Westfield And Anor. v The Registrar-General [2002] NSWLEC 248

Set aside by Appeal : [2003] NSWCA 343

Land and Environment Court of New South Wales

CITATION : Westfield And Anor. v The Registrar-General [2002] NSWLEC 248 APPLICANTS: Westfield And Anor. PARTIES : RESPONDENT: The Registrar-General FILE NUMBER(S) : 30008 of 2002 of 2002 CORAM: Bignold J KEY ISSUES: Practice and Procedure :- boundaries-determination of common boundary by Registrar General-appeal to Court LEGISLATION CITED: Real Property Act 1900, s 135J CASES CITED: DATES OF HEARING: 16, 17, 18/09/02 DATE OF JUDGMENT: 12/23/2002

APPLICANTS: Mr R Dalgleish, Barrister with Ms C Ravenscroft, Barrister SOLICITORS N/A LEGAL REPRESENTATIVES: RESPONDENT: Mr P Walsh, Barrister SOLICITORS Solicitor for the Registrar General

JUDGMENT:

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Matter No . 30008 of 2002 Coram : Bignold J 23 December 2002

M AND A WESTFIELD

Applicants

v

THE REGISTRAR-GENERAL

JUDGMENT

Bignold J: A. INTRODUCTION

1. This is an appeal pursuant to the Real Property Act 1900, s 135J (the RP Act) by the Applicants (being the co-owners of a residential property known as No 35 Kangaroo Street, Manly) who are dissatisfied with a determination made by the Respondent of the position of the northern boundary of their property (being the common boundary with the adjoining property known as No 37 Kangaroo Street) as notified to the Applicants in the Respondent's letter given to the Applicants on 15 January 2002.

2. The Respondent's determination of the northern boundary of No 35 Kangaroo Street, Manly had been made in response to an application dated 2 November 2001 made by the Applicants pursuant to the RP Act, s 135B for his determination of the position of the common boundary between the two properties (Nos 35 and 37 Kangaroo Street, Manly). The Applicants acquired No 35 in September 1999. At that time and thereafter, there has been a continuing dispute with the owners of No 37, Mr Murphy, concerning the common boundary between the two properties and more particularly the position of the paling dividing fence on that boundary, Mr Murphy having twice relocated the dividing fence closer towards the Applicants' house without the Applicants' approval. It was following the second relocation of the dividing fence that the Applicants applied to the Respondent for a boundary determination. Their application was supported by surveying reports which they had commissioned, including reports of Mr surveyor Mudge.

3. The notification to the Applicants of the Respondent's determination had, stated inter alia: 1. The position of the common boundary between lot 1 in Deposited Plan 115714 and lot 26 in Deposited Plan 456033 has been determined to be in the position as shown on the attached sketch. The determination has been based on an exhaustive search of records within this Office as well as marks placed and found in surveys on public record as no original marking could be located. It should be noted that the determination is in agreement with Deposited Plan 69952 (Primary Application 19952).

4. A copy of the sketch attached to the Respondent's notification is annexed hereto and marked "A".

5. Following subsequent discussions between the parties in what proved to be an unsuccessful attempt to settle the Applicants' response to the Respondent's notification suggesting that the boundary determination was incorrect, the Applicants commenced the present proceedings on 8 February 2002 in exercising the statutory right of appeal conferred by the RP Act, s 135J(1) which provides as follows: A person who is dissatisfied with a determination under this Part may appeal to the Land and Environment Court for determination by the Court of the position of the boundary.

6. Pursuant to s 135J(4), the Registrar-General is not to take action under s 135K (noting the boundary determination on plans or documents registered or recorded in the office of the Registrar-General) until the expiration of the 28 day period for appealing his determination or if an appeal is made within that period "until the matter has been determined" by the Court. Accordingly, to date, the Respondent's boundary determination has not yet taken effect as provided for by s 135L of the Act.

7. The crux of the Applicants' case, founded upon the opinion of Registered Surveyor Philip Mudge, is that the Respondent's determination did not determine the position of the common boundary between the properties Nos 35 and 37 Kangaroo Street, Manly. Rather, the determination had only determined the northern boundary of No 35 but that boundary did not correspond to the southern boundary of No 37, and hence was not a determination of the common boundary between those two properties. Moreover, it was Mr Mudge's opinion that there existed an "excess" or "no-man's land" comprising a small wedge shaped area (5 m2) separating the properties, over and above the dimensioned areas of the two properties according to their respective land titles, which excess was available for allocation between the properties by way of the Court determining the common boundary between the two properties upon the basis of what appears to the Court to be "just and reasonable" within the meaning of s 135H of the RP Act.

8. Although disputing Mr Mudge's opinion that there existed in respect of properties Nos 35 and 37 an excess of land area over and above their respective title dimensions, the Respondent's ultimate response to the case presented by the Applicants was to submit that they were seeking a form of relief which was beyond the jurisdiction conferred upon the Court, and indeed was beyond the scope of, and hence unavailable under, the statutory regime for "boundary determinations" that is provided by Part 14A of the RP Act.

9. Moreover, the Respondent submitted that because the Applicants' case did not dispute the accuracy and appropriateness of the Respondent's determination in respect of the position of the northern boundary of the property No 35, the Court would be satisfied that the Respondent's determination was sound and implicitly or necessarily correct and reflected the common boundary of the adjoining properties with the consequence that the Court would adopt for itself that determination, by dismissing the Applicants' appeal.

10. In my judgment, and for the reasons that I shall presently explain, the Respondent's determination should be confirmed and be adopted by the Court as the determination of the common boundary between properties Nos 35 and 37 Kangaroo Street, Manly. B. THE RELEVANT PROVISIONS OF PART 14A OF THE RP ACT

11. Part 14A was introduced into the RP Act by the Real Property (Boundary Determinations) Amendment Act 1989 (Act No 171).

12. The Minister's Second Reading Speech (NSW Parliamentary Debates p 12516 to 12518 of 15 November 1989) included the following statement of the purpose of the Bill: The purpose of this bill is to provide a simple alternative to the court system for determining the position of a lost or confused land title boundary. At present, landowners who cannot agree on the position of a common boundary, and who seek a formal resolution of their dispute, have no alternative but to initiate action in the Supreme Court. Often this results in substantial costs and lengthy delays. In may instances disputes are left unresolved because the parties are deterred by the daunting prospect of court action, particularly where one owner is anxious to sell or want to proceed with development. By vesting power in the Registrar General to make binding determinations on the correct position of title boundaries, the bill will allow expeditious resolution of these disputes at greatly reduced cost to the parties. The determinations will also have the added benefit of improving the State's cadastral database by ensuring that matters of doubt do not remain unresolved

13. The provisions of Part 14A most relevant for the purposes of adjudicating in this case must be fully recited. They are as follows: 135B. Application may be made for boundary determination (1) Application may be made to the Registrar-General for the determination under this Part of the position of the common boundary of adjoining lands. (2) Such an application can be made only by or on behalf of:

(a) an owner of land on either side of the boundary, or (b) the purchaser under a contract for sale of land on one side of the boundary but only if the owner of the land consents to the application or the whole of the purchase price has been paid to the owner or the owner's agent, or (c) a public or local authority or the Head of a Government Department.

135C. Boundaries to which Part applies This Part authorises the determination of the position of a boundary between adjoining parcels of land, whether or not each parcel is under the provisions of this Act. 135E. Notice of application to be given to certain persons (1) Before determining the position of a boundary pursuant to an application, the Registrar-General is to give notice of the application:

(a) to the owner of each parcel of land adjoining the boundary concerned (other than land owned by the applicant), and (b) to such other persons as the Registrar-General considers appropriate.

(2) The notice is to contain such details of the application as the Registrar-General considers appropriate and is to invite the person to make a written submission concerning the application within a specified period (not less than 21 days). (3) In determining the position of the boundary, the Registrar-General is to take into consideration any submissions made in accordance with the requirements of such a notice. 135F. Procedure in determining boundaries (1) In determining the position of a boundary under this Part, the Registrar-General must consult with a surveyor registered under the Surveyors Act 1929. (2) If the Registrar-General decides that a survey or other investigation should be carried out to assist the Registrar-General in determining the position of the boundary, the Registrar-General:

(a) may require any applicant for the determination to pay the reasonable costs of any such survey or investigation (and for that purpose may require payment in advance), and (b) may refuse to proceed with the determination until the required payment is made.

135G. Determination of other boundaries (1) If as a result of considering an application under this Part in respect of a boundary of land, the Registrar-General becomes aware that there is doubt as to the position of another boundary of that or other land, the Registrar-General may determine the position of that other boundary. (2) Before making a determination under this section, the Registrar-General:

(a) is to give notice of the proposed determination to the owner of each parcel of land adjoining that other boundary inviting the person to make a written submission on the matter within a specified period (not less than 21 days), and (b) is to take into consideration any submissions made in accordance with the requirements of such a notice. (3) The Registrar-General must not make a determination under this section without prior consultation with the Surveyor-General.

135H. Basis of determination The Registrar-General is to determine the position of a boundary on the basis of all the evidence available to the Registrar-General but, if that evidence is inconclusive, may determine it on the basis of what appears to the Registrar-General to be just and reasonable in the circumstances. 135I. Notice of determination of boundary The Registrar-General is to give notice of a determination of the position of a boundary under this Part:

(a) to any applicant for the determination, and (b) to the owner of each parcel of land adjoining the boundary, and (c) to the Surveyor-General, and (d) to such other persons as the Registrar-General considers appropriate.

135J. Appeals to Land and Environment Court (1) A person who is dissatisfied with a determination under this Part may appeal to the Land and Environment Court for determination by the Court of the position of the boundary. (2) Only the following persons can appeal:

(a) an owner of land adjoining the boundary, (b) a person who applied for the determination as purchaser under a contract for the sale of land adjoining the boundary, (c) a public or local authority or the Head of a Government Department.

(3) An appeal must be made not later than 28 days after notice of the Registrar-General's determination is given to the person concerned. (4) The Registrar-General is not to take action under section 135K (Noting of boundary on plans etc):

(a) until the expiration of the period during which an appeal can be made against the determination concerned to the Land and Environment Court, and (b) (if an appeal is made during that period) until the matter has been determined by the Land and Environment Court.

(5) The Registrar-General is entitled to be joined as a party, and to appear and be heard either personally or by his or her duly appointed agent, at the hearing of an appeal under this section and at the hearing of any appeal under the Land and Environment Court Act 1979 in respect of any such appeal. 135K. Noting of boundary on plans etc (1) When the position of a boundary is determined under this Part, the Registrar-General:

(a) is to make such notations and entries on any plan or other document registered or recorded in the office of the Registrar-General as may be necessary to show the position of the boundary determined, and (b) may cause to be registered in the office of the Registrar-General a plan showing the position of the boundary determined.

(2) The Registrar-General may also amend any plan or other document to correct any error in it or supply any omission from it in respect of the position of the boundary. (3) The Registrar-General may also take action under this section in respect of the determination by a competent court of the position of a boundary as if it were a determination under this Part. (4) The Registrar-General may, if the position of a boundary is determined under this Part, request the applicant for the boundary determination to lodge in the office of the Registrar-General a plan (being, if the Registrar-General so specifies, a plan of survey) showing details of the boundary as so determined, together with such number of copies of the plan, if any, as the Registrar-General may specify. (5) The Registrar-General may refuse to take action under this section if an applicant fails to comply with a request under subsection (4). 135L. Effect of boundary determination (1) A determination of the position of a boundary under this Part takes effect when the position of the boundary is shown as referred to in section 135K (1). (2) Once the determination takes effect, the boundary is for all purposes to be taken to be in the position so shown despite any discrepancy with any plan of survey or other plan or any other record. C. THE COURT'S FUNCTION IN RESPECT OF THE APPEAL

14. The RP Act, s 135J(1) conferring the right of appeal to this Court defines its scope and purpose, namely "for determination by the Court of the position of the boundary".

15. An appeal pursuant to s 135J(1) is a proceeding within class 3 of the Court's jurisdiction: vide the Land and Environment Court Act 1979, s 19(c). (the LEC Act)

16. In determining an appeal within classes 1, 2 or 3 of its jurisdiction, the LEC Act, s 39(2) provides: In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

17. This general empowering provision obviously must be applied with some necessary modifications, to the fulfilment by the Court of its statutory function under the RP Act—eg it is not for the Court to notify the application under s 135E or to adopt the procedure outlined in s 135F or to exercise the power conferred by s 135G.

18. As the Applicants have properly submitted, the Court in hearing and determining the appeal does so by way of re-hearing, where fresh evidence may be given (the LEC Act s 39(3)) and not by way of appeal in the strict sense against the Respondent's decision.

19. Nonetheless, I am of the clear opinion that having regard to the clear purpose of the statutory regime operating under the RP Act, Part 14A and to the particular functions conferred upon the Registrar General, having regard to his and his Office's special expertise in matters pertaining to land title, that I should, in exercising the jurisdiction "to determine the position of the boundary" accord due respect and deference to the determination made by the Registrar-General: especially in the light of the fact that in making that determination, the Respondent was well aware of, and considered, the views of Mr Surveyor Mudge (upon whose opinion the Applicants principally rely in the present case).

20. However, the Court's approach of according due deference to the Respondent's determination does not mean that the Court is, in any way, abdicating or neglecting its statutory function "to determine the position of the boundary" upon the basis of the evidence adduced before it (which included that of three officers of the Registrar General's Office) in litigation where the Respondent has actively participated in defending or justifying his determination, according to his entitlement under the RP Act, s 135J(5).

21. In the present proceedings, the Applicants and the Respondent are the only parties, no application for joinder of other participation having been made by Mr Murphy, the owner of No 37 Kangaroo Street, that the adjoining property, situate to the north of the Applicants' property.

22. In the present case where there is no challenge or dispute by the Applicants (or by their Surveyor Mr Mudge) to the accuracy and reliability of the datum point situate to the south of No 35 Kangaroo Street, by reference to which the Respondent determined the northern boundary of No 35, there is no need for me to recite or examine the surveying evidence supporting those matters. They are simply not in dispute. As I have earlier noted, it is the Applicants' case that although no challenge is made to the Respondent's determination of the position of northern boundary of No 35, there is a challenge to that determination operating to relevantly locate the position of the common boundary between Nos 35 and 37 Kangaroo Street.

23. In so submitting, the Applicants advance the following propositions—

(i) the relevant boundary determination required to be made in the instant case pursuant to the provisions of the RP Act, Part 14A is the common boundary between properties Nos 35 and 37 Kangaroo Street, Manly;

(ii) although the northern boundary of lot 35 has been accurately and reliably determined by reference to an accurate and reliable datum point situate to the south of No 35, there has been no verification that that determination reflects the common boundary between Nos 35 and 37 by means of using a datum point situate to the north of No 35;

(iii) since attempts to establish the southern boundary of No 37 (the putative common boundary between Nos 35 and 37) have revealed that the southern boundary of No 37 does not correspond with the northern boundary of No 35 (but falls short thereof ie it is situate to the north) it must be concluded by necessary inference that there exists between the two properties a slither of "no-mans land" and that the Respondent's determination is not in respect of the position of the common boundary between the two properties (Nos 35 and 37); (iv) accordingly, this is a case "where the available evidence is inconclusive" within the meaning of s 135H of the RP Act which enlivens the power for the Court (exercising on the appeal the powers vested in the Registrar General) to determine the position of the common boundary "on the basis of what appears to be just and reasonable in the circumstances of the case" and on this basis, the common boundary should be determined further to the north (approximating the position of the dividing fence between the two properties as it existed when in 1999 the Applicants acquired No 35 Kangaroo Street, Manly).

24. As I have earlier noted, the Applicants' case depends entirely upon the opinions of Mr Surveyor Mudge that (i) it is possible to establish the southern boundary of No 37 where that boundary does not correspond with the unchallenged determination of the northern boundary of No 35 and (ii) therefore there exists a wedge-shaped slither of "no-man's" land between Nos 35 and 37 Kangaroo Street.

25. Mr Mudge's opinion that the position of southern boundary of No 37 can be reliably and accurately determined principally is founded upon his acceptance of the reliability of a detail of the north-western corner of No 37 shown in Deposited Plan 531005 being a plan of subdivision of land situate further north in Kangaroo Street immediately adjoining No 37 Kangaroo Street. (That plan was registered in 1968.) The particular detail that is shown at the north-western corner of No 37 is the beginning of what may have been a re-alignment of Kangaroo Street commencing at that point. The distance at the frontage of No 37 of the apparent realignment is 2 feet 3 and a half inches (ie 0.7 m) and this distance may be compared with the distance of 0.445 m of the same angled section of the frontage to No 37 shown in earlier registered plans of that property.

26. In his Statement of Evidence (Exhibit 1), Mr Mudge attributed error in the boundary determination prepared by Mr Surveyor Job of the Registrar General's Office "because it (the determination) took a frontage distance from the new angle in Kangaroo Street…"

27. However, this attribution of error was stoutly repudiated by both Mr Surveyor Job and Mr Surveyor Wallis (both officers of the Registrar General's Office—the former undertaking the field work and preliminary boundary determination in this case and the latter making that determination as the authorised delegate of the Registrar General).

28. In particular, in his affidavit in reply, Mr Surveyor Wallis gives his full reasons for concluding that the discrepancies he had particularly identified in the details of the original field notes of the 1880 alignment plan of Kangaroo Street and in DP 531005 "raise doubt in determining the boundary from the angle in Kangaroo Street and using the dimensions shown in DP 531005".

29. The detailed evidence of Mr Surveyor Wallis and Mr Surveyor Job which is corroborated by the evidence of Mr Burbridge concerning the documentary evidence being the records of the Registrar General relating to both properties Nos 35 and 37 Kangaroo Street, Manly (which is traced back from the present time to a Primary Application made in 1889) satisfies me that the Respondent's boundary determination is sound and accurate.

30. I am not persuaded by the competing opinions of Mr Surveyor Mudge. In particular, I do not think his reliance upon the detail shown in DP 531005 of the apparent realignment of Kangaroo Street as it affects the north-western corner of No 37 and upon the detail shown in the field notes of the 1880 alignment plans for Kangaroo Street, is justified in quest of establishing any relevant datum point situate to the north of No 35 Kangaroo Street. Because of that finding, it follows that I have not been persuaded that the southern boundary of No 37 falls short (ie it is situate to the north) of the position of the northern boundary of No 35 as determined by the Respondent (and which is not challenged by the Applicants or by Mr Mudge).

31. Nor have I been persuaded by Mr Mudge's opinion that there exists a slither of "no-mans land" between the two properties (Nos 35 and 37).

32. The documentary evidence suggests that for some years now a number of surveyors have expressed the opinion that there may exist in this part of Kangaroo Street some "excess land" ie land in excess of title dimensions of relevant lots. Even if a case had been made out by the Applicants of the existence of some excess land, I would doubt that the present proceedings provide the appropriate forum for the distribution of any excess land among existing property owners. Rather, the case, if established, would appear to justify an appropriate survey plan of re-definition: cf the written opinion of Mr Surveyor Green (Exhibit 4) relied upon by the Applicants.

33. The possibility of there being a need for a re-definition survey provides a further reason corroborating the wisdom of the approach adopted by Messrs Surveyors Job and Wallis of not seeking to ultimately verifying from a datum point situate to the north of No 35 their boundary determination, which was solely based upon an accurate and reliable datum point situate to the south of No 35.

34. That there is existing doubt concerning the dimensions of No 37 Kangaroo Street, is also evidenced by the fact that its title is subject to the following notation pursuant to the RP Act, s 114: Note: Disposal of any lots in DP 456033 may require registration of a deposited plan of survey pursuant to s 114 of the Real Property Act 1900.

35. The RP Act, s 114 provides as follows: 114. Registrar-General may require plan to be lodged

The Registrar-General may: (a) where a person is applying to have land brought under the provisions of this Act, refuse to accept lodgment of or reject the application, (b) where a person is seeking to obtain registration of a dealing or to lodge a caveat, refuse to register the dealing or to accept lodgment of the caveat or reject the dealing or caveat, and (c) where a person is seeking to obtain the creation of a folio of the Register or the issue of a certificate of title for the land comprised in a folio of the Register, refuse to create the folio or issue the certificate of title, if the person has refused or neglected to comply with a requirement of the Registrar-General: (d) to lodge in the office of the Registrar-General a plan (being, where the Registrar-General so specifies, a plan of survey) of the relevant land, together with such number of copies of the plan, if any, as the Registrar-General may specify, or (e) to obtain registration or recording, under Division 3 of Part 23 of the Conveyancing Act 1919, of such a plan.

36. The Applicants made a separate allegation that the Respondent's boundary determination was incorrect so far as concerns the rear portion of the boundary (ie in the vicinity of Augusta Road and Augusta Lane). This allegation was unconnected with Mr Mudge's opinion of there existing "excess land".

37. The evidence of Messrs Surveyors Job and Wallis satisfies me that the determination is also sound and accurate. The Applicants claim that adoption of the determination will create a minor encroachment upon their land by a newly constructed garage at the rear of No 33 Kangaroo Street.

38. Notwithstanding the opinion of Mr Mudge I am satisfied that the Respondent's determination is accurate and reliable in all respects. D. CONCLUSIONS AND ORDERS

39. My acceptance (for the reasons given) of the evidence adduced by the Respondent leads me to the conclusion that I should adopt the Respondent's determination of the boundary between Nos 35 and 37 Kangaroo Street, Manly.

40. In adopting it, I am satisfied that it relevantly is a determination of the common boundary between those properties.

41. The properties are adjoining properties and prima facie the boundary determined by the Respondent is the "common boundary" between those properties. As I have consistently noted, there has been no challenge by the Applicants that the determination is relevantly of the northern boundary of No 35. Given that the properties are obviously adjoining properties, and the fact that I have not been persuaded of the correctness of Mr Mudge's opinion that there exists between the two properties a slither of "no man's land", I am satisfied that the Respondent's determination relevantly determines the position of the common boundary.

42. Accordingly I make the following orders—

1. Appeal dismissed.

2. The determination of the common boundary between Nos 35 and 37 Kangaroo Street, Manly made by the Registrar-General as notified to the Applicants on 15 January 2002 is adopted by the Court as the determination by the Court of the position of that boundary.

3. Exhibits be returned.

4. Question of costs reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.