that she would strongly advise a client to obtain a survey to establish the location of property boundaries.

19. The respondents had obtained, in addition to the sewerage connection plan, a sewerage reference sheet issued by the applicant showing the position of sewerage mains in relation to improvements on both the subject land and adjacent and nearby land. The sewerage reference sheet does not purport to show any property boundaries. It only shows improvements, namely buildings and fences. No lot numbers are indicated on it. Mrs Dale states that she would not advise a client that this document could be relied upon to show property boundaries.

20. I accept the evidence of Mrs Dale, who was not cross-examined. I thus conclude that the sewerage connection plan and the sewerage reference sheet do no more than identify the location of the sewerage main and sewerage services in relation to improvements and do not purport to show the accurate location of property boundaries. I conclude that it was not reasonable for the respondents, or the solicitors acting for them on the purchase of the land, to rely upon those documents as representations of the location of property boundaries.

21. Neither do I think that the respondents can rely upon any representations contained in the certificate issued by the applicant under s 149 of the Environmental Planning and Assessment Act relating to lots 3, 4 and 5. The printed form of the certificate relevantly states:

A(d) Where the applicant indicates that the land is vacant, is there a prohibition to the erection of a dwelling by reason of a development standard relating to minimum area of the land

To this question the applicant had responded by writing N/A, which I take to be a reference to not applicable. There is no evidence to suggest whether the applicant for the certificate indicated that the land is vacant. The information furnished by the applicant in response to this item on the certificate would seem to suggest an assumption that the land is not vacant. If so, then it cannot be said that the information is misleading.

22. I do not accept that the applicant had constructive notice of the location of the fence on lot 7. The certificates of title for lots 1 and 2 issued in 1966 would operate, in my view, to furnish the applicant with constructive notice of anything shown therein relating to lots 1 and 2. According to the evidence the first notice that the applicant had of the true location of the boundary between lots 5 and 6 was when it obtained the survey plan of 25 March 1996, reproduced under par 1 above. Estoppel requires knowledge by the party said to be estopped of the facts giving rise to the estoppel and of the fact that the other party has exposed himself or herself to his or her detriment by acting on the basis of a false assumption ( Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387). As I have said, I am not satisfied on the evidence that the applicant knew of the true location of the boundary between lots 5 and 6 until March 1996; or had constructive notice of such. A short time after 25 March 1996, on 20 May 1996, the applicants solicitors wrote to the respondents drawing their attention to the true state of affairs. There is nothing in the evidence to suggest that the applicant knew before 25 March 1996 that the respondents were acting on the basis of a false assumption as to the true location of the boundary. In my view the facts do not establish any estoppel against the applicant.

Adverse Possession

23. Mr Leemings submissions on this issue may be summarised as follows:

(a) A person can acquire land by adverse possession of twelve years if the possession commenced on or after 1 January 1971, or twenty years if the possession commenced prior to 1 January 1971 ( Limitation Act 1969, s 27(2); Real Estate (Limitation of Actions) Act 1837). So long as there has been continuous occupation, the possession of a predecessor in title can be taken into account ( Limitation Act , s 38(2); Mulcahy v CurramorePty Limited [1974] 2 NSWLR 464 at 476; Shaw v Garbutt (1996) 7 BPR 14,816). Enclosure is the strongest possible evidence of adverse possession ( Seddon v Smith (1877) 36 LT 168 at 169); and cultivation of the land is also strong evidence of adverse possession ( Harnett v Green(No 2) (1883) 4 LR (NSW) 292 at 301).

(b) Because of the evidence of Mr Vidler and of Mr Vaughan that they were unaware until 1996 that the dwelling was located on lot 6, the only intention that can be reasonably imputed to them throughout the period from 1949 to 1996 is the requisite intention to possess the land on which the house is located, up to the boundary fence (which is located on lot 7).

(c) Although the respondents are, in this case, prevented from making a possessory application for lot 6 because the documentary title is held by a local government council (s 45D(3), Real Property Act ), the Limitation Act nevertheless imposes a procedural bar upon the applicant in two ways.

(d) Firstly , the applicants alternative claim for compensation is barred by the Limitation Act , s 14(1)(d), being a cause of action to recover money recoverable by virtue of an enactment. The applicants cause of action first accrued in 1973 when it acquired lots 6 and 7 and was not maintainable after the expiration of six years therefrom, which was in 1979.

(e) Secondly , the mandatory injunction sought, namely the removal of the encroachment, is subject to the same limitation period by analogy ( Limitations Act , s 23; Knox v Gye (1872) LR 5 HL 656 at 674). The claim for relief is analogous to relief sought at general law to remove a continuing trespass. Such a claim would be barred after six years by reason of the Limitation Act , s 14(1)(b). Alternatively, the appropriate analogy is a claim to recover land, which claim would be barred after twelve years by reason of the Limitation Act , s 27(2).

24 . It is at least arguable that the applicants alternative claim for compensation for the encroachment is Aa cause of action to recover money by virtue of an enactment within the meaning of the Limitation Act , s 14(1)(d) and is thus statute barred. I am prepared, without deciding the question, to accept Mr Leemings submission on this point. I do not wish it to be taken, however, that I have decided that this submission is correct. As will presently appear, I do not have to decide this question.

25. Mr Leemings submission based on s 23 of the Limitation Act depends upon an acceptance that the applicants claim for the removal of the encroachment is a claim for equitable relief. Section 23 of the Limitation Act provides:

A23. Sections 14, 16, 17, 18, 20 and 21 do not apply, except so far as they may be applied by analogy, to a cause of action for specific performance of a contract or for an injunction or for other equitable relief.

The passage from the judgment of Lord Westbury in Knox v Gye upon which Mr Leeming relies is as follows:

Where a court of Equity frames its remedy upon the basis of the common law, and supplements the common law by extending the remedy to parties who cannot have an action at common law, there the court of equity acts in analogy to the statute; that is, it adopts the statute as the rule of procedure regulating the remedy it affords. Where the remedy in equity is correspondent to the remedy at law, and the latter is subject to a limit in point of time by the Statute of Limitations, a court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation.

26. It seems to me that there are two answers to Mr Leemings submissions on this point. Firstly , the right asserted by the applicant in this case is not based on an action at common law. In particular it is not a cause of action founded in tort. It is a statutory cause of action arising under the Encroachment of Buildings Act , s 3(2)(c). It is thus not a cause of action to which s 14(1) of the Limitation Act refers. The only cause of action arising under an enactment to which s 14(1) refers is:

(d) a cause of action to recover money recoverable by virtue of an enactment

Since the applicants claim is not based on a cause of action described in s 14, then there is no analogue.

Secondly , if I am wrong in concluding that the applicants claim is not based on a cause of action described in s 14, the claim for the removal of the encroachment is not a claim for equitable relief but for statutory relief. The particular statutory relief sought in this instance is that described in the Encroachment of Buildings Act , s 3(2)(c), namely a statutory order for the removal of the encroachment.

27. Mr Leemings alternative submission is based on s 27(2) of the Limitation Act , which is as follows:

A27(2). Subject to subsection (3) an action on a cause of action to recover land is not maintainable by a person other than the Crown if brought after the expiration of a limitation period of twelve years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims. (subs (3) is not presently relevant)

28. Again, it seems to me that there are two answers to the submission. Firstly , this is not a cause of action to recover land. The applicant is the registered proprietor of the land in question (lot 6). In law the applicant also owns the building which encroaches upon its land. The applicant simply seeks the removal of the encroachment. Secondly , the respondents cannot bring a possessory application in respect of an estate or interest in the land ( Real Property Act , s 45D(3)(d)). Part 6 of the Real Property Act (which includes s 45D) was inserted into that Act by the Real Property (Possessory Titles) Act 1979. As noted above, the Real Property Act , s 45D(3) provides that a possessory application may not be made in respect of an estate or interest in any land of which a local government council is the registered proprietor. If there is tension between the Limitation Act , s 27(2), and the Real Property Act , s 45D(3), the tension should be resolved in favour of the later express provision (cf Project Blue Sky Inc v AustralianBroadcasting Authority (1998) HCA 28, par 70; 72 ALJR 841 at 855). Since, however, the applicants claim is not a cause of action to recover land, but is merely a statutory claim for the removal of an encroachment, then s 27(2) of the Limitation Act does not, in any event, seem to me to apply.

Discretionary Considerations

29. The respondents rely on all of the submissions advanced above to support the exercise of the courts discretion in their favour. In addition to those matters the respondents refer to:

The loss which they would suffer, having purchased the property in 1987: s 3(3)(e).

?. The absence of any evidence of loss suffered by the applicants by reason of the encroachment: s 3(3)(d).

?. The fact that the dwelling is presently in use as the residence of a member of the respondents family: s 3(3)(c).

?. The fact that since the respondents have been in possession of lot 6 they have at substantial cost cultivated and improved the land.

?. The improvements that the respondents have made have benefited not only themselves but the amenity of neighbouring properties.

?. The applicant has been aware since at least 1990 of the substantial nature of the cultivations and improvements made by the respondents to lot 6.

30. Against these considerations are the facts that the respondents purchased the land without taking the precaution of obtaining a surveyor=s report; the improvements they have made to lot 6 will continue to benefit them as neighbours; the applicant is the registered proprietor of lot 6 and is thus the adjacent owner; lot 6 is now in public ownership and the public should obtain the benefit thereof; the applicant was unaware of the encroachment until March 1996 and shortly thereafter took steps towards having the encroachment removed; the dwelling is a timber framed building on posts or stumps and can thus be lifted or moved onto new posts or stumps wholly within lot 5 without the loss of or the necessity to cut back or lose any part of it; and the fact that moving the building wholly onto lot 5 is self evidently the least expensive form of relief which is open to the court, apart from doing nothing.

31. Accordingly, in the exercise of the Courts discretion I am inclined to grant relief which effectively requires the removal of the encroachment. As I have said, however, this does not necessarily involve demolishing or removing any part of the dwelling, which can, it seems, be lifted and moved onto new stumps or posts to be provided wholly within lot 5. It is appropriate, in view of the foregoing factors in the respondents favour in the exercise of the Courts discretion under s 3(3), that I postpone that relief for a period of twelve months. Since the applicant has been successful in these proceedings I am also inclined to order that the respondents pay its costs. The question of costs was not, however, argued and I, accordingly, reserve that question.

Declaration and Orders

32. I therefore make the following declaration and orders:

(1) A declaration that the house which has been erected on lot 5 of Section 3 in Deposited Plan 1623 has been erected also partly on lot 6 in Section 3 in Deposited Plan 1623.

(2) An order that the respondents, pursuant to the Encroachment of BuildingsAct 1922 remove that part of the house which is presently constructed partly on lot 6 of Section 3 in Deposited Plan 1623.

(3) Order (2) is postponed until 5 pm on 13 July 1999 (12 months).

(4) I reserve the question of costs.

(5) The exhibits may be returned.

I certify that this and the 19 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.