Gladwell v Steen - [2000] SASC 143

GLADWELL v STEEN
[2000] SASC 143

Land and Valuation Division

DEBELLE J. This is an application under the Encroachments Act 1944.
The plaintiff, Mr Gladwell, is the registered proprietor of a house property at 5 Steventon Drive, Banksia Park. The defendants, Mr and Mrs Steen, are the registered proprietors of a house property at 3 Steventon Drive. Banksia Park is within the area and subject to the planning control of the Corporation of the City of Tea Tree Gully.

An Encroachment

The front of each house property faces due north. The parties share a common boundary which runs in an approximate north-south direction. There is a galvanised iron fence extending from the southern boundary of each property a good distance northward along the common boundary. That fence is erected on the true boundary. The fence stops at about the southern edge of a carport erected on the Steens’ land. The apparent boundary between the two properties as one proceeds northward is designated by a fence alongside the carport and thereafter, from the northern end of the carport the frontage of each property, by a concrete driveway constructed on the Steens’ land. The driveway provides access to the carport from the street. The area of the carport is paved with concrete. The carport and driveway are on the eastern side of the Steens’ land. It is possible to drive from the front of the Steens’ land through the carport to a garage which has been erected in the back yard of the Steens’ land. The present disposition and appearance of the Steens’ land suggests that the carport and garage are presently used for storage purposes but there is nothing to prevent both the carport and the garage from being used to house motor vehicles in the future.
In addition to the boundary fence, a substantial galvanised iron fence more than two metres high has been erected on the Steens’ land. There is no evidence as to the reason for the erection of that fence. As it is within the boundary of the Steens’ land, it has no relevance to the issues in this action and I have no regard to it.
A small portion of the carport and a narrow strip of the driveway each encroach upon the Gladwell land. The area of the encroachment by the carport is three square metres. The area of the driveway which encroaches is 17 square metres being a strip about 1.5 metres wide. Thus, the total area of the encroachment is 20 square metres. Both the carport and the driveway are encroachments as defined by the Encroachments Act: see s 2 of the Act and Clarke v Wilkie (1977) 17 SASR 134.

Encroachment Constructed in about 1980

The encroachment was constructed before either Mr Gladwell or the Steens purchased their respective allotments. Mr Gladwell purchased his allotment in June 1993 from a Mr and Mrs Shirley who had been the registered proprietors of the allotment since June 1968. The Steens purchased their…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gladwell v Steen

Details

AGLC: Gladwell v Steen [2000] SASC 143
Case: [2000] SASC 143
Decision Date: 2 June 2000

CaseChat Overview and Summary

The case of Gladwell v Steen is an application under the Encroachments Act 1944. Mr Gladwell, the registered proprietor of a house at 5 Steventon Drive, Banksia Park, brought proceedings against Mr and Mrs Steen, the registered proprietors of a neighbouring house at 3 Steventon Drive, due to an encroachment of 20 square metres on Mr Gladwell's land by a carport and driveway built by the Steens. The encroachment was constructed before either party purchased their respective properties. The legal issues in this case were whether the encroachment should be removed and the true boundaries restored, or whether the encroached land should be transferred to the Steens, and if so, on what terms. The court had to consider the factors influencing the resolution of the dispute, including the duration of the encroachment, the lack of awareness by both parties at the time of purchase, and the potential impact on both parties if the encroachment were removed. The court also needed to determine whether compensation should be paid and, if so, the amount.

The court decided that the encroachment should be resolved by transferring the encroached land to the Steens. The encroachment had existed for many years, and both parties had purchased their properties believing the encroached land was part of the other's property. The removal of the carport and part of the driveway would cause greater loss to the Steens, who would lose the use of the driveway, than it would to Mr Gladwell, who did not believe he was purchasing the encroached land. The court held that it was unfair to require the Steens to pay compensation for the transfer of the land, as they had purchased the land believing it included the encroached area. The Steens were also required to pay half of the costs of the survey and valuation incurred by Mr Gladwell. The court concluded that the policy of the Encroachments Act was to facilitate the resolution of disputes over encroachments and to achieve a fair outcome for both parties.

The final orders were that Mr Gladwell transfer the encroached land to the Steens, that the Steens pay all necessary costs involved in registering the transfer, and that the parties share equally the costs of the survey and valuation.

Orders