Boensch v Transport for NSW

Background

1. The applicant is the registered proprietor (he previously was one of two joint registered proprietors) of Lots 37 and 38 in DP14244, known as 255 Victoria Road, Rydalmere. The eastern boundary of Lot 38 is the western boundary of Subiaco Creek and, accordingly, is a water boundary. Subiaco Creek, at least up to the point where it passes under Victoria Road in Rydalmere, is a tidal tributary of the Parramatta River, which runs into Sydney Harbour. As such, Subiaco Creek forms part of the bed and shores of Sydney Harbour. Section 3 of the Sydney Harbour Trust Act 1900 (NSW) (now repealed) defined that land as "[s]o much of the port of Sydney, the rivers falling into it with their tributaries, and the land on the margins thereof as is covered at mean high-water". It follows that the relevant boundary between Lot 38 and Subiaco Creek is to be defined by reference to the or a mean high-water mark (MHWM).
2. The first respondent, Transport for NSW (TfNSW), is the registered proprietor of the bed and shores of Sydney Harbour, being the land in Certificate of Title Volume 5018 Folio 1. Neither that certificate of title nor the certificate of title for Mr Boensch's land is in evidence. TfNSW's predecessors in title to that land include the Maritime Services Board (MSB) (from 1936 to 1995), the Marine Ministerial Holding Corporation (from 1995 to around 2000), the Waterways Authority (from around 2000 to 2011, noting it was renamed as the Maritime Authority of NSW in 2006), and the New South Wales Roads & Maritime Services (from 2011 to 2019).
3. There has for some time been a dispute between Mr Boensch and TfNSW (and its predecessors) as to the position of the boundary between Lot 38 and Subiaco Creek. In December 1995, Mr Robert Harrison, a surveyor acting on behalf of Mr Boensch, applied for a determination of that boundary under Pt 14A of the RP Act. That determination was made in July 1996 and the outcome was recorded on the reverse side of the application, which became registered Dealing O878893. The determination included: "The information provided with the application together with the available records … have been extensively perused and the boundary has been determined as being as defined by the MSB Waterways Authority in 1952."
4. In accordance with orders made by consent in Supreme Court proceedings commenced by TfNSW against Mr Boensch seeking damages for trespass and consequential orders (which are dealt with in more detail below), Mr Boensch caused a further application to be made to the Registrar-General under Pt 14A. That application, AS198355, was made by Mr Harrison by letter dated 2 June 2022. On 29 July 2022, the Registrar-General notified Mr Boensch that: "1. In accordance with Section 135D(2) of the Real Property Act, 1900 the Registrar General must refuse to make the determination as requested on the following grounds: The boundary was previously determined by this office in 1996. See attached registered Dealing number O878893 for this determination. No new information has been provided that would compel the Registrar General to reconsider this determination. The 1996 determination of the eastern boundary of Lot 38 in DP14244 with Subiaco Creek, as recorded in registered Dealing O878893 (attached), still stands."
5. Figure 1 below is a copy of a draft survey plan of redefinition prepared by Mr Harrison in early-June 2022. The plan is oriented northwards: Victoria Road travels in an east-west direction to the north of Mr Boensch's property (which in the draft plan is wrongly described as "Lot 378" rather than Lots 37-38), with Subiaco Creek running in a north-south direction to the east of Lot 38. Possible positions of the MHWM on the western side of Subiaco Creek are indicated by three lines. First, there is a jagged line connecting a series of small circles. That line comprises ten shorter lines of varying lengths and bearings. This represents the MHWM as recorded in the 1952 MSB survey, as confirmed by the annotation: "Previous boundary was MHWM by MSB 1952 FB 199/133 & 134". Secondly, and mainly to the east of the MHWM in the 1952 survey, there is a relatively straight line which is annotated: "Boundary is MHWM by MSB 1973 FB 410/25 & 26". This is said to be the MHWM shown in a 1973 MSB survey, which Mr Boensch contends correctly defined at that time the boundary between Lot 38 and Subiaco Creek. Thirdly, further to the east, there is a broken line described as: "Bottom of west bank of creek by survey".
6. Separately, there is a thick striped line, described as "Base of ret. wall", which runs along or near part of the second of these three lines. This shows the position of a retaining wall constructed by Mr Boensch in the 1990s. For most of its length that wall is on the Subiaco Creek side of the 1952 MSB survey line. Figure 1: 2022 draft survey plan of redefinition prepared by Mr Harrison
7. With respect to the dispute between Mr Boensch and TfNSW, Mr Boensch contends that the MHWM recorded in the 1952 MSB survey did not in fact show the position of the MHWM at that time. His case appears to remain that the correct position of the MHWM was shown in the 1973 survey. It is not clear whether this accommodates material more recently obtained (including further pages from a 1952 MSB field book and a 1960 MSB plan identified as PJ369).
8. In response, TfNSW contends that the 1996 determination fixed the MHWM surveyed in 1952 as the "former" MHWM because the bank of Subiaco Creek had been affected by artificial disturbances which began in the 1960s. Further, it says that the 1973 MSB survey relevantly only identified the "toe" of the creek's western bank, and not the MHWM.
9. Returning to the proceedings commenced by TfNSW in the Supreme Court in June 2021, the items which were the subject of the consequential orders for removal include four shipping containers, part of a metal shed, miscellaneous car parts and other industrial waste, as well as the retaining wall. In relation to that wall, by letter dated 14 February 1995, the MSB Waterways Authority indicated that it would grant landowner's consent to the lodgement of a late development application addressed to the Parramatta Council, the purpose of which was to allow the wall to remain in place. That consent was subject to Mr Boensch first providing an engineering report as to the stability of the wall. It would appear that such a report was provided and that the development approval sought was forthcoming.
10. In September 2021, Mr Boensch filed a first cross-claim in the Supreme Court proceedings seeking relief that included claims for damages against TfNSW in respect of flood damage said to have resulted from its negligence in failing to maintain the tidal section of Subiaco Creek, as well as declarations as to the position of the boundary between Lot 38 and that creek. In relation to the latter, it was alleged that the boundary should be drawn in accordance with the MHWM as defined in the 1973 MSB survey.
11. In March 2022, Mr Boensch filed a motion in the Supreme Court proceedings for the determination of preliminary questions as to the location of the common boundary. In May 2022, the consent orders referred to at [7] above were made, providing for Mr Boensch to lodge what became his June 2022 application under Pt 14A.

The underlying proceedings

1. Following the Registrar-General's refusal to make that determination, Mr Boensch commenced his Class 3 proceedings in the Land and Environment Court. That Court's jurisdiction includes LEC Act, s 19(c) and (c1): 19 Class 3 - land tenure, valuation, rating and compensation matters The Court has jurisdiction … to hear and dispose of the following - … (c) appeals against boundary determinations under Part 14A (Boundary determinations) of the Real Property Act 1900, (c1) proceedings under the Encroachment of Buildings Act 1922, …
2. The orders sought by Mr Boensch in his amended application are set out by the primary judge at J[15]. The "three overarching claims" made by Mr Boensch were identified as being: 1. an appeal against the 2022 Refusal; 2. an appeal against the 1996 boundary determination; and 3. a claim under the Encroachment of Buildings Act 1922 (NSW) (Encroachment Act) that the "approved" retaining wall structure "can remain … and forms part of Mr Boensch's property".
3. In dismissing these claims under UCPR, r 13.4, the primary judge reasoned as follows.
4. First, in relation to the 2022 Refusal, there was no right of appeal to the Land and Environment Court because the 2022 Refusal was not a "determination under [Pt 14A]" within the meaning of s 135J(1).
5. Secondly, in relation to the 1996 determination, although this determination was made under Pt 14A, the right, as then conferred by s 135J, to refer such a determination to the Land and Environment Court for determination by it of the position of the boundary had to be exercised by making a request to the Registrar-General to refer that matter to that Court. The Registrar-General was to comply with such a request "only if" it was made within 28 days of the Registrar-General's giving of notice of its determination (s 135J(3)). Neither Pt 14A nor the relevant rules of procedure applied to confer any power on the Land and Environment Court to extend, vary or waive the time fixed by s 135J(3)(a). The relevant rules were Land and Environment Court Rules 2007 (NSW) (LECR), rr 7.1 and 7.3.
6. Thirdly, the relief sought in the Encroachment Act claim raised issues which substantially overlapped with those in the Supreme Court proceedings, including as a result of Mr Boensch's first cross-claim. For that reason, the maintenance of that claim was an abuse of process.

The proposed appeal to this Court

1. The principal issues raised by Mr Boensch's proposed Further Amended Notice of Appeal are: 1. whether the 2022 Refusal under s 135D(2) of the RP Act was a "determination" under Pt 14A engaging the right of appeal under s 135J(1); and 2. whether the right to refer the 1996 determination to the Land and Environment Court was no longer exercisable because the 28 days for requesting the Registrar-General to refer the matter to the Court had expired more than 25 years ago and could not be extended, varied or waived.
2. The questions of law raised by these two issues are clear, and the first of those questions is of general application. For that reason, leave to appeal should be granted in relation to these issues and on the grounds formulated in [2] above.
3. The third of the claims identified by the primary judge (see [16] above) was dismissed as an abuse of process. No ground in the Further Amended Notice of Appeal addresses that outcome. Of the 27 proposed grounds, the only ground of any possible relevance is ground 11, that "[t]he Court below erred in law or in fact in holding that the appeal to the Court below [was] vexatious". However, no written submission is addressed to that ground. For that reason, and because the primary judge in his reasons correctly identifies the relevant principles, leave to appeal against the conclusion in respect of the claim under the Encroachment Act should be refused.

Was the 2022 Refusal a "determination under this Part" within the meaning of s 135J(1) of the RP Act?

1. Part 14A confers power on the Registrar-General to determine "the position of a boundary between adjoining parcels of land" (s 135C). It was inserted by the Real Property (Boundary Determinations) Amendment Act 1989 (NSW) (Amending Act). Schedule 1 of that Act made amendments to the RP Act, Sch 2 to the Encroachment Act and Sch 3 to the LEC Act.
2. In the second reading speech introducing the amending bill, the Minister said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 15 November 1989 at 12516): "The purpose of this bill is to provide a simple alternative to the court system for determining the position of a lost or confused land title boundary. At present, landowners who cannot agree on the position of a common boundary, and who seek a formal resolution of their dispute, have no alternative but to initiate action in the Supreme Court. Often this results in substantial costs and lengthy delays. In many instances disputes are left unresolved because the parties are deterred by the daunting prospect of court action, particularly where one owner is anxious to sell or wants to proceed with development. By vesting power in the Registrar General to make binding determinations on the correct position of title boundaries, the bill will allow expeditious resolution of these disputes at greatly reduced cost to the parties."
3. And, as the Explanatory Note to the Real Property (Boundary Determinations) Amendment Bill 1989 (NSW) made clear, the new provisions: "will enable the Registrar-General to make a binding determination as to the position of a boundary of land where there is doubt as to the position of the boundary." (Emphasis added.)
4. This requirement is a condition precedent to the Registrar-General's exercise of the power to make a boundary determination under Pt 14A. That condition, expressed in s 135D(2), requires that on investigation the Registrar-General be satisfied that there is doubt as to the position of the boundary concerned. As such, it is a jurisdictional fact or criterion upon which the exercise of that power is conditioned. See Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at [37]-[38] (per Gummow and Hayne JJ).
5. In addition to inserting Pt 14A, Sch 1 of the Amending Act inserted after s 121(7): (8) This section does not apply to the determination of the position of a boundary under Part 14A.

Was the right to appeal from the 1996 determination to the Land and Environment Court no longer available or exercisable?

1. The primary judge answered this question in the affirmative, and was correct to do so.
2. Under s 135J(3) as it applied in 1996, the Registrar-General was only required to comply with a request that a matter be referred to the Land and Environment Court if the request was made to the Registrar-General "within 28 days" after the applicant had received notice of the relevant boundary determination. Mr Boensch therefore needed to establish that the primary judge could, and should, have granted an extension of time in which to seek that referral and erred in not doing so. The extension of time required was in excess of 25 years.
3. The relevant rules of the Land and Environment Court are LECR, rr 7.1 and 7.3. Where those "local rules" are inconsistent with the UCPR, by UCPR, r 1.7 and Sch 2, the "local rules" prevail to the extent of the inconsistency. The effect of LECR, r 7.1(2) is that the time within which a reference or appeal had to be made was the 28 days provided for in s 135J(3)(a) of the RP Act. Neither the RP Act nor the LECR provides for the extension, variation or waiving of that time limit. By LECR, r 7.3, the power conferred on the Land and Environment Court to extend or abridge time is conferred only with respect to any time fixed by the LECR or by any judgment or order of that Court. For essentially the same reasons, the primary judge held that the Court did not have power to extend the time period provided for by s 135J(3)(a).
4. Mr Boensch does not challenge this reasoning as incorrect. Rather, his contention is that s 55 of the Limitation Act 1969 (NSW) effectively suspended the operation of the 28-day "limitation period" under s 135J(3). Section 55 did not have that effect. First, it applies to a cause of action based on fraud or deceit. The appeal from the 1996 determination does not answer that description. Secondly, s 55 only operates to alter the reckoning of time in respect of a "limitation period fixed by or under" the Limitation Act. It does not in terms apply to the 28-day period for bringing an appeal under s 135J(3).
5. Accordingly, the primary judge was correct to hold that the appeal from the 1996 determination was out of time. For that reason it was incompetent. The appeal from that holding also should be rejected.

Conclusion

1. In the result, the following orders should be made: 1. Extend the time for the filing of Mr Boensch's Summons Seeking Leave to Appeal to 26 April 2024. 2. Grant leave to Mr Boensch to appeal from Order (1) made by the Land and Environment Court on 28 July 2023, but only on the following grounds: 1. that Mr Boensch had no right of appeal under s 135J of the Real Property Act 1900 (NSW) against the Registrar-General's refusal under s 135D(2) to make a boundary determination; and 2. that the time for commencing an appeal against the Registrar-General's earlier 1996 boundary determination had expired, the Court having no power to extend, vary or waive that time period. 1. Otherwise dismiss the Summons Seeking Leave to Appeal filed on 26 April 2024. 2. Dismiss Mr Boensch's appeal with respect to the grounds in Order (2)(a) and (b) above. 3. Otherwise dismiss the Further Amended Notice of Appeal dated 23 April 2024 and filed on 26 April 2024. 4. Order Mr Boensch pay the costs of the respondents of the application for leave to appeal and of the appeal.
2. PAYNE JA: I agree with Meagher JA.
3. BASTEN AJA: I agree with Meagher JA.

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