Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd - [1925] HCA 15

THE MELBOURNE HARBOUR TRUST

COMMISSIONERS

DEFENDANTS,

THE COLONIAL SUGAR REFINING

COMPANY LIMITED

ON APPEAL FROM THE SUPREME COURT OF Melbourne Harbour Trust-Land vested in Commissioners-Bed, soil and shores of

River Yarra-Wharf and embankments built in bed of river by riparian owner by permission granted for temporary purposes-Interest of riparian owner in wharf and embankment-Limitation of action-Adverse possession-Termination March 13, 16-

of permission-Right of riparian owner to exercise riparian rights over wharf and 20, 23-25, 27,

embankment--Melbourne Harbour Trust Act 1915 (Vict.) (No. 2697), secs. 2, 3. 9, 11, 12, 46, 52, 54, 81-85, 87-Real Property Act 1915 (Vict.) (No. 2719), secs. 16-19, 43 -Land Act 1869 (Vict.) (No. 360), secs. 3, 4, 6, 12, 45, 50.

Held, by Isaacs, Higgins and Rich JJ., (1) that the word "lands 23 in sec. 4 of the Land Act 1869 (Vict.) included land comprising the bed and shore of a navigable river, and therefore that a permission or licence to build a pier or wharf or embankment in the bed of a navigable river, such permission or licence not complying with the provisions of Part III. of that Act, gave no estate or interest in the land upon which a pier or wharf or embankment was built pursuant to such permission or licence; (2) that sec. 46 of the Melbourne Harbour Trust Act 1915 (Vict.) has the effect of vesting in the Melbourne Harbour Trust Commissioners the bed and soil and shores of the River Yarra within the metes and bounds specified free from any estate or interest which any person might, since the passing of the Melbourne Harbour Trust Act 1876 (Vict.), have acquired by reason of the operation of secs. 18 and 43 of the Real Property Act 1915 (Vict.).

36 CLR 231

The respondent company-being the registered proprietor of land of which one boundary was a portion of the River Yarra where its bed, soil and shores were vested in the Melbourne Harbour Trust Commissioners-occupied and used, for the purpose of its business carried on upon its land, a wharf and an embankment constructed by it or its predecessors in the bed of the river pursuant to a permission obtained by them and granted for a temporary purpose. Buildings were erected by the respondent company partly on its own land and partly on the embankment.

Held, by Isaacs and Rich JJ. (Higgins J. dissenting), that, when the permission was terminated, although the wharf and embankment were vested in the Melbourne Harbour Trust Commissioners, the company was entitled to use the wharf and embankment, SO long as they remained in position, for the purpose of exercising its riparian rights, subject however to whatever duties and authorities were vested in the Commissioners by the Melbourne Harbour

Per Higgins J.: The riparian right of the respondent company was a right to get to and from the river from and to the company's land the company never acquired any other riparian right; that right remains, though it is interfered with by…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Melbourne Harbour Trust Commissioners v Colonial Sugar Refining Co Ltd [1925] HCA 15
Case: [1925] HCA 15
Decision Date: 9 June 1925

CaseChat Overview and Summary

The Melbourne Harbour Trust Commissioners (the Commissioners) appealed from a decision of the Supreme Court of Victoria concerning land and structures on the River Yarra. The dispute arose when the Commissioners sought to terminate a temporary permission granted to the Colonial Sugar Refining Co. Ltd. (the company) to occupy and use a wharf and embankment constructed by the company in the bed of the river. The company claimed it had acquired an estate or interest in this area, either through adverse possession or by virtue of its riparian rights, and sought to continue exercising these rights.

The High Court was required to determine whether the company had acquired any estate or interest in the land comprising the bed and shore of the River Yarra, particularly in relation to the wharf and embankment. Specifically, the Court had to consider the effect of the *Land Act 1869* (Vic.) and the *Melbourne Harbour Trust Act 1915* (Vic.) on any such purported acquisition. Furthermore, the Court needed to ascertain whether, upon the termination of the permission, the company retained any right to exercise its riparian rights over the wharf and embankment, even though these structures were vested in the Commissioners.

The majority of the Court, comprising Isaacs and Rich JJ., held that the word "lands" in section 4 of the *Land Act 1869* included the bed and shore of a navigable river. Consequently, a permission or licence not complying with Part III of that Act could not grant an estate or interest in such land. They also found that section 46 of the *Melbourne Harbour Trust Act 1915* vested the bed, soil, and shores of the River Yarra in the Commissioners, free from any interests that might have been acquired under sections 18 and 43 of the *Real Property Act 1915* (Vic.) since 1876. Despite the vesting of the wharf and embankment in the Commissioners, the majority concluded that the company was entitled to use them for the purpose of exercising its riparian rights, subject to the Commissioners' authority, once the permission was terminated. Higgins J., dissenting on this point, maintained that the company's riparian right was limited to access from its land to the river and that it had not acquired any new rights.

The appeal was allowed, and the decision of the Supreme Court of Victoria was reversed.

Orders