Wang v Queensland[2024] QSC 156

SUPREME COURT OF QUEENSLAND

1. [1]
   This is the trial of a separate question pursuant to r 483(1) of the Uniform Civil Procedure Rules (‘UCPR’). The question is as follows:

“Is Part 11, Division 1 of the Property Law Act 1974 capable of applying to approximately 46m² of canal (Lot 386 RP 88417) adjoining Lot 41 RP 88417 and more particularly identified at page 5 of Exhibit ‘RR-1’ to the Affidavit of Robert Rameka filed 31 May 2023?”

2. [2]
   The applicant would answer the separate question “yes”. The State would answer the separate question “no”.
3. [3]
   Since 20 October 2014, the applicant has been and remains the registered owner of 16 Carmel Court, Broadbeach Waters, Lot 41 on RP 88417 Title Reference 13242129 (“the applicant’s land”). Works comprising a revetment wall, pool fence, and fill have been constructed on the applicant’s land and encroach upon adjoining land being the “46m² of canal” the subject of the separate question (“the land over which the encroachment extends”).^[1] The circumstances in which the encroachment occurred are not material. Previous owners of the applicant’s land effected the works which constitute the encroachment. The applicant purchased the applicant’s land in its present condition.
4. [4]
   The land over which the encroachment extends is part of a canal which was described as Lot 386, RP 88417 (“the Canal”).
5. [5]
   In the proceeding, the applicant seeks final relief that the State convey to her the fee simple in the land over which the encroachment extends on the basis that she pays compensation in an amount to be determined by the Court.
6. [6]
   The ultimate dispute concerns whether Division 1 of Part 11 of the Property Law Act 1974 (Qld) (“the Property Law Act”), which provides for conveyance and compensation in circumstances of an encroachment, applies to the land over which the encroachment extends. Division 1 of Part 11 contemplates a conveyance by an adjacent owner, being an owner of land over which an encroachment extends, and relevantly defines an “owner” as a person entitled to “an estate of freehold in possession … whether in fee simple or for life or otherwise”. The State contends that it is not an “owner” of the land over which the encroachment extends and not “an adjacent owner” within the meaning of those expressions as they appear in s 182 of the Property Law Act.

Relevant facts

7. [7]
   There is no dispute about the material facts.
8. [8]
   Initially, the applicant’s land formed part of 116 acres of land (“the original 116 acres parcel”) which was the subject of Deed of Grant Number 20900 dated 7 September 1869 (No 10153161, Vol 153, Folio 161) in favour of Mr Joseph Isaacs. The grant to Mr Isaacs was a freehold grant by the Crown.
9. [9]
   In May 1916, the original 116 acres parcel was transferred to Mr Francis Parr. On 27 May 1919, Certificate of Title Vol 1343, Folio 183 was issued under title reference 11343183 in respect of the original 116 acres parcel (“the Certificate of Title for the original 116 acres parcel”).
10. [10]
    On 7 May 1958, the Canals Act 1958 (Qld) (“the Canals Act”) received assent and commenced as a law of Queensland.
11. [11]
    The Canals Act relevantly provided:

“Existing canals

13.(1) In and for the purposes of this section and of section fourteen of this Act, the term ‘existing canal’ means any and every one of those canals provided or proposed to be provided in respect of subdivisions of lands called respectively—

1. Florida Gardens; and

2. Miami Keys; and

3. Rio Vista; and

4. Moana;

within the Area of the Shire of Albert in respect whereof permissions for the purposes of section fifty-nine of ‘The Harbours Acts, 1955 to 1956,’ were applied for and granted prior to the passing of this Act:

Provided that a canal provided for in any plan of subdivision of any of the lands mentioned hereinbefore mentioned in this section not registered by the Registrar of Titles prior to the passing of this Act shall not be, or be deemed to be, an existing canal for the purposes of this section or of section fourteen of this Act unless and until the Minister makes on that plan the endorsement prescribed by subsection three of this section.

2. When any plan of subdivision of any of the lands mentioned in subsection one of this section which provides for any canal shall have been approved by the Council of the Shire of Albert and registered by the Registrar of Titles prior to the passing of this Act, then that canal shall be presumed to be an existing canal unless and until the contrary is proved.

3. When any plan of subdivision of any of the lands mentioned in subsection one of this section not registered by the Registrar of Titles prior to the passing of this Act provides for any canal which purports to be an existing canal, then the Registrar of Titles shall not register that plan unless and until the Minister endorses thereon a certificate that such canal is an existing canal.

The onus shall lie on the applicant for the endorsement referred to in this section to satisfy the Minister that the purported existing canal is in all respects the canal in respect whereof the permission mentioned in subsection one of this section was given and the Minister shall not make the endorsement unless and until the he is so satisfied.

The Minister shall not make an endorsement pursuant to this section upon any plan of subdivision which does not comply in all respects with the requirements of paragraph (a) of section nine of this Act.

4. All lands defined in a plan of subdivision as being required for the construction of any existing canal shall by virtue of the registration by the Registrar of Titles of that plan be deemed to be transferred and surrendered to the Crown—

1. In the case of such a plan so registered prior to the date of the passing of this Act, on and from the date of the passing of this Act; and

2. In the case of such a plan so registered on or after the date of the passing of this Act, on and from the date when the plan is so registered:

Provided that in the case of a plan mentioned in paragraph (a) of this subsection which does not comply in all respects with the requirements of paragraph (a) of section nine of this Act, the Registrar of Titles shall not register any dealing relating to any subdivision comprised in the plan (other than a transfer surrendering to the Crown) unless and until he is satisfied that a transfer surrendering to the Crown all land in that plan whereon any canal is or is to be constructed is registered in his office.

5. Sections three to nine, both inclusive, of this Act, do not apply to existing canals but, save those sections, all of the provisions of this Act apply to existing canals.”

12. [12]
    On 16 August 1957, the original 116 acres parcel was subdivided by Plan of Subdivision No. 88417 (“the Plan of Subdivision”), the subdivision being called the Rio Vista Canal Development. The Plan of Subdivision identified the Canal (which was described as Lot 386 on RP 88417) and the applicant’s land (which was described as Lot 41 on RP 88417).^[2] The Plan of Subdivision also identified a further canal which was described as Lot 386A on RP 88417.
13. [13]
    The Plan of Subdivision contains an endorsement which reads:

“B60875 Surrender Subs 386 and 386A. “Canals Act”.”

14. [14]
    The Certificate of Title for the original 116 acres parcel contains an endorsement dated 26 November 1958 which reads:

“Pursuant to Memo of Transfer No B608750 produced 26 November 1958 registered 19 December 1958 Her Sovereign Majesty Queen Elizabeth the Second is now seised of an Estate in Fee Simple in … subs 386, 386 A of the within Land under section 13 of the Canals Act of 1958”.

15. [15]
    The instrument being “Memo of Transfer No B608750” is no longer in existence as it was destroyed in approximately 1975.
16. [16]
    No Certificate of Title was ever issued with respect to the Canal.
17. [17]
    The former property description for the Canal, Lot 386 on RP 88417, is no longer recorded in the freehold land register. That former property description is no longer used as an identifier for the Canal and no longer has relevance for title identification purposes. The Manager of Land Services, Land & Surveying Services of the Department of Resources described the former property description for the Canal as “having disappeared once the Canal was created”.^[3]
18. [18]
    On 19 November 1959, a certificate of title for the applicant’s land was issued under title reference 132421129.

Relevant provisions of the Property Law Act and the Land Act

19. [19]
    In addition to the provisions of the Canals Act, the separate question requires consideration of certain provisions of the Property Law Act and the Land Act 1994 (Qld) (“the Land Act”).
20. [20]
    The relevant provisions of the Property Law Act are as follows:

“182 Definitions for div 1

In this division—

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.

owner means any person entitled to an estate of freehold in possession—

1. whether in fee simple or for life or otherwise; or

2. whether at law or in equity; or

3. whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Land Title Act 1994.

subject land means that part of the land over which an encroachment extends.

183 Application of div 1

This division applies despite the provisions of any other Act.

184 Application for relief in respect of encroachments

1. Either an adjacent owner or an encroaching owner may apply to the court for relief under this division in respect of any encroachment.

2. This section applies to encroachments made either before or after the commencement of this Act.

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—

1. the payment of compensation to the adjacent owner; and

2. 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

3. 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…

…

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.

…

188 Encroaching owner—compensation and conveyance

Wherever the court sees fit, and in particular where the encroaching owner is not an owner beneficially entitled to the fee simple free from encumbrances, the court may determine—

1. by whom and in what proportions the compensation is to be paid in the first instance, and is to be borne ultimately; and

2. to whom, for whose benefit and upon what limitations the conveyance, transfer, or lease of the subject land or grant in respect of the land is to be made.

189 Adjacent owner—compensation and conveyance

Wherever the court sees fit, and in particular where the adjacent owner is not an owner beneficially entitled to the fee simple free from encumbrances, the court may determine—

1. to whom, for whose benefit, and in what proportions the compensation is to be paid or applied; and

2. by whom the conveyance, transfer, or lease of the subject land or grant in respect of the subject land is to be made.”

21. [21]
    The dictionary to the Land Act contains definitions of “unallocated State land” (“USL”) and “freehold land” as follows:

“unallocated State land means all land that is not–

1. freehold land, or land contracted to be granted in fee simple by the State; or

2. a road or a reserve, or a national park, conservation park, State forest or timber reserve; or

3. subject to a lease, licence or permit issued by or for the State, other than a permit to occupy under this Act issued by the chief executive.”

“freehold land means–

1. land recorded in the freehold land register; and

2. other land that has been granted or vested in fee simple.”

22. [22]
    Section 9 of the Land Act provides:

“9 Land adjacent to tidal boundary or right line tidal boundary owned by State

1. If land has a boundary that is a tidal boundary or right line tidal boundary, other land that is on the same side of the boundary as the water subject to tidal influence—

1. is the property of the State; and

2. may be dealt with as unallocated State land.

2. Subsection (1) does not apply to land if it is inundated land or a registered interest in the land is held by someone else.

3. Subsections (1) and (2) apply even if a person owns land having tidal boundaries or right line tidal boundaries on both sides of water subject to tidal influence.

Example—

A person owns land that has as its northern boundary a tidal boundary that is located on the southern edge of a river. The same person also owns land in the same locality that has as its southern boundary a tidal boundary located on the northern edge of the same river. The ownership of land on both sides of the river does not in these circumstances confer on the person ownership of the river itself.

4. To remove any doubt, it is declared that, before the commencement of this section, if a boundary of land (the relevant land) was formed by high-water mark—

1. other land that adjoined the boundary and was below high-water mark was, and always was, the property of the State, unless it was inundated land or a registered interest in the land was held by someone else; and

2. if the line of the high-water mark shifted over time by gradual and imperceptible degrees, the shift was a shift in the boundary of the relevant land.

5. An act before the commencement of this section to occupy, use, build works or remove material or product, with or without lawful authority, could never divest the State of its ownership of land below high-water mark.

6. An act after the relevant commencement to occupy, use, build works or remove material or product, with or without lawful authority, can not divest the State of its ownership of land that is on the same side of a boundary that is a tidal boundary or right line tidal boundary as the water subject to tidal influence.

7. For subsection (6), relevant commencement means—

1. in relation to a tidal boundary or right line tidal boundary under section 8, definition right line tidal boundary, paragraph (a)—the commencement of subsection (6); or

2. in relation to a right line tidal boundary under section 8, definition right line tidal boundary, paragraph (b)—the commencement of this subsection.”

23. [23]
    Section 14 of the Land Act provides:

“14 Governor in Council may grant land

1. The Governor in Council may grant, in fee simple—

1. unallocated State land; or

2. land contained in an operational reserve or a part of the land; or

3. land contained in an operational deed of grant in trust in relation to which chapter 3, part 1, division 4A applies or a part of the land; or

4. rail land; or

5. approved land.

2. The Governor in Council may also grant, in fee simple in trust, unallocated State land for use for 1 of the following purposes—

1. a community purpose;

…

3. A grant under subsection (1) or (2) may not be made for land that adjoins a tidal boundary or right line tidal boundary of other land.

4. A grant of rail land under subsection (1) may be made only to the State.

5. Subsection (3) does not stop land that is on the seaward side of a tidal boundary or right line tidal boundary from being granted in fee simple if it is the subject of a reclamation mentioned in section 127.

6. A grant of approved land under subsection (1) may be made only to the person the subject of the application.

7. In this section—

approved land means land the subject of an application approved by the chief executive under the Aboriginal Land Act 1991, section 32C or the Torres Strait Islander Land Act 1991, section 28C.”

24. [24]
    Section 17 of the Land Act provides:

“17 Granting land to the State and the Commonwealth

1. The Governor in Council may grant, in fee simple to the State—

1. unallocated State land; or

2. land contained in an operational reserve or part of the land; or

3. land contained in an operational deed of grant in trust in relation to which chapter 3, part 1, division 4A applies or a part of the land; or

4. rail land.

2. The Governor in Council may grant unallocated State land in fee simple to the Commonwealth.

3. The Minister may lease unallocated State land to the State or the Commonwealth for either a term of years or in perpetuity.”

Historical matters

25. [25]
    It may be accepted that, at the time of settlement of the colony of New South Wales, the common law attributed a radical title to the Crown over land in the territory over which the Crown acquired sovereignty.^[4] In Mabo v The State of Queensland [No 2],^[5] Brennan J said:

“Accepting the doctrine of tenure, it was an essential postulate that the Crown have such a title to land as would invest the Sovereign with the character of Paramount Lord in respect of a tenure created by grant and would attract the incidents appropriate to the tenure, especially the Crown’s right to escheat. The Crown was invested with the character of Paramount Lord in the colonies by attributing to the Crown a title, adapted from feudal theory, that was called a radical, ultimate or final title: see, for example, Amodu Tijani v. Secretary, Southern Nigeria; Nireaha Tamaki v. Baker; cf. Administration of Papua and New Guinea v. Daera Guba. The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty. As a sovereign enjoys supreme legal authority in and over a territory, the sovereign has power to prescribe what parcels of land and what interests in those parcels should be enjoyed by others and what parcels of land should be kept as the sovereign’s beneficial demesne.

By attributing to the Crown a radical title to all land within a territory over which the Crown has assumed sovereignty, the common law enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne. The notion of radical title enabled the Crown to become Paramount Lord of all who hold a tenure granted by the Crown and to become absolute beneficial owner of unalienated land required for the Crown’s purposes.” (footnotes omitted)

26. [26]
    An incident of the radical title attributed to the Crown is the power to grant interests in the land the subject of the radical title. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,^[6] the joint judgment^[7] emphasised that the radical title attributed to the Crown by the common law is not to be equated with the ownership of an estate in fee simple. The joint judgment observed that the “foundation of the decision in Mabo [No 2]” was the recognition that the radical title to the land “did not encompass absolute beneficial ownership of the land, even though the exercise of the Crown’s radical title might create rights of ownership in itself or dispose of them in favour of others”. In Mabo [No 2],^[8] Brennan J had noted that the common law’s attribution to the Crown of a radical title “enabled the Crown, in exercise of its sovereign power, to grant an interest in land to be held of the Crown or to acquire land for the Crown’s demesne”. Absolute and beneficial Crown ownership is established not by the acquisition of the radical title but by the subsequent exercise of the authority of the Crown.
27. [27]
    In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,^[9] Gageler J observed:

“The doctrine of the common law of Australia is now that what the Crown acquired at the time of ‘settlement’ was ‘radical title’ – ‘no more than a postulate to support the exercise of sovereign power within the familiar feudal framework of the common law’ - and that ‘[a]bsolute and beneficial Crown ownership, a plenum dominium, was established not by the acquisition of radical title but by subsequent exercise of the authority of the Crown’ either to grant an interest in land to another or to appropriate land to itself.” (footnotes omitted)

28. [28]
    Historically, in England, there was no generally accepted term for the land held in possession by the Crown as Paramount Feudal Lord.^[10] In Queensland, prior to the Land Act, there was a statutory concept of lands remaining unalienated from the Crown or unalienated Crown land.^[11] In the colony of New South Wales there had also been a statutory concept of the “waste lands of the Crown”.^[12] In Wik Peoples v State of Queensland,^[13] Gummow J described the colonial wastelands as “lands not yet granted from the Crown in fee simple, or for an estate in freehold, or for a term of years, and not dedicated and set apart for some public use”.
29. [29]
    On this application, the State accepted that USL was a description apt to include the historical concept of the waste lands of the Crown.^[14] The applicant did not contend otherwise. USL is not freehold land or land in respect of which the State has contracted to make a grant in fee simple.^[15]
30. [30]
    Historically, the power to deal with land over which the Crown had radical title was a prerogative power.^[16] In Queensland, the Constitution Act 1867 (Qld) displaced the prerogative in favour of the legislature.^[17] In Wik Peoples v State of Queensland,^[18] Gummow J observed:

“Until as late as 1842 there was no statutory restriction upon the alienation by the Crown of lands in the Australian colonies. The phrase ‘waste lands’ had as its primary meaning lands which were uncultivated rather than profitless. The management and control of colonial waste lands (ie, lands not yet granted from the Crown in fee simple, or for an estate in freehold, or for a term of years, and not dedicated and set apart for some public use) was by executive fiat. … Queensland was separated from New South Wales in 1859 and with the arrival of representative government the Imperial authorities relinquished control over Crown lands in these colonies. Imperial statute, s 2 of the New South Wales Constitution Act 1855 (Imp), vested in the New South Wales legislature the entire management and control of the waste lands belonging to the Crown in New South Wales and the power of appropriation of the gross proceeds of the sales of any such lands. Then s 30 of the Constitution Act 1867 (Q) … provided that it was to be lawful for the legislature of that colony to make laws for regulating the sale, letting, disposal and occupation of waste lands of the Crown within Queensland. With exceptions not presently material, s 40 stated:

‘The entire management and control of the waste lands belonging to the Crown and the said Colony of Queensland and also the appropriation of the gross proceeds of the sales of such lands and of all other proceeds and revenues of the same from whatever source arising within the said colony including all royalties mines and minerals shall be vested in the Legislature of the said colony …’

The result was to withdraw from the Crown, whether represented by the Imperial authorities or by the Executive Government of Queensland, significant elements of the prerogative. The management and control of waste lands in Queensland was vested in the legislature and any authority of the Crown in that respect had to be derived from statute.” (footnotes omitted)

31. [31]
    From the time of “the constitutional settlement of the mid-nineteenth century”,^[19] all land in Queensland was to be dealt with pursuant to statute. From that time “[i]t was by legislation that interests in the land were to be granted by the Crown and land was to be reserved or dedicated to ‘public purposes’”.^[20]
32. [32]
    In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act,^[21] the joint judgment^[22] observed that by devolving legislative power to the legislature, the executive’s powers became subject to the control of the legislature. The joint judgment added that, as a result, “[t]he exercise of executive power over waste lands may be subjected to statutory prohibition or modification”.^[23] Hence, the State cannot contract for the disposal of any interest in Crown lands “unless under and in accordance with power to that effect conferred by statute”.^[24]
33. [33]
    It can also be accepted that compliance with any statutory preconditions is essential to the making of a valid grant of USL. In Cudgen Rutile (No 2) Pty Ltd v Chalk,^[25] Lord Wilberforce said:

“It follows as a logical consequence that when a statute, regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down. From this in turn it must follow that the freedom of the Minister or officer of the Crown responsible for implementing the statute to make his decisions, or use his discretions, cannot validly be fettered by anticipatory action; and if the Minister or officer purports to do this, by contractually fettering himself in advance, his action in doing so exceeds his statutory powers. A clear statement of this is to be found in the judgment of the High Court (Isaacs, Gavan, Duffy and Rich JJ.) in Watson’s Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 C.L.R. 268. The Minister for Lands having entered into an agreement with the appellant that, after a contemplated revocation of the dedication of certain land as a public park, the land should be offered for sale by public auction, the agreement was held invalid. The court said, at p. 277:

‘First, taken as a whole it was an attempt to fetter in advance the discretion and the public duty of the Minister of Lands for the time being. The very ground of the claim is that the Minister was bound by the contract to exercise his statutory power, not as the expediency of doing so presented itself to him at the moment of exercise, but as predetermined by the contract. It was put that his discretion was exercised at the time of making and by the act of making the contract. But the answer to that is that on the true construction of the Act and, particularly in this connection, of section 63, that is not a mode of exercising his discretion that comes within his authority. The contract was not the completed exercise of discretion, as in the cases cited of private trustees, but it was an anticipatory fetter on the future exercise of discretion and public action. That discretion might, if unfettered, lead the Minister to retain the land as Crown land, and so change his intention, however and whenever previously formed, of selling the land by auction. That agreement is impossible to support.’”

34. [34]
    The Land Act regulates the process by which the Crown may become the absolute beneficial owner of USL. Sections 14 and 17 of the Land Act confer a discretion upon the Governor in Council which cannot be fettered in advance.^[26] Before unalienated land is allocated under the Land Act, s 16 requires the Chief Executive to “evaluate the land to assess the most appropriate tenure for the land”. In conducting that evaluation, the Chief Executive is required to consider a number of matters including the policies and object of the Land Act.^[27] One object of the Land Act is that the land to which the Land Act applies is to be managed for the benefit of the people of Queensland by reference to matters including sustainability, community purpose, protection of the environment and culturally valuable and sensitive areas and features.^[28]

The parties’ contentions in relation to the Canal Act, the Property Law Act and the Land Act

35. [35]
    The applicant’s primary submission was that the Canal, including the land over which the encroachment extends, “vested in the State in fee simple in 1958” and is “‘freehold land’ within the meaning of the definition in sch 6 [Land Act]”.^[29] In the alternative, the applicant submitted that if the land over which the encroachment extends is USL, the State can, as and when it wishes, through the executive, advise the Governor in Council under s 17 of the Land Act to make a grant of USL. Therefore, in respect of USL, the State was said to have “practically complete control” and to be regarded as “entitled to an estate of freehold in possession” within the meaning of s 182 of the Property Law Act. That USL could only be converted to freehold at the Governor’s discretion was said by the applicant to not undermine the proposition that the State was entitled to an estate of freehold in possession. As it was put, “[i]f the Governor is advised under section 17 of the Land Act to create such an estate, it will be done”.^[30]
36. [36]
    The applicant submitted that Part 11, Division 1 of the Property Law Act, a remedial provision, fell to be construed to give a complete remedy consistent with the language used. The definition of “owner” in s 182 of the Property Law Act was said to be intentionally expansive. There was said to be no policy reason which militated against the applicant’s construction. The State had the “protection of the discretion to grant relief assuming the requirements of section 184 are engaged”.^[31] To the extent that any public interest might be offended in a particular case, that consideration could be weighed in the exercise of the discretion.^[32]
37. [37]
    The State’s primary submission was that the legal effect of s 13(4) of the Canals Act was to transfer and surrender the Canal, including the land over which the encroachment extends, to the State “such that it formed part of the Crown’s radical title”.^[33] As a result, the land over which the encroachment extends was properly described as USL.^[34] Part 11, Division 1 of the PLA was said to have no application to USL. The State made a further submission to the effect that because the land over which the encroachment extends adjoined tidal waters, ss 9(6) and 14(3) of the Land Act prohibited the grant of land in fee simple.
38. [38]
    Two ultimate issues emerged from the parties’ submissions. The first issue concerned whether, in respect of the land over which the encroachment extends, the State was to be regarded as an “adjacent owner” within the meaning of s 182 of the Property Law Act. The second issue concerned whether Part 11, Division 1 of the Property Law Act applied to USL. 

Is the State an “adjacent owner” in respect of the land over which the encroachment extends?

39. [39]
    Section 13(4) of the Canals Act relevantly provides that “[a]ll lands defined in a plan of subdivision as being required for the construction of any existing canal shall by virtue of the registration by the Registrar of Titles of that plan be deemed to be transferred and surrendered to the Crown”. It may be noted that the deemed transfer and surrender occurs by virtue of the registration of the plan of subdivision. The Canals Act, and the Land Act in force at the relevant time, namely the Land Act 1910 (Qld), did not prescribe the effect of the deemed transfer and surrender contemplated by s 13(4) of the Canals Act.^[35]
40. [40]
    The reversion of the Canal back to the Crown’s radical title is consistent with the mischief the Canals Act was designed to address. In the second reading speech for the Canals Bill on 16 April 1958, the Treasurer and Minister for Housing, when introducing that bill, stated, “I do not propose to repeat the background against which the Government believed that it was necessary to introduce the Bill”.^[36] That background had been outlined the previous day in the Initiation in Committee for the Canals Bill, where the following had been said:^[37]

“The Marine Board had power of approval only to the point of junction of the canal with the harbour. It was only when it approached the walls of the stream that the Marine Board had any control. The canals were scooped out and came into existence over what was freehold land. Once the canals became joined and part of the tidal flow went over the land they became part of the harbour, although the land under the canal was privately owned. … The Crown, through a Harbour Board, or where there is no harbour or the canal is not linked up with a harbour then through the Harbour Trust, will undertake the responsibility for maintaining and cleaning the canals. This responsibility will be discharged through the powers already conferred by Section 59 of the Harbours Acts. But, to enable these Crown authorities to enforce their powers, the land upon which the canal is constructed must be surveyed out of the subdivision and surrendered to the Crown. In other words, not only will the water in the canals be part of the harbour but also the land on which they stand will be. It has to be dredged. It will in fact be Crown estate.”

41. [41]
    Hence, the Canal was apparently intended to be dealt with in the same way as other tidal waters which strongly suggests that the surrender to the Crown contemplated by s 13(4) was intended to bring the surrendered land back within the Crown’s radical title. In this respect, at the time of the commencement of the Canals Act, all land lying under the harbours of (including the tidal navigable rivers in) Queensland was deemed to be the property of the Crown,^[38] with the Crown having prerogative rights in that land but not a fee simple.^[39]
42. [42]
    The notion that fee simple land might be returned to the Crown’s radical title is not novel or unknown to land law.
43. [43]
    In Boge’s Annotated Land Act 1994,^[40] the author relevantly states:

“To speak of a ‘land tenure system’ should be to only go so far as saying that the State may grant interests in land authorised by statute (see generally Lansen v Olney (1999) 169 ALR 49 per French J). Once granted, those interests exist as a matter of statute or the general law. As ‘tenure’ only requires that the grantor be a ‘superior lord’ and not necessarily hold a greater interest in the land than a grantee, the term ‘tenure’ is today in effect a loose recognition of the State’s ability to derogate from a grant in accordance with statutory authority (eg by compulsorily acquiring land in the grant). That is, the notion of ‘tenure’ is applied to signify that the interest which a grantee holds was granted by the State – it may even be said that it is carved out of the State’s pure legal estate – and, that as a result, the State may, in accordance with appropriate authority, take it away. However even that is not really a true reflection of the position. The State’s actions of granting and taking away an interest are controlled by statute. Parliament authorises the State to grant and to take away. The State cannot do it without that authority. Therefore, the State’s status as ‘superior’ in the chain of interests is an imperfect adaptation of the doctrine of tenure. Nevertheless, although the State can only deal with unallocated State land according to statutory authority, if a fee simple estate or a lease is surrendered, or a lease is forfeited, the land becomes unallocated State land. While this strictly occurs as a matter of statute (ss 327G(b), 331), it is, in a sense, an aspect of the State’s seigniorial title. Along with escheat, the Crown, as the paramount lord under the doctrine of tenure was entitled, as a matter of prerogative, to forfeited, surrendered or escheated lands. To this very minor extent, and although subject to statute (including where a trustee in bankruptcy or a liquidator of a corporation disclaims land (s 133 Bankruptcy Act 1966 (Cth); s 568F Corporations Act 2001 (Cth)), there are still some remnants to the State’s title as when a fee simple estate or a lease is forfeited or surrendered it is only natural that the land again fall within the pool of unallocated State land.”

44. [44]
    In a  different context, the effect of an escheat of fee simple land is to return the land as part of the Crown’s radical title.^[41] The right to escheat is an incident of the Crown’s “paramount” tenure.^[42] Escheat references a situation when there is no longer any tenant, the land returns, by reason of tenure, to the lord by whom or by whose predecessors in title, the tenure was created.^[43] Whilst the right ensures that no land in which the Crown has granted an interest is ever without a legal owner,^[44] the effect of escheat of fee simple land is that the land returns to form part of the Crown’s radical title. The Crown becomes the “absolute owner” of the land but does not succeed to the tenant’s rights nor hold an estate in that land.^[45] In that context it has been considered that the interest of the fee simple owner “goes out of existence”.^[46] The author of Butt’s Land Law relevantly observed of the effect of escheat that, “[t]he Crown did not succeed to the holder’s right; it took because of its own title paramount (out of which the holder’s interest had been carved), which now was again able to be asserted”.^[47]
45. [45]
    The Crown submitted that the term “surrender” in s 13(4) was used in a manner which was analogous to forfeiture. In Wik Peoples v State of Queensland,^[48] the High Court considered the effect of a forfeiture under s 135 of the Land Act 1962 (Qld). Gaudron J relevantly observed:^[49]

“…s 135 [of the Land Act 1910] made provision for what may be called a statutory reversion in the event of ‘determinat[ion] by forfeiture or other cause before the expiration of the period or term for which it was granted’, specifying that in that event it should ‘revert to His Majesty and become Crown land’, able to be ‘dealt with under [the] Act accordingly’. In the event of forfeiture or early determination, the clear effect of s 135 was to assimilate the land involved to land which had not been alienated, reserved or dedicated for public purposes and which, therefore, was ‘Crown land’ as defined in s 4 of the Act. In other words, the effect of s 135 was, in that event, to assimilate the previously alienated land to land in respect of which the Crown had radical title, and not to land in respect of which it had beneficial ownership.”

46. [46]
    In Lansen v Olney,^[50] French J considered the Pastoral Land Act 1992 (NT) and noted in the context of that legislation that “surrender” in exchange for a perpetual pastoral lease or for the grant of a consolidated lease, had the “effect of a re-entry and recovery of possession by or on behalf of the Crown” and, like forfeiture, extinguished the statutory interest.
47. [47]
    The applicant sought to place particular reliance upon the endorsement on the Certificate of Title. The memorandum of transfer pursuant to which that endorsement was made has been destroyed. There is no evidence of any relevant titles office practice at the time and this Court should not speculate about that practice. The State made a submission that the endorsement “appears, on its face, to have been a standard stamp used by the registry rather than a bespoke entry”. I am not prepared to act upon that submission knowing nothing of the relevant registry practice at the time. Rather, it appears to me that whatever may have been entered on the Certificate of Title, the endorsement attributing to the Crown a fee simple interest relied in terms upon s 13 of the Canals Act. The endorsement construed in that sense cannot interfere with the legal effect of s 13(4) of the Canals Act. If the endorsement reflected a mistaken interpretation of the effect of s 13(4) of the Canals Act, the registrar of titles was empowered to correct the mistake.^[51]
48. [48]
    Having regard to the language of s 13(4) of the Canals Act and the mischief towards which the language was apparently directed, I find that the legal effect of s 13(4) was to transfer and surrender the Canal, including the land over which the encroachment extends, to the State such that the surrender assimilated the previously alienated land to land in respect of which the Crown had radical title. By reason of the deemed surrender upon registration of the Plan of Subdivision, to adopt language used in the context of escheat, “[p]roof of ownership has stepped outside or beyond the Torrens System”.^[52] The intention of s 13(4) was not to transfer the Canal to the Crown in fee simple, that is, as an ordinary landowner.
49. [49]
    It was uncontroversial that if the land over which the encroachment extends formed part of the Crown’s radical title, it was to be regarded as USL. Proceeding on that basis, that the land over which the encroachment extends is USL, the next issue concerns whether the State is to be regarded as an “adjacent owner” of that land. For the purposes of Division 1 of Part 11 of the Property Law Act, an “adjacent owner” means “the owner of land over which an encroachment extends”.^[53] Critically however, an “owner” relevantly means any person “entitled to an estate of freehold in possession”.^[54]
50. [50]
    The dictionary to the Land Act defines USL as all land that is not, relevantly, “freehold land, or land contracted to be granted in fee simple by the State”. The applicant’s submission was that because the State “can, if it wants, convert [the Canal] to freehold … it comes within the concept of being entitled to [an estate of freehold in possession]”.^[55]
51. [51]
    The power to make a grant of USL is governed by the Land Act. A grant is not at the State’s whim but rather dependent upon compliance with the requirements of the Land Act. The Canal can only be alienated to the State pursuant to, and in compliance with, the Land Act. The question then arises as to whether, in those circumstances, on any sensible view, the State is to be regarded as entitled to an estate of freehold in possession in respect of the Canal?
52. [52]
    In Glenn v Federal Commissioner of Land Tax,^[56] the High Court considered the proper construction of the definition of “owner” as contained in s 3 of the Land Tax Assessment Act 1910 (Cth) (“the Land Tax Act”). The term “owner” was defined as including “every person who jointly or severally, whether at law or in equity – (a) is entitled to the land for any estate of freehold in possession; or (b) is entitled to receive, or in receipt of, or if the land were let to a tenant would be entitled to receive, the rents and profits thereof, whether as beneficial owner, trustee, mortgagee in possession, or otherwise”. In that case, a trust for accumulation was still in operation and the residuary beneficiaries were to take the trust estate at a future time. The question arose whether the beneficiaries could be regarded as entitled to “estate of freehold in possession” and consequently owners for the purpose of the Land Tax Act. Griffith CJ relevantly reasoned as follows:^[57]

“The term ‘estate in possession’ is sometimes used in real property law merely to denote the first of two or more successive estates, the others being called ‘estates in remainder’ or ‘estates in expectancy.’ It is also used to denote an estate of which some person has the present right of enjoyment.

Mr. Fearne, in the preface to his well-known work on Contingent Remainders, distinguished between estates vested in possession and estates vested in interest, and added that an estate is vested when there is an immediate fixed right of present or future enjoyment, is vested in possession when there exists a right of present enjoyment, and is vested in interest when there is a present fixed right of future enjoyment. On this Mr. Butler, in a note to the 10th edition, comments thus (p. 1, note (a) ):- ‘From the manner in which this distinction is expressed, it might be inferred, that Mr. Fearne considered that, under a conditional limitation or executory devise, depending on a certain event, the cestui que use or devisee takes a vested estate, while the event, on which it depends, is in suspense: but it seems evident, that, as in all these cases, the whole fee simple is either in the person from whom the land moves, or in his heirs, or is included in the actual limitations, the person taking under the conditional limitation or executory devise, cannot, while the suspense continues, in the proper sense of that word, have any estate, though the event, on which it depends, is certain of happening.

‘A conveys land by lease and release to B and his heirs, to the use of C and his heirs, from the first day of the following January; or devises land to C and his heirs, from the first day of January next after the testator’s decease:- In the first case, the fee remains in A; in the second, it descends to the heir at law of A, till the day arrives, upon which C is to be entitled to the land, for an estate in fee simple in possession. In the meantime, C has not an estate in possession, as he has not a right of present enjoyment; he has not an interest in remainder, as the limitation to him depends on the estate in fee simple, which, in the first case, remains in A; and, in the second, descends to A’s heir; he has not a contingent interest, as he is a person in being and ascertained, and the event, on which the limitation to him depends, is certain; and he has not a vested estate, as the whole fee is vested in A or his heirs.

‘He therefore has no estate; the limitation is executory, and confers on him and his heirs a certain fixed right to an estate in possession at a future period.’

In my opinion the term ‘estate in possession’ is used in the Land Tax Assessment Act in the sense explained by Mr. Butler. This is not only the natural, but the only just, interpretation that can be put on the words. For the tax is an annual tax, and the ‘owner’ of the land is the person who is in the present enjoyment of the fruits which presumably afford the fund from which it is to be paid.”

53. [53]
    The Chief Justice later concluded that until the trust for accumulation of income had been carried out the whole equitable, as well as the legal, estate in the land was vested in the trustees. The Chief Justice observed, “[i]t would, indeed, be a solemn mockery to pronounce in such circumstances that an estate of freehold in possession is vested in the appellants”.^[58]
54. [54]
    Isaacs J relevantly said:^[59]

“The expression ‘estate in possession’ is a well-known technical expression of property law with a certain connotation, and there being no context to the contrary, it should receive its technical meaning. See per Collins M.R. in Attorney-General v. Glossop (2). Sec. 25 (1) distinctly supports the technical meaning. In that view the expression is contrasted with estates in expectancy, as in remainder or reversion. ‘An estate in possession,’ says Preston (p. 89), ‘gives a present right of present enjoyment.’ But, it is the right of present enjoyment, and not necessarily the right of actual possession of the land, for there may be a tenant for years, and still less the fact of actual possession, which is or the essence of the definition.”

55. [55]
    In CPT Custodian Pty Ltd v Commissioner of State Revenue of the State of Victoria,^[60] the High Court considered s 3(1) of the Land Tax Act 1958 (Victoria) which imposed tax at certain rates in respect of the total unimproved value of all land of which a taxpayer was “the owner”. Section 3(1) defined “owner” to relevantly mean “every person entitled to any land for any estate of freehold in possession”. In considering that definition the High Court endorsed the reasoning in Glenn.^[61]
56. [56]
    In the present case, I consider that the statutory language “entitled to an estate of freehold in possession” is referencing a right of present enjoyment of the freehold estate. In my consideration, that interpretation accords with the settled common law meaning of “estate in possession”. The interpretation is logically consistent with the adjacent owner being amenable to an order to convey, transfer or lease that part of the land over which an encroachment extends^[62] and entitled to receive compensation reflecting the unimproved capital value of that part of land.^[63] There is no obvious policy or practical reason why someone who is not possessed of a right of present enjoyment of the fruits of land over which an encroachment extends should be entitled to compensation reflecting that land’s capital value. That the Crown might have available to it statutory processes which may culminate in a grant to the Crown of land over which an encroachment extends, does not mean that the Crown enjoys a present right to the beneficial enjoyment of that land. To adopt the language of Griffith CJ, it would be “a solemn mockery to pronounce in such circumstances that an estate of freehold in possession” is vested in the Crown.

Does Part 11, Division 1 of the Property Law Act apply to USL?

57. [57]
    The second issue is closely related to the first issue and is essentially concerned with whether the power of the Court to provide relief under the Property Law Act in respect of encroachments extends to a circumstance where the encroachment is upon USL. The issue directs attention to the proper construction of the relevant provisions of the Property Law Act.

58. [58]
    In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,^[64] the plurality observed:

“... the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted).

59. [59]
    Division 1 of Part 11 of the Property Law Act countenances an “adjacent owner” or an “encroaching owner” applying to the Court for relief “in respect of any encroachment”.^[65] To understand what is contemplated by an application for relief “in respect of an encroachment”, it is necessary to have regard to the definitions contained in s 182. Relevantly:

    1. “adjacent owner” means the owner of land over which an encroachment extends;
    2. “encroaching owner” means the owner of land contiguous to the boundary beyond which an encroachment extends;
    3. “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;
    4. “owner” means any person entitled to an estate of freehold in possession –

1. whether in fee simple or for life or otherwise; or

2. whether at law or in equity; or

3. whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Land Title Act 1994; and

5. “subject land” means that part of the land over which an encroachment extends.

60. [60]
    Having regard to these definitions, and reading them together, when s 184(1) speaks in terms of an application for relief “in respect of any encroachment” it is referencing an encroachment over the land of an adjacent owner. There is no other type of encroachment contemplated by the language of Division 1 of Part 11.
61. [61]
    There are no historical considerations or matters of context which suggest any different meaning should be afforded to the plain statutory language. Given the constitutional significance attached to legislative control over the disposal of land over which the State has a radical title, in the absence of clear words, it should not be assumed that the legislature intended to give the Court a power to grant USL in fee simple to encroaching owners.^[66] In relation to USL, the Land Act regulates the power to grant freehold estates,^[67] rail land,^[68] leasehold estates and permits to occupy^[69] and deeds of grant in trust.^[70]. The idea that a freehold owner might apply to the Court to exercise a discretionary power to grant an estate in fee simple over USL where the owner, or its predecessor, have encroached on USL, would represent a radical departure from the historical legislative control over grants of USL. The statement in s 183 of the Property Law Act that the division applies “despite the provisions of any other Act” does not warrant a different conclusion. That section was introduced apparently to avoid confusion about whether local government subdivisional approval would be required.^[71]
62. [62]
    It may be accepted that there is a principle of statutory interpretation that remedial or beneficial legislation should be accorded a “fair, large and liberal interpretation”, rather than one which is literal or technical.^[72] The applicant submitted that Division 1 of Part 11 of the Property Law Act was remedial legislation and that it would be an error for this Court to adopt what was referred to as a “constrained” approach to its interpretation. The interpretation which I have preferred is not constrained or artificial. Rather, it is an interpretation which reflects the plain meaning of the statutory provision which also happens to be consistent with the historical context that the allocation of unalienated Crown land or USL is a matter for the legislature. The interpretation is also consistent with other provisions of the Property Law Act, namely ss 185 and 186, which contemplate that an adjacent owner is amenable to an order of or for conveyance, transfer or lease and entitled to receive compensation reflecting the unimproved capital value of the land.
63. [63]
    Relying upon my reasoning in relation to the first issue, where the subject land, being that part of the land over which an encroachment extends, is USL, the State although attributed a radical title in respect of that land cannot be regarded as the owner of that land, there is no “owner of land over which an encroachment extends” and Part 11 Div 1 of the Property Law Act has no application.
64. [64]
    The State made a further submission to the effect that the Property Law Act, viewed more broadly and as a general proposition, only applies to interests created under the Land Act and not to USL.^[73] In order to answer the separate question, it is not necessary for me to decide this broader question. Further, given my reasoning in relation to the two real issues, it is also unnecessary for me to decide the further issue raised by the State in relation to the effect of ss 9(6) and 14(3) of the Land Act if the land over which the encroachment extends is to be regarded as adjoining tidal waters.

Order

65. [65]
    It is declared that Part 11, Division 1 of the Property Law Act 1974 is not capable of applying to approximately 46m² of canal (forming part of land formerly described as Lot 386 RP 88417) adjoining Lot 41 RP 88417 and more particularly identified at page 5 of Exhibit ‘RR-1’ to the Affidavit of Robert Rameka filed 31 May 2023.
66. [66]
    For the reasons I have outlined, the answer to the separate question is no.
67. [67]
    I will hear the parties as to costs.