Wang v State of Queensland & Anor

This case concerned an application for the determination of a separate question pursuant to r 483(1) Uniform Civil Procedure Rules 1999, that question being whether relief under Div 1 of Pt 11 Property Law Act 1974 was available to the applicant where the applicant’s land encroached on an adjoining canal. Justice Kelly answered “no” to that question. His Honour held that the legal effect of s 13(4) Canals Act 1958 was to transfer and surrender the canal to the State, but that this land was nevertheless “unallocated State land” within the meaning of the Land Act 1994 and therefore the fee simple in that land was not transferred to the State. The consequence of this is that the State could not be regarded as the “owner” of the canal within the meaning of s 182 Property Law Act 1974 and therefore Div 1 of Pt 11 Property Law Act 1974 had no application in the circumstances.

Kelly J

26 July 2024

The applicant was the owner of land at Broadbeach Waters. Previous owners of the applicant’s land effected works on the land comprising a revetment wall, pool fence, and fill, which encroaches upon an adjoining 46 m2 of canal (“the Canal”). [3].

The applicant sought 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. Because that relief was contingent on the issue of whether Div 1 of Pt 11 Property Law Act 1974 (“PLA”) – which provides for conveyance and compensation in circumstances of an encroachment – applied to the land over which the encroachment extends, the applicant applied for separate determination of that question pursuant to r 483(1) Uniform Civil Procedure Rules 1999 in the present proceeding. [1], [6].

Division 1 of Pt 11 PLA contemplates a conveyance by an “adjacent owner”, being an owner of land over which an encroachment extends. The State argued 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 PLA such that Div 1 of Pt 11 PLA did not apply. [6].

Section 13(4) Canals Act 1958 (“Canals Act”) relevantly provided:

“(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—

(a)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

(b)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.”

The dictionary to the Land Act 1994 (“Land Act”) defines “unallocated State land” as all land that is not:

“(a)freehold land, or land contracted to be granted in fee simple by the State; or

(b)a road or a reserve, or a national park, conservation park, State forest or timber reserve; or

(c)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.”

The dictionary defined “freehold land” as:

“(a)land recorded in the freehold land register; and

(b)other land that has been granted or vested in fee simple.”

Having regard to the language of s 13(4) Canals Act 1958 and the mischief that provision is directed towards, Kelly J considered 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 of Queensland so as to bring that land back within the Crown’s radical title. The intention of s 13(4) was therefore not to transfer the Canal to the Crown in fee simple. The State could accordingly not be regarded as an ordinary “owner” of the land. [41], [48].

As the land over which the encroachment extended formed part of the Crown’s radical title, that land was “unallocated State land”. Relevantly, s 182 PLA defined “adjacent owner” as “the owner of land over which an encroachment extends” and “owner” is defined in s 182 as any person “entitled to an estate of freehold in possession”. Because the making of a grant of “unallocated State land” – and therefore alienating the Canal to the State – is dependent on compliance with the requirements of the Land Act 1994, the question his Honour considered pertinent was whether the State was to be regarded as “entitled to an estate of freehold in possession” in respect of the Canal. [49], [51].

His Honour considered that the State was not so entitled and therefore could not be considered an “adjacent owner”. That is because the statutory language of “entitled to an estate of freehold in possession” referred to a right of present enjoyment of the freehold estate, which the State did not have because s 13(4) did not transfer the Canal to the Crown in fee simple. [48]. In his Honour’s view:

“[t]here 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”. [56].

Having regard to the definitions in s 182 PLA and reading them together, his Honour considered that an application for relief “in respect of any encroachment” under s 184(1) PLA refers to an encroachment over the land of an “adjacent owner” only. There is no other type of encroachment contemplated by the language of Div 1 of Pt 11 PLA, such that Div 1 of Pt 11 does not contemplate relief with respect to encroachments upon “unallocated State land” and it should not be assumed that the legislature intended to permit such relief being granted in the absence of clear words. [60]–[62].

As such, because the Canal was “unallocated State land” and the State cannot be regarded as the “owner” of the Canal as it was not an “adjacent owner” within the meaning of the PLA, there was no “owner of land over which [the] encroachment extends”. Division 1 of Pt 11 PLA therefore had no application. The separate question of whether Div 1 of Pt 11 PLA was capable of applying to the Canal was accordingly answered “no”. [63]–[65].

A Lukacs