Plaintiffs Seeks Damages and Removal of Structure Built by Defendant
Bottos v CityLink Melbourne Ltd [2021] VSC 585 (16 September 2021)
The defendant built a noise wall that encroaches onto land owned by the plaintiffs. The plaintiffs sought damages for trespass and an order for the structure to be removed. The defendant asserts that the plaintiff has lost title to the land occupied by the encroachments. The Court, in ruling on this case, relied upon the natural and probable consequence test.
Facts:
In 1999, CityLink Melbourne Ltd (‘CityLink’), the defendant, built a noise wall that encroaches onto land owned by the Bottos brothers, the plaintiffs. The Bottos brothers had to make changes to the process of building units on their property to accommodate the encroachments. They seek damages for trespass and an order that CityLink remove the structure to the extent that it encroaches on their land. CityLink argued that it had adversely possessed the land taken up by the noise wall due to its long presence therein.
The plaintiffs contended that CityLink was unable to rely on any period of adverse possession because it would have been possessing on behalf of the Crown and the Crown cannot adversely possess. Furthermore, CityLink was estopped from asserting that the land was adversely possessed by reason of an earlier compromise of their claim against the State of Victoria and the process by which they obtained a planning permit in 2012 interrupted any period of adverse possession, or resulted in an acknowledgment by CityLink that they had title to the land. CityLink alleges that it has ‘dispossessed’ the Bottos brothers of the land occupied by the noise wall in 1999, and if the application in 2012 for a planning permit did not break that possession or result in an acknowledgment of title by CityLink, then time to commence a proceeding to recover that land would have run out in 2014.
As such, CityLink contended that the Bottos brothers have lost title to the land occupied by the encroachments and are therefore unable to claim damages from CityLink for trespass on that land.
Issues:
I. Whether or not CityLink has been in possession of the land occupied by the noise wall and its foundations.
II. Whether or not CityLink should remove the noise wall.
Applicable law:
Limitation of Actions Act 1958(Vic) s 8 - requires an action to recover land to be commenced within fifteen years of the date on which the right of action accrued.
Limitation of Actions Act 1958(Vic) s 9 - provides that the right of action to recover land is deemed to have accrued on the ‘date of dispossession’.
Limitation of Actions Act 1958(Vic) s 14 - provides that no right of action shall be deemed to accrue unless the land is in ‘adverse possession’, that is, in the possession of some person in whose favour the period of limitation can run.
Limitation of Actions Act 1958(Vic) s 18 - provides that, at the expiration of the period prescribed for any person to bring an action to recover land, the title of that person to the land ‘shall be extinguished’.
Limitation of Actions Act 1958(Vic) s 24 - provides that if the adverse possessor ‘acknowledges’ the title of the true owner during the relevant period, then the right of action is deemed to accrue on the date of that acknowledgment.
Limitation of Actions Act 1958(Vic) s 25 - requires that any acknowledgment should be signed and in writing and be made to the titleholder.
Land Acquisition and Compensation Act 1986 (‘the LACA’) - empowers the State compulsorily to acquire land in accordance with its terms.
Beaulane Properties Ltd v Palmer [2006] Ch 79 - provides that it may be arguable that the extinguishment of title ought not to preclude an action for any damages that were sustained before the extinguishment of title took place (assuming that the action were otherwise within time).
Metricon Homes Pty Ltd v Softley [2016] VSCA 60; (2016) 49 VR 746 - where there is not the sort of inherent inconsistency that would be required between the two Acts for the Court to conclude that Parliament intended by enacting the LACA to oust the clear statement in s 32 of the Limitations Act.
Port of Melbourne Authority v Anshun (‘Anshun’) [1981] HCA 45; (1981) 147 CLR 589 - set out the principles for which the Crown would not be able to raise a limitations defence or assert the Bottos brothers’ title.
Thursby v Warren (1628) Cro Car 159; 79 ER 738 - provided that s 18 of the Limitations Act, despite its wording, does not operate to extinguish title automatically on the expiration of the limitation period because, were it to do so, the established principle that limitation periods do not apply unless they are pleaded would be undermined.
Taylor v Twinberrow [1930] 2 KB 16 - concerned a licensee of a subtenant who overstayed and obtained by adverse possession a right to remain enforceable against the subtenant, but not enforceable against the owner when the subtenancy ended.
Tichborne v Weir (1892) 67 LT 735 - where an equitable mortgagee who assumed possession of tenanted premises obtained possessory rights as against the mortgagor without any involvement of the landowner.
Price v Spoor (2021) 95 ALJR 607, 632 - where a ‘claim to recover land’ may be brought against a person in adverse possession, even if that person is a tenant of neighbouring land.
Tower Hamlets v Barrett [2013] EWCA Civ 1228; [2006] 1 P&CR 9 - established that there must be both an actual occupation or physical control of the land (called ‘factual possession’) and an ‘intention to possess’ (often referred to as the animus possidendi).
Whittlesea City Council v Abbatangelo [2009] VSCA 188; (2009) 259 ALR 56 - provides that it is the intention to occupy and use the land as one’s own that transforms what might otherwise be mere occupation into possession.
J A Pye (Oxford) Ltd v Graham [2002] UKHL 30; [2003] 1 AC 419 - held that only one person can be in factual possession.
Midland Railway Co v Wright [1901] UKLawRpCh 34; [1901] 1 Ch 738 - provides that possession of the surface carries with it possession of the land underneath and the space above.
Symes v Pitt [1952] VicLawRp 11; [1952] VLR 412 - it was held that a person was in adverse possession of the surface of a strip of land between two houses despite the fact that the eaves of the neighbour and true owner’s house extended over that strip.
Rains v Buxton [1880] UKLawRpCh 114; (1880) 14 Ch D 537 - supported the view that the ‘adverse possession’ of an underground space dispossessed the occupier of the surface of that underground space.
Analysis:
To dispossess the Bottos brothers, Citylink must establish that there must be both an actual occupation or physical control of the land (‘factual possession’) and an ‘intention to possess’. CityLink built the noise wall, and used the land occupied by the structure as if it were its own. The area under consideration was not an open area upon which different people might wander, such as a field, or a piece of open land
Where one party possesses the surface and another party possesses a space under or above that surface, the physical space may be in concept divided; the possession of a part of three-dimensional space may amount to ‘adverse possession’ of that part notwithstanding that someone else is in actual possession of the three-dimensional space above or below. A person who takes occupation of underground land is taking possession of that ‘cubical space’. The actual and deliberate physical occupation of space by a bulk structure that is intended to be a permanent presence thereafter effects an actual dispossession of others from that space and carries with it the necessary associated intention to exclude others from that space. As to the damages, it is necessary to identify what losses flowed from, in the sense that they were natural and probable consequences of, the spillage caused by the enroachments. The Bottos family are only entitled to damages for the losses that they suffered by reason of the presence of the spillage that they would not otherwise have suffered.
Conclusion:
The Court concluded that the Bottos brothers were dispossessed by the underground structures of the noise wall despite them retaining of possession over the surface. CityLink self-evidently did intend to possess, to the exclusion of others, the space physically occupied by the noise wall, both above and below the ground. CityLink is responsible for the consequences of the delay between the discovery of the spillage on 22 or 23 February 2018 and its removal on 16 April 2018, and that this period caused a delay in the completion of the project by some 55 days. There should be judgment for the plaintiffs for the claim in so far as it relates to the spillage, and an order that CityLink pay them damages of $69,035. The plaintiffs' application for an order that CityLink remove the poles of the noise wall and their foundations from the plaintiffs’ land is dismissed.
