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 by the plaintiff and his predecessors. There are also some questions of law, particularly whether the subject land is protected by statutory provisions which prevent claims for possessory title being made against the Crown or councils.

3    It is appropriate to look first at the title to the subject land. That will set the stage for a consideration of the questions of law relevant to the issue whether the protective provisions operate.

The title to the subject land

4    Certificate of Title Volume 756 Folio 47 dated 15 September 1885 recorded William Wiley as the registered proprietor of an estate in fee simple in various parcels of land at Bronte, including Lot 236 in Deposited Plan 1033. The subject land was part of that Lot 236.

5    Part of the land in Certificate of Title Volume 756 Folio 47 was resumed in 1886. Lot 236 (and therefore the subject land) was included in the part resumed. The resumption was recorded thus on Certificate of Title Volume 756 Folio 47:

“No 116,121 Notice of Resumption. Part of the land above described has become vested in the Minister for Public Works by the operation of the Act 44 Victoria No 16 and in pursuance of the Gazette Notice in connection therewith. Produced and entered 20th December 1886 at 4 o’clock in the afternoon.”

There follows a note:

“Cancelled as regards the land in above resumption No 116,121. See Certificate of Title Vol Fol .
Cancelled and Certificate of Title issued Vol 836 Fol 100.”

6    There is no record on Certificate of Title Volume 756 Folio 47 of any new certificate of title having been issued in respect of the resumed land. Nor is there evidence that any such new certificate ever came into existence. Certificate of Title Volume 836 Folio 100, which is in evidence, does not include any part of the original Lot 236. Given the blanks after “Vol” and “Fol” in the notation of cancellation as regards the resumed land, I am satisfied that no new certificate of title was ever issued in respect of it.

7    The resumption recorded on Certificate of Title Volume 756 Folio 47 was effected by Notification of Resumption by the Governor dated 15 October 1886 under the Act 44 Victoria No 16, “An Act to provide for the Acquisition by Government of Lands for Public Purposes”. The effect of the notification was, in terms of s.8 of that Act, to cause the land in question to be:

“vested in the Minister and his successors on behalf of Her Majesty for the purposes of this Act for an estate of inheritance in fee simple in possession freed and discharged from all trusts obligations estates interests contracts charges rates rights-of-way and other easements whatsoever and to the intent that the legal estate therein together with all powers incident thereto or conferred by this Act shall be vested in the Minister as trustee with absolute powers of selling dealing with and disposing of such lands and of giving effectual discharges in respect thereof to any purchaser.”

Other provisions of that Act concerning vesting of the land in the Minister will be mentioned presently.

8    By a further Gazette notification dated 19 January 1887, the Governor declared the resumed land:

“to be a Public Park within the meaning of the ‘Public Parks Act of 1884’ and that it be known by the name of ‘Bronte Park’.”

This notification brought into operation s.4 of the Public Parks Act of 1884:

“And after the publication of a notification in the gazette to that effect the estate of the said Minister and all powers authorities and liabilities in connection therewith in such land shall on the appointment of Trustees under this Act be held by and attached to such Trustees for the purposes mentioned in the gazette notification in the same manner and with the same powers and liabilities as if such land had originally been dedicated under this Act.”

9    The notification of 19 January 1887 was followed some two months later by a further notification:

“ Department of Mines
Public Parks Branch
Sydney, 26th April 1887
It is hereby notified, for general information, that His Excellency the Governor, with the advice of the Executive Council, has been pleased to approve of the appointment of the Municipal Council of Waverley, as Trustees of the land at Bronte, Nelson Bay, known as ‘Bronte Park’, containing about fourteen acres, resumed for the purposes of a Public Park by notice in Gazette of 22nd October, 1886, No 603, page 7246, and therein described and proclaimed a Public Park within the meaning of the Public Parks Act of 1884, in Gazette of 25th February, 1887, No 43, page 542, under the name, style and title of the Trustees of ‘Bronte Park’.
FRANCIS ABIGAIL”

10    Section 5 of the Act of 1884 is in the following terms:

“It shall be lawful for the Governor to appoint the Council of any Borough or Municipal District within the limits of which any land dedicated or granted under the Act hereby repealed or now or hereafter to be resumed for a public park or ground for public recreation under the ‘Lands for Public Purposes Acquisition Act’ or now or hereafter to be purchased for such purposes to be dedicated under this Act is situated to be the Trustees of such land in their corporate name as such Council and thereupon such Council shall be Trustees of such land for all purposes of this Act.”

11    The Gazette notification of 26 April 1887 reports an appointment made by the Governor in exercise of the power conferred by that section. The consequence of the appointment, in terms of the title to the land, were those stated in s.6:

“Trustees shall for all purposes of this Act and of any by-law thereunder be deemed to hold an estate in fee simple in the land for which they were appointed but shall not be capable of alienating charging or in any way disposing of such land or any part thereof Provided always that it shall be lawful for the Trustees with the consent of the Minister to lease or grant grazing or other temporary licenses to occupy or use any portion of such land for such purposes on such terms and subject to such conditions as he may approve.”

12 The Public Parks Act of 1884 was repealed by the Public Parks Act 1902 which was in turn repealed by the Public Parks Act 1912. In each case, the repealing Act deemed trustees appointed under the authority of the repealed Act to have been appointed under the repealing Act and declared that the trustees were deemed, for the purposes of the Act and any by-law, to hold an estate in fee simple but with no capacity to alienate except by lease or licence consented to by the Minister. The terms of these provisions as to the estate and restraint on alienation were virtually indistinguishable, in each case, from those in s.6 of the Act of 1884.

13 The Public Parks Act 1912 was repealed by the Crown Lands and Other Acts (Reserves) Amendment Act 1974 which, in s.15(3), provided as follows:

“A corporation appointed or deemed to be appointed under any of the repealed enactments and holding office immediately before the commencement of this Act as trustee of any lands shall be deemed to have been appointed under section 37P of the Principal Act, as amended by this Act, to be trustee of those lands.”

14 The reference to “the repealed enactments” includes a reference to the Public Parks Act 1912. The reference to “section 37P of the Principal Act, as amended by this Act” is a reference to s.37P appearing in Part IIIB of the Crown Lands Consolidation Act 1913 inserted by the Act of 1974. That section empowered the Minister to appoint certain bodies, including a “council” (a description including the defendant), to be “the sole trustee of a reserve”, the term “reserve” being defined by s.37M, for the purposes of Part IIIB of the Crown Lands Consolidation Act 1913, so as to include any land in respect of which “a trustee appointed or purporting to have been appointed under the Public Trusts Act 1897 or the Public Parks Act 1912 was holding or purporting to hold office immediately before the commencement of the Crown Lands and Other Act (Reserves) Amendment Act 1974”. Section 37X(1) and (2) provided:

“(1) Except to the extent that the trustees of a reserve have an estate in fee simple in the reserve apart from this section, the trustees shall, for the purposes only of this Part and of any by-law, be deemed to have that estate in the reserve.
(2) The trustees of a reserve are not capable of alienating, charging granting leases of, or licenses in respect of, or in any way disposing of the reserve or any part of the reserve except in accordance with Division 3.”

15 The Act of 1974 thus did three relevant things. It caused the subject land to come within the definition of “reserve” for the purposes of Part IIIB of the Crown Lands Consolidation Act 1913; it caused the defendant’s position as trustee to derive from a deemed appointment under s.37P contained in that Part IIIB; and it deemed the defendant to have, for the purposes of Part IIIB and any by-law, an estate in fee simple except to the extent that it had such an estate apart from s.37X.

16 This last point is significant. A deemed estate in fee simple had first arisen in the defendant by virtue of the Gazette notification of 26 April 1887. This occurred by operation of s.5 of the Public Parks Act 1884 but, as that section shows, the fee simple the section caused to be in the defendant was deemed to be held only “for the purposes of this Act and of any by-law thereunder”. Section 7 of the Public Parks Act 1902 and s.8 of the Public Parks Act 1912 were to the same effect. In each case, the defendant was deemed to have an estate in fee simple but only for the purposes of the particular Act and by-laws under it. It must follow that each such estate in fee simple ceased to be held by the defendant upon the repeal of the Act for the purposes of which the estate was deemed to be held. Once the Act no longer operated, the purposes for which the deeming existed were removed. But in each case, up to and including the enactment of the Act of 1974, a new deeming was effected by the successor statute. When the Act of 1974 came into operation, the deemed estate in fee simple derived from the Act of 1912 ceased to be vested in the defendant by virtue of the repeal of the latter Act but s.37X of the Crown Lands Consolidation Act 1913 inserted by the Act of 1974 caused the defendant to have an estate in fee simple for the purposes only of Part IIIB of the Crown Lands Consolidation Act 1913 and any by-law.

17 The Crown Lands Consolidation Act 1913 was repealed by the Crown Lands Act 1989. By clause 4 of Schedule 8 to that Act, a “reserve trust” was taken to have been established under Part 5 of the Act in respect of a reserve for which a trustee or trustees held office immediately before commencement of that Part. Clause 6 of that Schedule 8 caused transitional provisions in s.125(3) to apply to a reserve trust so constituted, with the reference in that section to the “former trustee” being construed as a reference to the trustee appointed under the former Part IIIB and the reference to the “new trustee” being a reference to the reserve trust deemed by clause 4 of Schedule 8 to be established. The first of these transitional provisions is:

“All the property of the former trustee becomes the property of the new trustee, including land purchased by the former trustee.”

18 For reasons already canvassed, no estate in fee simple in the subject land can be said to have accrued to the defendant pursuant to this transitional provision. At the point at which the Crown Lands Consolidation Act 1913 ceased to have effect and the Crown Lands Act 1989 took effect, the fee simple deemed by the former to be vested in the defendant was no longer deemed so vested. That is because the purposes for which the deeming was constructed - being the purposes of Part IIIB of the Crown Lands Consolidation Act 1913 and any by-law - ceased to exist. I should add that I do not regard the deeming effected by s.37X of the Act of 1913 to be an “act, matter or thing done or omitted under or for the purposes of, and having operation immediately before the repeal of” that Act as referred to in clause 19(2) of Schedule 8 of the Act of 1989. That clause is concerned with things done or not done, not with the effect and operation of statutory provisions themselves.

19 The relationship which the defendant, as a “reserve trust”, now has with the subject land is to be discovered principally from Part 5 of the Crown Lands Act 1989. The subject land forms part of a “reserve” as defined by s.78 for the purposes of Part 5. This is because of the reference in the definition of “reserve” in s.78 to a “reserve” within the meaning of Part IIIB of the Act of 1913. The defendant’s status as a “reserve trust” leads immediately to s.100 which is within Part 5:

“(1) For the purposes only of this Part and a by-law under this Part, a reserve trust that, but for this section, would not have estate in fee simple in the reserve has such an estate.
(2) The reserve trust is not capable of alienating, charging, granting leases of or licences or easements in respect of, or in any way disposing of the whole or any part of the reserve, except in accordance with this Part.
(3) Revocation of the dedication or reservation of the whole or part of a reserve divests the reserve trust of any estate in the land affected by the revocation.”

20 The Act of 1989 thus follows the pattern of earlier legislation. It enacts that a reserve trust has an estate in fee simple in the relevant reserve for the purposes of Part 5 of that Act itself and a by-law under that Part. The statute is not the source of an estate in fee simple for any other purpose, with the result that such an estate cannot be said to exist when some different statute or other legal context is under consideration. The statutory fiction, if it may be so described, does not even exist for all purposes of the Crown Lands Act 1989 itself.

“Land of the Crown”

21 It is necessary next to turn to s.170 of the Crown Lands Act 1989 which provides that title to certain “land of the Crown” and title to “any other Crown land” may not be asserted or established by adverse possession. This raises the question whether the subject land is “Crown land” or “land of the Crown”.

22 “Crown Land” is, under s.3, “land that is vested in the Crown” and has not been dealt with in certain defined ways. It is established by Ex parte Collins (1914) 14 SR (NSW) 31 and Randwick Municipal Council v Thompson (1943) 15 LGRA 15 that land which is vested in some authority on behalf of Her Majesty is not properly regarded as vested in the Crown and is therefore outside the definition of “Crown land” (see also Watsons Bay and South Shore Ferry Co Ltd v Whitfield (1919) 27 CLR 268). The words “vested in the Crown” mean exactly what they say. The subject land is therefore clearly not “Crown land”.

23 The alternative expression “land of the Crown” is not defined in the Crown Lands Act 1989 and must be given its ordinary meaning by reference to general concepts of ownership.

24 There is, of course, a clear distinction between the Crown and a local council such as the defendant. The distinction and the basis for it were described thus by Kirby P in Sydney City Council v Reid (1994) 34 NSWLR 506:

“Whilst local government is indeed a form of government, it is also a creature of statute. Out of recognition of the imperatives of democratic self-government, the statutory provisions have enacted the creation of largely independent corporations accountable (in the ordinary course) not to the minister (that is, the Crown), but to the people who elect them. In this sense, the high measure of independence of statutory corporations, by which local government is ordinarily carried out is inconsistent with viewing their employees as servants of the Crown.”

Consistently with this, land vested in such a council is not vested in the Crown: Eurobodalla Shire Council v Registrar General [2000] NSWSC 1196 at [19]. Likewise, resumption of land by a local council in exercise of powers exercised directly by it without ministerial assistance or intervention is not resumption by the Crown: Council of Municipality of Kogarah v Southern Sydney Area Health Service NSWCA, 9 October 1992, per Sheller JA.

25 It is important to note that s.170 of the Crown Lands Act 1989 (which uses the undefined expression “land of the Crown”) is in Part 7. The estate in fee simple which s.100 deems, for the purposes of Part 5, to be held by a reserve trust must thus be ignored as non-existent when the meaning of “land of the Crown” is considered. With the deemed fee simple thus made invisible, one needs to look elsewhere for the owner of the land, since that invisible fee simple does not disturb or displace the ownership which must exist independently of it: Forster Homes For the Aged Trust v Great Lakes Shire Council [1976] 1 NSWLR 577.

26 The starting point must be Certificate of Title Volume 756, Folio 47, being the most recent record of ownership under the Torrens system. But that certificate shows that in 1886 it was cancelled as regards the subject land. No new certificate was issued in respect of that land. This implies that the land in respect of which the certificate was cancelled reverted to Crown ownership. Beazley JA described the matter thus in Gandangara Local Aboriginal Land Council v Minister Administering the Crown Lands Act (1997) 41 NSWLR 459 at 469:

“Until 1980, there was no facility for Crown land to be brought under the Torrens system. If land administered under the Real Property Act reverted to Crown land, it ceased to be subject to the Real Property Act.”

A similar approach may be found in Pratten v Warringah Shire Council (1969) 90 WN (NSW) (Pt 1) 134 where reference is made to the fact that, in 1920, nothing in the Real Property Act allowed recognition in the register of title created by statute.

27    An assumption of reversion to the Crown is borne out by the terms of the Act 44 Victoria No 16 under which the resumption of 1886 was effected. Section 8 of that Act caused the resumed land to be “vested in the Minister and his successors on behalf of Her Majesty for the purposes of this Act for an estate of inheritance in fee simple in possession”. The section went further:

“… to the intent that the legal estate therein together with all powers incident thereto or conferred by this Act shall be vested in the Minister as a trustee with absolute powers of selling dealing with and disposing of such lands and of giving effectual discharges in respect thereof to any purchaser.”

28    Section 11 provided:

“The estate and interest of every person entitled to lands resumed under this Act or any portion thereof and whether to the legal or the equitable estate therein shall by virtue of this Act be deemed to have been as fully and effectually conveyed to the Minister as if the same had been conveyed by the persons legally or equitably entitled thereto by means of the most perfect assurances in the law.”

29 Not only did this Act create in the Minister and his successors on behalf of Her Majesty an estate in fee simple for the purposes of the Act, it also vested in the Minister “the legal estate therein” and the “absolute powers” referred to in s.8, as well as deeming the previous owner’s interest to be conveyed to the Minister “by means of the most perfect assurances in the law”. No verbal effort was spared in ensuring that the Minister attained title. Furthermore, that title was not limited by, or deemed to exist only for, the purposes of the Act. The Minister became the holder of the legal estate for all purposes, even though constrained by the imposition of a trust for public purposes and the stipulation that the Minister held (as successors would also hold) “on behalf of Her Majesty”.

30 The comprehensive ownership this conferred upon the Minister and his successors on behalf of Her Majesty was afterwards terminated. The termination was effected by s.4 of the Public Parks Act of 1884. That section operated by reference to two temporal conditions: “after the publication of a notification the Gazette to that effect” (being, in this case, the notification published on 19 January 1887); and “upon the appointment of Trustees under this Act” (which, in this case, is confirmed by the Gazette notification of 26 April 1887). Immediately those conditions were satisfied, s.4 of the Act of 1884 took effect in relation to the relevant land:

“… the estate of the said Minister and all powers authorities and liabilities in connection therewith in such lands shall … be held by and attach to such Trustees for the purposes mentioned in the Gazette notification in the same manner and with the same powers and liabilities as if such land had originally been dedicated under this Act.”

31    There thus occurred in 1887 what amounted to a statutory vesting in the defendant of the ownership which the Act 44 Victoria No 16 had caused to be conferred upon the Minister. As a result, the defendant became seised, in the place of the Minister, of the legal estate together with the absolute powers referred to in s.8 of that Act and succeeded in turn to the estate and interest of the original owner dealt with by s.11.

32    But the defendant took the subject matter of the statutory vesting, being “the estate of the said Minister”, together with “all powers authorities and liabilities in connection therewith”. To my mind, the defendant, like the Minister, therefore came to hold “on behalf of Her Majesty”.

33 The stipulation in the Act 44 Victoria No 16 that the Minister and his successors were to hold the land “on behalf of Her Majesty” calls to mind the following passage in the joint judgment of McHugh, Gummow and Kirby JJ in Allders International Pty Ltd v Commissioner of State Revenue (1995) 186 CLR 659:

“Although the title to the land has passed from the Commonwealth to the Corporation without conveyance, the Corporation holds the land ‘for and on behalf of the Commonwealth’. Such a statutory title is sui generis . In our view it achieves the stated purpose of the drafter. The entire airport remains a Commonwealth place.”

34 The fact that a statutory corporation conducts its operations “on behalf of Her Majesty” is not sufficient to cause its property to be “property of Her Majesty”: Launceston Corporation v The Hydro-Electric Authority (1959) 100 CLR 654; State Electricity Commission of Victoria v City of South Melbourne (1968) 118 CLR 504. But the fact that one person actually holds property “on behalf of” another must indicate that the former does not have beneficial ownership of that property and holds subject to an interest on the part of the latter. In the Launceston Corporation case (above), it was observed by Dixon CJ, Fullager, Menzies and Windeyer JJ that if an Act causes title to land to be vested in a statutory corporation on trust for the Crown, the land is properly be regarded as belonging to the Crown. That is consistent with the observation in the Allders International case quoted above.

35 The correct approach, in my judgment, is therefore to regard the defendant as holding the subject land “on behalf of Her Majesty”. Section 4 of the Public Parks Act of 1884 not only caused the defendant to have the title which the Minister had obtained through s.8 of the Act 44 Victoria No 16 but also imposed upon the defendant the obligation or liability to hold “on behalf of Her Majesty” to which the Minister’s successors were subjected by the latter Act. That Act was still in force when the defendant succeeded to the position of the Minister and its specification that successors should hold “on behalf of Her Majesty” therefore continued to operate.

36 In the result, therefore, the subject land, because held by the defendant “on behalf of Her Majesty”, must be taken to be within the expression “land of the Crown” referred to in ss.170(1) and 170(2), even if the fact of its being held for a public purpose is not of itself sufficient to justify that conclusion: cf Re North Sydney Council (1997) 96 LGERA 227.

The “dedication” question

37 Once it is concluded that the subject land is “land of the Crown”, it becomes necessary to decide whether it has been “dedicated under the Crown Lands Acts or any other Act for a public purpose”: see s.170(1)(c). If it has been so dedicated, s.170(1) precludes any claim to title by adverse possession.

38    The resumption of 1886 under the Act 44 Victoria No 16 did not, of itself, effect any “dedication”. This is established by the decision of the Full Court in Ex parte Collins (above). Cullen CJ there said:

“Where nothing more appears than that the land has been directly vested by a resumption statute in a trustee on behalf of the Crown for public purposes, which is the case here, there is no provision in any of the Crown lands Acts, unless s.133 of the Act of 1884 be an exception, which applies to it the term ‘dedicated for public purposes’. On the other hand the term is constantly used in the Crown Lands Acts with reference to land, the subject of an express dedication, by the Governor under s.104.”

Sly J said:

“The above section [s.8 of the Public Trusts Act 1897] clearly assumes that mere resumption for a public purpose is not a reservation or dedication for a public purpose within the meaning of the Crown Lands Act of 1884, and that there must be some further act of reservation or dedication.”

39 The nature of “dedication” appears from Vale v Whiddon (1950) 50 SR (NSW) 90. After observing that dedication involves “some positive act, not a mere inattention by trustees”, Herron J continued:

“The Public Roads Act, 1902, ss.7 and 8, gives the Minister power to acquire land for the opening of a road, and by s.18 the Governor may declare any road to be a public road by notification in the Gazette. Such a declaration amounts to a dedication to the public and vests the care and management of the road in the local council .” (Emphasis added.)

40 In the present case, although the resumption of 1886 did not, of itself, effect any dedication, the subsequent declaration of 19 January 1887 under s.4 of the Public Parks Act of 1884 must be regarded as having done so. That declaration with respect to a public park was of exactly the same nature as the declaration with respect to a public road referred to by Herron J. In Watsons Bay and South Shore Ferry Co Ltd v Whitfield (above), it seems to have been accepted without comment that an equivalent declaration under the Public Parks Act 1912 was “dedication”. The subject land must therefore be taken to have been dedicated in the way referred to in s.170(1)(c) of the Crown Lands Act 1989.

41 Section 170 therefore precludes the assertion of the claim to title by adverse possession which the plaintiff seeks to establish in these proceedings. While this conclusion means that the plaintiff is not entitled to the relief he now seeks, the possibility that the conclusion may on appeal be found to be unwarranted makes it desirable that I also record my decision on the other issues relevant to the plaintiff’s claim.

Real Property Act, ss.45C(1) and 45D(3)

42 The plaintiff contends that s.45D(3) of the Real Property Act 1900 does not preclude his application for title by adverse possession. I agree.

43 For that section to act as a barrier, Her Majesty or one of the other Crown and government entities mentioned (including a “council” within the meaning of the Local Government Act 1993) must be “the registered proprietor” of the land in question. In the present case, there is no extant part of the register maintained under the Real Property Act which records ownership of the subject land. On the analysis set out above, the defendant may be regarded as the “proprietor” of the subject land within the meaning of that term as defined by s.3(1) of the Real Property Act. But, as the register maintained in accordance with s.31B contains no folio created under s.32 containing a record of the status of the defendant as “proprietor”, it cannot be said that the defendant is the “registered proprietor”.

44 This conclusion also means that s.45C(1) does not bar the acquisition of a possessory title in the subject land by the plaintiff. Such a title would not be “in derogation of the title of the registered proprietor”, since there is no “registered proprietor”.

45    This position would, of course, change if the defendant came in the future to be recorded as proprietor on a newly created folio of the register.

Location and physical characteristics of the subject land

46    The subject land is generally rectangular in shape and lies between Bronte Road and a roadway now apparently known as Calga Place which was formerly a tramway cutting. It overlooks Bronte Park and, beyond it, the Pacific Ocean. It is bounded on the south west by the north eastern side of Bronte Road and on the north east by the south western side of Calga Place which, from about 1910 to about 1960, was the site of tram lines forming part of the metropolitan tramway network but is now open to the public. On the north west, the subject land is bounded by the south eastern side of a concrete stairway which appears to be a public thoroughfare for pedestrians passing down from Bronte Road to Calga Place and the park and beach beyond, as well as those passing upwards in the opposite direction. The south eastern boundary of the subject land is the north western boundary of the plaintiff’s property at No 502 Bronte Road.

47    Although the surface of the subject land is level, that surface lies below Bronte Road and above Calga Place. As the stairway and the land beyond it towards the north west show, there is a natural slope down from Bronte Road to Calga Place and eventually to the ocean. The subject land has been excavated on the side towards Bronte Road and filled on the side towards Calga Place to produce the level surface. A stone wall encloses the subject land on three of its sides, being the Bronte Road, stairway and Calga Place boundaries. There are gates on the Bronte Road and stairway sides. The wall acts as a retaining wall on the Bronte Road side to hold back the soil of that road from the subject property; and also on the Calga Place side to hold back the soil of the subject property from that road.

48    The boundary between the subject land and No 502 Bronte Road is not marked in any visible way. In a physical sense, the subject land is incorporated with and forms part of the grounds of No 502 Bronte Road. Lawn and shrubs within No 502 extend onto the subject land. Apart from the enclosing stone wall there is only one structure on the subject land, being a concrete box about a metre square situated hard against the Bronte Road boundary with its top about a metre above the surface of the subject land. Inside the box and accessible through a metal lid is a pipe which appears to provide drainage down to the Calga Place boundary and beyond.

49    The wall surrounding the subject land on three sides is built of sandstone, with wooden pickets above. The stone has a very weathered appearance consistent with considerable age. Restoration work, by way of replacement of cement between the blocks of stone, is visible in some places. Mr McEwen SC, counsel for the defendant, conceded that the stonework in the wall appears to be of a similar age throughout.

50    Part of the description just recited comes from documents which are in evidence. Information obtainable from those documents was supplemented by my own observations from a view I had with counsel for both parties, their respective instructing solicitors and the plaintiff before the hearing began. At the commencement of the hearing I caused my observations to become part of the transcript and gave both counsel an opportunity to supplement or correct them.

Possession of the subject land

51    Like the subject land, No 502 Bronte Road is part of what was Lot 236 in Deposited Plan 1033. It is now known is part of Lot 41 in Filed Plan 970793.

52    The plaintiff became the registered proprietor of No 502 Bronte Road in May 1989 in consequence of a transfer executed by Edith Margaret McIntyre. She was sole registered proprietor from 7 January 1974, following the death of her sister, Nellie May Morton. They became the registered proprietors as joint tenants in October 1933 by virtue of a transfer from Emily Ruth Wicks.

53    When the plaintiff acquired No 502 Bronte Road from Mrs McIntyre, he also took from her a deed which is dated 17 July 1989 and is expressed to be made between her as vendor and him as purchaser. After reciting the contract for sale entered into between them in relation to No 502 Bronte Road, the deed went on to recite the following:

“C. The Vendor occupies all that piece or parcel of land adjacent to the subject land being the land marked in blue on the survey sketch prepared by J.G. Wiggins & Company, dated 21st April, 1989, a copy of which is annexed hereto and marked ‘A’ being part of lot 236 in Deposited Plan 1033 (hereinafter referred to as ‘the occupied land’).
D. On completion of the agreement for sale between the Vendor and the Purchaser the Vendor will give possession of property known as 502 Bronte Road, Bronte to the Purchaser, and will also give possession of the occupied land to the Purchaser.
E. The Vendor has continuously and to the exclusion of the true owner occupied the occupied land as and from the 28th day of August, 1933.
F. The Vendor and Nellie May Morton entered into possession of the occupied land upon completion of the sale of the adjacent property by Emily Ruth Wicks and Percy Herbert Wicks to them, which was effected by Memorandum of Transfer C202753.
G. The Vendor understands the said Emily Ruth Wicks and Percy Herbert Wicks had occupied the occupied land.
H. At all material times the occupied land has formed part of the garden of the property now known as 502 Bronte Road, Bronte.”

The deed then purported to convey to the plaintiff whatever interest in or claim to the subject land resided in Mrs McIntyre.

54    There is one minor inaccuracy in these recitals, in that recital F identifies as the transferors to Mrs McIntyre and her sister not only Emily Ruth Wicks but also her husband Percy Herbert Wicks, both of whom are said to have been the transferors under transfer number C202753. The copy of Certificate of Title 2291 Folio 1 in evidence shows that Emily Ruth Wicks alone was the transferor to Mrs McIntyre and her sister. There is also evidence, however, that Percy Herbert Wicks was the registered proprietor of adjoining land. It was common ground that Mrs McIntyre and her sister were nieces of Mr Wicks and that, in 1933 when Mrs Wicks sold No 502 Bronte Road to them, the Wicks family lived in a house adjacent to No 502 Bronte Road on the uphill or south eastern side.

55    There is thus clear evidence that Mrs McIntyre and her sister had title to No 502 Bronte Road from 1933 to 1974, that Mrs McIntyre alone had title thereafter until 1989, since when the plaintiff has had title. There is also clear evidence that this chain of title was unbroken.

56 The subject land has been occupied in conjunction with No 502 Bronte Road throughout the period since 1933 when Mrs McIntyre and her sister acquired No 502 and for a substantial time beforehand when both No 502 and the subject land were used as part of the grounds of the Wicks’ adjoining property to the south east. This is borne out by unchallenged statements of Mrs McIntyre and her cousin Mrs Cowan (the daughter of Mr and Mrs Wicks) which, in conformity with s.63 of the Evidence Act 1995, were put in evidence by the plaintiff to whom the statements were made before the respective deaths of Mrs McIntyre and Mrs Cowan.

57    Mrs McIntyre said that she had been informed by her uncle Mr Wicks that the stone wall enclosing the subject land on three sides was built in about 1910 when the tramway was completed. She remembered the wall from her childhood. She was in her mid-twenties when No 502 Bronte Road, then vacant land, was transferred to her and her sister by Mrs Wicks in 1933. It may be inferred, therefore, that Mrs McIntyre was aware of the wall from some time before 1920. She identified it to the plaintiff as the wall which still existed in 1989.

58    Mrs Cowan, described by the plaintiff as in her early seventies when he met her in 1992 or 1993, had lived as a child in the property adjoining No 502 Bronte Road on the uphill side. She was, as I have said, the daughter of Mr and Mrs Wicks. Mrs Cowan said that, when she was a child, her family kept chickens at the far northern end of the land enclosed by the stone wall. Their garden included both the site of the present No 502 Bronte Road and the subject land. The chickens were kept at the far end to be away from the house. There was a fence on top of the wall to keep the chickens in. The wall was too high for Mrs Cowan to climb to go to the beach. She had to walk up a ramp from the garden to Bronte Road.

59    It is clear from this that the subject land was in the possession of the Wicks family from some time before 1920 until Mrs Wicks transferred the site of No 502 Bronte Road to Mrs McIntyre and her sister in 1933. It is also clear that Mrs McIntyre and her sister together had possession of both No 502 Bronte Road and the subject land until the sister’s death in 1974 and that Mrs McIntyre continued in possession until she sold No 502 Bronte Road to the plaintiff in 1989 and also transferred to him by deed any interest she had in the subject land. He has been in possession since then.

60    The statements of Mrs McIntyre and Mrs Cowan of which the plaintiff gave evidence testify to the existence of the stone wall from at least 1920. There were also in evidence photographs of the Bronte beachfront in which a stone wall is clearly visible. The earliest of these photographs was agreed by the parties to have been taken in about 1915. Another, showing the home at No 502 Bronte Road (which was built in about 1934), was taken in about 1937. The wall appears from both those photographs to be in the position it occupies today. The weathered condition of the wall and the defendant’s concession that the weathering appears to be uniform throughout justify a finding that, insofar as it bounds the subject land on three sides, the wall has existed in its present position for at least eighty years.

Other Evidence

61    The plaintiff has never paid rates on the subject land or received a rate notice. The defendant, as the rating authority, has thus never acknowledged ownership on the plaintiff’s part sufficient to justify the levying of rates.

62    The only other evidence as to the defendant’s view of the occupation of the subject land before 1992 comes from letters of October 1933. Two letters from the defendant to Mr Wicks are in evidence, one dated 4 October 1933 and the other dated 11 October 1933.

63    The first letter is as follows:

“ BRONTE PARK - PERMISSIVE OCCUPANCY
Relative to previous correspondence, respecting your request for permission to occupy portion of Bronte Park, approximately 24’0” x 15’0”, and located between the fence of the park and the pathway leading from the road, I have to inform you that the Council’s Engineer has submitted an estimate in the sum of £15/12/-, for the extension of the pipeline through the open drain now running from the north-western end of your property and, upon the submission of the matter to Council at its last meeting, I was directed to request that you pay a contribution equal to one-half of the estimated cost of the work.
I shall be glad if you will advise me in due course whether or not you are prepared to make this contribution and, if so, upon receipt of your remittance for the sum of £7/16/-, the necessary instructions will be issued for the work to proceed.”

64    It seems clear enough from the description, the dimensions and the reference to the pipe (which I infer to be the pipe now inside the concrete box on the subject land) that this letter refers to the subject land. The fact that the letter is addressed to Mr Wicks and refers to “your property” may be discounted on the assumption that, in engaging in correspondence with the defendant, he was acting in the interests of his wife or his nieces: No 502 Bronte Road, then vacant land, had been transferred by the former to the latter by transfer registered the day before the date of the letter. I do not consider that the letter can be viewed as evidence of the defendant’s acquiescence in the occupation of the subject land by the occupiers of No 502 Bronte Road. Although it refers to “your [i.e., Mr Wicks’] request to occupy” what I infer to be the subject land and is headed “Bronte Park - Permissive Occupancy”, the letter does not in any way consent to any such occupancy. In fact, by referring to the “request for permission to occupy” and then going on to seek a contribution of one-half of the cost of laying a pipe, the letter may be taken as an expression of refusal of the request and of willingness of the defendant to install a pipe only if the contribution was forthcoming. This is consistent with an assertion of ownership and right to possession by the defendant. The second letter adds nothing. In it, the defendant merely informs Mr Wicks that instructions have been given for the laying of the pipe and acknowledges receipt of his payment.

65    Letters sent by the defendant to the plaintiff since November 1992 make it clear that the plaintiff’s possession of the subject land is against the will of the defendant. By a letter dated 13 November 1992, the defendant required removal of the gates and fences from the subject land within twenty eight days. This was re-affirmed in a letter of 30 April 1993 which also notified deferral of a development application submitted by the plaintiff in respect of No 502 Bronte Road. Further letters of 6 June 1996 and 11 December 1996 were to the same effect. A formal order to remove an encroachment was issued by the defendant on 18 December 1996. Further official action followed on 22 May 1998 and 16 June 1998, after which the plaintiff commenced these proceedings.

Findings in relation to possession

66    I am satisfied that the subject land has been in the possession and occupation of successive registered proprietors of No 502 Bronte Road for at least eighty years. More specifically, I am satisfied that Mrs McIntyre, first as one of two joint tenants with her sister and afterwards alone, was in possession from October 1933 and that the plaintiff went into possession immediately after his purchase of No 502 Bronte Road from her in 1989. I am also satisfied that the chain of possession and occupation of the subject land has been unbroken, corresponding as it does with the chain of ownership of No 502 Bronte Road. Furthermore, the stone wall which has existed throughout the period of at least eighty years has denied access to the subject land except from No 502 Bronte Road.

67    The correspondence with the defendant does not establish that the possession of the subject land by successive owners of No 502 Bronte Road has been sanctioned or agreed to by the defendant. Since November 1992, the defendant has voiced positive opposition to the plaintiff’s possession. Before that, the only relevant evidence is the correspondence of 1933. That correspondence does not show any agreement by the defendant to possession of the subject land by Mr Wicks or those whose interests he was representing in his correspondence with the defendant. Rather, the defendant was careful not to suggest in its letters that it was in any way approving “your request to occupy” and, by requesting the contribution to the cost of the pipe which it was to lay, demonstrated that it regarded the land on which the pipe was to be sited as its own.

68    Possession of the subject land by the plaintiff and his predecessors back to about 1920 - and certainly since October 1933 - has therefore been open, notorious, exclusive and without the acquiescence of the true owner, being the defendant.

The limitation statutes and successive possessors

69 It was conceded by Mr Murr SC for the plaintiff and not disputed by Mr McEwen SC for the defendant that, because the cause of action the defendant would have to assert to recover possession of the subject land arose before the commencement of the Limitation Act 1969 on 1 July 1971, the question whether that cause of action is barred so as to give the plaintiff a title superior to that of the defendant is to be determined by reference to the statutes of limitation applying before 1 July 1971. That is the effect of s.6(1)(c) of the Limitation Act 1969. The plaintiff does not assert that it has the benefit of shorter limitation periods arising under that Act.

70    The relevant enactments are, on this basis, the Imperial statutes known as the Real Property Limitation Act 1833 and the Crown Suits Act 1769 or “Nullum Tempus Act”. The former was adopted in and applied to New South Wales by the Act 8 Wm 4 No 3. The latter was held by the Privy Council in Attorney-General v Love [1898] AC 679 to apply in New South Wales of its own force. The Nullum Tempus Act barred actions for the recovery of lands by the Crown by reference to a limitation period of sixty years. The Real Property Limitation Act applied in other cases by reference to a limitation period of twenty years.

71 In a case of successive possessors, their periods of possession may be aggregated for the purposes of these limitation measures, provided certain conditions are met. In Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464, a case arising under the Imperial Act based on a limitation period of twenty years, Hope JA said:

“Where there is a series of trespassers, not deriving title from each other, who have been in adverse possession for a continuous period of twenty years or any extended period required by the Act, s.34 will operate to extinguish the true owner’s title: Willis v Earl Howe [1893] 2 Ch 545, at pp.553, 554; Allen v Roughley (1955) 94 CLR 98; Salter v Clarke (1904) 4 SR (NSW) 280; 21 WN 71. It is emphasized that possession by successive trespassers must be continuous to have this effect. An abandonment by one adverse possessor followed by a break in time when the land is not in possession of some person adversely to the true owner will, as we have seen, restore the true owner’s title to its pristine force.”

72    Moffitt P, adopting a judgment which had been prepared by Hardie JA who died after the appeal was heard, said:

“During the course of argument a number of interesting questions were argued as to the respective rights of successive adverse possessors where there has been no formal or informal conveyance or assignment by one to the other. It does not, for the purpose of this case, matter what the law is here; however, it is reasonably clear in the instant case that no problem arises as between the various successive adverse possessors, as in each case the previous possessor sold the property, to which the small strip was an adjunct, to the new person who went into occupation of the whole property.
For the reasons indicated above I am of the opinion that Hurley had a title by adverse possession at the time he sold to the purchaser. The purchaser became entitled to that title by reason of the contract. it is true the purchaser has not obtained a formal conveyance or any conveyance from Hurley of that interest. In my view that matters not. The purchase price was paid and Hurley is, in my view, a trustee for the plaintiff in respect of his title in the subject disputed area. That title, an equitable one, is quite sufficient to enable the plaintiff to maintain this suit and obtain the declaration he seeks and the consequential injunctive relief.

73    In the present case, the plaintiff’s position is stronger than that just described. In Mulcahy’s case, as here, the subject land was effectively incorporated with and treated as attached to other land to which the person claiming possessory title had an undisputed documentary title. The sale of that other land was held to carry with it the inchoate possessory title to the additional land. The plaintiff’s position here is stronger because, when he purchased No 502 Bronte Road from Mrs McIntyre in 1989, he also received from her a conveyance, by the separate deed of 17 July 1989, of such right and title as she had in respect of the subject land. Mrs McIntyre’s possession, initially with her sister and from 1974 alone, can therefore be aggregated with the plaintiff’s own possession for the purposes of the limitation period.

Conclusion and order

74 I am satisfied that, leaving to one side s.170 of the Crown Lands Act 1989, the plaintiff has established an entitlement to the declarations he seeks, namely, declarations that he has possessory title to the subject land and that he is entitled to possession of the subject land to the exclusion of the defendant. This is so even if the period of sixty years specified in the Nullum Tempus Act applies. The plaintiff can aggregate Mrs McIntyre’s possession of some fifty six years with his own of eleven years.

75 I am also satisfied, however, that the subject land is “land of the Crown” which has been “dedicated under the Crown Lands Acts or any other Act for a public purpose”, the “other Act” being the Public Parks Act of 1884. That being so, s.170(1) of the Crown Lands Act 1989 precludes the assertion by the plaintiff of title to the subject land on the basis of adverse possession.

76    The Summons is therefore dismissed with costs.

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Last Modified: 05/16/2001