Shadbolt v Wise[2005] QSC 163

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

FRYBERG J

No S 2751 of 2001

BRISBANE

DATE 10/06/2005

ORDER

HIS HONOUR:  In October 2002 the Court ordered, among other things, that subject to all necessary consents from Maroochy Shire Council and Greatwood Community Titles Scheme 19855 being obtained within six months of the date of the order, the respondent transfer to the applicants the fee simple interest in the land over which an encroachment extended ("subject land").

The transfer envisaged by that order has not happened.  Essentially, the reason that it has not happened has been the non co-operation of the respondents.  The order was made at the end of the hearing of an application by the present applicants against the respondents which arose because the applicants had constructed a swimming pool on their land which abuts the subject land and other land owned by the respondents.  After a full hearing, Mullins J ordered in the terms which I have already described.

When the applicants came to seek the necessary consent of the Maroochy Shire Council in whose area the land is situated, the council required the applicants to lodge a development application for reconfiguration of land in accordance with the Integrated Planning Act 1997.  The form required for that application made provision for the signature of the owner of the land.  Whatever the effect of the order might have been in equity, the council apparently took the view that the owners of the land were the respondents.  The requirement for their signature apparently was based on the requirement in s.3.2.1(3) of the Integrated Planning Act 1997. 

The respondents would not provide that signature.  It is, at least, arguable that in refusing to provide it they were in contempt of an implied order that they do all acts and things necessary on their part to procure the consent of the council.  However, the applicants did not choose to pursue that rather risky argument and instead sought from the Court an order that the Registrar of the Court be directed to sign the development consent application on behalf of the respondents.

That order was, in due course, made.  However all of this took time.  The applicants twice sought variations of order 2 to extend the time referred to in that order but by now even the extended time has expired.

When the Registrar signed the application for development consent it was submitted to the council.  Unfortunately the application did not include a request for the council to relax the legal requirements in relation to building setbacks.  This meant that even if the application were granted, there would still exist on the subject land the superstructure built around the pool at a point within the setback band.

The council approved the application and made it subject to a condition in effect, that the development comply with all setback requirements of the Building Act.  That, of course, was a condition which, literally read, it would be impossible to comply with.

The applicants sought a certificate from a qualified person to demonstrate compliance with that condition and, not surprisingly, no certificate was forthcoming since the land on which the superstructure was built was, by definition, the land the subject of the encroachment and no more.

In the meantime, the council had sealed a plan of survey in a form capable of registration in the Titles Office.  For a reason which was not explained to me, the applicants sought to have the signature of the respondents placed upon that plan before lodging it in the Titles Office.  The respondents did not provide that signature and with the effluxion of more than six months, the plan became incapable of lodgement for registration under the Land Titles Act without resealing, see s.3.7.6 of the Integrated Planning Act.  The council now takes the position, no doubt having had the matter drawn to its attention in the meantime, that it will not reseal the plan unless the applicants make a further development application for relaxation of the setback requirements.  That is the very thing which, in my view, ought to have been included with the original development application.

The applicants prepared and lodged such a further development application but it has been rejected by the council on the ground that it has not been signed by the owner of the land.  Again it is not clear to me that the council is correct in taking this view, having regard to the definition of owner in the Integrated Planning Act and the effect of the order of the Court. 

Again, however, the applicants have chosen not to contest the council's requirement but have instead come to Court today seeking an order that the Registrar sign the application or alternatively a vesting order vesting the subject land in themselves.  The respondents counter by submitting that an order directing the Registrar to sign the plan would be too remote from the power conferred by s.185 of the Property Law Act 1974 and that the Registrar should therefore not be given such a direction.

They further submit that in any event discretionary considerations ought to mandate against the making of such an order.  They further submit that since the time for performance of the condition on order number 2 of Mullins J has expired that I ought to instead order the removal of the encroachment on the basis that the transfer need not happen and if necessary seek an order that I should set aside that order to the extent necessary.

In my view the conduct of the respondents has been reprehensible.  It may not have been unlawful.  It is unnecessary to reach a concluded view on that point.  It is plain, in my judgment, on the facts that the respondents are doing nothing to cooperate with the applicants in carrying the order of the Court into effect.  That, it seems to me, is something which the Court should not permit to continue.

For the respondents Mr Keim SC has submitted that the type of order which may be made under s.185 is an order directly relating to the conveyance or transfer of the land.

He concedes, for example, that the Registrar might be directed to execute on behalf of the respondents a conveyance that is a transfer document or even a plan of subdivision but he submits that an application for boundary set-back relaxation falls outside the scope of the power conferred by that section.  He draws attention to the fact that quite apart from the question of encroachment, the order will result not only in the respondents having to put up with an encroaching object hard against their boundary but also that this is something which is very much against the interests of a land owner.

It seems to me that problem to which Mr Keim refers is one which will frequently arise, indeed, may always arise whenever the Court makes an order of this sort in relation to a structural encroachment.  The power to make an order under s.185 depends of course, on the applicants having established the conditions for the order under part 11 division 1 of the Property Law Act.  The ambit of the order which can be made is limited to the area of the subject land.  The Court does not have power to order the conveyance or transfer of any area greater than the subject land.  It follows that whenever a structure is encroaching, there will be after the encroachment is transferred, a structure hard up against the boundary of the reconfigured land.  This will often cause a breach of the local set-back requirements. 

For this reason, I do not think that there is any remoteness in the order which the applicants seek.  It seems to me that it will frequently be necessary for a relaxation to be sought and that one would ordinarily expect that to be sought when the reconfiguration application is submitted to the council.  That it was submitted separately in this case does not seem to me to make any difference.

As far as the exercise of discretion is concerned, I take note of the various factors to which Mr Keim has referred including the comments made by Justice Mullins about the conduct of the applicants.  I also take into account the time which has gone by.  I think that is an unsatisfactory situation that has arisen but it hardly lies in the mouths of the respondents to criticize on that ground.  On the other hand, I also take into account the large size of the respondents' block and its use for grazing cattle.

It seems to me that the applicants are entitled to such relief as will achieve for them the object of the original Court order.  There has been some discussion about whether this is best achieved by an order that the Registrar sign documents, an order that the respondents sign them or a vesting order.  In my judgment, the last of these options is the one most likely to have the effect necessary for implementation of the Court's order.  Once the subject land is vested in the applicants, there can be no question of their right to apply to the Council for the relaxation of setback requirements and for the reconfiguration of the land and resealing of the plan of survey. 

Consequential amendments need to be made to the order of October 2002.  Mr Keim submitted that the mere fact that in most cases the result of an order for conveyance or transfer of encroaching land would contain a requirement for relaxation of the setback is not a reason why I should make the order sought.  He submitted that the defect, if there is one, is one of statutory drafting in that s.185 ought to have made provision for the Court to order the transfer of an area of land greater than that physically covered by the encroachment and large enough to encompass the necessary setbacks.  I do not think that I need read the section in that way.  It seems to me that the result which I have reached is consistent with the proper construction of that section. 

In all probability, once the vesting order is drawn to the attention of the council, it will proceed to process the applicant's application for relaxation of the setback requirements.  That, in turn, ought to lead to the council resealing the plan of subdivision.

I was told from the Bar Table that the resealed plan might need to be signed by the respondents in order to be acceptable to the Titles Office, but that was on the basis that no vesting order had been made.  I see no reason why the plan, as resealed, ought to be unacceptable in the context where the present order has been made.  I therefore propose to make the following order:

1)  I order that the order of Mullins J made on 31 October 2002 be varied by:

(a)In paragraph (2) thereof deleting the words "within six months of the date of this order" and substituting "on or before 10 December 2005";

(b)Renumbering that paragraph as 2(a);

(c)Inserting a new paragraph 2(b) as follows:

"(b) order that the respondents do all acts and things necessary on their part to procure such consent";

(d)Inserting a new paragraph 2A as follows:

"2A Order that the title to the land set out in diagram A on unregistered plan SP 148485, a copy of which is Exhibit A to the affidavit of Douglas Hector Hodgson filed on 18 May 2004, be vested in the applicants".

I will hear the parties on costs and on the form of the order, if there is any matter arising in relation to that.

...

HIS HONOUR:  I should have said also that it follows from my reasons that the cross-application should be dismissed.

...

HIS HONOUR:  Each party seeks orders for costs.  There is some force in the point made by Mr Keim that the applicant has not proceeded with two other aspects of the application today, that is, in relation to mortgages and in relation to the signing of the sealed plan of subdivision.  The respondents would have incurred costs in relation to those parts of the application.

In addition, the order which I have made does depart in some respects from the detail of the order which was sought by the applicant and the applicant is the party which has failed to ensure that what they have called "extensions of time" were procured.  On the other hand, the respondents have, as I find, been guilty of substantial non-cooperation.

In all the circumstances, it seems to me that the best course is to make no order as to costs.

The orders will therefore be:  (1) in accordance with what I have just proposed; (2) cross application dismissed; (3) there will be no order as to costs.

...

HIS HONOUR:  The costs of various adjournments in relation to the applications before the Court today have been reserved.  There should be no order as to those reserved costs either.