Wardanski v Mawby
[2023] QSC 136
•18 August 2023
SUPREME COURT OF QUEENSLAND
CITATION: Wardanski & Anor v Mawby & Anor [2023] QSC 136 PARTIES: Agnieszka Wardanski (First Plaintiff) Pawel Grzegorz Wardanski (Second Plaintiff) v Karen Mary Mawby (First Defendant) Scott Cameron Marks (Second Defendant) FILE NO/S: BS 4153 of 2020 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING Supreme Court at Brisbane COURT: DELIVERED ON: 18 August 2023 DELIVERED AT: Brisbane HEARING DATE: 12, 13 and 14 June 2023 JUDGE: Crowley J ORDER:
1.
Pursuant to ss 185(1)(a) and 186 of the Property Law Act, the Defendants pay compensation to the Plaintiffs, comprising:
a. $16,087.50, being three times the unimproved capital value of the subject land burdened by the Encroachment that is to be transferred to the Defendants (an area of approximately 8.25m[2]); and
[2] (2019) 2 QR 556 (‘HS South Brisbane’).
b. $5,000, for the resulting diminution in the value of the Plaintiffs’ property.
2. Pursuant to s 185(1)(b) of the Property Law Act, within six months of these orders being made:
a. subject to all necessary consents from Logan City Council being obtained, the Plaintiffs transfer to the Defendants the fee simple interest in the subject land burdened by the Encroachment (an area of approximately 8.25m2);
b. the parties take all required and necessary steps to realign the boundary between the Plaintiffs’
property and the Defendants’ property, so as to
reflect the true boundary between the properties, having regard to the transfer of land referred to in order 2(a) above; and
c.
all costs and expenses incurred by the Plaintiffs and the Defendants in order to give effect to orders 2(a) and (b) above, including legal costs, be paid by the Defendants.
CATCHWORDS:
REAL PROPERTY – BOUNDARIES OF LAND AND FENCING – ENCROACHMENT OF BUILDINGS AND PARTY WALLS – POWER TO GRANT RELIEF – where the
plaintiffs and the defendants own adjourning residential properties – where the fence separating the properties does not reflect the true boundary between the properties – where several structures on the defendants’ side of the fence partially
or fully encroach onto the plaintiffs’ property – where the parties did not become aware of the encroachment and the misalignment of the fence until after they purchased and began
occupying the properties – where the plaintiffs seek orders for the removal of the encroachment and the encroaching structures – where the plaintiffs allege they need the subject land to build a garage – where the defendants seek orders for
the conveyance of the subject land from the plaintiffs to the defendants – whether the Court should order the removal of the encroachment under s 185(1)(c) of the Property Law Act 1974 (Qld) – whether, if the Court does not order removal of the encroachment, the Court should order the transfer of the land to the defendants under s 185(1)(c) – whether the Court can take into account settlement offers in considering the
appropriate relief under s 185(1)(c)Property Law Act 1974 (Qld), s 182, s 184, s 185, s 186, s 194 reg 18
Carlin v Mladenovic (2002) 84 SASR 155; [2002] SASC 206, cited
Farrow Mortgage Services v Boscaini Investments Pty Ltd (1996) 189 LSJS 337, cited
Gladwell v Steen (2000) 77 SASR 310; [2000] SASC 143,
considered
HS South Brisbane Pty Ltd v United Voice (2019) 2 QR 556;
[2019] QSC 274, considered
McIntosh v Morris [2021] NSWCA 225, cited
Re Assumpsit No. 32 (Supreme Court of Queensland, Williams
J, No 673/86, 10 October 1986), citedRe Melden Homes No 2 Pty Ltd’s Land [1976] Qd R 79, considered
Paridaen v Mahaside Pty Ltd [2022] QSC 109, cited
Shadbolt v Wise [2006] 1 Qd R 553; [2005] QCA 443,distinguished Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157 [1997] 1 Qd R 102, followed COUNSEL: B O’Brien for the Plaintiffs D Ananian-Cooper for the Defendants SOLICITORS:
Cooper Grace Ward for the Plaintiffs Plastiras Lawyers for the Defendants
Introduction
The Plaintiffs, Agnieszka and Pawel Wardanski, and the Defendants, Karen Mawby and Scott Marks, own adjoining residential properties in Cynthia Crescent, Springwood. The Plaintiffs bought their home at 10 Cynthia Crescent in 2003. The Defendants bought their home at 12 Cynthia Crescent in 2014.
Neither of the parties obtained a survey to confirm the boundary line between the properties when they acquired their respective lots.
The adjoining properties are separated by a shared fence. No one knows who built the fence. It was there when the Plaintiffs bought their property.
For several years, the parties lived happily next door to each other, each believing the existing fence accurately marked the boundary between their adjoining properties.
They were wrong.
In fact, the Plaintiffs’ property extends beyond the fence line and covers part of the land that each of the parties had previously believed was the Defendants’ property. It is now apparent to the parties that structures (the ‘Encroaching Structures’) once believed to be standing wholly on the Defendants’ land have actually been built across the true boundary line between the properties and encroach on the Plaintiffs’ land (the ‘Encroachment’).
The parties only became aware of the Encroachment as a result of renovation and modification works undertaken by the Defendants on their property in 2017 and 2018.
The parties initially attempted to resolve the encroachment issue between themselves. Unfortunately, the encroachment issue soon turned into an encroachment dispute.
The parties have been unable to reach a mutually acceptable resolution of their dispute. Each considers the position taken by the other to be unfair and accuses the other of acting unreasonably. Neighbours who were once on friendly terms have become embroiled in an intractable feud.
The Plaintiffs want the use and enjoyment of the entirety of their land and have demanded the Defendants remove the Encroaching Structures. They say they intend
to build a garage of their own (the ‘Plaintiffs’ Garage’) and they need the land the
subject of the Encroachment to enable them to construct a garage of the size and style
they want and need.
The Defendants have refused to remove the Encroaching Structures. They have proposed a boundary realignment, which would allow them to retain the Encroaching Structures, in return for which they would compensate the Plaintiffs for the land that they would acquire.
It is in those circumstances that the Plaintiffs now seek relief under pt 11, div 1 of the
Property Law Act 1974 (Qld) (the ‘PLA’).
The Plaintiffs, as ‘adjacent owners’, have commenced this proceeding. The primary
relief they seek is an order for removal of the Encroachment and the Encroaching Structures, pursuant to s 185(1)(c) of the PLA. If such an order is made, the Plaintiffs also seek an order that the Defendants pay the following amounts by way of compensation, pursuant to s 185(1)(a) of the PLA:
(a) $13,777.50, being the total costs incurred by the Plaintiffs in obtaining urban planning and surveying advice, obtaining an identification survey and professional and legal fees associated with identifying and attempting to resolve the encroachment issue with the Defendants prior to the commencement of this proceeding; and (b) $194.14, being the costs of local government rates paid by the Plaintiffs in respect of the area of 19m2 of which they have not had the use and enjoyment.
Alternatively, if an order is made for transfer of the Plaintiffs’ land burdened by the
Encroachment to the Defendants, the Plaintiffs seek an order for compensation in respect of:
(a) the value of the Plaintiffs’ property that is burdened by the Encroachment;
(b) if the area of land transferred is less than 19m2, $5,000, being for the diminution in value to the Plaintiffs’ property as a result of the crooked
boundary line;
(c) $165,000 (inclusive of GST), being the costs that will be incurred by the Plaintiffs to make modifications to the design and construction of the Plaintiffs’ Garage to accommodate the Encroachment;
(d) $13,777.50, being the total costs incurred by the Plaintiffs in obtaining urban planning and surveying advice, obtaining an identification survey and professional and legal fees associated with identifying and attempting to resolve the encroachment issue with the Defendants prior to the commencement of this proceeding; and (e) $194.14, being the costs of local government rates paid by the Plaintiffs in respect of the area of 19m2 of which they have not had the use and enjoyment.
Depending on the particular relief, if any, which is granted, the Plaintiffs also seek various other consequential orders necessary to give effect to the orders made.
The Defendants contend that the appropriate relief is an order for the conveyance of the land the subject of the Encroachment from the Plaintiffs to the Defendants, with the costs of the conveyance to be paid by the Defendants. The Defendants further contend the Court should order the Defendants pay compensation to the Plaintiffs, calculated under s 186 of the PLA, in the amount of the unimproved capital value of the land the subject of the Encroachment.
Relevant law and legislation
Under the common law, an unauthorised encroachment by a structure situated on one property upon the land of a neighbouring property is a trespass, for which the adjacent owner may sue the encroacher for damages or seek an injunction for its removal. In
the case of an inherited encroachment, if the original placement of the encroachment
by the encroaching owner’s predecessor in title was trespassory, then the encroaching
owner could later be held liable for a continuing trespass if they continued or adopted it, for example by maintaining it after it was drawn to their attention.[1] Furthermore,
in the event of damage or an ongoing interference with the adjacent owner’s use or
enjoyment of their land due to the encroachment, an action for nuisance might be brought by the adjacent owner.[1] McIntosh v Morris [2021] NSWCA 225, [72] (White AJ, Brereton JA and Emmett AJA agreeing), [101] (Brereton JA in separate reasons).
Encroachment disputes may also be determined by the Court under the provisions of
pt 11, div 1 of the PLA, which is titled ‘Encroachment of buildings’. For present
purposes, the relevant provisions are ss 182, 184, 185, 186 and 194.
Section 182 defines the following terms for the purposes of div 1:
adjacent owner means the owner of land over which an encroachment
extends.
boundary means the boundary line between contiguous parcels of land.
building means a substantial building of a permanent character, and
includes a wall.
encroaching owner means the owner of land contiguous to the
boundary beyond which an encroachment extends.encroachment means encroachment by a building, including encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.
…
subject land means that part of the land over which an encroachment
extends.Section 184 permits either an adjacent owner or an encroaching owner to apply to the Court for relief in respect of any encroachment.
Section 185 provides:
185 Powers of court on application for relief in respect of
encroachment
(1) On an application under section 184 the court may make such order as it may deem just with respect to—
(a)
the payment of compensation to the adjacent owner; and
(b)
the conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest in the land or of any easement, right, or privilege in relation to the land; and
(c) the removal of the encroachment. (2)
The court may grant or refuse the relief or any part of the relief as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider,
amongst other matters—
(a)
the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be; and
(b)
the situation and value of the subject land, and the nature and extent of the encroachment; and
(c)
the character of the encroaching building, and the purposes for which it may be used; and
(d)
the loss and damage which has been or will be incurred by the adjacent owner; and
(e)
the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment; and
(f)
the circumstances in which the encroachment was made.
Section 186 provides:
186 Compensation
(1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant under section 185 to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional and did not arise from negligence, be the unimproved capital value of the subject land, and in any other case 3 times such unimproved capital value. (2) In determining whether the compensation shall exceed the minimum and if so by what amount, the court shall have regard to—
(a) the value, whether improved or unimproved, of the subject land to the adjacent owner; and (b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner; and (c) the circumstances in which the encroachment was made.
Section 194 provides:
194 Costs
In any application under this division the court may make such order as to payment of costs (to be taxed as between solicitor and client or otherwise), charges, and expenses as it may deem just in the circumstances and may take into consideration any offer of settlement made by either party.
There is no issue in this case that for the purposes of pt 11, div 1, there is an
‘encroachment’ on the Plaintiffs’ property, that the Defendants are ‘encroaching
owners’ and that the Plaintiffs are ‘adjacent owners’.
The purpose and operation of pt 11, div 1 of the PLA were considered by Bowskill J (as the Chief Justice then was) in HS South Brisbane Pty Ltd v United Voice.2 After a detailed analysis of the legislative history of antecedent legislation in Queensland and analogous legislation in other jurisdictions, her Honour relevantly concluded:[3]
Having regard to the text of the provisions, and the legislative history discussed above, the purpose of Pt 11, Div 1 of the Property Law Act 1974 is aptly described as providing a means of resolving questions or disputes as between owners of contiguous parcels of land in relation to encroachment (or potential encroachment) of buildings across the boundary between those parcels, either:
by a determination of the true boundary, where a question arises about
whether a building encroaches or will encroach (under s 191); orby providing a fair and efficient process by which a dispute about an encroachment can be resolved by the court, by the adjustment of the boundary to take account of the encroachment, with payment of compensation to the adjoining owner if considered appropriate, calculated in accordance with the legislation, or for removal of the encroachment (under ss 185 and 186).
[3] Ibid [35].
The legislation is remedial in character and ought to be construed and applied accordingly.
Sections 185(1)(a)–(c) provide for the types of orders that the Court may make, in the
exercise of its discretion, upon an application for relief being made under s 184 of the
PLA.
Under s 185(2), the Court may grant or refuse the relief sought or any part of it ‘as it deems proper in the circumstances of the case’. In the exercise of this discretion, the Court may consider, amongst other matters, the matters set out in ss 185(2)(a)–(f).
Section 185(2) does not provide an exhaustive list of the relevant matters that may be taken into account in determining what relief, if any, is to be granted in any particular case.
Section 185 of the PLA thus confers a wide discretion upon the Court. In Paridaen v Mahaside Pty Ltd,[4] by reference to various authorities, Bowskill CJ relevantly stated:[5]
The discretion conferred by s 185 is a very wide one, with the relevant factors not limited to those set out in s 185(2). Other factors which have been identified as relevant include whether the applicants (the adjoining owner) obtained a survey at an early stage; and the conduct of the parties, particularly conduct giving rise to the encroachment, and whether the encroaching owner was aware of the fact of the encroachment at the time it was constructed.
[4] [2022] QSC 109.
[5] Ibid [6], citing HS South Brisbane at [38]–[43]; Re De Luca [1994] QSC 579; Re Perdita Pty Ltd
In HS South Brisbane, Bowskill J considered the interaction between ss 185(1)(a) and
186 and concluded that, on its proper construction, the reference to an order for ‘the
payment of compensation to the adjacent owner’ in s 185(1)(a) was compensation
calculated in accordance with s 186.[6] In reaching this conclusion, her Honour rejected a contrary interpretation that s 185(1)(a) was to be construed as providing for a separate head of compensation, distinct from the compensation that may be awarded under s 186, relevantly stating:[7]
What is abundantly clear, however, is that if the court exercises its discretion under s 185(1), to make an order under sub-s (b) for the conveyance, transfer, or lease or grant of the subject land, or some interest in it, to the encroaching owner, and to make an order under sub-s (a) to order payment of compensation to the adjacent owner [which is not necessarily a given, as discussed below], that compensation is to be determined in accordance with s 186. As discussed at the outset of this section of the reasons, I do not accept that the provisions are properly construed as leaving the determination of compensation in those circumstances to the discretion of the court, unbound by the parameters of s 186. Such a construction, as pressed for by the plaintiff, is inconsistent with the clear words of the statute.
[6] HS South Brisbane, [61].
[7] Ibid [63] (emphasis in original).
As her Honour alluded to in this passage, where an order is made for the conveyance or transfer of the subject land, the Court may nevertheless decline to exercise its discretion to make an order for compensation under s 186 of the PLA.[8]
[8] Ibid [64]–[66].
In Re Melden Homes No 2 Pty Ltd’s Land,[9] Dunn J considered the appropriate relief
to be granted under similar provisions of the now repealed Encroachment of Buildings Act 1955 (Qld). Section 3 of that legislation was in the same terms as s 185 of the
PLA. With respect to matters relevant to the exercise of the Court’s discretion under
that provision, his Honour relevantly stated:[10]
When an application for a determination of compensation is made, the first question (which arises under s. 3) is whether compensation should be ordered to be paid at all. Ordinarily there will be such an order, particularly in a case in which the adjoining owner is required to transfer land to the encroaching owner. But even in such a case it may on occasions be appropriate not to make an order for compensation,
having regard to the conduct of the parties…
The Act does not define “compensation”, nor specify how it is to be calculated. The ordinary meaning of the word is “recompense” or “amends”. As the legislation is remedial in character, the Court should
not in my opinion be unduly critical or restrictive when an applicant for compensation specifies any head of loss or damage, so long as that head of loss or damage has arisen by reason of the encroachment, and not by reason of for instance a combination of the encroachment and unreasonable conduct.
[9] [1976] 1 Qd R 79 (‘Melden Homes’).
[10] Ibid 81.
Similarly, despite Bowskill J’s conclusion in HS Brisbane South with respect to the
proper construction of s 185(1)(a), her Honour nevertheless accepted that the amount of compensation payable to an adjacent owner, calculated in accordance with s 186, could include ‘consequential loss or damage’, stating:[11]
[11] HS Brisbane South, [86], [89] (emphasis in original).
…In order for loss and damage to appropriately be factored into any
increase in the minimum compensation to be paid, it must be loss and damage which has been or will be incurred by the adjacent owner
“through the encroachment” and [or] “through the orders proposed to
be made in favour of the encroaching owner”. The ordinary meaning
of the word “compensation” ought not be relied upon as expanding
what is otherwise properly captured within the meaning of the words
used in the section itself.
…
…as a matter of the construction of s 186, in my view the
compensation which may be ordered to be paid to an adjacent owner is not limited to the value of the subject land, or the loss caused to the
adjacent owner’s title to their land, but could include other
consequential losses which have been or will be incurred by the
adjacent owner “through the encroachment” and [or] “through the
orders proposed to be made in favour of the encroaching owner”.
Whether an order for compensation will exceed the minimum amount payable under s 186(1), on account of loss or damage that has been or will be incurred by the
adjacent owner ‘through the encroachment’ or ‘through the orders proposed to be
made in favour of the encroaching owner’, will depend upon the circumstances of the
case.
With respect to the onus imposed by s 186(1), requiring an encroaching owner to prove that the encroachment was not intentional and did not arise from negligence, different views have been expressed as to how the onus is to be applied in the case of a successor in title who was not responsible for the original encroachment.[12] I note that in Gladwell, Debelle J considered that it is open to the Court in the exercise of
its broad discretion to award either that no compensation be paid, or that only the unimproved capital value be paid, or that three times the unimproved capital value be
paid for the transfer of the land the subject of the encroachment, and that whichever
[12] In particular, I note the different views expressed by Debelle J in Farrow Mortgage Services v Boscaini
alternative is appropriate will depend upon the circumstances of each individual case.
Whilst it is well established that no order for compensation may be made even where an order is made for the transfer of the land the subject of an encroachment, I do not consider the Court may ignore the express terms of s 186(1) and the onus that must be discharged by the encroaching owner. In my view, if the Court determines that it is appropriate to make an order for compensation, then s 186(1) must be applied. The
‘minimum amount’ of compensation to be paid to the adjacent owner in respect of
the transfer of their land that is the subject of encroachment is therefore to be
determined in accordance with the terms of s 186(1).
Section 186(1) provides no exception for successors in title who were not responsible for the original encroachment. Accordingly, regardless of whether the encroaching owner was responsible for the original encroachment, unless the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, the minimum amount of compensation to be paid is three times the unimproved capital value of the subject land.
It may be accepted that an encroaching owner who inherits an encroaching structure that was constructed by a predecessor in title may well encounter difficulties in discharging the onus cast upon them. However, that is no reason to depart from the clear language used in s 186(1). Neither is a perception of unfairness. In my view, the legislation is clear and unambiguous. No resort can be had to the broad discretion in s 185(1) to circumvent s 186(1).
Issues for resolution
The parties have identified the following issues to be resolved in this proceeding:
(a) Is the area of the encroachment 9.25m2 or not more than 8m2?
(b)
Can the Court take into account settlement offers in considering relief under s 185?
(c) What relief, if any, should be granted? In particular:
(i) Should the Court order removal of the Encroachment under s 185(1)(c)?
(ii) If the Court does not order removal of the Encroachment:
1. Should the Court order the transfer of land to the Defendants under s 185(1)(b)? If so, what area of land should the Court order be transferred?
2. Should the Court order the Defendants pay compensation to the Plaintiffs under s 185(1)(a)? If so, what should the amount of compensation be? Should the amount exceed the
‘minimum compensation’ to be paid under s 186?
(d) Can the Court can order compensation be paid to the Plaintiffs under s 185(1)(a) if no order is made under s 185(1)(b) for transfer of the subject land?
With the exception of settlement offers, the parties are agreed as to the relevant circumstances in this case which are to be taken into account in determining what relief, if any, is to be granted. In addition to the non-exhaustive list of circumstances set out in ss 185(2)(a)-(f) of the PLA, the parties each submit that the relevant circumstances include their conduct in respect of the encroachment issue before the commencement of the proceeding.
Although they generally agree on the relevance of the circumstances to be considered, the parties disagree on whether, or the extent to which, some of the circumstances are established on the evidence adduced at trial.
It is to be noted that the parties are not agreed as to what particular land may be transferred if an order is made under s 185(1)(b). The Plaintiffs contend that the entire
portion of the 19m2 of their land that is located on the Defendants’ side of the fence may be transferred because the entire portion is ‘burdened by the Encroachment’. The Defendants contend that this is not permissible and only ‘the subject land’, being that
part of the land over which the Encroachment extends, may be transferred. I will
return to this issue in due course.Details of the adjoining properties and the Encroachment
The Plaintiffs’ property at 10 Cynthia Crescent, Springwood, Queensland, is properly
described as lot 17 on registered plan 123574 in the local government area of Logan
with title reference 14447089. Their property is 855m2 in area.
The Plaintiffs have been the registered owners of their property since 30 May 2003.
The unimproved capital value of the Plaintiffs’ property is $555,000, reflecting a
value of $650.00 per square metre.
Mr Thomas Walton, a property valuer, provided a report in which he expressed his
expert opinion that the unimproved capital value of the Plaintiffs’ land burdened by
the Encroachment was:
(a) $12,350, if the area of the land was 19m2; or
(b) $6,000, if the area of the land was 9.25m2.
As to any decrease in the value of the Plaintiffs’ land if the land burdened by the
Encroachment were transferred to the Defendants, Mr Walton’s opinion was that the
decrease would be:
(a) $12,350, if the area of the land was 19m2; or
(b) $11,000, if the area of the land was 9.25m2 (comprised of the unimproved capital value figure of $6,000 plus a further allowance of $5,000 to reflect the diminution in value due to a resultant crooked boundary line).
Mr Walton also determined that the value of the Plaintiffs’ land burdened by the
Encroachment to the Defendants was $72,000. In his opinion, this value was best assessed by reference to the costs which the Defendants would face if the Encroachment were removed, being a combination of the costs of rectification works and the diminution in value. Mr Walton used a figure of $65,000 for the costs savings, which was about the midpoint between the costs estimates of $42,302 and $80,000
respectively provided by the Plaintiffs’ builder and the Defendants’ builder for
removal of the Encroachment. He then added $25,000, which in his view was a
reasonable estimate of the loss in the value of the Defendants’ property, based on the
assumption that upon removal of the Defendants’ Garage, the Defendants would only
then be left with space to build a single car garage. Finally, Mr Walton applied a 20
per cent discount to arrive at the figure of $72,000.
In his evidence-in-chief, Mr Walton was asked whether his opinion would change if he assumed that the costs saving figure was $221,013, excluding GST. He agreed that his opinion would change, and the value would be higher than $72,000.
The Plaintiffs used their property as their residence and family home from November 2003 until around September 2019. They then moved to another residence because of the feud with the Defendants which arose from the encroachment dispute.
The Defendants’ property at 12 Cynthia Crescent, Springwood, Queensland is
properly described as lot 18 on registered plan 123574 in the local government area
of Logan with title reference 14447090. Their property is 706m2 in area.
The Defendants have been the registered owners of their property since 22 October 2014. The Defendants have used their property as their residence and family home since 2017.
The two properties are suburban residential properties, located next to each other in
a cul-de-sac. The eastern boundary of the Plaintiffs’ property adjoins the western boundary of the Defendants’ property. The adjoining properties are separated by a
fence. The fence line does not reflect the true boundary between the properties.
The parties agree that several of the Defendants’ structures encroach, wholly or in part, upon the Plaintiffs’ land. The parties have identified the following Encroaching Structures in their joint ‘List of Issues Not in Dispute’:
(a) stormwater drainage and infrastructure including pipes and grate (the ‘Stormwater Structures’);
(b) concrete slabs and a concrete wall (the ‘Concrete Wall’);
(c)
a garage with concrete footings, guttering and driveway (the ‘Defendants’ Garage’);
(d) a garden shed (the ‘New Garden Shed’); and
(e) a retaining wall extending out from the front of the Defendants’ Garage (the ‘Retaining Wall’).
In addition to these structures, the List of Issues Not in Dispute notes:
…for the avoidance of doubt, the parties are agreed that the ‘Retaining
Wall’, the ‘Sleeper Retaining Wall (Low)’, the ‘Sleeper Retaining
Wall(s)’ and the ‘Block Wall’ encroach on the Plaintiffs’ Property (as
those terms are defined or identified in Sheets 1, 2 and 3 of Drawing Number 2430_CD_07 (Rev 1) of Exhibit PJR-12 to the Affidavit of
Paul James Riley sworn 27 February 2022) (the ‘Encroachment
Plans’).[13]
[13] I further note that the Plaintiffs plead in paragraph [G] of the particulars to paragraph [10] of their
The existing fence does not meet the definition of a ‘building’ in s 182 of the PLA
and therefore is not an Encroaching Structure and does not constitute any part of the
Encroachment.
The Encroachment Plans show the Encroachment and each of the identified Encroaching Structures. They are reproduced on the following pages:
The Encroachment Plans show the divergence between the existing fence and the true property boundary covers a thin, long, wedge-shaped area of land which runs the entire length of the two adjoining properties.[14] The widest section of divergence is 940mm, which commences at the front of the properties. The width of the divergence narrows from the front to the rear of the properties, ultimately terminating at a point where both the existing fence and the true boundary intersect with the property boundary of another rear neighbouring lot. At the final point of intersection there is no divergence. At a point near the Block Wall, the divergence is 620mm, and at a point near the New Garden Shed, the divergence measures 400mm. The total area of
the land between the fence and the true boundary of the Plaintiffs’ and Defendants’
properties is 19m2. The Encroaching Structures are situated within that section of land.[14] This is the area highlighted in blue on Sheet 3 of the Encroachment Plans.
The Encroaching Structures are located at various points along and adjacent to the
existing fence, on the Defendants’ side. The parts of the Encroaching Structures that
extend onto the Plaintiffs’ land vary in shape, size and construction. Some of the
Encroaching Structures encroach by a very small margin.
The Encroachment Plans show that the total area of the Encroachment is 9.25m2.[15] The Defendants dispute this figure.
[15] Being the sum of the areas highlighted in yellow and pink on Sheets 1 and 2 of the Encroachment Plans.
The Retaining Wall at the front of the Defendants’ Garage is a rendered block or brick-type construction. It adjoins the front of the western wall of the Defendants’ Garage and extends all the way out to the front of the Defendants’ property, which is
the southern boundary. It borders the length of the driveway entrance on the
Defendants’ property. Its primary purposes appear to be both functional and
decorative, as a landscaping retaining wall and as a feature wall at the front entry of
the Defendants’ property.
The Retaining Wall’s precise dimensions are not apparent. It appears to be
approximately 4m long and about half the height of the existing fence. The Encroachment Plans show that the Retaining Wall and the associated section of the
driveway maximally encroach upon the Plaintiffs’ property by 650mm.
The Defendants’ Garage comprises a garage with concrete footings, guttering and a
driveway. The garage and the associated driveway are the most significant of the Encroaching Structures. The garage is a double car garage with a panel lift door, used
to house the Defendants’ vehicles. The garage walls and floor are built of solid
stone/concrete material. The roof is steel. The driveway is a large, paved entranceway
providing vehicle access from the street to the garage.
The Encroachment Plans show that the Defendants’ Garage encroaches upon the Plaintiffs’ property by 440mm at the front and by 20mm at the rear. The garage gutter
extends further beyond the western wall of the garage, encroaching by 600mm at the
front of the garage and by 200mm at the rear.
The various sleeper retaining walls running perpendicular from the retaining Wall
and the Defendants’ Garage are small wooden items, partly embedded into the
ground. They appear to be entirely functional in nature, designed to hold back soil, landscaping or other works. The same may be said of the Sleeper Retaining Wall (Low) and the longer sleeper retaining wall that runs from the Block Wall into the
Defendants’ garden, parallel to the existing fence. It does not appear to me that any
of the various sleeper retaining walls would constitute a ‘substantial building of a
permanent character’[16] but I proceed on the basis that the parties are agreed that these
structures do encroach on the Plaintiffs’ property.
[16] cf. s 182 of the PLA.
The Stormwater Structures include stormwater pipes, which are wholly encroaching
on the Plaintiffs’ land, and a stormwater grate, which partly encroaches, with
approximately half of that structure situated on the Defendants’ land and the other
half on the Plaintiffs’ land. The Stormwater Structures are functional structures
attached, or adjacent, to the Defendants’ Garage. Their purpose appears to be to
channel and drain water run-off from the roof guttering around the Defendants’
Garage.
The Block Wall is a small, rendered block construction situated in the garden behind
the Defendants’ Garage. It also appears to have a partly functional purpose, as a
retaining wall, and a partly decorative purpose. The Block Wall marginally
encroaches upon the Plaintiffs’ property by 60mm.
The New Garden Shed is a small utility shed situated at the rear of the Defendants’
property. It appears to be a light pre-fabricated sheet metal structure that sits atop a concrete footing base. According to the Encroachment Plans, it encroaches upon the
Plaintiffs’ property by 350mm.
Apart from the New Garden Shed, the Sleeper Retaining Wall (Low) and the Block Wall, each of the Encroaching Structures had been built and was present in its current position before the Defendants became the owners of their property. This includes
the Defendants’ Garage, although the Defendants made modifications to their garage
in 2019, including by installing a new roof.
The Defendants’ Garage and Retaining Wall were constructed in 2008 by the previous owners of the Defendants’ property, the Kimazewskis. As part of the
relevant development application, the Kimazewskis sought and obtained the
Plaintiffs’ consent to a relaxation of setback building restrictions to enable them to
build the garage closer to the front boundary of their property. No formal survey of
the shared property boundary was undertaken at the time.
Although the Defendants erected the New Garden Shed sometime in 2017, it simply replaced an old existing shed that had been built many years earlier by the previous owners of the property. The New Garden Shed is slightly higher than the previous garden shed but is otherwise of a similar length and width and has not increased the footprint of the Encroachment.
The Sleeper Retaining Wall (Low) and the Block Wall are the only entirely new structures built by the Defendants.
Thus, aside from the construction of the Sleeper Retaining Wall (Low) and the Block Wall, the Defendants were not responsible for the creation of the Encroachment. They largely inherited an existing problem that was created by the previous owners and unknowingly suffered by the Plaintiffs for many years.
The area of the Encroachment
Submissions
The parties do not agree on the total area of the Encroachment.
The Plaintiffs’ case is that the area of the Encroachment has been accurately
calculated by Paul James Riley, a licensed consulting surveyor authorised to carry out
cadastral surveying, to be 9.25m2.
The Defendants contend that Mr Riley’s calculation is wrong, and that the actual area of the Encroachment is less than 9.25m2. Before trial, the Defendants’ position was
that the total area of Encroachment was not more than 8m2.
Evidence
In 2019, Mr Riley’s firm, P.J. Riley Surveyors (‘PJ Riley’), performed an identification survey (the ‘Identification Survey’) for the Plaintiffs to determine the
true boundary and the extent of the Encroachment.
For the purpose of this proceeding, Mr Riley was asked by the Plaintiffs’ solicitors to
prepare a plan identifying the Encroaching Structures and to calculate the total area of the Encroachment. Mr Riley calculated the total area of the Encroachment as 9.25m2, comprising three separate measurements. The largest area of encroachment
was 7m2, covering the encroaching areas of the Defendants’ Garage, the Retaining
Wall, the Concrete Wall and the Stormwater Structures. A further small area of
0.25m2 was calculated in respect of the ‘approximate footings’ of the Retaining Wall.
The final area of encroachment was in respect of the New Garden Shed, calculated as 2m2. The encroaching areas of the Sleeper Retaining Wall (Low) and the Block Wall do not appear to have been included.
The Defendants accept the accuracy of the first two measurements but dispute the
calculation in respect of the New Garden Shed’s area of encroachment.
In cross-examination, Mr Riley agreed that the 2m2 figure in respect of the New Garden Shed encroachment was in fact a calculation of the entire area of the yellow highlighted triangle section at the top of the plan. He agreed that the area he measured extended from the identified southern edge of the New Garden Shed, indicated by a
line marking designated ‘shed’, all the way to the northern boundary line shown at
the top of the plan. He further agreed that he had not identified the northern edge of the shed when making his calculation and therefore what he had measured was the area of the entire triangle rather than the footprint of the shed within that section.
In cross-examination, Mr Riley was shown a satellite photograph of the adjoining properties, which depicted the New Garden Shed in the top right-hand corner. By reference to that photograph, Mr Riley agreed that the New Garden Shed did not extend all the way to the boundary line. He further agreed that the length of the New Garden Shed would not be more than 3m. As he had identified the extent of the New
Garden Shed’s encroachment onto the Plaintiffs’ land as 0.35m, he agreed that the
total area of the Garden Shed’s encroachment could be calculated as 3m x 0.35m, or
approximately 1m2.
In re-examination, Mr Riley stated that in order to conduct the calculation of the New
Garden Shed’s area of encroachment, he would need a precise measurement of the
length of the shed.
Consideration
Given the evidence of Mr Riley, I find that the total area of the Encroachment is less than 9.25m2, and likely to be about 8.25m2. However, the exact area cannot presently be determined. Precise measurements of the dimensions of the New Garden Shed
would be required to calculate the exact area of the New Garden Shed’s encroachment
and thus the total area of the Encroachment. For present purposes, however, I will
proceed on the basis of Mr Riley’s evidence that the best estimate of the total area of
the Encroachment is 8.25m2.
Conduct of the parties
Much of the evidence adduced at trial focused upon this aspect of the case.
The primary evidence was contained in an agreed tender bundle, which contained several affidavits sworn by each of the Plaintiffs and the Defendants and the reports of three experts. All deponents of affidavits and the expert witnesses were cross-
examined. In addition, the Defendants’ builder, Mr John Bicanic, was subpoenaed
and gave evidence in the Plaintiffs’ case.
Each party says that I would conclude from the whole of the evidence that they have acted reasonably and that the other party has acted unreasonably.
Before descending into a detailed consideration of the evidence, I should record that as a general observation it was readily apparent to me that Mrs Wardanksi and Mr Marks were, and remain, the principal protagonists in this dispute.
Mrs Wardanski is an accountant and employed by a firm in the role of Senior Business Services Accounts. Mr Marks is a civil engineer and employed by the Logan City Council as a Civil Engineering Designer.
Although Mrs Wardanski discussed matters with her husband, it was she who made
decisions and progressed the Plaintiffs’ position in dealing with the Defendants and
others about the Encroachment. It is pertinent to note that English is not Mr
Wardanski’s first language. It was evident to me that at times during his cross-
examination he gave answers which appeared on their face to agree to a proposition
but were in fact simply an acknowledgment of what had been put to him.
For the Defendants, it was Mr Marks who chiefly handled all aspects of the
Defendants’ renovations to their property and dealt with the Plaintiffs and others
concerning the Encroachment. Whilst Ms Mawby had some involvement and input into matters, it was Mr Marks who was across the pertinent details and information and who made decisions for the Defendants.
In order to sensibly assess the positions of the parties, it will be necessary to chronicle the relevant events and interactions between them, from the initial discovery of the Encroachment through until the commencement of the proceeding. However, it is helpful to first summarise the substance of the submissions of the parties.
Submissions
The Plaintiffs submit that after learning of the Encroachment, they acted honestly, transparently and on advice they received from independent, third parties.
In contrast, the Plaintiffs submit that the conduct of the Defendants has been less than transparent, not proactive and not focused upon fixing the Encroachment in a timely
and cost-effective way and with respect to the Plaintiffs’ property rights. In
particular, the Plaintiffs submit that Mr Marks delayed providing a draft identification survey that he had obtained and that he did not obtain a finalised identification survey. The Plaintiffs contend this was because Mr Marks did not want formal notice of the Encroachment to be given to the Plaintiffs and did not want the survey lodged with the Department of Natural Resources and Mines, as those actions would have adverse
consequences for the Defendants’ renovations.
The Plaintiffs further submit that the Defendants are not an ‘innocent encroacher’
because, after discovery of the Encroachment, they built the New Garden Shed and the Block Wall, installed some of the Sleeper Retaining Walls in the garden and
replaced and extended the roof on the Defendants’ Garage, even after receiving a
‘cease and desist’ letter from the Plaintiffs’ lawyers.
The Plaintiffs submit that this conduct of the Defendants is relevant to the question
of what relief, if any, should be granted in the exercise of the Court’s discretion under
s 185 of the PLA. The Plaintiffs submit that, in all the circumstances, the unreasonable conduct of the Defendants supports their argument that the Court should order removal of the Encroachment.
The Defendants submit that they are an ‘innocent encroacher’. They further submit
that during 2017 and 2018, after the discovery of the Encroachment, each of the parties genuinely sought to resolve the encroachment issue and neither can be said to have acted unreasonably.
However, the Defendants assert that from January 2019 onwards, the Plaintiffs’ conduct was unreasonable. The Defendants point, in particular, to the Plaintiffs’
apparent change in willingness to consider a boundary realignment and their
associated refusal to consider Mr Marks’ suggestion that they could build an
adequately sized garage on their property without requiring the removal of the
Defendants’ Garage. The Defendants submit that the Plaintiffs’ supposed
unreasonable conduct is a circumstance relevant to the exercise of the discretion conferred by s 185 of the PLA. The Defendants submit that the unreasonable conduct of the Plaintiffs militates against an order for removal of the Encroachment.
The Defendants’ initial discovery of an encroachment issue
The Defendants entered into a contract to purchase their property at 12 Cynthia Crescent on 15 September 2014. Before settlement, the Defendants were advised by their conveyancing solicitor, by a letter dated 30 September 2014:
Under the terms of the contract you are entitled to have a licensed surveyor carry out a survey at your cost. This will be relevant if you have any doubts as to the boundaries of the land, particularly if there are structures near the boundary, or if you think that the fences may not be on the boundary.
The Defendants did not obtain a survey before settlement.
The Defendants rented out their property for several years before deciding to use it as their principal residence. They eventually moved into 12 Cynthia Crescent in around February or March 2017. At that stage, they planned to undertake substantial renovations to the property.
On or around 5 July 2017, the Defendants obtained a ‘detail survey’ from Richardson
Surveys which showed that the Retaining Wall, the Defendants’ Garage and the New
Garden Shed encroached on the Plaintiffs’ Property (the ‘Detail Survey’).
The accompanying email from Richardson Surveys relevantly stated:
There is something wrong with the alignments of the fencing and garage at your property. While we have not carried out a comprehensive boundary survey, from what we have found in the street there is something not aligning. This may be a problem with
those surveys, but we can’t be sure until we carry our further survey
[sic] to define the real property boundaries.
We strongly recommend that you engage a surveyor to reinstate and mark your property boundaries before you proceed further with any
construction on the property…
There is no dispute that before the Defendants received the Detail Survey, they were not aware of the Encroachment.
[104] There is also no dispute that the Defendants did not, at this time, obtain an identification survey as recommended. The Defendants did not give any real explanation for not doing so. In his affidavit evidence, Mr Marks simply said that, in July 2017, he and his wife were focused on renovations to the main house, which were in advanced planning stages, and they were not planning any modifications to the garage. Ms Mawby gave similar evidence.
In any event, the Defendants did not obtain an identification survey and did not notify the Plaintiffs of the Encroachment at this time. The Defendants thereafter continued with their plans to renovate their property.
Sometime in or about July 2017, the Defendants approached a licenced builder, Mr John Bicanic of Jux Developments Pty Ltd, to discuss their proposed renovations. At around the same time, the Defendants also engaged Sandra A Smedley Building
Design to prepare concept design plans for their proposed renovations (the ‘Concept
Design Plans’).
The Defendants thereafter continued to liaise with Mr Bicanic about their proposed renovations. On 8 September 2017, Mr Marks provided Mr Bicanic with a copy of
the Concept Design Plans. Those plans showed the Retaining Wall, the Defendants’
Garage and the New Garden Shed each encroached on the Plaintiffs’ property.
On 26 September 2017, Mr Marks sent an email to Mr Bicanic, thanking him for
attending the Defendants’ property the previous day and outlining the general scope
of works required for the proposed renovations. Mr Marks attached various
photographs and sketches to his email to assist Mr Bicanic to get a ‘better feel’ for
what the Defendants’ were hoping to achieve. The description of the scope of works
included ‘External retaining walls and hard surfaces as per the plan I gave you
yesterday’.
The plan that Mr Marks had given Mr Bicanic was one which he had created himself,
dated February 2016 and titled ‘Proposed Site Plan – Option A’. It showed proposed
retaining walls, highlighted in yellow on the plan, which were to be constructed
behind the Defendants’ Garage. On my review, the plan also appears to show the
existing fence, but does not show the true property boundary, nor any area of
encroachment.
In about early 2018, the Defendants formally engaged Mr Bicanic to carry out the renovations.
Final renovation plans were drawn up by Sandra A Smedley Building Design on 7
March 2018 (‘the ‘Smedley Plans’). The Smedley Plans again showed that the Retaining Wall, the Defendants’ Garage and the New Garden Shed each encroached
on the Plaintiffs’ property.
[112] Mr Bicanic subsequently submitted a development application for the proposed renovation works to the Logan City Council. A copy of the Smedley Plans was attached to the application. On 23 April 2018, the Defendants received development approval for their proposed renovations. Thereafter, from about July 2018 onwards,
Mr John Bicanic carried out the renovations to the Defendants’ property.
The relevant development permit issued in respect of the approved works noted it was
to be read in conjunction with, inter alia, annexed ‘Standard Building Conditions’.
Condition 14 of the Standard Building Conditions stated:
Identification survey to be conducted and site boundaries to be re- pegged prior to commencement of constructions.
[114] Mr Marks confirmed in cross-examination that, despite this condition, no identification survey was done before Mr Bicanic started the renovation work.
Mr Bicanic explained in his evidence that despite the inclusion of this condition, the
permit was a standard form and ‘normally when we’re building within 1500 of a
boundary, a structural, like building, then we will do that’ but otherwise they were
not made to obtain an identification survey and it was not expected. He further stated that he relied on his building certifier and he would not have an identification survey done unless the building certifier requested it.
On 12 July 2018, Mr Marks sent an email to Mr Bicanic, attaching ‘the revised site
plan as discussed’. The attached plan appears to be the same ‘Proposed Site Plan – Option A’ document that Mr Marks had provided to Mr Bicanic in September 2017.
The ‘revised plan’ did not note any different specifications or locations for the
proposed retaining walls to be constructed behind the Defendants’ Garage.
In around early July 2018, Mr Bicanic discovered an issue of concern to him with respect to the proposed build location for one of the retaining walls that was to be
installed at the rear of the Defendants’ Garage. In his affidavit evidence, Mr Marks
stated that Mr Bicanic told him that he and his crew were about to start construction on a retaining wall, when he had noticed that the Smedley Plans showed the garage
and fence were partially constructed within the neighbours’ property. He stated Mr
Bicanic advised him that they should alter the location of the retaining wall so that they would be away from the fence line and that it would not be constructed over the property boundary. He further stated Mr Bicanic advised him to arrange a meeting to talk to the neighbours and let them know about the Encroachment.
Mr Marks stated that he agreed with Mr Bicanic’s suggestion to alter the location of
the retaining wall and that he subsequently contacted Mrs Wardanski and arranged to
meet with her to tell her about the encroachment issue.
In his evidence, Mr Bicanic identified the small retaining wall that he was concerned about as the Block Wall. He stated that when he raised the issue, Mr Marks responded by saying that he did not want Mr Bicanic to do anything wrong. He further stated that he suggested that they get an identification survey done and have a discussion with the neighbours.
Mr Bicanic confirmed he ultimately built the Block Wall at a location which he believed was on the boundary, by reference to other dimensions on the plan and the
location of the back of the Defendants’ Garage, which he (wrongly) thought was in
the correct position and not encroaching.
At about this same time, on 19 July 2018, Mr Bicanic sent an email to Mr Marks, forwarding an email he had received from Axis Surveys, whom he had contacted for advice on the issue. Mr Bicanic gave evidence that he had sought this advice as he
knew there was an encroachment by the Defendants’ Garage and he did not want to
build anything over the boundary himself.
The email from Axis Surveys stated:
The first thing you need to understand is that there is no such thing as a simple boundary re-alignment.
It then set out approximate costs for such an application and queried whether Mr
Bicanic had considered alternatives such as an ‘Easement of Support over the
encroachment’. The email included the following advice:
Regardless of the above, I think the first step is to establish a definite understanding of the extent of the encroachment. I suggest we do an
Identification Survey to measure the actual amounts involved…
Mr Marks responded to Mr Bicanic by email later that day, relevantly stating:
Sounds like this has the potential to be very complex and costly –
neither of which I want.
I’ve attached the certified plans (refer page 14) for when the garage
was built in 2007. Surely this must have been an issue then and would have required some proof that construction was contained within the boundary of my place.
I’ve been given some advice from the surveyors I work with and they
seem to think that if the neighbour doesn’t have a problem with it, it
can be resolved quite simply.
If it gets complicated – I’ll re-align the new retaining walls so they are
contained within my boundary.
In a further email sent later on 19 July 2018, Mr Marks informed Mr Bicanic that he had:
…checked the survey using Autocad…and can confirm that the
dimension from the front left corner perpendicular to the rp boundary
is 1.8693m…This would indicate we are outside the 1.5m limit.
The email attached .jpeg files of extracts of a survey plan, which showed that the distance referred to in the email was the distance from the front left corner of the
Defendants’ house to the western boundary of their property.
Mr Marks confirmed in cross-examination that he had used AutoCAD software at his workplace at the Logan City Council to check the survey. He further confirmed that
the attached extracts showed encroachments over the boundary onto the Plaintiffs’
property.
I infer that the ‘1.5m limit’ referred to by Mr Marks was the same ‘within 1500 of a
boundary’[17] distance Mr Bicanic referred to in his evidence, which would, in his view,
[17] Being a reference to ‘1500mm’ or 1.5m.
have then required an identification survey be undertaken before commencing structural building works. I further infer that Mr Marks used the AutoCAD software at his workplace to measure the distance between his house and the true boundary as
he wanted to determine whether the structural works would come within the ‘limit’
under which an identification survey would be required, as per Item 14 of the building development permit, and that he subsequently sent the email and attachments to Mr Bicanic to assure him that such an identification survey was not required.
Consideration
I am satisfied that on or about 5 July 2017, upon receipt of the Detail Survey, the Defendants had knowledge for the first time that the existing fence did not properly mark the true boundary on the western side of their property and that the Retaining
Wall, the Defendants’ Garage and the New Garden Shed encroached upon the
Plaintiffs’ property.
I do not consider the Defendants can be criticised for not obtaining a survey of their property before this time. There was no reason for the Defendants to believe or suspect that there might be a problem with the property boundary at any earlier time.
However, in my view, in light of the obvious issues shown by the Detail Survey and the strong recommendation by Richardson Surveys in their accompanying email that the Defendants should obtain an identification survey, their failure to do so was imprudent, at best. Such a characterisation is even more apt in light of the subsequent plans and information received by the Defendants, culminating in the further advice given by Axis Surveys to Mr Bicanic recommending an identification survey be carried out.
[131] Further, in my view, the Defendants’ failure to bring the Encroachment to the
attention of the Plaintiffs at an earlier stage has not been adequately explained. I do not consider it sufficient to simply say, as the Defendants did in their evidence, that
no works were to be carried out with respect to the Defendants’ Garage, that they assumed there was no issue as the Defendants’ Garage had been approved in the past,
or that the Richardson Survey email did not advise that the neighbours should be told of the issue. Common sense and courtesy dictated that the Defendants should have done so without delay.
Despite their evidence to the contrary, in my view, the Defendants must surely have appreciated from the start that the apparent existence of structures on their land
encroaching on the Plaintiffs’ land was a potentially serious matter. Each of the
Defendants were long-term employees of the Logan City Council, where they had held roles where they worked with maps and surveys. Mr Marks is a Civil Engineering Designer, responsible for designing roads and drainage systems. Ms Mawby had previously been a geographic information systems officer, responsible
for inputting information about stormwater pipes into the Council’s stormwater
information system.
The Defendants contend that s 185(1)(b) of the PLA does not empower the Court to
transfer the 19m2 piece of land. The Defendants submit that the Plaintiffs’
interpretation of s 185(1) is wrong and the Court may only make an order for the transfer of ‘the subject land’ which, as s 182 of the PLA defines, means that part of
the land over which an encroachment extends. The Defendants cite Carlin v
Mladenovic[28] and Tallon v The Proprietors of Metropolitan Towers Building Units Plan No 5157[29] as authority for their position and further submit that the cases cited
[28] (2002) 84 SASR 155 (‘Carlin’).
[29] [1997] 1 Qd R 102 (‘Tallon’).
by the Plaintiffs do not support any contrary conclusion.
Consideration
In Tallon, the Court of Appeal considered the extent of the Supreme Court’s power
to make an order under s 185(1)(b) of the PLA to move a boundary in order to remedy an encroachment. The trial judge in Tallon had made an order that moved the
boundary to a point beyond the respondents’ encroaching wall structure. The
appellant argued that the order was unlawful as s 185(1)(b) of the PLA only permitted
the Court to require the transfer of ‘land over which an encroachment extends’.
The Court of Appeal agreed and allowed the appeal. In their joint judgment, Pincus and Davies JJA relevantly stated:[30]
[30] Ibid 106.
It is our view that, as was contended for Tallon in this Court and below, it was beyond the power of the primary judge to move the boundary [to the extent ordered] because that gave the encroaching owner (the respondents) title to land beyond the area of the encroachment. No question arises in the present case about the possibility that it might, for example because of the irregularity of its shape, be impossible to transfer the precise area of an encroachment.
After referring to the terms of s 185(1) of the PLA, their Honours continued:[31]
[31] Ibid 107.
The question is whether the order requiring conveyance of the Tallon land [to the extent ordered] is an order within the description in s.
185(1), as being ‘‘with respect to … the conveyance … of the subject
land to the encroaching owner’’. The simple answer made on behalf
of the appellant Tallon is that the conveyance of the land…would
convey not only land over which an encroachment extends, but land
…over which no encroachment extends. That appears to us to be
correct. We were referred to various other provisions of the Act, but none of them is capable of extending the power given by s. 185(1)(b) in such a way as to enable the Court to order transfer of land other than that over which an encroachment extends. It may be that in many circumstances the Court might think it convenient to require transfer to the encroaching owner of additional land, for one purpose or another, but the statutory power to require transfer is confined as we have indicated; we think the confinement to be unambiguous.
But if there were an ambiguity, the Court would lean in favour of that construction which permits a lesser interference with the rights of the
property owner, rather than that which permits greater interference…
[439] In my opinion, the reasoning of the Court in Tallon supports the Defendants’ submission and is clear authority contrary to the Plaintiffs’ position.
The Plaintiffs nevertheless attempt to draw some exception or point of distinction to
this authoritative interpretation of the extent of the Court’s power to make an order
under s 185(1)(b), by submitting that in Tallon, the Court did consider the possibility that it might be impossible to transfer the precise area of an encroachment, for example because of the irregularity of its shape. It is true that such a question did not arise for the Court’s consideration in Tallon, but that does not mean that Tallon is
authority for the proposition that the Court may, in such a case, make an order under
s 185(1)(b) to extend the land to be transferred beyond ‘the subject land’.
In Shadbolt, the respondents had constructed a swimming pool which encroached upon the appellants’ land.[32] The respondents obtained an order for the transfer of the
[32] I refer to the land being owned by the appellants for simplicity. I note that the actual owner of the land at the time, Mr Wise, was deceased but that he was represented by the named appellants in the proceedings.
subject land to them under s 185(1)(b) and were ordered to pay the appellants compensation. Other consequential orders necessary to give effect to the primary relief granted were also made. The order for transfer was subject to all necessary
Council consents being obtained. Subsequently, as part of the Council’s
requirements, the respondents were advised that an application for a relaxation of restrictions on building setbacks needed to be signed by both parties and submitted to Council. The appellants refused to sign the application and therefore the respondents sought, and obtained, a further order from the Court authorising the Registrar to sign the required application in lieu of the appellants. The appellants appealed against the making of that further order.
On appeal, the appellants argued that the order made by the primary judge was not
authorised by s 185 of the PLA as it was not an order made ‘with respect to’ the
conveyance or transfer of the subject land within the meaning of s 185(1)(b) of the PLA. The appellants contended that the requirement to sign the Council application was remote from the subject matter of s 185(1)(b) and the order made required them
to forego their ‘rights’ to object to the swimming pool and associated structures on
the basis that the relevant setback requirements had not been fulfilled.
In rejecting the appellants’ argument, Keane JA, referring to the terms of s 186(2)(b)
in particular, relevantly held:[33]
[33] Shadbolt [27].
That part of s. 186(2)(b) which has been highlighted above indicates that loss or damage may result to the adjacent owner through the making of orders in favour of an encroaching owner under s. 185. That is to say, the rights or interests of the adjacent owner, other than as the owner of the land to be transferred, may be adversely affected by an order under s. 185(1)(b). To the extent that an order under s. 185(1)(b), such as that in question here, may be apt adversely to affect the rights of an adjacent landowner such as the Wise parties, that loss may be the subject of an award of compensation. Thus the circumstance that such rights or interests, other than those inhering in the adjacent landowner as such, are adversely affected by such an order cannot deny to an order the character of an order with respect to the conveyance or transfer of the subject land.
As for the use of the words ‘with respect to’ in s 185(1), his Honour went on to observe that the phrase ‘with respect to’ had long been recognised as being of wide
import in a number of different statutory contexts.[34] His Honour then further stated:[35]
[34] Ibid [29].
[35] Ibid [32].
It may be, for example, that another way of determining whether there is a sufficient connexion between a court order and a head of power in a case like the present is to examine whether or not the order is substantially directed to the achievement of the purpose for which the power to make the order has been conferred. There can be no doubt that the order in the present case would satisfy this test. The order was necessary in order to compel the execution of an application which was a step on the way to enabling the Shadbolts to obtain legal title to the subject land. An order which is apt to facilitate the conveyance or transfer of the subject land is readily, and unremarkably, to be characterised as an order with respect to the conveyance or transfer of the subject land.
In my view, nothing said by Keane JA in Shadbolt provides support for the Plaintiffs’
submissions. The statement by his Honour in the excerpt above was made in the particular context of considering whether an order that would enable the conveyance
or transfer of the subject land was an order ‘with respect to’ the conveyance or transfer
of the subject land. That is not the position in the present case.
Whilst it is the case that in Melden Homes and Farrow orders were made transferring land additional to the subject land, neither case establishes any binding principle of law.
In my opinion, the submissions made by the Plaintiffs cannot be accepted. I consider I am bound to apply Tallon. Accordingly, I proceed on the basis that the Court does
not have the power to make an order for the transfer of land other than ‘the subject
land’, as the Defendants contend.Conclusion and proposed orders
I make the following orders:
1. Pursuant to ss 185(1)(a) and 186 of the Property Law Act, the Defendants pay compensation to the Plaintiffs, comprising:
a. $16,087.50, being three times the unimproved capital value of the subject land burdened by the Encroachment that is to be transferred to the Defendants (an area of approximately 8.25m2); and b. $5,000, for the resulting diminution in the value of the Plaintiffs’ property. 2. Pursuant to s 185(1)(b) of the Property Law Act, within six months of these orders being made:
a. subject to all necessary consents from Logan City Council being obtained, the Plaintiffs transfer to the Defendants the fee simple interest in the subject land burdened by the Encroachment (an area of approximately 8.25m2); b. the parties take all required and necessary steps to realign the boundary between the Plaintiffs’ property and the Defendants’ property, so as to
reflect the true boundary between the properties, having regard to the
transfer of land referred to in order 2(a) above; andc. all costs and expenses incurred by the Plaintiffs and the Defendants in order to give effect to orders 2(a) and (b) above, including legal costs, be paid by the Defendants.
Because there may be additional consequential orders required and there remains some uncertainty as to the precise total area of the Encroachment, I will hear the parties further as to any further or other orders that are sought. As I have already
determined, I will at least make an order for the Defendants to pay the Plaintiffs’ costs
for obtaining the Urbicus Advice and the Identification Survey, totalling $5,225.00.
I will also hear the parties on the question of costs.
(QSC, de Jersey J, 19 May 1986, unreported); Re Assumpsit No 32 Pt Ltd (QSC, Williams J, 10 October 1986, unreported); Morris v Thomas (1991) 73 LGRA 164 at 168 and Haddans Pty Ltd v
Nesbitt [1962] QWN 44 at 99–100. See also Shadbolt v Wise (2002) Q ConvR 54-577 at 60,837 [50]–
[52].
Investments Pty Ltd (1996) 189 LSJS 337, 340-342 (‘Farrow’) and subsequently in Gladwell v Steen
(2000) 77 SASR 310, [18]–[23] (‘Gladwell’), when considering analogous South Australian
legislation.
Amended Statement of Claim that each of these structures ‘form part of the Encroachment’ and that
‘for the avoidance of doubt the “Garden Wall” referred to in this pleading is the ‘Sleeper Retaining
Wall (Low)’. The Defendants’ Amended Defence does not plead in response to this paragraph of the
particulars.
the retaining wall that the Defendants sought permission to build was ‘a garden wall at the front of 12
Cynthia Crescent over the property’s boundary and on our Property’.
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