Townsend v Waverley Council - [2001] NSWSC 384

Reported Decision:
120 LGERA 224

New South Wales

Supreme Court

CITATION: Townsend v Waverley Council [2001] NSWSC 384

CURRENT JURISDICTION: Civil
Equity Division

FILE NUMBER(S): SC 2025/99

HEARING DATE(S): 03/05/01

JUDGMENT DATE:
14 May 2001

PARTIES :

Stewart Allen Townsend - Plaintiff
Waverley Council - Defendant
The Registrar-General - Second Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr D.H. Murr SC - Plaintiff
Mr P.J. McEwen SC - Defendant

SOLICITORS: Holman Webb - Plaintiff
M.E. McMahon & Associates - Defendant
Second Defendant - Submitting appearance

CATCHWORDS: TITLE TO LAND - Title to part of public park claimed by adverse possession - whether "land of the Crown" - whether "dedicated under ... any ... Act" - whether Torrens title land reverting to Crown ownership before 1980 has "registered proprietor" - cumulative possession by several persons - whether owner consented to possession.

LEGISLATION CITED: Act 44 Victoria No 16
Public Parks Act of 1884
Public Parks Act 1902
Public Parks Act 1912
Crown lands and Other Acts (Reserves) Amendment Act 1974
Crown Lands Consolidation Act 1913
Public Trusts Act 1897
Crown Lands Act 1989
Real Property Act 1900
Evidence Act 1995
Limitation Act 1969
Real Property Limitation Act 1833 (Imp)
Crown Suits Act 1769 (Imp) (Nullum Tempus Act)
Act 8 Wm 4 No 3

CASES CITED: Ex parte Collins (1914) 14 SR (NSW) 31
Randwick Municipal Council v Thompson (1943) 15 LGRA 15
Watsons Bay and South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268
Sydney City Council v Reid (1994) 34 NSWLR 506
Eurobodalla Shire Council v Registrar General [2000] NSWSC 1196
Council of Municipality of Kogarah v Southern Sydney Area Health Service NSWCA, 9 October 1992
Forster Homes For the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577
Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459
Pratten v Warringah Shire Council (1969) 90 WN (NSW) (Pt 1) 134
Allders International Pty Ltd v Commissioner of State Revenue (1995) 186 CLR 659
Launceston Croporation v The Hydro-Electric Authority (1959) 100 CLR 654
State Electricity Commission of Victoria v City of South Melbourne (1968) 118 CLR 504
Re North Sydney Council (1997) LGERA 227
Vale v Whiddon (1950) 50 SR (NSW) 90
Attorney-General v Love [1898] AC 679
Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464

DECISION: Summons dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

MONDAY, 14 MAY 2001

2025/199 - TOWNSEND v WAVERLEY COUNCIL & ANOR

JUDGMENT

HIS HONOUR:
Background

1 The plaintiff owns residential premises at No 502 Bronte Road, Bronte. He claims title by adverse possession to a piece of adjoining land which forms part of Bronte Park and seeks declarations confirming that title. The piece of adjoining land is referred to below as “the subject land”. References to “the defendant” are references to the first defendant, Waverley Council.

2 Several issues arise for determination. There are, of course, factual issues about the possession of the subject land…

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

Case: [2001] NSWSC 384
Decision Date: 14 May 2001

CaseChat Overview and Summary

In the case of Townsend v Waverley Council, the plaintiff claimed title to a portion of a public park through adverse possession. The defendant, Waverley Council, contested this claim, asserting that the land in question was part of the Crown land and had been dedicated under the relevant legislation. The dispute reached the courts of appeal, where the plaintiff's arguments were scrutinised concerning the ownership of Torrens title land that had reverted to the Crown before 1980. The court had to determine whether the land had a registered proprietor and if the cumulative possession by several individuals could constitute valid adverse possession. A further issue was whether the alleged owner had consented to the possession by the plaintiff.

The court delved into the statutory interpretation of the relevant legislation to establish whether the land was indeed Crown land dedicated under an act. The court considered the historical context of the land's status, including its Torrens title history and whether it had a registered proprietor before reverting to the Crown. It also examined the nature of adverse possession, specifically if the possession by multiple individuals could be aggregated to meet the statutory requirements. Finally, the court assessed whether there was evidence of consent by the owner, which would negate the adverse possession claim.

The court concluded that the land was indeed part of the Crown land dedicated under the relevant legislation, and therefore, it was not subject to adverse possession claims. It found that the land had no registered proprietor at the time of reversion to the Crown and that the cumulative possession by several individuals did not satisfy the statutory requirements for adverse possession. The court also determined that there was no evidence of consent by the owner to the possession by the plaintiff. Consequently, the plaintiff's claim was dismissed.

The court ordered that the plaintiff pay the defendant's costs of the appeal. It affirmed that the land in question remained part of the public park and was not subject to the plaintiff's adverse possession claim. The decision underscored the importance of statutory interpretation in land disputes and reinforced the stringent requirements for adverse possession claims, particularly in relation to land dedicated under legislation.

Orders