Skalkos v Gebski - [2011] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Preliminary Issue)
SKALKOS & ANOR v GEBSKI & ORS
[2011] SASC 213
Judgment of The Honourable Justice Anderson
9 December 2011
REAL PROPERTY - BOUNDARIES OF LAND AND FENCING - ENCROACHMENT OF BUILDINGS AND PARTY WALLS - POWER TO GRANT RELIEF
REAL PROPERTY - TORRENS TITLE - SURVEYS, DEPOSITED PLANS ETC
Application to determine the true boundary between two suburban parcels of land under s 10 of the Encroachments Act 1944 (SA) - what matters are to be considered in determining the true boundary - both the plaintiffs and defendants have surveys completed by different methodologies - the defendants' survey was registered with and accepted by the Lands Titles Office - whether one methodology is to be preferred over the other - whether evidence of prior occupation of land should prevail - whether registration of survey has any effect on the claim of either side.
Held: (1) Plaintiffs' claim for declaration of boundary dismissed - methodology of the defendants' surveyor which relied on previous registered surveys is preferred to that of the plaintiffs which relied on historical occupation - the plaintiffs' unregistered survey does not overcome and replace the survey that has been examined and accepted by the Registrar-General.
Held: (2) Defendants' counterclaim for determination of boundary allowed - boundary determined in accordance with survey conducted by defendants.
Encroachments Act 1944 (SA) s 10; Survey Act 1952 (SA) s 43, s 44, s 45, s 51 and s 52; Real Property Act 1886 (SA) s 51A, s 69 and Part 19A, referred to.
Donaldson v Hemmant (1901) 11 QLJ 35; Equitable Building and Investment v Ross (1887) 5 NZLR 229; Turner v Myerson (1917) 18 SR 133, discussed.

SKALKOS & ANOR v GEBSKI & ORS
[2011] SASC 213
Land and Valuation Division
ANDERSON J.
Introduction

The Court is asked to determine, as a preliminary issue, where the true boundary lies between 13 and 13A Cassie Street, Collinswood. The application is made pursuant to s 10 of the Encroachments Act 1944 (SA) (“Encroachments Act”).
In February 2010, the defendants, who are the registered proprietors of numbers 13A and 13B, commenced construction of home units on their land. This involved the partial demolition of an existing concrete footing and the pouring of a concrete slab for two home units. The plaintiffs, who are the registered proprietors of number 13, claim the defendants’ concrete slab encroaches onto the plaintiffs’ land.
On 19 March 2010 a master of the Court granted an interim injunction to the plaintiffs preventing the defendants from continuing to erect any form of building work on the alleged encroachment. By that time a substantial part of the building on the defendants’ land had been completed.
The proceedings commenced with an ex parte summons taken out by the plaintiffs. A further (second) summons was taken out on 7 February 2011 in which the plaintiffs sought a declaration that the boundary between numbers 13 and 13A Cassie Street, Collingswood, was as determined by a surveyor, Mr Burford. In the alternative, they sought a declaration that the boundary was as determined by another surveyor, Mr Pittman. Finally, the plaintiffs sought a declaration by the court as to where the true boundary lay and an order pursuant to the Encroachments Act for the removal of the encroaching slab from their land.
In a cross-action and counterclaim the defendants sought a determination by the court that the true boundary between 13 and 13A Cassie Street was as determined by the survey of Mr Bested. They also sought an order for the removal of any encroachments.
The matter has proceeded as an expedited hearing without further pleadings but on the basis of affidavits filed by the three surveyors. The surveyors were each cross-examined. Exhibited to those affidavits are most of the relevant documents in the matter, including the reports of the surveyors. In addition there is an affidavit from a Mr Gibbs, a consulting engineer, exhibiting a report he prepared in this matter.
Mr Skalkos gave evidence but neither of the defendants gave evidence. The defendants relied on the evidence of Mr Bested.
The preliminary issue for determination is where the true boundary between 13 and 13A Cassie Street lies. That in turn involves a consideration of what matters should be taken into account in determining the true boundary.
Background
The plaintiffs are the registered proprietors of number 13 Cassie Street, Collinswood, being Allotment 71 in Filed Plan 110779, being the land described in Certificate of Title Volume 5615 Folio 390. The defendants were previously the registered proprietors of the property immediately to the west of 13 Cassie Street, being Allotment 70 in Filed Plan 110778, being the land described in Certificate of Title Volume 5270 Folio 180.
Allotments 70 and 71 were created by subdivision in 1927.
The further subdivision of Allotment 70 (the defendants’ land) in February 2010 resulted in two new Certificates of Title being created for numbers 13A and 13B Cassie Street. 13A Cassie Street was registered as Certificate of Title Volume 6052 Folio 404, being Allotment 2 in Deposited Plan 83065. The first defendant Mr Gebski is the registered proprietor of number 13A, whereas the second defendant Ms Fuda is the registered proprietor of number 13B. Mr Gebski and Ms Fuda are husband and wife and the sole directors of the third defendant. They have proceeded to erect an almost completed building on the land comprising two home units.
The boundary dispute relates to the western boundary of the plaintiffs’ land at number 13 and the eastern boundary of the first defendants’ land at number 13A. The length of that boundary is 46.85 metres.
Mr Burford, retained by the plaintiffs, had in 2001 determined a boundary for the purpose of the erection of a new building at the rear of the plaintiffs’ property. This was a three-car garage and office of brick construction. The survey prepared by Mr Burford was not lodged and therefore not examined or approved by the Lands Titles Office (“LTO”).
Mr Burford acknowledges that he performed what is known as an identification survey. Mr Burford gave evidence that it was an issue of cost as to why he did not prepare and lodge a certified survey with the LTO. The disclaimer on the survey document is instructive. It reads:
This is not a certified survey for the purposes of the regulations under the Survey Act 1992. This Plan will not be examined for boundary definition or otherwise by the Registrar-General’s Office. Future resurvey of adjoining lands or subsequent registration of certified survey plans may alter the boundary definition or information hereon.
Mr Skalkos was familiar with surveys and construction work generally. He said Mr Burford did not tell him anything relating to the possibility the boundary in his survey might be open to doubt. He knew the significance of an identification survey and read the disclaimer. He said Mr Burford did not advise him that to avoid problems it was advisable to have the survey lodged and registered by the LTO. He said he was aware that the boundary in Mr Burford’s survey was susceptible to alteration in the event that other surveys took place in the locality. On this basis he proceeded to build the garage almost up to the boundary as determined by Mr Burford.
The defendants retained Mr Bested to determine the boundary of their land prior to the construction of the home units with the intention to build to the line of the boundary. At the front of the property at 13A a concrete slab was constructed which the plaintiffs maintain encroaches on their land. In addition, about one half of a brick pillar built on the concrete slab and supporting a carport roof is claimed by the plaintiffs to be an encroachment. Mr Bested prepared a certified survey in November 2009 which was lodged, examined and approved by the LTO.
The survey conducted on behalf of the plaintiffs places the concrete slab poured by the defendants as encroaching onto the plaintiffs’ land towards the front of the property by a distance ranging from approximately 0.21 to 0.23 metres wide and 5.49 metres long. The survey conducted on behalf of the defendants has the new garage building constructed by the plaintiffs encroaching on the defendants’ land at the rear or southern end by approximately half a metre.
Mr Skalkos spoke to Mr Fleming, the agent of the defendants, regarding the removal of the boundary fence so that the defendants could carry out their building work. There was no mention by Mr Fleming of the survey conducted by Mr Bested. When it appeared to Mr Skalkos that there may be an encroachment Mr Fleming then referred to Mr Bested’s survey. As a result Mr Burford was asked to carry out a further survey.
Mr Burford was asked to resurvey the plaintiffs’ property following the dispute which arose as to where the true boundary was. He again performed only an identification survey on this occasion. This was in 2010.
In addition to the two surveyors initially engaged by the parties, the plaintiffs also engaged a third surveyor, Mr Pittman, who adopted a third and different boundary. His survey will be discussed later.
The essential dispute between the surveyors relates to their methodology. The defendants’ surveyor Mr Bested relies on prior certified and deposited surveys in adopting his boundary, whereas in the case of both the plaintiffs’ surveyor Mr Burford and the third surveyor Mr Pittman, the reliance is more upon historical factors including evidence of prior occupation and monuments which were not in existence at the time of boundary creation in 1927.
The two principal surveyors involved in this dispute communicated with each other. Mr Burford maintained that recent surveys on or around Cassie Street were in error because they had not adequately dealt with an excess of 0.89 metres in Cassie Street compared to the title dimensions. In particular, he pointed to the surveys relied on by Mr Bested. Mr Burford suggested that the area was really a “confused area” and it appears that to some extent he treated it as such. It should be noted that s 51 and s 52 of the Survey Act 1922 (SA) refer to gazetted areas which are nominated as Confused Boundary Areas. There are special provisions which apply to those areas in relation to depositing plans. The subject area in Collinswood has not been gazetted as a Confused Boundary Area.
Mr Bested and Mr Burford after conferring prepared a joint report. I set out the relevant parts.
Points of Agreement
·It is the obligation of the Surveyor to reinstate boundaries where the original Surveyor had intended with due regard to undisputed old occupation and data held in the public record.
·It was acknowledged by all parties that due to large discrepancies with the old original plan, varying opinions as to boundary positions are possible as witnessed by the differences in all 3 surveys.
·The Identification Survey by Calder Harris was completed in November 2001. Certified Surveys registered with the Lands Titles Office having influence over the redefinition survey were DP: 708, LTO A-363, LTO B-728, LTO B-1725, SP: 1106, LTO B-3679, LTO C-5371, LTO B-4202, FPX 20406, FPX 22731, FPX 35814, and PX 39635, FPX 39635 was Deposited in 1998.
·The Certified Survey by Bested was completed in November 2009. The above Certified Surveys were all relevant, with an additional three Certified Surveys, FP: 45924, FPX: 45998, FX: 52344. The additional three Certified Surveys surrounded the subject land and were approved by the Lands Titles Office.
·Professional Surveyors regard Certified Surveys that are examined by and Deposited with the Lands Titles office to be of significant influence when determining boundaries. Only on rare occasions will the redefining Surveyor seek to overthrow an accepted boundary definition or alignment.
Point of Disagreement
·Clearly, the difference in boundary redefinition between no. 13 and no 13a Cassie Street, by Bested and Calder Harris is the main area of disagreement.
Respective Positions on the Point of Disagreement
BESTED
·The additional three Certified Surveys approved by the Lands Titles Office were of major influence on the boundary redefinition by BESTED.
·Precise Certificate of Title data was left for Bested claim in FPX 45998.
·Existing fencing to his western boundary is accurately built, and the front offset to SP: 1106 is correct.
·To overthrow established surveys without due cause and reason will only serve to weaken the cadastre. The recent house erected on approved plan FP45924 to the west, would be severely compromised.
·No evidence of the Calder Harris survey was apparent, there were no survey marks evident in Cassie Street, a copy of the Certificate of Survey was never sighted, and there was no evidence of the redefinition survey lodged with the Lands Titles Office.
·Except for the disputed boundary, the dividing fences between the properties along the rear boundaries shown by other surveys agrees with and is consistent with Bested definition.
CALDER HARRIS
·The CALDER HARRIS survey recognized the westerly trend of occupation along Cassie Street with respect to title data as evidenced by several walls up to 100 years old, the old wall on our subject land, fences along the street and the post holes at the rear of the subject land indicating the fence location prior to removal.
·The excess of around 0.9m in Cassie Street compared to title dimensions added further weight to shifting the boundary in a westerly direction by 0.44m to fit the wall and fence holes and protect the occupation.
·The intention and end result of the survey protected the existing footing, garage wall and driveway situated within no. 13 Cassie Street.
·The alignment of the side boundary was laid parallel to LTOB 4202.
·The subsequent redefinition of no. 13 Cassie Street and adopted alignment of the side boundary, did not agree with building offsets shown on SP: 1106.
Summary of Opinions
BESTED
Whilst there should be no difference in survey procedure between a Certified Survey and Identification Survey, if there is no evidence of a past unregistered survey the redefinition may be overthrown by a subsequent Certified Survey.
The BESTED survey and redefinition has been examined and approved by the Lands Titles Office, with due regard paid to historical surveys and occupation.
CALDER HARRIS
The subject land falls within Deposited Plan 708 which extends north to Harvey Street and South to Redmond Street. Harvey Street has an excess of 0.5m, Cassie Street 0.9m and Redmond Street 0.2m when compared to the DP 708 and titles.
With the extent of large discrepancies in data, maximum consideration must be given to occupation the age and protecting the interests of as many properties and their improvements as possible.
The Calder Harris Survey has given maximum weighting to the location of existing physical boundaries and their age in Cassie Street in light of the large excess of land and then made a decision to protect the occupation of the subject land. This also follows the trend of old walls and fences along Cassie Street.
The Certified Surveys coming after the Identification Survey have not located all of the historical evidence in Cassie Street to make an informed decision on the boundary location and have given undue weight to the measurement onto the wall of an old strata plan which itself was undertaken as an Identification Survey. Strata Surveys eventually became Certified Surveys due to problems encountered such as poor quality of definition.
Of particular significance from their joint report is the fact that there were three certified surveys between the time of Mr Burford’s original survey in 2001 and Mr Bested’s survey in 2009. These were as follows: FP 45924, FP 45998 and FP 52344.
Each survey surrounded the land in question, one relating to land on Cassie Street to the west of 13A Cassie Street (Survey FP 45924), one immediately to the east of 13 Cassie Street (survey FP 45998), and another to the south west of 13A along Redmond Street which is the next street south from Cassie Street (survey FP 52344). These surveys are all registered having been examined and approved by the LTO.
The history of the land
The original survey of the area was conducted on 29 July 1878 in what was known as the Survey DP 708. DP 708 does not identify any permanent survey marks as the starting point for the survey.
It appears that the first permanent survey marks within the area were set in the mid-1960s. As I said earlier, Allotments 70 and 71 were recreated by a subdivision in 1927, well before there were any permanent survey marks.
The Court was taken on an inspection of the area and two permanent survey marks were pointed out. There is no argument that these are the first permanent survey marks mentioned above. There was one at each end of Cassie Street which runs in an east/west direction. The Court also inspected the buildings and land on both the southern and northern sides of Cassie Street and in particular the subject land. The Court inspected the frontages of each property along the southern side of Cassie Street.
From that inspection it is easy to see how the survey of the area has become difficult. Some older buildings appear to be built at different angles to the street than the more modern buildings. The other complicating factor as acknowledged by all surveyors is that there is an excess of 0.89 metres of land along Cassie Street when the total of all frontages, as shown on the respective titles in Cassie Street, are compared with the measured survey distance.
A considerable amount of time was spent in inspecting the actual boundary in dispute. At the conclusion of the evidence I undertook a further inspection of the boundary in question to clarify some of the evidence.
Evidence was given on behalf of the plaintiff to support an argument based on previous occupation. There was some evidence of old footings and holes where fence posts have previously been. There was evidence of the position of the fence post at the front of the subject properties on Cassie Street. This fence post, it has been suggested has been placed more or less in a position where an old post existed as depicted in photographs which were tendered. These photographs were some 50 to 60 years old. It is impossible to say how close the existing post is to where it was shown in the photographs.
The plaintiffs’ surveyor, Mr Burford, relied on evidence of old occupation in determining his boundary. He has used the front post and the existing footings relating to the boundary fence and projected his boundary down a line which meets the western wall of the new structure erected on the plaintiffs’ property. It is a straight line and can be seen in existence at the present time by a neighbourhood fence which has been erected along that line.
The boundary fixed by Mr Bested commences on Cassie Street at a point 0.18 metres to the east of Mr Burford’s starting point. As the boundary line proceeds to the southern end of numbers 13 and 13A there is on Mr Bested’s survey an encroachment of approximately half a metre by the plaintiffs brick garage onto the defendant’s land.
The simple reason for the difference in the surveys is that Mr Burford has used what he regards as indications of prior occupation along the suggested boundary. I will discuss the evidence for this later. On the other hand, Mr Bested has relied on existing surveys and made the necessary calculations by checking with the three more recent registered surveys as discussed at [21]. Of particular note is Mr Bested’s position that the recent surveys conducted on Cassie Street (FP 45924 and FP 45998) are consistent with the boundary alignment of a 1994 registered survey, FP 35814. Survey FP 35814 relates to land on Redmond Street to the south of the defendants’ land described as Allotment 12.
The surveyors’ evidence

Mr Burford conducted his first survey of the plaintiffs’ land in 2001 for the purpose of enabling the plaintiffs to build the rear garage. This survey was an identification survey not registered with the LTO. As I have said, Mr Burford took into account earlier indications of occupation. At that time he considered that the evidence of old occupation from the details of fence lines, cottage walls to the east in Cassie Street and in particular the footings for an old brick garage wall erected on the boundary of number 13, were persuasive factors in determining the boundary.
When the present dispute arose following the defendant’s survey by Mr Bested, Mr Burford resurveyed the boundary in 2010 and maintained that his original work was correct. Again this was an identification survey. The defendants point to the fact that in the nine years between Mr Burford’s two surveys there had been three new surveys lodged and filed with the LTO. Titles were issued in accordance with those surveys. It is suggested that when completing his 2010 survey, Mr Burford failed to take into account, or alternatively did not adequately take into account, the changed circumstances in 2010 compared with the situation in 2001.
It is Mr Burford’s view that the more recent registered surveys in Cassie Street, including the one conducted by Mr Bested, should be corrected because they are not in accordance with his observations relating to the historical occupation of the land. He maintains that the strong evidence of occupation should prevail over those registered surveys.
Mr Pittman, like Mr Burford, has to some extent disregarded the registered surveys and has based his survey primarily on evidence of occupation. His survey determines a boundary resulting in encroachments by both the plaintiffs and the defendants. To avoid this outcome, he has drawn a compromise boundary which fits in with the present occupation of number 13 and number 13A and avoids encroachment by either party.
Mr Bested claims that he has proceeded in the correct manner and evaluated the evidence of the existing registered surveys and connected his survey to all existing surveys as required by the Surveyor-General’s directions provided for under regulation 11 of the Survey Regulations 2007 (SA). He claims that he has sufficiently connected his survey to the relevant survey marks and suggests that the evidence of occupation relied on by both Mr Burford and Mr Pittman is both inappropriate and unreliable.
The main reason Mr Burford has resorted to evidence of occupation is because of his view that the 0.89 metres excess in Cassie Street has not been adequately taken into account in the subsequent surveys relied on by Mr Bested.
Mr Burford considers it essential in determining the true boundary to determine where the excess land lies. He says Mr Bested has acted in error by “blindly copying” the earlier surveys; none of which, he says, address the issue of the 0.89 metres excess. He says that with such an excess in the street, the question of occupation becomes the paramount consideration in determining the true boundary.
Mr Bested has responded to Mr Burford’s position in his report of 5 April 2011. Mr Bested says that while there was an excess of 0.89 metres in 2001, the more recent surveys have validly claimed the excess land and these certified surveys have been approved by the LTO. He points to FP 45924 registered in 2004. This survey claimed 33 centimetres to the west for the correction of the title issued in respect of the surveyed land (described as Allotment 100). In addition the surveyor left a further 33 centimetres to the west so that 66 of the 89 centimetres of excess were taken into account. That survey was certified, examined and approved by the LTO. One assumes it must have been very carefully scrutinised because it was correcting an existing certificate of title.
Mr Bested then points to FP 45998 which left the balance of the original excess, namely 23 centimetres, to the east of the boundary in dispute. Therefore by two certified surveys, one to the west and one to the east of the subject land, the surveyors were able to ensure that the correct title dimensions remained for the plaintiff’s land, the defendants’ land and the land adjoining the defendants’ land to the west. Mr Bested claims that as a result of those two certified surveys there is no excess with which to be concerned.
Mr Bested explained his methodology in carrying out his survey in his report of 26 March 2010. He referred first to the survey FP 35814 registered in 1994. This was to define the original outer boundary for Allotment 12 from the Deposited Plan 708, being a parcel of land on Redmond Street which is south of and parallel to Cassie Street and shares a northern boundary with the southern boundary of the defendants’ land. That survey relied on survey marks including permanent survey marks.
Mr Bested points out that the surveyor who certified FP 45924 showed the connection of the western boundary of Allotment 12 on Deposited Plan 708 and his plan 45924. By extending the western boundary of Allotment 12 in a straight line as per the original Deposited Plan 708 a surveyor could obtain what Mr Bested calls “good agreement” with the offset distance to the wall on Strata Plan 1106. As he pointed out, that is also the western boundary of 13B Cassie Street.
Mr Bested notes that in May 2004, FP 45998 was also lodged and approved by the LTO. This survey showed the connection along the original boundary of Allotment 23, now the western boundary of 13B, and Allotment 12 in DP 708. Those two surveys are on either side of 13A and 13 Cassie Street with FP 45998 immediately adjacent to the east of No 13 and only SP 1106 separating Allotment 100 FP 45924 and the defendants’ land. All surveys agree. Therefore Mr Bested has adopted them and preserved the distances in accordance with the data shown on the title. The combined frontage of both properties 13 and 13A Cassie Street is 30.48 metres which is consistent with the frontage allowed for the combined properties shown on the plan in FP 45998.
As I will go on to discuss in more detail, it is my view that Mr Bested’s reasoning is preferable to that of Mr Burford. Mr Burford has effectively refused to acknowledge the significance of registered surveys, and in particular the surveys which took place between the two performed by him in 2001 and 2010.
Mr Burford’s first survey in 2001 really attempted to protect old occupation essentially related to the old garage wall, which I will deal with shortly. I do not accept on the balance of probabilities that Mr Burford is correct in relation to the garage wall for the reasons which I give later.
In addition he reverted to the use of prior occupation because of his perceived problem with the excess 0.89 metres in Cassie Street. I have already dealt with that aspect.
When he carried out his further survey in 2010 Mr Burford did not make any allowance for the surveys which have been lodged, examined and registered in the meantime.
According to Mr Pittman, the original survey plan for Cassie Street developed in 1878, being DP 708, did not identify any original survey marks as the starting point of the survey and subsequently it cannot be determined with any great deal of accuracy where the boundaries along Cassie Street lie. Mr Pittman acknowledges that evidence from registered certified surveys carries significant weight in determining boundaries. However, he maintains that where surveys are found to be in error, the best evidence is longstanding uncontested occupation.
Mr Pittman endorses the starting point on Cassie Street of Mr Burford’s survey, based on evidence of old occupation, but expresses a reservation concerning the direction of the alignment that was adopted by Mr Burford for the boundary.
Mr Pittman did not endorse Mr Bested’s starting point on Cassie Street which was based on his reliance on previously registered certified surveys. It is Mr Pittman’s view that the surveys that have been registered on Cassie Street do not adequately reconcile the historical evidence of occupation and should be ignored.
Mr Pittman calculated a third boundary option which fitted with existing occupation of both 13 and 13A Cassie Street. This is to avoid encroachments by both parties, but although perhaps a commonsense solution, it does not fix the boundary properly in accordance with s 10(2) of the Encroachments Act because it would not be a true boundary. It is a compromise.
On the basis of a simple analysis of the surveying methods employed I prefer that of Mr Bested for the reasons which I have given.
I will now go on to consider the arguments made relating to occupation and its significance in surveying parlance and as a matter of law.
The evidence of occupation
1. Old fence lines
Mr Stevens, for the plaintiffs, submits that there is evidence of occupation from marks along the area of the boundary between the two properties. He points to the location of the Good Neighbour fence, the construction of the concrete plinth, the corrugation marks in the concrete identifying a previous galvanised iron fence, green paint on the plinth and the apparent location of the western wall of the garage previously constructed at the rear of number 13.
Mr Stevens submits that Mr Bested has disregarded those factors in fixing his boundary.
Mr Henry SC, for the defendants, submits that such evidence of occupation only serves to illustrate where previous occupiers believed the boundaries existed. As he points out, some people are not concerned about precision in relation to the boundaries, others may be mistaken as to where their boundary lies, and others may have taken measurements from an existing fence which may in itself be in error. In short, he submits that the Court cannot proceed on the assumption that all boundary fences since the allotments were created have always been erected precisely on the boundary and therefore provide sound evidence of the location of the boundary.
Mr Henry also points out that the previous fencing on the disputed boundary has been replaced from time to time and no-one knows how many times or with what precision each new fence was located.
2. The old cottage to the east
It seems that the old cottage to the east was most likely built in about 1900, which is more than 20 years after DP 708 was registered. From my inspection of the property it is apparent that the cottage bears a different angle to the street than the other properties in the street. That could be for any number of reasons, including initial building errors in either pegging out or laying the footings. There are now blocks of flats on either side of the old cottage and therefore the reason for the different angle cannot be solved.
Adjustments have been made to the title upon which the old cottage is situated in a later survey by allotting an extra footage but there still remains an encroachment for some portion of the side wall. I have dealt with this earlier at [55]. The fact that there remains an encroachment, even after the adjustment, is not a reason to adjust the boundary between numbers 13 and 13A Cassie Street.
3. The old cottages to the west
Mr Pittman favours the protection of old occupation in determining the boundary between number 13 and number 13A Cassie Street. The cottages to the west and some existing brick fencing to the west of number 13A are essentially relied on by Mr Pittman in his survey. He was concerned to prevent encroachments. Mr Pittman also relies on the old stone cottage to the east of number 13 discussed earlier.
Mr Pittman is of the view that Mr Bested should have ignored the outer boundary plan to the east of number 13 (FP 45998) which did not protect an old stone wall and which it could have if it had utilised the surplus land on Cassie Street. He also considered that Mr Bested should have ignored both the outer boundary plan (FP 45924) and the strata plan S1160 to the west of number 13A, again to protect an old fence and some old cottages from becoming encroachments.
4. The former garage wall on 13 Cassie Street
Mr Stevens relies heavily on the evidence of the former garage wall along the western boundary of number 13. In particular, he relies on photographs taken either in the 1940s or the 1950s, as evidence of the location of the boundary. He compares those with photographs taken of the same wall when Mr Skalkos purchased the property in 1998.
Mr Gibbs, an engineer retained by the plaintiffs, gave evidence that in his opinion the western wall of the former garage had at some stage been reconstructed, probably by moving the wall to the west by about 10 centimetres.
I am not convinced from all of the evidence that Mr Gibbs is correct. He had to indulge in considerable speculation by making calculations from his interpretation of the old photographs, which are not all that clear in any event, and I consider that his evidence on this aspect should not be accepted.
Despite the passage of time and the uncertainty of the original boundary, I consider there is some evidence to support a boundary between the two properties along the line of the old garage wall, including the footings for that wall. However, I do not make such a finding on the balance of probabilities.
From the approximate southern end of the old garage wall to the rear of the property, the evidence of the boundary is even less persuasive. I note the different and opposite facings of the corrugated iron fence and the posts and railings to which it was attached. This aspect is illustrated in the photographs tendered before me before the removal of that part of the fence.
The arguments of counsel
(i) Overview
The defendants claim indefeasibility of title over Certificate of Title Volume 6052 Folio 404. Mr Henry argues that in relation to the defendants’ land, not only its dimensions but also its location can be identified with precision by reference to Deposited Plan 83065. He submits that this is not so in relation to the plaintiffs’ land which is only capable of being described by its dimensions, leaving its precise location indefinite. Mr Henry points out that the dimensions and location of the plaintiffs’ land are referenced from FO 110779 and ultimately go back to DP 708 filed in 1878.
Mr Stevens claims the same indefeasibility of title over the plaintiffs’ land by virtue of tracing through the development of the land from DP 708. Mr Stevens argues that the defendant’s plan, Deposited Plan 83065, has erroneously redefined the location of the boundaries of the defendant’s land inconsistent with DP 708, being the original plan of subdivision. Mr Stevens argues that the current Certificates of Title for 13 and 13A Cassie Street are derived from DP 708 and the subsequent subdivision creating Allotments 70 and 71 in 1927. Accordingly, he submits, the defendants’ rights cannot rise above this source as to the dimensions and location of the boundary.
Mr Stevens argues that the defendants’ plan, Deposited Plan 83065, has attempted to redefine the boundaries in DP 708 which are prior in time. However, DP 708 does not identify a permanent survey mark and therefore the boundaries identified therein cannot be retraced.
Mr Stevens argues that in such circumstances the question of possession and occupation is relevant in determining the existence of the boundary. He submits that prior possession and occupation are the paramount considerations in this matter.
(ii) The legal principles
Mr Stevens submits that as there is no previous decision on s 10 of the Encroachments Act I should therefore take account of certain other materials in my approach to determining this question.
Section 10 of the Encroachments Act states:
10—Boundaries
(1)Where any question arises, whether an existing building encroaches or a proposed building will encroach beyond the boundary, either of the owners of the contiguous parcels of land may apply to the court for the determination under this Act of the true boundary.
(2)On the application the court may make such orders as it deems proper for determining, marking, and recording the true boundary.
(3)This section applies to buildings erected either before or after the commencement of this Act.
Mr Stevens submitted that I should take account of the Surveyor-General’s Cadastral Survey Guidelines (“CSG”) which he tendered as an exhibit. The GSG are not directions issued pursuant to regulations. They form part of a four-tiered structure, as explained in paragraph 1.1 of the CSG. It is there stated that:
The CSG provides detail to supplement Cadastral Survey instructions and requirements of the Survey Act, Regulations and Surveyor-General’s Directions, and other legislation.
The CSG also provides information about boundary common law and survey practice in South Australia. The CSG is really a working document provided for the use of surveyors in conjunction with the statutory requirements. I do not regard the guidelines as being of any significance in determining the approach to be taken in interpreting s 10 of the Encroachments Act.
In addition Mr Stevens referred me to an American text, Brown’s Boundary Control and Legal Principles 6^th edition in relation to the principles of creation and identification of boundaries. Many of these principles relate to land which could be described as old system title as distinct from land the subject of titles under the Torrens Title System.
Mr Stevens cited a number of authorities essentially for the proposition that there is a hierarchy of evidence for identifying boundaries in which evidence of long undisputed occupation has been given priority where there are no natural boundaries or monumented lines: see for example Donaldson v Hemmant (1901) 11 QLJ 35 at 41. He also relied on some New Zealand authorities in which evidence of periods of long occupation acquiesced in by adjoining owners was given priority as best evidence of title where there are no natural boundaries, the original survey marks are gone and there is no great difference in measurement: see Equitable Building and Investment v Ross (1887) 5 NZLR 229 at 233-235.
Mr Stevens relied on Turner v Myerson (1917) 18 SR 133 at 135 as authority for the proposition that where there is long uninterrupted occupation, 30 years in that case, positive and direct evidence is required to rebut the presumption that the land as occupied is in accordance with the boundaries as originally plotted.
The proposition is that the court can turn to evidence of possession in cases where there are no actual boundaries and where there is an absence of original survey marks. There is no doubt that is a correct proposition but in my view that does not help to resolve this matter. It would be starting from a clean slate and this is not a clean slate.
The decisions make it clear that survey marks are still the relevant starting point (assuming there are no natural boundaries). Where there are no survey marks, questions of occupation and possession over long periods can become important. Again I reiterate this is not such a case.
Many of the authorities relied on by Mr Stevens are in my view not all that helpful in disposing of this matter. Some of the disputes in those authorities relate to the significance of pegs which had been placed on land, others relate to land grants by the Crown. Further, there are decisions involving the interpretation of contracts for the subject land where there may be errors in description and where mistakes have been made. They, like this matter, are very much to be decided on the facts of the case.
The basic proposition contended for by Mr Stevens is not in dispute. There will be cases where, with such a paucity of evidence of boundaries relating to recognised survey marks, there may be the need for this Court to look to actual occupation. Even then the evidence must be cogent to overthrow the accepted boundaries. This much is acknowledged by both the surveyors in dispute.

Mr Stevens also referred to s 43 of the Survey Act 1992, the Survey Regulations 2007, the Surveyor-General’s Directions and the relevant provisions of the Real Property Act 1886.
Mr Stevens is correct in his submission that the evidence of possession produced by him is really the only evidence of possession. However, that misses the point if, however cogent that evidence may be, it still must give way to the registered surveys, which link with other registered surveys and which have been relied on in turn by the Registrar-General.
The evidence of possession as I have already discussed is somewhat equivocal in any event. It is certainly not so cogent as to override a boundary consistent with the registered surveys.
(iii) Section 69 of the Real Property Act
Mr Henry relied on his clients’ indefeasible title by virtue of s 69 of the Real Property Act 1886 (SA) (“RPA”). Section 69 of the RPA states:
69—Title of registered proprietor indefeasible, except in cases of—
The title of every registered proprietor of land shall, subject to such encumbrances, liens, estates, or interests as may be notified on the original certificate of such land, be absolute and indefeasible, subject only to the following qualifications:
…
The only relevant exception argued by Mr Stevens is contained in s 69(c) as follows:
(c)Erroneous inclusion of land
where any portion of land has been erroneously included, by wrong description of parcels or boundaries, in the certificate or other instrument evidencing the title of the registered proprietor: In which case the rights of the person who but for such error would be entitled to such land shall prevail, except as against a registered proprietor taking such land bona fide for valuable consideration, or any person bona fide claiming through or under him;
Mr Henry argued that the plaintiff has not in its second summons pleaded any exception to indefeasibility under s 69. He submitted that the defendants’ title is conclusively proved by Certificate of Title Volume 6052 Folio 404. He submits that the title is dominant over any argument based on possession which may have been effective at common law.
I am not satisfied on the evidence for the reasons already given that any part of the defendants’ land has been erroneously included in the certificate of title.
Mr Henry further submits that the appropriate procedure in this matter, if the plaintiffs were of that view, was for the plaintiffs to have invoked the procedure for rectification of the Certificate of Title, namely that procedure set out in Part 19A of the RPA. He submits that the plaintiffs have utilised the wrong procedure to have this matter determined. Whilst rectification was an available procedure, s 10 of the Encroachments Act does nevertheless give the court a discretion to make such orders as it deems proper for recording the true boundary.
It is of significance that the Surveyor-General can conduct an investigation, as he was requested to do by the plaintiffs in this case. That is pursuant to s 44 of the Survey Act. He has power pursuant to s 45 to require rectification of any survey. The Surveyor-General’s representative, Mr Nisbett, gave evidence and confirmed that the Surveyor-General, following the complaint made by the plaintiffs, and after consideration of the matter, declined to act.
At the end of both counsel’s closing submissions, I called the matter back on to discuss the possibility of the subject boundary being declared a “confused boundary” under s 51 of the Survey Act. In dealing with a confused boundary, the court has the discretion to determine a boundary on the basis of what is fair and equitable having regard to relevant factors such as existing boundaries and the length of time that those boundaries have been in existence.
At that further hearing Mr Nisbet informed the Court, on behalf of the Surveyor-General, that the Surveyor-General, on advice from the Crown Solicitor, will not declare a confused boundary where he is aware that there is a dispute in relation to that boundary.
Consideration
Both surveyors, in their joint report, agree that in surveying, priority must be afforded to survey marks and registered surveys. The evidence of occupation would have to be very strong to displace a registered survey. The joint report states:
Professional surveyors regard certified surveys that are examined by and deposited with the Lands Titles Office to be of significant influence when determining boundaries. Only on rare occasions will the redefining surveyor seek to overthrow an accepted boundary definition or alignment.
I have had regard to the provisions of the RPA and in particular s 51A providing that the original Certificate of Title is conclusive evidence of title to land. I agree with Mr Henry that the location and dimensions of his clients’ land are fixed by reference to his clients’ survey. Section 69 then provides that the title of every registered proprietor is absolute and indefeasible. There is a title for 13A Cassie Street which defines the land as “Lot 2 Deposited Plan 83065”. That Deposited Plan identifies the location of the boundary by reference to the survey mark at the eastern end of Cassie Street at the corner of Roseberry Lane.
Clearly I must take account of the fact that Mr Bested’s survey is registered and lodged at the LTO. I would have to be convinced that he has made an error or acted on incorrect or incomplete data before I would correct it. There is a certain amount of discretion used amongst surveyors and certain conventions used, but notwithstanding that, unless an error can be demonstrated, it would not be appropriate for this Court to interfere with a registered survey, especially one upon which titles have been issued. There would have to be clear evidence of occupation over an extended time. As I have said I cannot make that finding on the balance of probabilities.
Mr Burford’s survey purports to follow old boundary lines, but in my view, even accepting the evidence he gave of occupation, the actual boundary line dividing 13 and 13A on his calculations remains somewhat flexible. That is because there are a number of possibilities in the area over which old fences may have been built. It is by no means certain that the exact line chosen by Mr Burford is in fact the old boundary line. It may be anywhere within 20 or 30 centimetres of the lines he has chosen. It may be a combination of several old boundaries. Mr Burford has not acknowledged the significance of surveys performed after his 2001 survey and this is unreasonable on his part.
As I have already said the compromise boundary suggested by Mr Pittman is not the correct legal solution to this problem. The parties could still utilise it, however, to avoid further expense.
Conclusion
On the balance of probabilities it seems to me that, based on surveying principles as contained in the regulations, Mr Bested’s survey should prevail. It has a sound basis in its reliance upon previous registered surveys. Mr Burford has failed to acknowledge the significance of those surveys. On the whole of the evidence I am not convinced that the plaintiffs have been able to demonstrate any significant errors in Mr Bested’s work. It has been accepted, after examination, by the Registrar-General.
I have reached my conclusion having regard to these matters:
(i)     DP 83065 has been sufficiently connected to earlier surveys. Mr Bested has produced his survey in accordance with the requirements of the Survey Regulations.
(ii)    DP 83065 has not been shown to be in error in any major respect.
(iii)   The Registrar-General has examined and approved the survey of Mr Bested as well as those other surveys, upon which titles have been issued.
(iv)   The survey by Mr Burford lacks the credentials of a registered survey. It suffers by comparison because it is only an identification survey.
(v)     Whereas there was an excess of 0.89 metres in Cassie Street, that has been taken up by the more recent surveys.
(vi)   The evidence of occupation does not prove on the balance of probabilities that Mr Burford’s survey is correct and cannot replace the surveys examined and approved by the LTO.
In my view this is a most unsatisfactory matter. I cannot understand why the parties have not been able to resolve their dispute. It means a bit of give and take on both sides. It means adjusting the boundaries and applying for new titles. That could all be accommodated by co-operation between the parties and the surveyors, and that result may still be possible after my finding.
Having made my conclusion I should add that in my view neither party is blameless in this matter. Mr Skalkos understood the significance of a registered survey. It seems that he may have simply wished to minimise cost and decided upon an identification survey only. The disclaimer was understood by Mr Skalkos. Had the survey been lodged for registration this problem may not have arisen. If the survey had been examined by the LTO the problems may have been overcome if indeed there were any.
On the other hand Mr Bested produced a survey which showed a substantial encroachment by Mr Skalkos’ garage at the rear of that property. Despite this Mr Gebski has determined to build right up to the boundary at the front of the property, knowing that his surveyor had found a serious encroachment by his neighbour. At the time he was seeking the co-operation of Mr Skalkos, through his agent Mr Fleming, Mr Gebski decided not to mention the survey he had obtained. This was a defiant act without any apparent discussion to resolve the matter. To some extent therefore both parties have themselves to blame for the situation which now exists.
Those comments may be relevant to the next stage of the dispute because they really relate to the blameworthiness of the parties as to the circumstances in which the encroachments were made, and therefore relevant to compensation.
For the purpose of finding the true boundary for the application made pursuant to s 10(2) of the Encroachments Act I determine that the boundary is as fixed by Mr Bested in his survey DP 83065. It is based on registered surveys approved by the LTO and on the balance of probabilities has not been shown to be wrong.
Accordingly I make the declaration sought by the defendants.