Byrne v Palmer

This was an application for a property vesting order under Part 11 Division 2 Property Law Act 1974 to realign the common boundary shared by two adjoining properties. The reason for the application was to rectify what was said to be a mistaken placement of a bore entirely on the property of the respondents, when the predecessors in title of both adjoining properties had intended the bore to be placed on the common boundary for shared use. Justice Crowley held that it was appropriate to make: a property vesting order to realign the common boundary; together with consequential orders including the grant of mutual easements to enable the owners of the adjoining properties to access, use and maintain the shared bore.

Crowley J

22 March 2024

Background

TAP and MLP (together, the “respondents”) own a property at Teewah which is a town in the locality of Noosa North Shore. [3]. STB and JCB (together, the “applicants”) purchased the adjoining property intending to use it as a family holiday home (but the registered owner was JCB only). [3]. The adjoining properties share a common boundary. [4]. There has never been a dividing fence, though at one time, the common boundary was marked by survey pegs. [4]. Almost forty-years ago, the predecessors in the title of both adjoining properties agreed to sink a bore on the common boundary and construct a pump with a timber enclosure to house both the bore and the pump. [6].

The respondents recently commissioned a survey and learned that the bore had, in fact, been sunk seven centimetres inside the boundary of their property, rather than on the common boundary their property shared with the applicants. [7]–[9]. However, whilst the bore was located inside the boundary of the property owned by the respondents, the timber enclosure straddled the common boundary and encroached on the property purchased by the applicants: see [239]–[240]. The respondents subsequently removed the encroachment by dismantling and reconfiguring the timber enclosure so that it no longer straddled the common boundary: see [241].

The applicants sought the following relief:

• a property vesting order under Part 11 Division 2 Property Law Act 1974;
• in the alternative, a statutory right of user under s 180 Property Law Act 1974; or
• further and in the alternative, an easement by prescription through long user. [13].

Whether it was appropriate to make a property vesting order

Justice Crowley was satisfied that the bore was a “lasting improvement”, as distinct from the pump and the timber enclosure (no relief was separately sought in relation to those items). [174]–[175]. Justice Crowley was also satisfied that the bore had been mistakenly sunk on the property owned by the respondents when it was originally constructed, however, the predecessors in title of both adjoining properties had intended that the bore be located on the common boundary for shared use. [177]–[179]. The respondents argued that, in any event, a property vesting order under Part 11, Division 2, was unavailable by virtue of s 196 Property Law Act 1974 which provides as follows:

“196 Relief in case of improvements made by mistake

Where a person makes a lasting improvement on land owned by another in the genuine but mistaken belief that—

(a)such land is the person’s property; or

(b)such land is the property of a person on whose behalf the improvement is made or intended to be made;

application may be made to the court for relief under this division”. [164], [180].

The relevant state of mind is a genuine but mistaken belief as to the ownership of property upon which a lasting improvement is made. [182]. The relevant state of mind must be held by the person who “makes” the lasting improvement, however, that is not to say that this is the person who physically constructs or builds the lasting improvement. [182]. It can also include a person who causes another to do or to carry out the construction or building of the lasting improvement. [182]. Further, while the text of s 196 is expressed in the singular form, when one applies s 32C Acts Interpretation Act 1954, more than one person can also make a lasting improvement. [184]–[191].

Justice Crowley held that a property vesting order under Part 11, Division 2, was available in the circumstances of this case: see [196]–[203]. The predecessors in title of both adjoining properties made a lasting improvement on “the land of another” in circumstances where the lasting improvement was wholly located on the property owned by the respondents. [201]–[202]. A court has a broad discretion to grant relief under s 197 where the threshold in s 196 Property Law Act 1974 is satisfied and it is just and equitable to do so. [204]. It is not possible, nor desirable, to exhaustively list the relevant considerations and each case must be determined on its own facts. [204].

In the circumstances of this case, it was just and equitable to make a property vesting order in relation to a small portion of the property owned by the respondents so the bore would be located on the common boundary (as had been originally intended by the predecessors in title of both adjoining properties). [204]–[262]. While there were a number of relevant considerations the following considerations carried the most weight: the nature and circumstances of the mistake; the history of shared use between the adjoining owners; and the small size and value of the part of the property owned by the respondent which is sought to be vested. [204]–[261].

Whether it was appropriate to grant a statutory right of user

Justice Crowley considered that a statutory right of user, which was relied upon by the applicants as an alternative basis of relief, was unavailable: see [263]–[294]. A threshold requirement for a statutory right of user is that it must be “reasonably necessary in the interests of the effective use in any reasonable manner of any land”: see Property Law Act 1974 s 180 sub-s (1). [264]. While the threshold of “reasonably necessary” does not mean absolute necessity, it is something more than desirability or preferability. [269]. Permitting access and use of the bore was not “reasonably necessary” in the interest of the effective use of the property of the applicants as a family holiday home. [282]–[292].

Whether there was an easement by prescription through long user

A further alternative basis for relief relied on by the applicants was an easement by prescription through long user. [295]. The respondents sought to challenge this alternative basis for relief because such an easement was said to have been extinguished by s 198A Property Law Act 1974. [299]–[305]. Justice Crowley did not consider it necessary to consider the effect of s 198A Property Law Act 1974. [306]. The respondents enjoyed indefeasible title free from all other interests, including the purported easement by prescription. [308]. The applicants could not demonstrate that a relevant exception to indefeasibility applied, and accordingly, this alternative basis of relief was unavailable. [309]–[310].

Disposition

In the result, a property vesting order under Part 11, Division 2, was made giving effect to a slight realignment of the common boundary with a number of consequential orders including the grant of mutual easements to enable the parties to access, use and maintain the shared bore. [315]–[321].

D Kerr