Laming v Jennings
[2017] VCC 1223
•31 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-05398
| JAMES LAMING | Plaintiff |
| v | |
| MARTIN GLENN JENNINGS | Defendant |
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JUDGE: | HIS HONOUR JUDGE COSGRAVE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5-9, 13-16 and 19-20 June 2017 | |
DATE OF JUDGMENT: | 31 August 2017 | |
CASE MAY BE CITED AS: | Laming v Jennings | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1223 | |
REASONS FOR JUDGMENT
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Subject:REAL PROPERTY – ADVERSE POSSESSION – EASEMENTS
Catchwords: ADVERSE POSSESSION – Acknowledgment of title – Intention to possess – Whether owner of servient tenement retook possession – 15 years’ continuous use – Whether transferee of servient title takes title free of any accruing right of adverse possession
EASEMENTS – Doctrine of lost modern grant – Right to use area as a garden or backyard – Knowledge of owner of servient tenement – Actual or constructive knowledge – Whether owner of servient tenement put on inquiry
Legislation Cited: Limitation of Actions Act 1958 (Vic); Transfer of Land Act 1958 (Vic)
Cases Cited:Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235; Bligh v Martin [1968] 1 WLR 804; Clement v Jones (1909) 8 CLR 133; Cobham v Frett [2001] 1 WLR 1775; Commonwealth v Registrar of Titles (1918) 24 CLR 348; Conellan Nominees Ltd v Camerer [1988] 2 Qd R 248; Convey v Regan [1952] IR 56; Diment v NH Foot Ltd [1974] 2 All ER 785; Dyce v Hay (1852) 1 Macq 305; Edginton v Clark [1963] 3 All ER 468; Fernance v Simpson [2003] NSWSC 121; Gangemi v Watson (1994) 11 WAR 505; Hough v Taylor (1927) 29 WALR 97; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; Kierford Ridge Pty Ltd v Ward [2005] VSC 215; Lord Advocate v Lord Lovat (1880) 5 App Cas 273; Nelson v Hughes [1947] VLR 227; Nicholas v Andrew (1920) 20 SR (NSW) 178; Pekel v Humich (1999) 21 WAR 24; Petkov & Ors v Lucerne Nominees Pty Ltd (1992) 7 WAR 163; Phillips v Marrickville Municipal Council [2002] NSWSC 396; Powell v McFarlane (1977) 38 P & CR 452; Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999] 2 EGLR 85; Pugh v Savage [1970] 2 QB 373; Re Ellenborough Park [1956] Ch 131; Read v Price [1909] 2 KB 724; Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125; Refina Pty Ltd v Binnie [2009] NSWSC 914; Riley v Penttila [1974] VR 547; Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415; Tecbild Ltd v Chamberlain (1969) 20 P & CR 633; Thwaites v Brahe (1895) 21 VLR 192; Treloar v Nute [1977] 1 All ER 230; Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557; Wayella Nominees Pty Ltd v Cowden Ltd [2003] WASC 210; Whittlesea City Council v Abbatangelo (2009) 259 ALR 56; William Sindall v Cambridgeshire County Council [1994] 1 WLR 1016; Williams v State Transit of New South Wales (2004) 60 NSWLR 285
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G D Bloch | Tisher Liner FC Law |
| For the Defendant | Mr K E Mihaly | Megan Copas |
HIS HONOUR:
Introduction
1 This case concerns a claim by the defendant (“Jennings”), the registered proprietor of the property at 2 Merimbula Road Ferny Creek, over part of the land owned by the plaintiff (“Laming”) at 4 One Tree Hill Road Ferny Creek. Jennings alleges that he has an interest in a part of the land falling within the title boundaries of Laming’s property. Jennings contends that he has acquired legal title to the disputed land, or part of it, due to adverse possession. Alternatively, Jennings claims an easement in respect of the disputed land, or part thereof, due to the doctrine of lost modern grant. Laming denies that Jennings has any rights in relation to the disputed land or his property generally and says that Jennings has trespassed on his land. I attach as Annexure 1 to this judgment a copy of a plan which sets out the various properties the subject of the dispute, including the disputed land which is coloured yellow on the plan (“the Disputed Land”), and is immediately behind Jennings’ property at 2 Merimbula Road.
Background and chronology
Title history
2 The history of ownership of the parties’ properties and surrounding properties is complicated. The two properties were originally part of neighbouring larger plots that were each subdivided. After subdivision, the titles (and sometimes part titles) for the subdivided properties were occasionally consolidated across the two subdivisions, leading to new certificates of title being issued over time. That history can be summarised as follows:
(a)as at 11 December 1950, an irregularly shaped property, more particularly described as Certificate of Title Volume 7498 Folio 160, (“Merimbula Road Property”) fronted onto One Tree Hill Road;
(b)before 12 February 1953, the Merimbula Road Property was subdivided into 16 lots under plan of subdivision 25535. Merimbula Road was created as a road leading from One Tree Hill Road to provide access to the various lots. Lots 1 to 9 were to the west of Merimbula Road and lots 10 to 16 were to the east;
(c)on 12 February 1953, Lot 11 on plan of subdivision 25535 was transferred to Certificate of Title Volume 7930 Folio 057 (“4 Merimbula Road”);
(d)separately, on 13 February 1953, there was a neighbouring property to the east of the Merimbula Road Property which also fronted One Tree Hill Road. This property was about 15 acres in area; and comprised the land in Certificate of Title Volume 7842 Folio 141 (“the Telstra Property”);
(e)on 15 June 1953, Lot 3 on plan of subdivision 25535 (“Lot 3”) was transferred to Certificate of Title Volume 7991 Folio 198;
(f)on 31 March 1954, Lot 12 on plan of subdivision 25535 (“Lot 12”) was transferred to Certificate of Title Volume 8043 Folio 227. It is, for the most part, the defendant’s property;
(g)on 7 July 1954, Lot 4 on plan of subdivision 25535 (“Lot 4”) was transferred to Certificate of Title Volume 8056 Folio 833;
(h)on 11 March 1955, Lot 13 on plan of subdivision 25535 (“Lot 13”) was transferred to Certificate of Title Volume 8078 Folio 525;
(i)on 14 September 1956, Lot 3, Lot 4 and Lot 13, together with the Telstra Property were consolidated into Certificate of Title Volume 8128 Folio 707;
(j) on 31 August 1961:
(i)a small part of Lot 13 was transferred to Certificate of Title 8345 Folio 110;
(ii)a small part of Lot 12 was consolidated with Certificate of Title Volume 812 Folio 707 (being Lot 3, Lot 4, the remainder of Lot 13 and the Telstra Property) in Certificate of Title Volume 8345 Folio 111 (“the Telephone Block”);
(k)on 18 September 1980, Lot 12 (less that part transferred to form part of the Telephone Block) was transferred to Certificate of Title Volume 9939 Folio 326;
(l)on 21 May 1998, those parts of Lot 12 and Lot 13 included in the Telephone Block were transferred to Certificate of Title Volume 10399 Folio 470 (“2A Merimbula Road”);
(m)on 15 September 1999, Lot 3 and Lot 4 were transferred from the Telephone Block to Certificate of Title Volume 10467 Folio 662 (“5 Merimbula Road”);
(n)on 9 February 2012, the remainder of the Telephone Block, which was the same land as the Telstra Property was subdivided under plan of subdivision 617084C into three lots in accordance with the survey performed by Peyton Waite Pty Ltd dated 24 February 2009. On 25 June 2010, the local council approved the plan of subdivision; and
(o)on 21 February 2012, Lot 1 on PS 617084C was registered as Certificate of Title 11334 Folio 624 (“4 One Tree Hill Road”). This is Laming’s property.
3 The original Telstra Property comprises the area marked within the red border on Annexure 1. There is an entrance gate to the property from One Tree Hill Road. The gate was usually locked and a key was necessary to access the property from this road. From the gate, a vehicular path in the form of an unmade road led to an initial tower and then onto a second tower in the north-east corner of the property. The initial tower was located together with brick buildings in a cleared level area surrounded by cyclone wire fencing. There was another access gate to the property in the north-west corner abutting 6 Merimbula Road. Hence, access to the property was restricted. However, after significant bushfires burned the area in 1997, the fences in the vicinity of the north-western gate were destroyed and there was no practical barrier preventing access to the Telstra Property.
4 After a survey in 2008, Telstra later subdivided the property into 3 lots. Laming now owns the lot closest to the Jennings’ property which includes the Disputed Land. Telstra also formerly owned the land known as 5 and 2A Merimbula Road. Telstra disposed of these blocks in about 2000.
5 Having regard to this history, the ownership of the parties’ properties and surrounding properties can be summarised as follows:
(a) with respect to the Telephone Block:
(i)the Commonwealth of Australia owned the un-subdivided Telstra Property from 13 February 1953;
(ii)the Commonwealth of Australia was registered as the owner of Lot 3 and Lot 4 on 3 June 1955;
(iii)the Commonwealth of Australia was registered as the owner of the Telephone Block (i.e. as one title) on 31 August 1961;
(iv)the Australian Telecommunications Commission (which has now become Telstra Corporation Ltd (“Telstra”)) became registered as the owner of the whole of the Telephone Block from 16 August 1986;
(v) on 20 November 1997, Norman and Susan Brodie were registered as the owners of the whole Telephone Block (by dealing V104715Q). On 1 May 1998, 2A Merimbula Road was excised from the Telephone Block and transferred back to Telstra (by dealing V434595S) and Telstra became registered on 21 May 1998. On 15 September 1999, 5 Merimbula Road was excised from the Telephone Block and the Brodies remained registered as originally intended. On 28 March 2000, the remaining part of the Telephone Block, which is the same land as the original Telstra Property, was transferred to Telstra (by dealing W688123K). Transfers V434595S and W688123K noted that no consideration was payable for the transfers because it was a “correction of an error”. I infer from this that the original intention was to transfer only 5 Merimbula Road to the Brodies and not 2A Merimbula Road as well.
(b) Darrell Jolly:
(i)was the owner of 2A Merimbula Road as joint proprietor with Olga Foudoulis from 24 February 2000;
(ii)was the owner of 2A Merimbula Road as sole proprietor from 17 February 2005 to 5 January 2015 when he transferred the property to Michael Collins;
(iii)has been the owner of 5 Merimbula Road as joint proprietor with Jason Sillery since 17 November 2014;
(c) with respect to 4 One Tree Hill Road:
(i)One Tree Hill Pty Ltd was the owner from the time of the subdivision, namely from 21 February 2012;
(ii)the plaintiff has been the registered owner since 21 September 2015;
(d)with respect to 2 Merimbula Road, comprising Certificates of Title Volume 9939 Folio 326 and Volume 8345 Folio 110:
(i)Wendy and Glenn Howard were the registered owners from 19 September 1986;
(ii) Jennings has been the registered owner since 7 July 2008;
(e)Helen and Brett McGie have been the registered owners of 4 Merimbula Road since 29 July 1992.
Other matters
6 On 6 November 1991 the Crown ceased to be the owner of the Telephone Block. This came about because that part of the Crown which owned and operated the national telephone system was privatised and Telstra was created.
7 On about 16 January 1995 Telstra or its contractor entered the Telstra Property to undertake a survey.
8 On 29 July 1997 Keith Jones, a surveyor retained by Telstra, entered the Telstra Property and undertook a survey of the boundaries of the land now known as 2A Merimbula Road. In conducting the survey, Jones placed survey pegs on parts of the boundary of the Telephone Block and on parts of the boundary of the Disputed Land abutting 2A Merimbula Road.
9 On 29 February 2008 Gary Waite of Peyton Waite Pty Ltd on behalf of Telstra entered the Telstra Property and undertook a survey. As part of his work, Waite marked concrete fence posts on the boundary of the Disputed Land.
10 On 7 July 2008 Jennings became registered proprietor of 2 Merimbula Road.
11 On 2 December 2009 Jennings, Brett and Helen McGie, Darrell Jolly and unnamed owners of 6 Merimbula Road made an offer to purchase from Telstra the land now known as 4 One Tree Hill Road.
12 On 8 December 2009 Jennings, Brett and Helen McGie and Darrell Jolly made another offer to purchase from Telstra the land now known as 4 One Tree Hill Road.
13 On 9 February 2012, pursuant to plan of subdivision 617084C, the Telstra Property was subdivided into three lots.
14 On 21 February 2012 Lot 1 on plan of subdivision 617084C was registered as Certificate of Title 11334 Folio 624 (“4 One Tree Hill Road”). The registered proprietor of the land was One Tree Hill Pty Ltd, a company controlled by Matthew Gabelich.
15 On 5 April 2014 Jennings and Brett and Helen McGie offered to purchase 4 One Tree Hill Road from One Tree Hill Pty Ltd.
16 On 21 September 2015 Laming became the registered proprietor at 4 One Tree Hill Road.
17 On 10 October 2015 Darrell Jolly, who had been the registered proprietor of 2A Merimbula Road, assigned any right, title and interest he had in 4 One Tree Hill Road to Laming.
18 On 16 October 2015, Laming sent a fencing notice to Jennings.
19 On 13 November 2015 Laming filed the writ and statement of claim in this proceeding.
Issues
20 The parties contest to varying degrees the use which they and their predecessors in title made of the Disputed Land and the legal consequences, if any, of whatever use there was. The parties provided the court with a statement of agreed issues which I summarise as follows:
(a) what use was made of the Disputed Land:
(i) by Jennings and his predecessors in title;
(ii) by Laming and his predecessors in title; and
(iii) by third parties?
(b)was Jennings and/or his predecessors in title in possession of the Disputed Land, or part thereof, at any time?
(c)if yes to (b), did Laming or any of his predecessors in title retake possession of the Disputed Land or part thereof, as the case may be, at any time?
(d)did the offer said by Laming to have been made by the Howards to Telstra constitute an acknowledgment of Telstra’s title within the meaning of sections 24 and 25 of the Limitation of Actions Act 1958 (Vic) (“the Limitations Act”)?[1]
[1]This issue is subject to the court’s ruling that the matter was properly raised, the trial judge having indicated that he would rule on the matter in the judgment – see Transcript at page 1177 line 28).
(e)did any of the offers made by Jennings to Telstra (whether by himself or together with other neighbours) constitute an acknowledgment of Laming’s title or his predecessors’ title, within the meaning of sections 24 and 25 of the Limitations Act?
(f)were any of the said offers consistent or inconsistent with the requisite intention to possess the Disputed Land or any part thereof by Jennings and/or his predecessors in title?
(g)were Jennings and/or his predecessors in title in possession of the Disputed Land, or part thereof, for 15 continuous years and did they have the requisite intention for 15 continuous years to possess the Disputed Land so as to acquire title to all or part of the Disputed Land?
(h)does a transferee of title, or person in recept of new title if a new title issues, take title free from any un-matured or accruing right of adverse possession by reason of section 42(2)(b) of the Transfer of Land Act 1958 (Vic) (“the TLA”)?
(i) is Laming is afforded protection under section 43 of the TLA?
(j)did Jennings and/or his predecessors in title use the Disputed Land, or part thereof, in such a manner for 20 continuous years such that an easement for recreation could arise by prescription over all or part of the Disputed Land and otherwise, have the requirements of the doctrine of lost modern grant been satisfied?
(k)if yes to (j), did Laming establish any of the defences set out in his submissions?
(l)does a transferee of title, or person in recept of new title if a new title issues, take title free from any un-matured or accruing right to the benefit of a prescriptive easement by reason of section 42(2)(d) of the TLA?
(m)did Jennings trespass on Laming’s land?
Legal principles regarding adverse possession
21 I will first address in general terms the legal principles attaching to the claim by Jennings to adverse possession.
22 The general principles relating to adverse possession were conveniently summarised by the Victorian Court of Appeal in Whittlesea City Council v Abbatangelo[2] as follows:
[2](2009) 259 ALR 56
“[5] Before us, the parties agreed that the following comments made by Ashley J (as his Honour then was) in Bayport Industries Pty Ltd v Watson aptly summarise the relevant principles:
The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:
‘It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:
(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.
(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).
(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, … The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.
(4) The animus possidendi, which is also necessary to constitute possession, … involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow … the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner.’
To those principles should be added and/or highlighted the following:
·‘When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.
·As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn CJ said in Seddon v Smith (1877) 36 LT 168 at 1609: ‘Enclosure is the strongest possible evidence of adverse possession’. Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487 at 511A, similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner’.
·It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd v Chamberlain (1969) 20 P & Cr 633 at 642, per Sachs LJ.
·A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
·Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed …
·Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal …
·At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.”
[6] For the purposes of this appeal, the following additional principles are also relevant:
(a)The reference to ‘adverse possession’ in s 14(1) of the Act is to possession by a person in whose favour time can run and not to the nature of the possession. The question is simply whether the putative adverse possessor has dispossessed the paper owner by going into possession of the land for the requisite period without the consent of the owner, with the word ‘possession’ being given its ordinary meaning. Whether or not the paper owner realises that dispossession has taken place is irrelevant.
(b)Factual possession requires a sufficient degree of physical custody and control. Intention to possess requires an intention to exercise such custody and control on one’s own behalf and for one’s own benefit. Both elements must be satisfied by a putative adverse possessor, although the intention to possess may be, and frequently is, deduced from the objective acts of physical possession.
(c)In considering whether the putative adverse possessor has factual possession, a court has regard to all the facts and circumstances of the case, including the nature, position and characteristics of the land, the uses that are available and the course of conduct which an owner might be expected to follow. Each case must be decided on its own particular facts. While previous cases can provide guidance as to the relevant principles which are to be applied, they should be treated with caution in terms of seeking factual analogies by reference to particular features of a person’s dealings with land. Acts that evidence factual possession in one case may be wholly inadequate to prove it in another. For example, acts done by a putative adverse possessor who lives next to the relevant property may sufficiently evidence a taking of possession, whereas those same acts may be insufficient if done by a person who lives some distance from the property.
(d)The intention required by law is not an intention to own or even an intention to acquire ownership of the land, but an intention to possess it. The putative adverse possessor need not establish that he or she believes himself or herself to be the owner of the land.
(e)A number of acts which, considered separately, might appear equivocal may, considered collectively, unequivocally evidence the requisite intention.
(f)Statements about intention by a putative adverse possessor should be treated cautiously, as they may be self-serving. But while a statement by a person that he or she intended to possess land will not be enough in itself to establish such an intention, it may be relevant when taken in combination with other evidence suggesting an intention to possess.
(g)Mere use falling short of possession will not suffice. In some circumstances, a person’s use of land may amount to enjoyment of a special benefit from the land by casual acts of trespass and will neither constitute factual possession nor demonstrate the requisite intention to possess. For example, where vacant land abutted a putative adverse possessor’s land, occasional tethering of the claimant’s ponies on the vacant land, and grazing them there, and occasional playing on the vacant land by her children were held not to suffice. Use and enjoyment of a special benefit and exclusive possession are not, however, necessarily mutually exclusive, for exclusive possession will usually entail use and special benefit. Use and enjoyment of a special benefit, on the other hand, will not necessarily amount to exclusive possession.
(h)There is no separate requirement that the use to which the land is put by the putative adverse possessor be inconsistent with the paper owner’s present or future intended use of the land, as suggested by Leigh v Jack. In Monash City Council v Melville, Eames J reviewed the history of the rule in Leigh v Jack and said the following:
To the limited extent that the rule still applies its effect, now, is as follows. Where the trespasser’s acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; [l]ikewise it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.
However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.
It was not suggested before us that Eames J incorrectly stated the law in relation to the present limited effect of the rule in Leigh. We would therefore proceed on the basis that his Honour correctly stated the law even if it was not for the subsequent decision of the House of Lords in Pye, where Lord Browne-Wilkinson (with whom the other Law Lords agreed) said this in relation to the rule in Leigh:
The suggestion that the sufficiency of the possession can depend on the intention not of the squatter but of the true owner is heretical and wrong … The highest it can be put is that, if the squatter is aware of a special purpose for which the paper owner uses or intends to use the land and the use made by the squatter does not conflict with that use, that may provide some support for a finding as a question of fact that the squatter had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner. For myself I think there will be few occasions in which such an inference could be properly drawn in cases where the title owner has been physically excluded from the land. But it remains a possible, if improbable, inference in some cases.
(i)While inconsistent use is not required, it may be a factor, where it is present, which is indicative of factual possession and of an intention to possess to the exclusion of the paper owner.”
What use was made of the Disputed Land by Jennings and his predecessors in title, Laming and his predecessors in title, and third parties?
Use of the Disputed Land by Jennings and his predecessors in title
23 Because Jennings has been registered proprietor of 2 Merimbula Road and using the Disputed Land only since 2008, he must rely upon the Howards as his predecessors in title if he is to succeed in any claim against Laming.
24 The Howards established an area immediately behind 2 Merimbula Road which they used and maintained until they sold their property after the breakdown of their marriage.
25 The Howards bought 2 Merimbula Road in 1986. They inspected the property more than once. On the second visit, the vendor, Mr Brown, took them out the back of the property and through a gate onto the Telstra Property. 2 Merimbula Road is close to trapezoidal in shape and covers an area of about 1700 square metres. The house is in the shape of a somewhat flattened V. One arm of the V is about parallel with, and approximately 1 metre from, the rear boundary of the property.
26 At the time of the Howards’ inspection of the property in 1986, the Telstra Property contained:
·gum trees and blackwood trees.
·a line of cotoneaster trees along the boundary of the Telstra land with 2 Merimbula Road.
·thick vegetation in the direction of 2A Merimbula Road at the triangular point where Nos 2, 2A and the Telstra Property met. There were other trees such as pines, oaks, maples and hill-type plants like camellias and rhododendrons elsewhere on the property.
·other parts of the property were taken up with other trees, scrubby areas and grassy areas.
27 During their time at 2 Merimbula Road, the Howards made changes to the property and also availed themselves of the Telstra Property.
28 In the year or two after buying 2 Merimbula Road, the Howards made changes to the area at the rear of the property. Glenn Howard cut down the stand of cotoneaster trees which partly hung over the roof and caused problems for the water tanks upon which the Howards were, at least initially, reliant. The tree removal revealed a mainly concrete and wire fence along the boundary between their property and the Telstra Property. Glenn Howard substantially removed the fence as part of his tidying work but left a couple of the concrete posts in place. Glenn cut back all the shrubs and trees to be clear of the house and removed the blackberries and other plants which obstructed the area. The Howards wanted more light in their house.
29 Glenn mowed part of the Telstra land to create a backyard area which the Howards could use. Glenn adopted a process of cutting the grass area with a high setting and then dropping the height and repeating the exercise. Gradually the cut area increased and the height of the grass diminished until it was close-cut like a normal backyard. He also mowed along the boundary between 2 and 2A Merimbula Road. Especially when his children were older and played with the two Brodie boys, who lived at 5 Merimbula Road, Glenn mowed a path so the boys had an easy shortcut between their respective houses.
30 Given the difference in levels, with the Telstra Property sloping down towards the Howards’ property, the Howards built steps up from their property onto the Telstra Property and also built a dry rock wall along the rear of their property. Glenn also put in a drainage ditch designed to reduce the flow of run-off water from the Telstra Property onto the Howards’ property.
31 Glenn Howard said that initially when he and his wife moved in, someone from Telstra using a Deutscher hand mower, would cut the grass on the Telstra Property. This continued for two or three years. Howard said that the person cut a narrow strip at the back of the houses along the eastern side of Merimbula Road and the northern side of One Tree Hill Road. The machine cut closer than a slasher employed with a tractor but did not cut as close as Glenn did with his Masport mower.
32 When the Telstra person cut the grass, he would be up against the rear fences abutting the Telstra Property. He would do two or three passes so that the width of his cut area was limited. Over time, the Telstra person cut only to the point where Glenn Howard stopped mowing, so the Telstra person restricted himself to the taller grass. This made sense at a practical level because there was no obvious benefit in attempting to cut an area which Howard had already cut – due to the nature of the machine used by Telstra, it was simply unable to cut to the same height as Howard or lower. The Telstra maintenance man continued to do two or three passes in the adjacent area so as to create a border between the bulk of the Telstra land and, except for the area which Howard had cut, the outer perimeter of the Telstra Property where it abutted the houses on Merimbula Road and One Tree Hill Road.
33 From the perspective of Glenn Howard, whose evidence I accept, at no time during this cutting process:
·was the slashed grass shorter than the grass in the backyard;
·did Glenn see the Telstra man drive over that part of the Telstra Property comprising the backyard which Howard had cut;
·was there a gap between the area of grass which Glenn had cut and the grass slashed by Telstra.
34 After establishing the backyard, the Howards then maintained it. The grass was mown as needed. When the grass grew quickly, Glenn would mow it weekly. For a short time in the summer, the grass usually browned off and did not grow and so no cutting was required.
35 The other significant maintenance work was clearing the backyard of debris and rubbish including fallen branches and the like. The extent and frequency of such work again depended on the season. It was always busy in the lead-up to summer because the Howards were keen to reduce the fire risk. Accordingly, they collected and burned off as much potential fire fuel as possible.
36 Commencing from a few months after moving to their new house, the Howards planted trees in the backyard: a lemon tree in late 1986 or early 1987 (replaced a few years later by another lemon tree because the first one was unproductive); a weeping cherry in the late 1990s; two plum trees in the mid‑1990s; a pine tree in about 1993; and a magnolia tree in the 1990s. Wendy Howard pruned and cared for the trees. She made jam from the plums which she grew and the family used the lemons in cooking.
37 In addition to the above, the Howards used the backyard for other purposes including burning off green waste, storing firewood, installing the clothes line (at some time between 2000 and 2005 after paving the area between the house and the bungalow and relocating the line) and recreational activities.
38 The recreational activities were varied. The backyard provided a play area for the Howard children and their friends. This seemed to be limited to when the Howard children were present. The Howards got a dog in about 1991 and it used the area until the Howards vacated the property. The family played various ball games often on a frequent basis: cricket, football, baseball, golf. These games often extended beyond the backyard into the Telstra Property more generally, especially as the boys grew larger. When the children were young, they flew kites in the backyard and used it for games such as treasure hunts and Easter egg hunts.
39 Finally, the Howards used the backyard for social occasions. These included birthday parties and other parties for the children, hosting Christmas on five or six occasions and other social gatherings when they had picnics or dinners with family or friends. The family also used the picnic table within the Disputed Land as an eating area and Glenn would sit there reading the paper and having a coffee (weather permitting).
40 I am satisfied from the evidence that the Howard family made extensive use of the Disputed Land or parts of it over many years commencing in 1986. The Jennings family bought 2 Merimbula Road from the Howards. Wendy Howard was primarily involved in the sale process. Glenn had already moved out of the property. The sales brochure which the real estate agents produced for the property noted that its area was 1724 square meters and made no mention of the backyard.
41 Once the asking price for the property reduced, the interest of Mr and Mrs Jennings in the property was rekindled and they attended an inspection of the property. Jennings bought the property by contract of sale dated 20 May 2008 and settled the transaction in July that year.
42 The use made by the Jennings of the Disputed Land was similar to that of the Howards.
43 Jennings had a ride-on mower and he regularly mowed the grass on the Disputed Land. He also engaged in extensive maintenance and gardening activity on the Disputed Land. Within a few weeks, or possibly months, of moving into the property, he transplanted a lemon tree from his front yard onto the Disputed Land. He removed at least five trees that he could recall from the Disputed Land. In addition, he planted two snow gums and three or four tea trees. Jennings said that this took place when his son was about 3.5 ‑ 4.5 years old.
44 I find that the Jennings family put the Disputed Land to various uses:
(a)Especially in the early years after moving to the property, Jennings undertook substantial work in clearing out the garden. As a result, he generated substantial amounts of green waste. Jennings frequently used the fire pits on the Disputed Land because, most days when he arrived home from work, he would venture into the garden and do some tidying before going inside. Jennings spent 28 years as a fire fighter with the Country Fire Authority. With this experience and background knowledge, he was particularly assiduous in the period from August each year until November/December in endeavouring to clear the land of fuel sources and to burn off as much as possible. In the years when he did a lot of clearing, he estimated he burnt off on the eastern fire pit about 20 times a year, and in less busy years, about 10 times a year. Whether or not he used the eastern fire pit or the southern pit depended partly on weather conditions and the wind. He was anxious not to have the smoke affect the family washing or that of his neighbour. For a period, due to the volume of material and green waste he was collecting, Jennings established a third fire pit near the southern pit.
(b)The Jennings family used the clothesline which, consistently with the instructions given by the Howards to the estate agent, was intended to pass to the purchaser pursuant to the contract of sale.
(c)The Jennings family stored firewood on the Disputed Land.
(d)The Jennings family used the Disputed Land for a variety of recreational activities: the family exercised and played with the dog frequently on the Disputed Land; common ball games such as cricket, soccer and football were played on the Disputed Land; the Disputed Land was used for frisbee throwing on a regular basis at weekends and, for a time, kite flying; the family played some tennis on the Disputed Land and also played with remote control toys; the Jennings children learned to ride motorbikes on the Disputed Land; a paddling pool and a sliding area were set up for use during the summer holidays.
(e)The Jennings family used a picnic table set up on the land for meals. The children played there and Jennings used the table area as a place to store gardening equipment whilst he was working on the land.
(f)Finally, the Jennings family used the Disputed Land as a place to gather for general social events, Christmas gatherings and birthday parties.
45 Again, I am satisfied from the evidence that the Jennings have made substantial use of the Disputed Land since they moved into the house.
Use of the Disputed Land by Telstra
46 While Telstra was registered proprietor of the Telstra Property, it made little specific use of the Disputed Land. Not unexpectedly, the focus of Telstra’s attention was the telecommunications facility including the tower and ancillary services located on the property. I have referred earlier to the maintenance which Telstra performed in relation to the cutting of the grass area within the property. After Telstra ceased undertaking that work, it engaged contractors for this purpose. Primarily, the entity performing the work was Broadspectrum Pty Ltd, formerly Transfield Services (“Transfield”), which won a national contract from Telstra. It seems the focus for that contract was cleaning work. In its turn, Transfield engaged sub-contractors to do the slashing work. While various witnesses gave different evidence, the consensus appeared to be that Telstra slashed the grass approximately twice per year. Before slashing, the grass could be knee high or more. After slashing, the grass was still notably higher than the cut grass on the Disputed Land. This applied to the time during which both the Howards and Jennings were registered proprietors of 2 Merimbula Road. The evidence included aerial photos taken at different times which showed two distinct areas of grass in that part of the Telstra Property behind 2 Merimbula Road.
47 Jennings argued that the lines created by the slashing did not enter or exit from the Disputed Land. Thus, it was said that Telstra, through its agents, did not enter into the Disputed Land. Various witnesses gave testimony to the effect that they saw no signs of a slasher entering the backyard area, such as tyre marks on the ground or broken branches in trees or bushes. This evidence included witnesses who were in a position to see the Disputed Land during business hours.
48 Jennings also contended that the existence of trees in the backyard area effectively barred the passage of a tractor. It is difficult to assess the veracity of this submission because there is no sufficiently clear evidence about the appearance of the Disputed Land at various times between 1986 and the present day. From my view of the Telstra Property and the photos in the Court Book, I accept that parts of the Disputed Land would have been impassable by a tractor with an attached slasher. However, this limitation was not applicable to the whole of the Disputed Land. Nor would it have necessarily been the case at all times since 1986.
49 Telstra’s records about the maintenance of the Telstra Property did not assist in clarifying matters. Troy Maple of Programed Management Services, a sub-contractor to Transfield, could not give any specific evidence, either documentary or oral, about entries by or on behalf of Telstra onto the Disputed Land. This was perhaps understandable in circumstances where Maple was responsible for managing about 1,500 sites. The records produced at the trial were vague and gave no detail about any work actually performed on the Disputed Land.
50 When attending to matters at the tower nearer the Disputed Land, Telstra personnel normally drove along the unpaved roadway from One Tree Hill Road. There was evidence of an occasion upon which a tree or branch fell across the path and cars deviated from the path to the left towards the Disputed Land before heading back to the tower. This was a temporary problem. The evidence was sufficiently vague that I could not find that Telstra vehicles actually drove on the Disputed Land.
51 Over the period from 1986 to the present, Telstra engaged surveyors to go on the Telstra Property for various reasons. I shall examine this evidence and its potential significance in greater detail later in the judgment.
52 After Telstra subdivided the Telstra Property and sold to One Tree Hill Pty Ltd, the buyer’s director, Matthew Gabelich, conducted limited maintenance work on the property. He mowed occasionally but only those parts of the property which Jennings had not already mown.
53 After Laming bought Lot 1 from Gabelich (or his company), he leased the property to his daughter and son-in-law. Collectively, they did some maintenance in terms of clearing debris and rubbish. Also, Laming had a ride‑on mower and on one occasion, he drove it onto the Disputed Land even though the grass there was already short. Laming conceded, in effect, that his conduct was more a demonstration of intent than a genuine attempt to cut the grass on the Disputed Land. Last year, Laming installed a waste water treatment system partly within the Disputed Land. This was done at a time when the current dispute between the litigants had commenced. A camera also recorded Laming and another person, probably his son in law, sitting at and using the Jennings’ outdoor table on the Disputed Land.
Use of the Disputed Land by Third parties
54 Various third parties used the Telstra Property and possibly the Disputed Land. The third parties were primarily walkers and children.
Barbara Rose
55 Barbara Rose lived at 11 Merimbula Road from about 2000-2001. She and her husband walked on the Telstra Property from when they first moved in. During their time living at Ferny Creek, they had two or three dogs and they would let them run off the lead within the Telstra Property. Over the period of about 16 years, Mrs Rose’s frequency of walking varied. Originally it was 3-4 times per week, then she stopped or at least reduced her walking before she “got going” again and resumed walking 3-5 days per week including before work and at the weekend. After she retired in April 2014, she walked 4-5 days per week at different times of the day, including the middle of the day. She stopped walking about one year ago when Laming’s daughter and son-in-law moved into their house at 4 One Tree Hill Road.
56 Mrs Rose had different routes she took for her walks. Initially, for quite a few years, she and her husband would walk down Merimbula Road to One Hill Tree Road and then walk through the gate at the entrance to the Telstra Property and up at the path to the tower in the north-eastern corner of the property before returning the way they came. If the grass had been mown, they would sometimes return to One Tree Hill Road, not by the path but along the perimeter section of the property at 6 Merimbula Road and then proceeding south-west to 2A Merimbula Road and then along the side of 6 One Tree Hill Road. Mrs Rose had said that in the first 9-10 years they lived in Merimbula Road, they walked on the Disputed Land only about five or six times each year. In the 2-3 years before the trial, they walked through the Disputed Land 3-4 times.
57 Mrs Rose said that when she walked through the Disputed Land, she walked about 10 metres from the fence line of 2 Merimbula Road. She stayed on the eastern side of the row of trees and clothesline because she wanted to respect the privacy of the home owner at that property.
58 Mrs Rose said that no one told her that she could not walk on the Telstra Property. She saw other people on that property walking dogs, picking blackberries and mushrooms. These other people were not on the Disputed Land.
59 The only time Mrs Rose had asked Jennings if she could walk through his land (because she felt unwell), he refused permission.
60 Mrs Rose said that she saw Darrell Jolly mowing parts of the Disputed Land where it overlapped with the rear of his property at 2A Merimbula Road. She said that she saw him mowing there about 10 times. His children played near a tree close to the Disputed Land where a swing was attached to the tree.
61 Mrs Rose agreed that because Telstra only cut the grass on its property a couple of times a year, it tended to get quite long. She would not walk in the long grass, partly because of snakes and partly because the ground was uneven and she could not easily see potholes or pieces of fallen wood which might cause injury.
62 When asked if the clothesline was installed on the Disputed Land shortly after she moved into her house in 2001, Mrs Rose said that she could not remember exactly when it was installed but it had been there “an awful long time”. She supposed that the established trees clustered near the clothesline had been there the entire time she had lived in the area but she did not know for sure. She agreed that the area around the clothesline had always been mown. The same applied to the rear of 2A Merimbula Road, Jolly’s property.
63 Mrs Rose agreed that the land behind 2 Merimbula Road was being used for people to play on. She regarded it as parkland belonging to Telstra. She believed it was nice of the Howards and the Jennings to mow the Disputed Land for everyone else to use.
64 Mrs Rose was a credible witness who answered questions carefully and conscientiously. I generally accept her evidence.
Anna-Marie Shew
65 Anna-Marie Shew lived at 16 Alpine Road, Ferny Creek, close to 4 One Tree Hill Road, for about 31 years between 1979 and 2010. She first began walking on the Telstra Property in the 1980s with her husband. She knew the Howards because their sons were in kindergarten and school together. She was aware that Glenn Howard mowed the area behind the property and maintained it and used it for playing games.
66 Mrs Shew said that she did not seek permission to walk on the Disputed Land, nor was she told not to walk on it. Even in 1995, she only rarely walked on the Telstra Property. Normally she accessed the land through the top of Merimbula Road. After the bushfires in 1997, she said that there were few fences to impede entry into the Telstra Property.
67 Mrs Shew said that, at least some of the time, she walked the perimeter of the Telstra Property in the vicinity of the Disputed Land.
68 She said that she also attended training exercises with the Country Fire Authority (“CFA”) at the Telstra Property around 2006-2007. This work was to prepare the firefighters to deal with real fires. While she was not able to be specific about precisely where the Country Fire Authority trucks conducted their exercises, she said that it was in a cleared area close to the buildings at the main tower. She was simply unable to say whether they encroached onto the Disputed Land. On the basis of her evidence, I am not satisfied that the CFA went on the Disputed Land.
69 Mrs Shew said that part of the attraction of the Telstra Property was that you could let dogs off the lead because most of the area was fenced. When the grass was longer, due to the danger posed by snakes, she stayed on the main driveway path rather than walking through the grassy areas.
70 Mrs Shew stated that, apart from walking on the Telstra Property, she looked for blackberries. She stated in her evidence-in-chief that there was an overgrown area behind the Howard’s house where there were blackberries. In cross-examination, she conceded that she might have been wrong about the location of the blackberries and that they were more in the area near the rear of 2A Merimbula Road and 6 One Tree Hill Road. This was consistent with the evidence of Wendy and Glenn Howard (which I accept) that they were careful to remove any blackberries growing on their property or on the Disputed Land. On this basis, I consider that Mrs Shew’s recollection about the location of the blackberries was mistaken.
71 Generally, Mrs Shew was a talkative witness who appeared to find it difficult to restrict herself to merely answering the question. She provided plenty of information, much of which was not sought. I accept that she attempted to give truthful evidence, but in my view, her recollection was not as accurate as she made out.
Alan Potts
72 Alan Potts lives at 23 One Tree Hill Road and has been a member of the Country Fire Authority for 35 years, joining in 1982. He said that the CFA used the Telstra Property for grassfire training because it was the only clear paddock available in the area for the purpose. He said that the CFA normally performed training drills there once or twice each year. I note that this evidence was different from the evidence of Mrs Shew who, although she was secretary of the Sassafras-Ferny Creek CFA and a firefighter from 2005 till 2010, only attended one fire training session at this property and missed the session on only one other occasion.
73 The CFA had access to the Telstra Property because it had a padlock on the main gate to the property at One Tree Hill Road.
74 From Potts’ evidence, it seems unlikely that the CFA drills were conducted close to the Disputed Land. This is because in the course of his evidence, Potts said that he did not recall:
·the clothesline on the Telstra Property;
·fruit trees on the Disputed Land;
·fire pits on the Telstra Property;
·an area like the Disputed Land where the grass was closely mown and not like the rest of the grassy areas in the Telstra Property.
Moreover, Potts said that out of respect for local residents, if they had seen an unfenced area with a clothesline, lemon trees and nicely mown grass, the CFA would have kept away from it.
75 In the circumstances, I consider it more likely than not that the CFA training drills were conducted on Lots 4A and/or 4B One Tree Hill Road. Alternatively, if some training occurred on Lot 4 One Tree Hill Road, then it took place close to the tower and the communication buildings. I find that the CFA did not go onto the Disputed Land for their training activities.
76 Potts gave limited evidence relating mainly to the CFA. I accept that he was a truthful witness.
Susan Coad
77 Susan Coad lived at 12 Highview Road which backed onto the Telstra Property. She has lived there for 29 years, moving into the house in late 1986 or early 1987.
78 Mrs Coad walked on the Telstra Property with her dog from soon after she moved in. Mrs Coad had no fixed routine – she might walk four or five times in a month and then not at all in the following month. She allowed the dogs to walk off the lead when they were on the Telstra Property and had no preferred routes for her walks.
79 At one point, Mrs Coad said that when she wanted a long walk, she would take the route by the boundary fence. She did not recall when she last walked that way but believed it was no later than 2009. Her idea of walking the boundary was to be within easy access of the fenceline of the properties on Merimbula Drive. This meant that the fence was 5-6 metres away. She said that no one challenged her about walking near the back fences. Nor did she seek any permission to do so. She said that she saw other local people on the Telstra Property looking for mushrooms, blackberries and playing cricket. She was not specific about where these people were relative to the Disputed Land.
80 Mrs Coad was not a persuasive witness. She seemed rather casual and flippant in her evidence and did not seem to treat seriously her role as a witness. Her manner was off-hand and her memory was of limited utility. She could not recall:
·any clothesline on the Telstra Property;
·smaller suburban trees such as lemon trees and weeping cherries on the property (as opposed to the very large established trees which grew on it);
·people gathering up green waste on the property and preparing to or actually burning it off in the fire pits on the property.
81 If Mrs Coad had walked close to the boundary fence of the Telstra Property, and especially if she walked near to the Howards’ home, I would have expected her to notice the clothesline and the fruit trees. These trees looked quite different from the larger established trees on the Telstra Property and the clothesline strikes a discordant note in this bush setting. It is obvious and stands out.
82 Mrs Coad on occasion answered questions in a particular way but then said something which was inconsistent with that prior answer. For example, when speaking of walking on the Telstra Property when the Howards were playing in the backyard, she said that if the ball came her way, she would throw it back and then go and have a chat to the Howards. Asked if she could specifically remember having a chat to the Howards, she said, “Not particularly”. Also, she said that her daughter would take her horse onto the Telstra Property and ride it around in the 1990s. When asked if she saw her daughter doing this, she answered, “Yes, I did”. When asked to indicate on a map of the Telstra Property where the daughter rode, Mrs Coad said that she did not know, “Because I wasn’t there with her exactly”.
83 Overall, Mrs Coad was not a reliable or credible witness.
Sarah Krumins
84 Sarah Krumins has lived at 14 Highview Road, Ferny Creek since 1971 when she was eleven years old. The back of her property is very close to the Telstra Property. Within days of moving in, she said that she began playing on the Telstra Property and later built cubby houses, rode horses and motorbikes on it. After marrying at seventeen and having children, she ceased riding horses and motorbikes but would walk on the property, often with her dogs. She would not walk on the Telstra Property when the grass was long due to the presence of snakes. Her walks were a bit irregular and depended on the weather, the length of the grass and how energetic she felt. In general terms, she said she walked on average once or twice each month.
85 Mrs Krumins was familiar with the Disputed Land and said that usually she used to walk not on the fenceline but at a distance – about “twice the length of the Courtroom” away from the fenceline. This distance would be about 30 metres. After 1997 when fires swept through the area and destroyed houses and fences, she said that she would walk closer to the fenceline. She did not seek anyone’s permission to walk on the Telstra Property or the Disputed Land and no one warned her off the property. While she saw a lot of people walking through the Telstra Property at different times, often with a dog, and children playing footy or other games, she saw no such activity on the Disputed Land.
86 Mrs Krumins also gave some evidence about her time in the CFA. She engaged in training exercises on the Telstra Property three or four times over 10 years but said that none of the training took place on the Disputed Land.
87 I regarded Mrs Krumins as a credible witness who sought to tell the truth. Her evidence was relatively confined, at least regarding the Disputed Land.
Darrell Jolly
88 Darrell Jolly began living at 2A Merimbula Road from about August 2000 and stayed there until November 2014. When he first moved in, there was no fence on the boundary between his property and 4 One Tree Hill Road. He constructed a boundary fence in order to keep his dog and chickens within his property. However, he erected a gate in that fence so that he still retained access to the Telstra Property. The gate was located about 10 metres from the boundary with the property at 6 One Tree Hill Road.
89 At the time he moved in, Jolly worked for the Knox City Council in the Parks and Gardens Department. Once a fortnight, he would bring home a Deutscher self-propelled mower from the Council and would cut the grass on his property and also part of the Telstra Property immediately behind his land. After he left the employment of the Council in 2006, he continued to cut the grass on the Telstra Property but he cut a much smaller area because he was reliant upon a hand mower. Jolly said that he mowed into the Telstra Property for about 20 metres or more to keep the area clean, to prevent fire and for the general outlook and amenity.
90 Jolly said that he used the Disputed Land as a storage area where he could put his timber, pine logs, rocks, stones and a fire hose. He said that he would walk on the Disputed Land and that his children used to play on it when they were younger. In addition, Jolly said that he planted trees behind his boundary on the Telstra Property, including on part of the Disputed Land. He said that he planted about 12 Manchurian pear trees to help block the view of the tower on the Telstra Property. In addition, he planted daffodils in circles around a number of those trees.
91 Jolly said that he did not seek permission from anybody to plant trees, walk on the Telstra Property or the Disputed Land or mow the grass. He said he was never warned off the land. Jolly said that he went on the Disputed Land weekly or fortnightly as required. He said that because he was an avid gardener, he would go out there and put his green rubbish on the Telstra Property. Jolly said that he would walk on the Disputed Land and be relatively close to the Jennings’ property.
92 Jolly said that he observed members of the local community walking on the Disputed Land and adjacent area. In particular, he said that Bill and Barbara Rose would walk in that area with their dogs and would talk to him. He saw them walking a couple of times a week for as long as he lived at that house. He said that he saw other people taking a similar route but he did not know these people and he saw them infrequently.
93 With respect to the mowing of grass on the Telstra Property, Jolly said that in relation to the Disputed Land, Glenn Howard mowed it, Jennings mowed it and Telstra mowed it. He said that although Telstra mowed the Telstra Property far too infrequently, about twice a year, when it mowed, it mowed the whole area including the Disputed Land.
94 Jolly said that through discussions he had with Glenn Howard and Martin Jennings, he was aware of the location of the title boundary to 2 Merimbula Road and knew that it was close to the back door of the property. He was also aware that the clothesline and nearby trees were located on the Telstra Property. Jolly agreed that he was involved in making a number of offers to purchase from Telstra part of the Telstra Property adjoining the rear of several houses.
95 In cross-examination, Jolly agreed that insofar as he mowed part of the Disputed Land, it was that area south of an imaginary line which represented the continuation of the boundary between his property and 2 Merimbula Road.
96 Jolly believed that the Howards’ clothesline was present on the Disputed Land from the time that he moved in. He also believed that the trees nearby to the clothesline were also there, namely the two plum trees, the lemon trees, the weeping cherry and the magnolia tree.
97 Jolly agreed that the backyard area immediately behind the Howards’ property was treated differently from the rest of the Telstra Property. Jolly agreed that he would not have walked between the line of trees and the clothesline and the Howards’ property. He understood that they treated that area as their own. However, he said he did not understand that they considered the balance of the Disputed Land to be their property. Only the smaller area was treated as the backyard.
98 I regard this last comment about the size of the backyard as representing Jolly’s opinion. But in my view the area treated by the Howards as the backyard extended beyond the area of land between the title boundary of 2 Merimbula Road and the line of trees and the clothesline. It is clear both from the evidence and my view of the land in question that this was a relatively small area and would not have constituted much of an area for 3 boys to play in. Indeed, I would not imagine that the boys’ ball games and play activities could be confined to such an area. Given the abundance of space available and the lack of constraint in using it, I find that the area of the Howards’ backyard extended beyond the region described by Jolly and beyond the diagonal sliver of land which the Howards considered buying from Telstra.
99 Consistently with the mowing which Jolly performed on the Disputed Land, he agreed that whenever he stored material on the Disputed Land, it was on his side, the southern side, of the imaginary line continuing the boundary between 2A and 2 Merimbula Road.
100 When it was put to Jolly that Barbara Rose had given evidence different from his regarding the extent to which she walked on the Disputed Land, Jolly accepted that her recollection was likely to be more accurate than his own.
101 It is significant that Jolly said that he actually saw the Telstra representative with the tractor and slasher cutting the grass on the Telstra Property and actually driving over the disputed area. He said that every time he saw the slasher cutting the grass, it drove over the Disputed Land. Jolly did not say how often he saw this. The defendant did not challenge Jolly’s evidence on this issue.
102 Jolly, like the other witnesses, sought to tell the truth as he recalled it. Given that he lived at 2A Merimbula Road from only 2000, he did not have to remember as far back as some other people involved in the case. Jolly was credible and freely acknowledged where he might have been mistaken or where another person’s recollection might have been more accurate than his. I regard him as a generally reliable witness.
Telstra technician and CFA headquarters
103 According to the plaintiff:
(a)In the late 1990s or early 2000, Brett McGie and Wendy Howard saw a Telstra employee “carrying out radiation testing in the Disputed Land and/or along the whole fence line boundary”;
(b)The CFA had its control centre on the Disputed Land during or immediately after the 1997 bushfires when the Howards were in Manly.
104 I accept the evidence of Mr McGie that he saw and spoke to a Telstra contractor who said that he was testing the boundary of the Telstra Property for microwave leakage from the main tower. Mrs Howard could not recall whether she saw anyone testing for radiation. She said she may have heard something about it.
105 As to the CFA, contrary to Laming’s submissions, there was no direct evidence from any witness about the location of the CFA control centre during the 1997 bushfires. Mrs Howard said that someone had told her that during the 1997 bushfires, the CFA had about 20 fire trucks parked on the Telstra Property. By the time the Howards returned from Manly, the CFA had gone. Mr Potts, who was with the CFA at the time of the fires, gave no specific evidence to the effect alleged by Laming. Laming overstated his case on this point by elevating hearsay evidence to the same level as firsthand evidence. This is to be deprecated, especially when witnesses such as Potts and McGie were present at the time of the bushfires but did not give evidence supporting the submission made.
Summary of the position regarding use of the Disputed Land
106 On the basis of the evidence led, I make the following findings in relation to the use made of the Disputed Land:
· The Howards extensively used the Telstra Property where it abutted their house from late 1986 until they sold in 2008. They cleared trees and undergrowth from the boundary area between the two properties. They mowed an area of grass and used it consistently with their view that it was their backyard. They planted trees. The Howards and their children used the area to play, to relax in and to entertain.
· Once they bought the Howards’ property, the Jennings family made similar use of the Telstra Property abutting the house. Using his ride-on mower, Jennings extended the mown area so it became larger than when the Howards lived at Merimbula Road. The Jennings planted more trees and made greater use of the clothesline than their predecessors. The Jennings family used the Disputed Land to play, to relax in and for entertaining.
· None of Mrs Rose, Mrs Shew, Mrs Coad or Mrs Krumins said that they walked on the Telstra property after obtaining consent or approval from Telstra. If they walked on the Disputed Land, they did not seek permission from the Howards or Jennings. Neither the Howards nor Jennings ever told any of these people not to walk on the Disputed Land or sought to warn them off (although Jennings refused Mrs Rose permission to walk from the Telstra Property through his land to her house).
· The consensus among virtually all the witnesses[3] was that there was a notable demarcation between the mown grass in the disputed area and the slashed grass on the Telstra Property. The mown grass was always shorter and cut more frequently than the grass on the Telstra Property.
[3]Gary Waite of Peyton Waite Pty Ltd was different. He said that the grass in and around the disputed area was consistent with the rest of the property.
· The Howards and Jennings have not been present to see third parties walking on the Disputed Land. However, the camera installed by Jennings has photographed persons on or in the vicinity of the Disputed Land.
· The Howards and Jennings did not attempt to fence off or otherwise separate the Disputed Land from the Telstra Property. Nor did they place any warning signs on the land directing people not to walk on the Disputed Land. Notwithstanding this, walkers on the Telstra Property like Mrs Rose appreciated that the mown area comprising the Disputed Land was treated differently from the balance of the Telstra Property. Mrs Rose chose not to walk on the Disputed Land between the line constituted by the clothesline and trees planted by the Howards, and the rear of the house at 2 Merimbula Road. Mrs McGie said she thought of the fruit trees as belonging to Wendy Howard and Mrs Howard would make jam from their fruit.
Did the offer by the Howards to Telstra constitute an acknowledgment of Telstra’s title within the meaning of sections 24 and 25 of the Limitations Act?
107 Glenn and Wendy Howard both agreed that they made a written offer to Telstra to buy a triangular wedge of land on the Telstra Property immediately adjacent to their own land. The triangle fell within the Disputed Land. Glenn Howard said that the Browns (the previous owners) left them some documents which explained how part of the rear of the property had been compulsorily acquired by the Commonwealth for the installation of a ground net. As a result, the Commonwealth basically took a chunk off the back of the original property. The Howards made contact with Telstra in writing expressing an interest in buying back that portion of the land which had been taken. Telstra’s compulsory purchase changed the boundary line and pushed it nearer to the Howards’ house. If the Howards had completed the purchase of the wedge of land, it would have squared-up the boundary and extended the boundary further away from the house. Glenn Howard said that they made a written offer to Telstra but he could not find a copy of the offer.[4] He was unsure about the date but believed it was between the mid-1990s and 2000. Telstra responded to the offer by saying that it was interested in selling the land at the applicable market rate. Once the Howards performed the calculations for the purchase, they did not pursue the matter further because they were not in a financial position to afford it.
[4]Provided the offer was written, if it cannot be produced, it is permissible to give parol evidence of it: Read v Price [1909] 2 KB 724.
108 Mrs Howard agreed that she and her husband made an offer to buy a triangular piece of the Telstra Property behind them in about 1992-3 after her husband took a voluntary departure package from work. She agreed the aim was to square-up the boundary to their land. She said it did not relate to the whole of the Disputed Land, nor did it include the whole of the area which they were maintaining and utilising at the time.
109 Laming argued that offering to buy the land from the paper title owner is inconsistent with an intention to exercise custody and control over the land for one’s own benefit and to the exclusion of the world at large including the paper owner. He argued that it was an acknowledgment of the paper owner’s title. He contended that a party claiming adverse possession does not offer to buy land which one believes has already been acquired.
110 Jennings raised a preliminary point about the alleged acknowledgment by the Howards of Telstra’s title to the Telstra Property and the potential significance of the acknowledgment. Jennings contended that the various acknowledgments which Laming alleged in the reply made no reference to the Howards. Thus, Jennings argued that this matter was not properly before the court and I should pay no regard to it.
111 Laming contended that the matter could not have been pleaded before trial in the usual way because it only arose in the cross-examination of Glenn Howard, the first witness in the case. Laming referred to the arrangement made between counsel at the outset of the trial whereby there was not to be rigid reliance upon the pleadings. It appears that, at least in part, this was because the known facts were limited and there were approximately 27 witnesses to be called. Rather, the agreement between the parties seems to have been that Jennings would go first and open his case and then Laming would open his case and explain on the facts known at the time what defences he was taking and thus what case Jennings had to meet.
112 These disputes are often difficult to resolve. One party insists upon the strict application of the pleading rules and established learning about surprise allegations and reliance upon unpleaded claims. The other party advances reasons why rigid adherence to the rules does not necessarily give effect to the ends of justice.
113 On balance, I consider that Laming should be able to raise the issue of the offer to purchase made by the Howards to Telstra. I say this for several reasons.
114 First, I accept that the matter was not expressly raised in the pleadings because Laming was not aware of the Howards’ offer to purchase. Reasonably enough, a party cannot plead what it does not know. But I have no reason to believe that the omission was intentional or formed part of a calculated strategy by Laming. Had this been the case, my attitude would have been different.
115 Secondly, the evidence was given by the defendant’s first witness in his cross-examination. Until late in final address, Jennings’ counsel had made no objection to the plaintiff using the evidence from the Howards regarding the offer to purchase or placing any reliance on it. This was in a context where the evidence had the potential to be significant due to the terms of the Limitations Act. So, although Glenn Howards’ comment about the offer (later supported by his former wife) was made early in the trial, it did not become an issue until the end of the trial. Before final address, Jennings made no application to exclude the evidence or to limit the reliance which Laming could place upon it.
116 Thirdly, the issue thrown up by the evidence – namely acknowledgment of title – was expressly addressed by Laming in his opening submissions. Laming referred to certain alleged offers to buy some or all of the Telstra Property and the consequences which might flow due to the operation of sections 24 and 25 of the Limitations Act. To that extent, Jennings was alive to the relevant area of law and its significance. It remained to consider the application of the same governing principles in the context of another offer to purchase. Hence, it was not as if the plaintiff sought to introduce only at the end of the case an entirely novel point of law.
117 Fourthly, I offered counsel for Jennings the opportunity to make any application in relation to the point raised by Laming. For example, I thought it possible that Jennings might wish to seek a brief adjournment or to further examine Glenn or Wendy Howard. The point of my offer was to address any unfairness which Jennings faced if Laming were permitted to rely upon the evidence. Counsel did not seek an adjournment or make any application to further address the point. I suspect this was because Jennings addressed the acknowledgment point in his submissions and there was nothing of substance which he could do to change or affect the evidence given by the Howards on the making of the written offer. Thus, I consider that Jennings would likely have run his case in the same way as he did whether or not the Howards’ evidence about the offer to purchase had been given.
118 As I understand it, the evil to be avoided by allowing in final address arguments which have not been foreshadowed by the pleadings or openings or otherwise, is that one party is taken by surprise and cannot properly address the point. If the party had known the point which its opponent would seek to make, there was other evidence which it could have called or a legal doctrine which it could have invoked to meet the point. However, here, Jennings did not identify anything which he would or could have done differently to address the issue. To that extent, the scope of any unfairness suffered by Jennings is minimal.
119 Section 24 of the Limitations Act provides as follows:
(1)Where there has accrued any right of action (including a foreclosure action) to recover land or any right of a mortgagee of personal property to bring a foreclosure action in respect of the property, and—
(a) the person in possession of the land or personal property acknowledges the title of the person to whom the right of action has accrued; or
(b) in the case of a foreclosure or other action by a mortgagee, the person in possession as aforesaid or the person liable for the mortgage debt makes any payment in respect thereof, whether of principal or interest—
the right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.
(…)
Section 25 of the Limitations Act states that the acknowledgment is to be in writing signed by the person making the acknowledgment. The acknowledgment by the person (or his agent) is to be made to the person (or his agent) whose title or claim is being acknowledged.
120 It is well established that a possessory claim will be defeated if the possessor acknowledges the title of the paper owner and an offer to purchase the property by a person claiming possession will often be treated as a form of acknowledgment of the superiority of the paper owner’s title.[5]
[5]Refina Pty Ltd v Binnie [2009] NSWSC 914 at [29].
121 However, the courts are wary of laying down general rules on the issue because it always depends upon the context of the alleged acknowledgment and the actual terms of the acknowledgment. Where there is a simple situation of a person offering to purchase a property, that person is saying, as between himself and the person to whom the offer is made, that the offeror realises and accepts that the offeree has a better title to the land in question than the offeror. This is a plain form of acknowledgment.[6]
[6]Edginton v Clark [1963] 3 All ER 468, 471.
122 By way of comparison, a letter challenging the ownership of the paper owner, but offering by way of compromise to accept a tenancy, is not an acknowledgment.[7] Negotiations for the compromise of a bona fide claim for possessory title do not of themselves equate to an acknowledgment of title, at least where they do not result in a final bargain.[8] The position was summarised by Windeyer J in Phillips v Marrickville Municipal Council[9] as follows:
While it is clear that a simple offer to purchase from the documentary title owner would usually amount to confirmation … that cannot be said to be the position when such an offer is made as part of negotiations between parties claiming entitlement to land in dispute: Edginton at 377; Cawthorne v Thomas (1993) 6 BPR 13840 at 13845.
[63](1994) 11 WAR 505, 505.
[64](1994) 11 WAR 505, 515.
220 Secondly, the court found that the owners had means of knowledge, ‘due to the presence of double gates into lane and the opportunity to observe use’.[65] Although the respondent most likely did not have actual acknowledge, the court found that:[66]
He had means of knowledge of the adverse claims because if he had walked onto his property he would have observed the double gate in the fence around Lot 28. It was much more than a clue to an adverse claim. Furthermore he might have observed adverse use.
[65](1994) 11 WAR 505, 505.
[66](1994) 11 WAR 505, 515.
221 The defendant relied on this case in his closing submissions, citing it as authority for the court’s ability to find constructive knowledge in certain cases. Certainly, some parallels can be drawn with that case and the present dispute. First, both cases concern a servient owner who had both legal and beneficial ownership of the relevant property at the relevant time of the alleged easement. Secondly, in both cases there were physical signs of use on the servient tenement which any passing observer (and any diligent landowner) could notice. Thirdly, although the proprietor of the servient tenement could have seen clear evidence of use if he or she had acted diligently to protect his or her interest in the land and had actually inspected it, the proprietor failed to do this.
222 The English case of Diment v NH Foot Ltd[67] introduced a presumption of knowledge in certain cases, which has been considered and applied in several Australian cases.[68] In that case, Sir John Pennycuick VC said that, where long user has been demonstrated – in that case in excess of thirty years – there is a rebuttable presumption that the owner of the servient tenement knew of such user.[69] A key question raised in that case was whether this presumption should apply to an agent of the servient tenement owner; if not, actual knowledge of the agent would have to be shown.
[67][1974] 2 All ER 785.
[68]See eg, Wayella Nominees Pty Ltd v Cowden Ltd [2003] WASC 210; Fernance v Simpson [2003] NSWSC 121; and Sunshine Retail Investments Pty Ltd v Wulff [1999] VSC 415.
[69][1974] 2 All ER 785, 791-92.
223 A recent Victorian authority on the area, Sunshine Retail Investments Pty Ltd v Wulff,[70] deals with the question whether the owner of the servient tenement knew of the alleged easement. In that case, Hedigan J found that Rosuma Pty Ltd, the owner of the servient tenement, did not have actual knowledge of the user of its land as a shortcut by residents of the adjacent cul-de-sac (Woodside Crescent) through to the main street (Mathoura Road). This finding was based on evidence that the directors of Rosuma had no actual knowledge of the users, despite the regular visits made by Mrs Unger, one of the directors, during the relevant period.
[70][1999] VSC 415.
224 In relation to Mrs Unger’s state of knowledge, Hedigan J stated:[71]
[71][1999] VSC 415, [111].
Naturally, because of the concrete apron and concrete paths, there had been no track worn into the pathway to suggest use of it as a cut-through, no wheel tracks, no gates, that is, the sort of indicia that were considered in cases like Gangemi v Watson (supra); Neville v Dale (supra) and Diment v Foot (supra). It seems to me that on the sporadic visits made by Mrs Unger herself, that is, as the director and one of the two moving spirits of Rosuma, it was a reasonable conclusion that the people she saw walking along the pathway were tenants or tenants' guests or on building business. Another way of putting it is that it does not appear that there was much to put Mrs Unger on inquiry as to whether those she saw on the pathway were trespassers. The existence of the opening of the back fence and the apparent attractiveness of the shortcut to Toorak Village was not, in my view, sufficient to fix Rosuma with constructive knowledge of user, if they failed to make any inquiry.
As such, Hedigan J found that on the occasions that the owner, through Mrs Unger, was actually present on the servient tenement, there were no readily discernible signs that an easement was being used. Without further inquiry, the servient owner had no means of knowing whether any passers-by were connected to the tenants, as friends, relatives or guests. For this reason, Hedigan J found that the owners had no actual knowledge of the user.
225 The reference to ‘indicia’ of user is significant, as it suggests that their presence may be sufficient to put an owner ‘on inquiry’. Language such as this suggests that there may at times be a certain objectivity with respect to knowledge of user. Where such elements are present, whether permanent or semi-permanent as in the present case, this can be grounds for fixing a servient owner with constructive knowledge.
226 Hedigan J then turned to the question of whether the owner might have had constructive knowledge by means of the actual knowledge of an agent. During the relevant time there were two managing agents of the property, who gave evidence that they neither noticed nor became aware of any residents using the property as a shortcut. Citing Diment v NH Foot Ltd[72] as authority, Hedigan J acknowledged that only actual knowledge of an agent can be imputed to its principal.
[72][1974] 2 All ER 785, 791-92.
227 Sunshine Retail can be distinguished from the present case on a number of grounds.
228 First, the person mowing the Telstra property from at least late 1986 until about 1990 would have had actual knowledge that part of the land was being used differently from the rest of the Telstra Property. Between about late 1986 and 1989, the mowing person was a Commonwealth employee, and thereafter, a contractor.
229 Secondly, in both 1995 and 1997, Telstra performed surveys of the boundaries of the One Tree Hill Road property, especially in the vicinity of 2A Merimbula Road. I infer that the surveyor in 1995 saw the state of the Disputed Land and realised that near the rear of the Howards’ property the Telstra land was in a different condition from the rest of the Telstra Property. The same applies to Keith Jones who acknowledged that in 1997 he went onto the Disputed Land around the point area where 2, 2A and the Telstra Property meet.
230 Thirdly, whereas in Sunshine Retail the only means by which the owner or agent of the servient tenement could be put on inquiry regarding the easement was through actually witnessing its use by persons who were not tenants or associated with them, in this case the owner or agent could be put on inquiry by being in proximity to the Disputed Land where there were visible signs of its use as a backyard: the closely mown grass, and later, the domestic fruit trees and the clothesline, which appeared sometime between 2000 and 2005. Hence, if Telstra had been at all diligent in protecting its interest in the Telstra Property and had actually inspected the land or its boundaries, it would have discovered evidence of the use to which others had put the Disputed Land.
Submissions
231 In the present case, Laming submits that Telstra had no actual knowledge of the use of the Disputed Land, initially by the Howards and later by the Jennings. He further submits that, with regard to constructive notice, Telstra had ‘no reasonable opportunity of becoming aware of the alleged user or that a right over its land was being asserted’.
232 A reason for this state of affairs, Laming contends, is that Telstra is ‘a large corporation which did not maintain personnel on country sites such as this site’. Laming therefore asks the court to take into account the typical use of the land by its title owner, rather than applying an objective measure of a reasonable landowner.
233 In light of the authorities, I do not accept this submission. The authorities cited above indicate through their use of expressions such as ‘reasonable’ and ‘diligent’, that some objectivity should be applied in considering the issue of knowledge. I accept the evidence of Julian McKernan, Telstra’s general manager of transactional investments, that the inquiries he commissioned into the records of the three relevant Telstra divisions revealed that Telstra had no knowledge of anyone occupying or using part of the Telstra Property. To that extent, on the sole basis of the written records examined, it might be said that there was no written evidence revealed of Telstra knowing about the Disputed Land. However, that is not the end of the matter. In circumstances where:
· at least for the period from about late 1986 to 1989, a Commonwealth employee cut the grass and possibly carried out other maintenance on the Telstra Property, including the area of the Disputed Land;
· throughout the time that the Howards and Jennings lived at 2 Merimbula Road, employees of the Commonwealth and, after November 1991, employees of Telstra, attended at the Telstra Property to perform work on the communications facilities located there
·A Telstra employee, Ken Knight, lived at 7 Merimbula Road, and his job included maintenance work at the tower on the Telstra property. Mr Knight was one of a couple of people who asked Glenn Howard not to burn off when the wind was blowing towards the tower because it would set off the monitors and an alarm would ring. While he lived at Merimbula Road, Mr Knight would go through the Howards’ place to the tower to turn off the alarm when it was triggered. Mr Knight was also one of two Telstra employees to attend a meeting with angry neighbours on the Telstra property after the 1997 bushfires. It seems that there had been a number of fires burning on the Telstra property but the CFA had managed to extinguish them. The neighbours expressed their anger with Telstra that, due to the poor maintenance on the property, the risk of serious fire was increased. The discussion between the Telstra employees and the neighbours occurred on the Telstra property near 2A Merimbula Road.
I find that Telstra knew or should have known that the Disputed Land (or part thereof) was being used by third parties in a way which made it quite different from the rest of the Telstra Property.
234 Jennings bears the onus of proof in relation to the elements set out in paragraph 191 above. But once Jennings has shown an obvious open user of the Disputed Land, there is an evidentiary onus upon Laming to prove a lack of knowledge.[73] Hedigan J in Sunshine Retail[74] said that Nelson v Hughes[75] appeared to be authority for the proposition that the onus of proof is on the owner of the servient tenement to prove that he did not have knowledge. He continued that, generally speaking, the onus of proving that the elements of the easement were satisfied, including an easement under lost modern grant, lay with the party asserting the easement. His Honour also noted that Pugh v Savage[76] suggested there was a rebuttable presumption that the owner of the servient tenement knows of the use being made of the land in question. His Honour said that if this were the proper test, he was satisfied that the owner of the servient tenement in his case had rebutted the presumption.
[73]Wayella Nominees Pty Ltd v Cowden Ltd [2003] WASC 210 at [223].
[74][1999] VSC 415, [124].
[75][1947] VLR 227.
[76][1970] 2 QB 373.
235 In the present case, if Nelson v Hughes[77] represents the correct test, then I am not satisfied that Laming has rebutted the presumption. If the onus remains upon Jennings, I am satisfied that he has proved this part of his case. In my opinion, Telstra cannot use its size, internal structures and the failure to have employees based full time at the site as an excuse to say that it had no knowledge of what was happening on the Telstra Property in relation to the Disputed Land. As previously noted, the evidence was overwhelming that the grass in the Disputed Land was mown short like a backyard, whereas the grass on the balance of the Telstra Property was always longer. Telstra mowed its property about twice a year and the grass grew high to the point where some walkers refused to walk through it. Even after the grass was slashed on the Telstra Property, it was noticeably taller than the grass in the Disputed Land. Accordingly, an employee looking at, or going over, that grass in the Disputed Land must have seen that its appearance was different from the rest of the grassy areas on the Telstra Property. That is why I do not accept that Telstra’s written records constitute a full and accurate picture of the company’s state of knowledge.
[77][1947] VLR 227.
236 Another factor which confirms my view on this issue (which I would adhere to irrespective of the radiation testing) is the fact that Telstra had an employee who tested for radiation along the boundary fenceline of the Telstra Property. Two witnesses referred to seeing him in the late 1990s or early 2000s in the vicinity of the rear of the properties located at 2 and 4 Merimbula Road. Given the communications facility has been in its current location since before the Howards bought their property, one might reasonably infer that such testing occurred on a regular basis. Whether or not that was the case, then the employee conducting the testing in the late 1990s or early 2000s would or should have noticed the difference in the appearance of the grassy areas within the Disputed Land and the Telstra Property more generally.
237 Laming submits that it is trite law that the alleged user in respect of the easement must be continuous and without interruption. He says that the surveys performed by or on behalf of the paper title owner amounted to the retaking of possession of the land by the paper title owner. The plaintiff’s argument is that there is no conceptual difference between an owner retaking possession in a claim for adverse possession and the interruption of a user in a claim for a lesser right such as a prescriptive easement. Hence, because the surveys were performed at different times and at no time was there an uninterrupted period of 20 years, this aspect of Jennings’ claim must fail.
238 Laming made this argument without reference to any legislation, cases or authoritative texts. The defence was advanced more as an assertion than a reasoned legal argument. I have looked at Bradbrook and Neave’s Easements and Restrictive Covenants in Australia[78] and various authorities dealing with prescriptive easements arising through the doctrine of lost modern grant. Nothing I have read appeared to support the argument put by Laming. In the circumstances, namely, there being no principled argument supported by authority and no basis for the argument revealed in my own reading, I am not satisfied there is any substance in Laming’s submission.
[78]Bradbrook and MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (LexisNexis Butterworths, 3rd ed, 2011).
239 Laming submitted that user for less than 20 years did not run with the land. He argued that section 42 of the TLA described various interests and rights which ran with the land and survived a transfer of proprietorship. By section 42(2)(d), this included ‘any easement howsoever acquired subsisting over or upon or affecting the land’. Laming submitted that a permanent easement under the doctrine of lost modern grant could only be created after 20 years’ continual and uninterrupted user. Any period of user less than 20 years did not give any right to such an easement. It followed, said Laming, that because Telstra ceased to be registered proprietor in 1997 when Norman and Susan Brodie became registered proprietors of the land before Telstra took a transfer back in 2000, there was no uninterrupted period of 20 years under the one paper owner. Laming contended that the Brodies’ ownership was not burdened with a permanent easement (because Telstra had been owner for only 6 years or, if time ran against the Crown, the Howards had been using the land for no more than 11 years) and there was no easement when the land returned to the proprietorship of Telstra.
240 The plaintiff submits that the verb ‘subsisting’ at subsection 42(2)(d) of the TLA acts to exclude any easement that has not yet matured following 20 years’ continual and uninterrupted use, as required by the doctrine of lost modern grant. The effect of this interpretation, the plaintiff submits, is that any transfer of title will, to use the plaintiff’s expression, ‘wipe the slate clean’.
241 The defendant did not make detailed submissions on this point, but simply submitted in relation to the easement, ‘periods of use may be aggregated if they are continuous’. The defendant cites Bradbrook and Neave’s Easements and Restrictive Covenants in Australia in support of its position,[79] as well as Pekel v Humich,[80] which states:
Although the second defendant purchased Lots 819 and 820 free from encumbrances, and there is no reference to a right of way on the titles, the right is one expressly preserved by s 68 of the Transfer of Land Act 1893 (WA), being an “easement acquired by enjoyment or user … affecting such land”.
The plaintiff is entitled to pursue the claim arising from the obstruction of the right of way, because:
“… the owner of the dominant tenement may take advantage of the enjoyment of his predecessor, and … the owner of the servient tenement is bound by the acquisition of those who have preceded him”: Auckran v Pakuranga Hunt Club (1905) 24 NZLR 235 at 240-241.
[79]Bradbrook and MacCallum, Bradbrook and Neave’s Easements and Restrictive Covenants (LexisNexis Butterworths, 3rd ed, 2011) at [5.15].
[80](1999) 21 WAR 24, 38
242 Halsbury’s Laws of Australia also appears to favour the defendant on this point. It provides:[81]
By analogy with the law of adverse possession, the requirement of continuous use for 20 years can be satisfied by a series of successive owners of the dominant tenement and against a series of successive owners of the servient tenement, as the successive periods of use can be added to each other: Auckran v Pakuranga Hunt Club (1904) 24 NZLR 235; Dobbie v Davidson (1991) 23 NSWLR 625; Golding v Tanner (1991) 56 SASR 482 at 485.
[81]LexisNexis, Halsbury’s Laws of Australia, 355 Real Property, ‘Prescription under the doctrine of ‘lost modern grant’’ [355-12210].
243 In Auckran v Pakuranga Hunt Club,[82] Edwards J held:
Counsel for the plaintiff, however, contends that the defendants cannot rely upon a prescriptive right (…) because the plaintiff did not acquire title to her land until the year 1886, prior to which date, it is contended, time cannot be held to have commenced to run against her. No authority has been cited for these propositions, and they appear to me to be opposed to principle. The theory of the presumption of a lost grant, in the case of the enjoyment of an easement for twenty years, is that the grant has been made prior to the commencement of the enjoyment: Per Lord Blackburn, in Angus v Dalton (6 App Cas 740, at p 798), commenting upon the case of Campbell v Wilson (3 East, 294). It follows that the owner of the dominant tenement may take advantage of the enjoyment of his predecessor, and that the owner of the servient tenement is bound by the acquiescence of those who have preceded him.
[82](1904) 24 NZLR 235, 240-41.
244 Given the reference to Auckran v Pakuranga Hunt Club[83] in both Bradbrook and Neave and the judgment of Hedigan J in Sunshine Retail,[84] I infer that Auckran v Pakuranga Hunt Club is regarded as a relevantly applicable authority for the purposes of dealing with issues regarding easements and Torrens law land. On that basis, I accept the view of Edwards J expressed above and find that Laming is bound by the acquiescence of those who owned the land before him.
Setting out the easement
[83](1904) 24 NZLR 235.
[84][1999] VSC 415, [145].
245 Assuming there is an easement in favour of Jennings, how is it to be delineated? Jennings relied upon a report from Brian Watson Surveying dated 25 May 2017. Watson said that on 31 August 2016 he received instructions from Sarah Jennings to carry out a survey to define an area which the defendant claimed had been occupied exclusively by him and his family since 17 July 2008. The survey plan was to set out the area and dimensions of the claimed land.
246 Subsequently on 24 April 2017, the defendant’s solicitor Megan Copas asked Watson to prepare another survey noting the location of the fruit trees, clothesline and fire pits on the claimed land.
247 Watson was given a collection of aerial photos of part of the Telstra Property, including the Disputed Land, taken respectively in 1984, 1987, 1992, 2005 and 2011. Watson said that, by locating physical features in the field which were common to the aerial photographs, he was able to scale and rotate the photographs to show conditions at different times compared to the survey which he undertook.
248 Watson has thusfar produced survey plans which set out the areas of both the home property at which Jennings resides and the Disputed Land which is said to be adversely possessed, or alternatively the subject of an easement.
249 Watson was subjected to limited cross-examination. He said that his expertise included looking at, and presumably interpreting, aerial photographs. He was shown a single aerial photograph of part of the Telstra Property taken in February 1995. He said that, on the basis of that photograph, he could not distinguish the mowing in one area from another. I agree that the particular photograph does not show any obvious demarcation. To that extent, it is different from other photographs in evidence where there is significantly more definition in the picture. These photographs reveal two quite different areas in relation to the grass in and around the Disputed Land.
250 In framing an easement, I consider that it should have reference to the photographs taken in 1987 and 1992, being the older ones which predated Jennings’ purchase from the Howards. It seemed to be agreed that Jennings had expanded the Disputed Land and claimed a greater area than that maintained by the Howards. Hence, the surveys undertaken by Watson were of a larger area than the area maintained by the Howards. Given the requirements of the law and the fact that Jennings moved into Merimbula Road only nine years ago, in my view, the court should limit the easement area to those parts of the Disputed Land which have been used for 20 years or more.
251 In specifying the boundaries of the easement, I have relied upon evidence from various witnesses including the Howards and the McGies. The evidence satisfies me that between the time that the Howards moved into their house in 1986 and the sale to Jennings in 2008:
· the Howards mowed part of the Disputed Land in order to create a backyard.
· Glenn Howard established the eastern fire pit in about 1989-90. This was after he initially burnt off nearer to his own property at 2 Merimbula Road.
· The Howards created the southern fire pit at some time in or before 1991. Although she was not absolutely certain, Mrs McGie believed that the fire pit was there when she and her husband moved into 4 Merimbula Road in 1991.
· Although the evidence was not specific as to how far past the fire pits Glenn Howard mowed, it is clear that Glenn Howard mowed around the two fire pits so that the land in in the immediate vicinity of the two pits was kept clear of long grass and vegetation rubbish which might have posed a fire hazard.
· The grass between the two fire pits was mown in a straight line, albeit at a bit of an angle. It did not meander.
· The Howards mowed the Disputed Land behind not only their own house, but also behind and upon what later became 2A Merimbula Road. After Jolly built his house and moved in around 2000, he also cut the grass on the Disputed Land where it abutted his property.
· Aerial photographs in and after 1987 show a demarcation between the land mown by the Howards and the land mown by Telstra. The photographic evidence shows that the former curves down in a southerly direction to a point near where the central and southern parts of the boundary of 2A Merimbula Road meets the Telstra property.
252 There appeared to be no dispute that, since 2008, Jennings has cut the grass on and maintained the Disputed Land.
253 Doing the best I can with the evidence, I consider that, in approximate terms (my markings are not to scale) the easement area should be as marked on Annexure 2. This area, marked red, is less than the current Disputed Land. But it is an area which was openly used without permission from 1986 until 2015. Even if it is the case that the twenty year period for easements cannot commence running until 1991 when Telstra became registered proprietor of the property, the minimum period has been exceeded in any event. While the evidence was unclear about the width of the area the Howards cleared beyond each fire pit, given the residents’ serious concerns about fire, I infer that the land was mown short and kept tidy for a distance of approximately 2 metres from the outside of each pit. Thus, I have drawn a line between the two pits extending south to the boundary of the Disputed Land. To the east, the line extends east of the eastern fire pit and stops at about where the current line of stakes is located moving south-east from the McGies’ property. The easement should terminate 2 metres from the north-eastern extremity of the eastern fire pit.
254 In seeking to delineate the easement area, I accept that, at different times, the use of the Disputed Land would have been more extensive and included part of the area not marked with the red lines. For example, while it is hard to be certain, it is highly likely that the cricket games, including the pitch which Glenn Howard mowed and is shown in the photographs, took place at least partly in the unshaded area. The same applies to the kicking of the football as the Howard boys grew older.
Did Jennings trespass on Laming’s land?
255 To the extent that Jennings or his predecessors in title were present on the Disputed Land beyond the area of the easement, they trespassed on Laming’s land. But in the circumstances, I consider that the loss or damage flowing from any such trespass to be minimal and award Laming damages of $1.
Conclusion
256 In summary, I have found that:
(a) the defendant has not established a claim to adverse possession over the Disputed Land;
(b) the defendant has proved an easement over part of the Disputed Land;
(c) to the extent that the defendant has trespassed on the plaintiff’s land, the damage is minimal.
257 I will hear the parties on the form of final order and costs.
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