Byron Shire Council v Vaughan & Anor

Court of Appeal (NSW)|2002-05-21|Before: Sheller JA, Giles JA, Heydon JA, Lloyd J

The application 7 The parcels of land have frontages to Manfred Street, Byron Bay. Manfred Street runs approximately north/south, from the South Pacific Ocean at its northern end to Belongil Creek to the south. The land is under Torrens Title. 8 In 1946 Mr R P Tulk acquired lots 6 and 7 in Section 3 of DP 1623 from Messrs S R and C I Simmons. In 1950 Mr Tulk acquired lot B in FP 371044, adjoining lots 6 and 7 to the north. In 1953 Mr Tulk transferred lots 6 and 7 and lot B to Mr S G Richardson. In 1971 lots 6 and 7 and lot B were transferred to the appellant on a sale for unpaid rates. 9 In 1949 Mr A W Vidler acquired lots 3, 4 and 5 in Section 3 of DP 1623 from the Messrs Simmons. In 1987 Mr Vidler transferred lots 3, 4 and 5 to the respondents. At some time the respondents acquired lots 11 and 12 in Section 3 of DP 1623, adjoining lots 3, 4 and 5 to the west. 10 Lots 3 to 7 in Section 3 of DP 1623 run sequentially, and lots 5 and 6 are contiguous. In the early 1950's Mr Vidler built a house standing partly on lot 5 (about 60-65 per cent) and partly on lot 6 (about 40-35 per cent). The appellant did not get a survey when it acquired its land in 1971, and the respondents did not get a survey when they acquired their land in 1987. Neither the appellant nor the respondents knew that the house straddled the boundary. 11 In 1996 the appellant became aware that the house straddled the boundary. In proceedings brought in the Land and Environment Court in December 1997 it applied for the following relief - "1. A declaration that the house which has been erected on Lot 5 of Section 3 in Deposited Plan 1623 has been erected also partly on Lot 6 in Section 3 in Deposited Plan 1623.

An order that the respondents, pursuant to the Encroachment of Buildings Act, 1922, remove that part of the house which is presently constructed partly on Lot 6 of Section 3 in Deposited Plan 1623 and any part of the building which is within 900 mm of the boundary between Lots 5 and 6 of Section 3 in Deposited Plan 1623.

Alternatively to 1 [sic] an order that the respondents pay compensation to the applicant in respect of the encroachment of the house constructed partly on Lot 6 of Section 3 in Deposited Plan 1623." 12 The declaration claimed in para 1, although unnecessary since the orders claimed could not be made unless it were found that the house had been erected straddling the boundary, was presumably claimed in the exercise of the Land and Environment Court's jurisdiction other than under the Act. The power to make that declaration, and the declaration made on 3 May 2001, was not questioned in the appeals, and it is not necessary to consider whether or not there was power. 13 The order claimed in para 3 was expressly relief under the Act. Whether the order could go to that part of the house within 900 mm of the boundary need not be considered. The alternative order claimed in para 3, presumably meant to be in the alternative to the order claimed in para 2, appears to have been intended to be relief under the Act, and it was not suggested otherwise. Further relief under the Act was not claimed. If an encroachment remained, compensation to the adjacent owner would normally accompany an order pursuant to s 3(2)(b) by which the encroachment could remain as a matter of title, and compensation without resolving the underlying encroachment would be odd. That, however, was the way the relief claimed was left.

The first determination in the Land and Environment Court 14 The application was heard by Lloyd J on 22 and 23 June 1998. His Honour gave judgment on 14 July 1998. 15 By an agreed statement of issues, if the respondents were required to pay compensation under the Act "the valuation of such compensation will be deferred", and the issues to be determined included - "10. Whether the Respondents are entitled to raise a defence of estoppel in these proceedings. 11. If such a defence can be raised, whether the Applicant is estopped by reason of its conduct and representations concerning Lot 6, from asserting any title over Lot 6.

Whether, because of the defences raised in 8 and 11 above, the Applicant is an 'adjacent owner' and whether the improvements erected on Lot 6 are an "encroachment' for the purposes of the Act. …

Whether, in the exercise of the Court's discretion pursuant to s 3(3) of the Act, the application should be refused.

If the applicant [sic] should not be refused, in the exercise of the Court's discretion, what orders should be made pursuant to s 3(2) of the Act.

Whether, pursuant to the matters raised in paragraphs 8 to 13 above, the respondents are entitled to seek declarations in these proceedings.

If they are so entitled, whether, by reason of the matters raised in paragraph 8 to 13 above, any relief by way of declaration or otherwise should be made in favour of the Respondents in respect of Lot 6 or in respect of Lot 6 and the other land." 16 In summary, Lloyd J held as to these issues that an estoppel against the appellant had not been established and that in the exercise of the discretion under the Act relief should be granted "which effectively requires the removal of the encroachment". There was evidence that the house was a timber framed building standing on posts or stumps, and that it could be lifted and moved onto posts or stumps wholly within lot 5. His Honour said that this was "self evidently the least expensive form of relief which is open to the court, apart from doing nothing", and contemplated that the removal of the encroachment would be not by demolition but by moving the house so that it was wholly within lot 5. He made the declaration and orders - "(1) A declaration that the house which has been erected on lot 5 of Section 3 in Deposited Plan 1623 has been erected also partly on lot 6 in section 3 in Deposited Plan 1623.

(2) An order that the respondents, pursuant to the Encroachment of Buildings Act 1922 remove that part of the house which is presently constructed partly on lot 6 of Section 3 in Deposited Plan 1623.

(3) Order (2) is postponed until 5 pm on 13 July 1999 (12 months)." 17 For present purposes there need be more detailed reference only to estoppel said to have arisen from the respondents' solicitors obtaining a sewerage connection plan from the appellant at the time the respondents purchased lots 3, 4 and 5. Two grounds were evident for the holding that an estoppel against the appellant had not been established. 18 First, Lloyd J said that the sewerage connection plan "describes the land as lots 3-5 and shows a house in about the middle of the land and a sewerage connection from Manfred Street to the house at a point 44 feet south of the northern boundary of the land"; accepting the evidence of an experienced conveyancing solicitor, he considered that the plan did no more than identify the location of the sewerage main and sewerage services in relation to improvements and did not purport to show the accurate location of property boundaries. He concluded that it was not reasonable for the respondents or their solicitors to rely upon the plan as a representation of the location of property boundaries. 19 Secondly, his Honour said that estoppel required knowledge by the party said to be estopped of the facts giving rise to the estoppel and of the fact that the other party had exposed himself or herself to detriment by acting on the basis of a false assumption, referring to Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. He said that he was not satisfied that the appellant knew or had constructive notice of the true location of the boundary between lots 5 and 6, and that there was nothing to suggest that the appellant knew before the respondents purchased lots 3, 4 and 5 that the respondents were acting on the basis of a false assumption as to the true location of the boundary.

The first appeal to the Court of Appeal 20 The respondents appealed to the Court of Appeal. The appeal was heard on 26 and 29 March 1999. The Court gave judgment on 15 July 1999, Vaughan v Byron Shire Council (1999) 103 LGERA 321. 21 The appeal was upheld in relation to estoppel. The orders of the Court were those proposed by Handley JA, with whom Powell JA agreed, and were that orders 2 and 3 made by Lloyd J on 14 July 1998 be set aside and that the proceedings be remitted to the Land and Environment Court to determine the issues raised by paras 11, 12, 14, 15 and 17 of the agreed statement of issues. Fitzgerald JA had proposed the different order that the orders made by Lloyd J be varied "by substituting an order that the Council and the Vaughans remove the part of the house which is presently constructed on Lot 6 and relocate the house to a site on Lot 5 chosen by the Vaughans which complies with the Byron Shire planning scheme and by-laws". 22 At the commencement of his reasons Handley JA said that he agreed with Fitzgerald JA as to another matter in the appeal, but continued - "[2] However, with respect, I am unable to agree with [Fitzgerald JA's] conclusions on the estoppel issue, or with the orders he has proposed for the resolution of this appeal. The agreed Statement of Issues signed by counsel for the parties in April 1998 some two months before the trial included: '10 Whether the Respondents [the Vaughans] are entitled to raise a defence of estoppel in these proceedings.

11 If such a defence can be raised, whether the Applicant is estopped by reason of its conduct and representations concerning Lot 6, from asserting any title over Lot 6'. [3] The defence of estoppel, if successful, could be an answer to the Council's application for the removal of the encroachment. Depending on the relief granted to accommodate the estoppel, it could defeat the Council's claim to be an adjacent owner, and establish that there was no encroachment. The estoppel would also be relevant to the exercise of the Court's discretion under s 3(2)." 23 Handley JA said that the task of the Court in considering the defence of estoppel was made more difficult by the failure of the respondents to properly particularise the estoppel relied on and the failure of the appellant to insist on such particulars being given. He said that the respondents should have been required to identify "the conduct and the representations referred to, the detriment relied on, and the relief they claimed". 24 His Honour then considered the evidence before Lloyd J. In his Honour's opinion, the sewerage connection plan provided evidence of a representation communicated to the respondents prior to completion of the purchase of lots 3, 4 and 5, and there was therefore "evidence, which the Court could have accepted of the basic elements of an estoppel by representation which was not excluded merely because the plan did not purport to show 'the accurate location of property boundaries'." He considered that it had not been shown that the respondents acted unreasonably in relying on the plan. He added that Lloyd J had erred in rejecting the defence because of the appellant's lack of knowledge of the facts giving rise to the estoppel and of the fact that the respondents had acted in reliance on the sewerage connection plan, saying that "there is no such requirement in estoppel by representation which, unlike fraud, may arise from false representations innocently made". 25 Handley JA said that the respondents had established that the rejection of the defence of estoppel was vitiated by legal errors, and that there was evidence capable of establishing all the elements of the defence. His Honour then said - "[23] Where the appeal is limited to questions of law this Court can grant any relief to which the successful party is entitled as a matter of law on the findings made by the trial court. However it cannot make additional findings of fact or exercise a judicial discretion where different orders are open as a matter of law. Compare House v The King (1936) 55 CLR 499, 504-5. [24] Where an estoppel by representation is established the Court holds the representor to his representation and it has been thought that there is no discretion to mould relief, to ensure that it is proportional to the representee's detriment. Equitable estoppel is different in this respect and the Court's function is to determine the minimum equity to do justice between the parties. These distinctions have recently been questioned and a discretion to mould the relief for an estoppel by representation may be recognised. See The Commonwealth v Verwayen (1990) 170 CLR 394, 409-413 per Mason CJ and Giumelli v Giumelli (1999) 73 ALJR 547, 549-550. [25] In my judgment therefore the only order that this Court can make is for a new trial." 26 As I have said, Powell JA agreed with Handley JA. 27 Fitzgerald JA referred to the defence of estoppel as a claim to title by estoppel to part of lot 6. He noted that if the respondents made good that claim they sought dismissal of the appellant's application, but said that the claim to title by estoppel "oversimplified the position and failed to give effect to the principle … [that] an estoppel would only entitle them to rights in relation to Lot 6 to the extent necessary to do justice between them and the Council". The footnote to this was "See for example, Giumelli v Giumelli (1999) HCA10". His Honour said that any estoppel favouring the respondents "can, and should if possible, be accommodated in the order made on the Council's application under the Encroachment of Buildings Act". 28 Fitzgerald JA said that Lloyd J was wrong in law in stating that estoppel required knowledge by the party said to be estopped of the facts giving rise to the estoppel and of the fact that the other party had exposed himself or herself to detriment by acting on the basis of a false assumption. He said that nonetheless the appellant's knowledge of the location of the boundary between lots 5 and 6, and of the situation of the house in relation to that boundary, when it provided the sewerage connection plan, was material to the order which should be made in the exercise of the discretion in ss 3(2) and (3) of the Act, and that the respondents' conduct at the time they acquired their land was also material to the exercise of that discretion. After dealing with certain other matters, his Honour said - "[52] Because its attention was materially confined to the Vaughans' claim to title by estoppel to the part of Lot 6 on which the portion of the house is constructed, and it erred in considering that claim, the Land and Environment Court did not exercise its discretion under subss 3(2) and 3(3) of the Encroachment of Buildings Act . The remaining question is whether the matter should be remitted to that Court and if so for what purpose, or whether this Court should exercise the statutory discretion on the basis of the factual findings made by the Land and Environment Court. [53] This Court's powers arise under subs 57(2) of the Land and Environment Court Act and s 75A of the Supreme Court Act 1970. Although it is sometimes preferable for this Court to remit matters to the Land and Environment Court for its specialist judges to exercise necessary discretions , in a case such as the present it is preferable for this Court to make the necessary discretionary judgment in order to save time and costs. In my opinion, the circumstances found by the Land and Environment Court are such that the position should be regularised by the removal from Lot 6 of the portion of the house constructed on that Lot, but the Vaughans should not bear the entire costs of removal. Both parties contributed to the problem, and I consider that neither is significantly more or less responsible than the other. In my opinion, they should be equally liable for the cost of removal of the portion of the house constructed on Lot 6 from that Lot."

29 Fitzgerald JA then proposed the substituted order earlier mentioned.

Observations on the reasons of the Court of Appeal 30 The appellant was entitled to raise a defence of estoppel and seek declarations; whether it could succeed in the defence and obtain declarations was another matter, but no doubt for that reason issues 10 and 16 were not referred to in the remittal order. 31 Handley JA had considered that a defence of estoppel could have been established. It is fairly plain that his Honour thought that there had been a representation through the sewerage connection plan that the property boundaries were approximately where shown, and that the respondents had relied on the plan in purchasing lots 3, 4 and 5; but his Honour considered that, because the appeal was limited to questions of law, he could not so find. His Honour's view of the facts, of course, did not bind the judge in the new trial. Fitzgerald JA must have thought that the sewerage connection plan conveyed something about the property boundaries on which the respondents relied, although it is not clear what. Since his Honour was in the minority, for that reason alone whatever it was did not bind the judge in the new trial. 32 Handley JA had seen the defence of estoppel as one which "could be an answer to the Council's application for the removal of the encroachment" because "[d]epending on the relief granted to accommodate the estoppel, it could defeat the Council's claim to be an adjacent owner, and establish that there was no encroachment". As a separate matter, his Honour considered that the estoppel "would also be relevant to the exercise of the Court's discretion under s 3(2)". His Honour saw as the primary question on the remitter whether there was an estoppel which entirely defeated the appellant's application because the appellant could not assert title over lot 6, within the scheme of the Act meaning that the appellant could not assert that there was an encroachment or that it was an adjacent owner. 33 Handley JA said that where an estoppel by representation is established the Court holds the representor to his representation, and distinguished estoppel by representation from equitable estoppel in this respect. His Honour noted that the distinction had been questioned, and that a discretion to mould relief to ensure that it was proportional to the representee's detriment may be recognised. His Honour clearly enough considered that, unless the distinction was done away with, the primary question would be decided by finding the representation and then holding the appellant to it, in accordance with principles of estoppel by representation not principles of equitable estoppel. But his Honour seems to have contemplated that the new trial could encompass whether the distinction should be done away with and relief granted other than holding the appellant to its representation; hence his earlier words, "Depending on the relief granted to accommodate the estoppel … ". Again his Honour considered that, because the appeal was limited to questions of law, he could not decide what relief should be granted. That meant that a possible outcome in the proceedings was by an exercise of the statutory discretion, a discretion to which the estoppel was relevant in the sense that the facts on which the respondents relied for estoppel would be material. 34 Fitzgerald JA considered that Lloyd J was in error in a particular respect in relation to estoppel, but did not express a view on whether a defence of estoppel could have been established. He said that any estoppel only entitled the respondents to rights in relation to lot 6 to the extent necessary to do justice between them and the appellant, referring to Giumelli v Giumelli (1999) 196 CLR 101. The relevant discussion in Giumelli v Giumelli was of equitable estoppel. His Honour exercised the statutory discretion on the factual findings made by the Land and Environment Court. 35 To the extent to which there was divergence in law between Handley JA and Fitzgerald JA, the judge in the new trial was required to follow Handley JA. Estoppel by representation as a doctrine distinct from equitable estoppel was one of the matters for decision. 36 Some small amplification of the nature of estoppel by representation, and the distinction to which Handley JA referred, is appropriate. 37 Estoppel by representation is a common law estoppel, arising where one party makes a representation as to existing fact (sometimes said to include the legal complexion of facts) on which the other party founded an assumption and it would be unjust to permit the representor to depart from the assumption: see for example Thompson v Palmer (1933) 49 CLR 507 at 547; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 at 657, 674-6; Waltons Stores (Interstate) Ltd v Maher at 398, 413-5. The representor is held to the representation because of the purpose of the doctrine, see Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd at 674-5: his Honour said - "That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. His action or inaction must be such that, if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party, the consequence would be to make his original act or failure to act a source of prejudice."

38 The relevant detriment is that flowing from representee's original change of position, his action or inaction in reliance on the representation. According to the doctrine, the relief must be by holding the representor to the representation because only in that way will the change of position not bring detriment. 39 Equitable estoppel "has its basis in unconscionable conduct, rather than the making good of representations": Waltons Stores (Interstate) Ltd v Maher at 405 (Mason CJ and Wilson J), see also at 416 (Brennan J). It may operate through the making of a representation as to fact, existing or future, and by precluding the representor from departing from the assumption, although it may operate in other ways. The possible common factual basis is one reason for the question whether there can be brought about "a single overarching doctrine" or "a general doctrine of estoppel by conduct", see the citations in the reasons of Handley JA (in Giumelli v Giumelli now at CLR 112-3). But because the relief is equitable relief it is discretionary, and because equity operates to prevent unconscionable (or unconscientious) conduct the relief will not necessarily be by precluding the representor from departing from the assumption, see Verwayen v The Commonwealth (1990) 170 CLR 394 at 412 (Mason CJ), 429 (Brennan J), 445 (Deane J), 454 (Dawson J), 487 (Gaudron J) and 501 (McHugh J). In Giumelli v Giumelli these passages were cited with approval (at 123-5) in the joint judgment of Gleeson CJ and McHugh, Gummow and Callinan JJ, but their Honours had noted that there was no occasion to consider whether the various doctrines and remedies in the field of estoppel were to be unified. 40 As will appear, I do not think this is a case in which the distinction between estoppel by representation and equitable estoppel to which Handley JA referred need be further explored, let alone questioned. His Honour noted the distinction, and it was material to determination of the application because it could entirely defeat the application in the manner described. Fitzgerald JA was in the minority in regarding the defence of estoppel raised by the appellant as not estoppel by representation but equitable estoppel, in holding that it could not entirely defeat the application, and in exercising the statutory discretion under the Act. 41 The further course of the proceedings was complicated by failure clearly to attend to the distinction between estoppel by representation and equitable estoppel.

The second determination in the Land and Environment Court 42 The proceedings again came before Lloyd J in a hearing on 4, 5, 6 and 7 July 2000. His Honour delivered judgment on 20 October 2000, Byron Shire Council v Vaughan (No 2) (2001) 110 LGERA 424. 43 On 18 October 1999 a statement of issues was filed, the issues being - "1. Whether the Applicant is estopped by reason of its conduct and representations concerning Lot 6 in Section 3 DP 1623 from asserting any title over the said Lot 6.

Whether because of the Respondents' defence of estoppel, the Applicant is an 'adjacent owner' and whether the improvements erected on Lot 6 are an 'encroachment' for the purposes of the Act.

Whether, in the exercise of the Court's discretion pursuant to s 3(3) of the Act, the application should be refused.

If the application should not be refused, in the exercise of the Court's discretion, what orders should be made pursuant to s 3(2).

Whether the respondents are entitled to any relief by way of declaration or otherwise in respect of the said Lot 6 or in respect of the said Lot 6, Lot 7 in section 3 of DP 1623, Lot B in DP 371044 and Lots 1 and 2 in DP 521030." 44 In these issues whether the appellant could assert title over lot 6 was fleshed out by an express issue of whether it could assert that there was an encroachment or that it was an adjacent owner. The exercise of the statutory discretion remained, clearly enough if the first two issues went against the respondents and not excluding the facts material to the estoppel being also material to the exercise of discretion. 45 No doubt mindful of what had been said by Handley JA, the estoppel defence was particularised by a letter requesting particulars dated 21 October 1999 and a reply dated 12 November 1999. The requests and answers immediately material to the appeal were (the mis-spelling of estoppel is in the original) - 1. What is the conduct which the Respondents rely on to found the defence of estopple? The respondents rely on the following conduct on the part of the applicant: … (b) issuing a sewerage connection plan at a scale of 1 inch to 50 feet, showing the house was wholly contained within lots 3, 4 and 5 and approximately 6.6 metres from the northern boundary of lot 5; … 7. What are the representations which the Respondents rely on to found the defence of estopple? See 1-6 above. The conduct identified in answer to question 1 may also be characterised as constituting various representations. 13. What is the detriment which the Respondents alleged they have suffered because of the conduct referred to? The respondents purchased lots 3, 4 and 5 in the belief that the house was wholly contained on those lots, and subsequently made improvements to the property in that belief. 14. What is the detriment which the Respondents allege they have suffered because of the representations referred to? See 13. 15. What is the relief which the Respondents allege they are entitled to because of the conduct referred to? This is not a proper request for particulars. However, the respondents say that the application should be dismissed with costs. In addition, the respondents say that they are entitled to a declaration that they are entitled to ownership of that part of lot 6 up to the boundary fence in accordance with the information supplied to them by the applicant. Alternatively, the respondents say that any orders for removal of the encroachment should be on terms that the applicant pay the costs of the removal, and compensate the respondents for the Council's works on lot 3 of their land. 16. What is the relief which the Responses [sic] allege they are entitled to because of the representations referred to? See 15. 46 Request 7 was as to representations, and the answer to that request, while perhaps inappropriately taking up other matters, took up the answer to request 6. The answer to request 6, which asked as to the respects in which the respondents relied on the conduct and representations, was that they "purchased lots 3, 4 and 5 in the belief that the house was wholly located on those lots and that the boundaries of those lots was [sic] as indicated by the fence and the sewerage connection plan". Thus there was particularised a representation that the boundaries were as indicated by the fence and the sewerage connection plan. 47 From the answers to requests 15 and 16, the primary relief sought was dismissal of the application, and with tolerable clarity that was because the respondents contended that they were entitled to "a declaration that they are entitled to ownership of that part of lot 6 up to the boundary fence". This may have been a declaration the Land and Environment Court could not make, but in the context of the appellant's application for relief under the Act it meant that the respondents contended that the appellant could not assert that there was an encroachment or that it was an adjacent owner. However, other relief was indicated in the alternative. 48 In the course of submissions on 7 July 2000 the appellant's counsel said that she came to "the question of what happens if my friend's argument is successful before your Honour". Lloyd J observed that the allegation was that the appellant "is estopped from approaching the Court for relief". There was inconclusive reference to boundary adjustment, but it remained that the only relief claimed by the appellant was an order for removal of the encroachment or in the alternative an order for payment of compensation. His Honour said, "What I think I should do is make a finding on the question of estoppel and then stand the matter over for further argument on what orders should be made as a consequence of that". Counsel for the appellant agreed. Counsel for the respondents said nothing to the contrary, and it was common ground in the appeal that she also agreed. 49 The reasons published on 20 October 2000 began, "This is a case about estoppel. Estoppel by representation (also known as estoppel by conduct) to be precise". 50 Lloyd J described the history of the proceedings and then "the facts … which relate to the respondents' defence of estoppel". He concluded the description of the facts - "[22] It is clear from the facts which I have described above that it is the sewerage connection plan which was issued by the council which is the foundation for the respondents' claim for equitable estoppel. According to the respondents, the sewerage connection plan was a representation by the council that the house on lot 5 is wholly constructed on that lot, or alternatively, is wholly constructed within lots 3-5; the respondents relied on that representation to their detriment in purchasing the property; and, it would be unjust or unconscionable for the council to retain ownership of that part of lot 6 on which the portion of the house encroaches: that is to say, the council should be held to its representation." 51 In this early passage can be seen the complication earlier mentioned. His Honour had said that the case was about estoppel by representation, but the appellant's claim was described as a claim for equitable estoppel. Both reliance to the detriment of the respondents in purchasing lots 3, 4 and 5 (reflecting estoppel by representation) and unconscionability on the part of the appellant (reflecting equitable estoppel) were noted. That the appellant should be held to its representation was stated as the common result. There was an amalgamation of principles from which the High Court has so far held back. 52 Lloyd J then set out in summary form the submissions of the appellant and the respondent. The appellant's submissions as summarised were generally in the language of estoppel by representation. They primarily addressed whether the sewerage connection plan was a representation as to the boundaries of the lots 3, 4 and 5, and included that there was no estoppel because the appellant "does not seek to resile from its representation about sewerage connection locations". The respondents' submissions as summarised departed from the language of estoppel by representation. They began that estoppel by representation may arise from a false representation innocently given, reasonably interpreted and relied upon by the representee to his or her disadvantage, but included that the unconscionability of the appellant was in issuing the sewerage connection plan without due warning of its inaccuracy and referred to "discretionary considerations". 53 Reference to the transcript of submissions shows that the appellant's counsel addressed first, no doubt because the appellant was the applicant although the respondents had the burden on the defence of estoppel,. She mainly spoke of estoppel by representation, although she strayed into equitable estoppel. The judge and the respondents' counsel wholeheartedly debated equitable estoppel: at one point the respondents' counsel said, "This case has turned into an equity case". There was not, however, abandonment of estoppel by representation. There was a mingling of concepts. The two streams were never kept in separate channels, and by the conclusion of submissions the waters had been run together and muddied. 54 Returning to the reasons of Lloyd J, his Honour then said that he set out his "understanding of the elements of the estoppel relied upon by the respondents, derived from the various sources to which I refer below". A number of propositions and extensive citations from authority followed. Many of the citations were of the law of estoppel by representation, but many were of the law of equitable estoppel. The propositions and citations were indiscriminate, by which I mean that no analysis distinguished between the law of estoppel by representation and the law of equitable estoppel. 55 I reproduce the propositions, but not the citations - "(1) The fundamental principle upon which the estoppel is based is that equity is concerned to prevent unconscionable conduct." "(2) The statement upon which the estoppel is founded must be clear and unambiguous; and it must not arise from inference." "(3) The representation upon which the estoppel is founded must have been reasonably capable of influencing the representee to act as he did." "(4) The representation upon which the estoppel is founded must be such as will be reasonably understood in a particular sense by the representee." "(5) The question of unconscionability includes consideration of the reasonableness of the representee in acting on the assumed state of affairs." "(6) It is not necessary that the representation upon which the estoppel is founded should be the sole or exclusive cause of the representee altering his position; it is enough that it is a cause for his doing so."

"(7) Estoppel, unlike fraud, may arise from false representations innocently made." 56 The propositions were generally appropriate to equitable estoppel, rather than estoppel by representation. They did not go to the way an estoppel based on representation is given effect, whether by precluding the representor from departing from an assumption induced in the representee or in some other way. No doubt that was because of the two-stage approach his Honour had proposed in the course of submissions, a matter to which I will return.

57 The next part of Lloyd J's reasons was under the heading, "Application of the doctrine of estoppel to the present case". His Honour set out from Waltons Stores (Interstate) Ltd v Maher Brennan J's statement (at 428-9) of what had to be proved "to establish an equitable estoppel". At this point the reasons were firmly focussed on equitable estoppel. 58 His Honour went through each of the six matters found in Brennan J's statement and made findings. In the appeal particular findings were of significance, rather than fulfilment of Brennan J's statements. The particular findings must be extracted from disparate portions of the reasons. 59 His Honour said that the appellant "issued a sewerage connection plan which on its face suggests that the house on Lots 3-5 Manfred Street is wholly within those lots", and that the plan showed the house "wholly within the land, with a sewerage connection from Manfred Street to the house at a point 44 feet from what appears to be the northern boundary of the combined parcel". At another point he said that "the house is shown in about the middle of the lots 3-5 which is not even near any boundary". It was plainly found that the appellant represented, through the sewerage connection plan, that the house was wholly within the boundaries of lots 3, 4 and 5. 60 His Honour said that he accepted the evidence of Mr Vaughan "that he believed [from the sewerage connection plan] the house was constructed in the middle of lots 3-5". He also found that "the plan led Mr Vaughan to believe that the boundaries of the land were approximately in the position of the fences which existed on the land". This added to the representation. There can be a difference between what is shown in a piece of paper and what is represented by giving the piece of paper to someone. There was evidence that the northern fence line at the time was in fact approximately at the boundary between lots 6 and 7 rather than at the boundary between lots 5 and 6. While the sewerage connection plan did not indicate fencing, nor did it exclude the boundaries being fence lines. His Honour later said, as one of his reasons for finding that the respondents' "understanding of the representation" was reasonable, that there was "nothing in the sewerage connection plan to suggest any kind of irregularity or difference between the fence line and the boundaries". Although not expressly made, implicit in the finding that Mr Vaughan was led by the plan to believe that the boundaries of the land were approximately in the position of the fences which existed on the land was a finding that by issuing the sewerage connection plan the appellant so represented. 61 Later in the reasons Lloyd J said that the evidence to which he had referred in discussing the assumption as to legal relationship, which discussion included the findings I have extracted, established "that the sewerage connection plan induced Mr and Mrs Vaughan to adopt the assumption that the house was located wholly within lots 3-5 Manfred Street". His Honour added that "the assumption [sic: representation] was reasonably capable of inducing such belief on the part of Mr and Mrs Vaughan and was reasonably understood by them in the particular sense which I have described". The appellant submitted that this passage showed that the only representation found was that the house was wholly within lots 3, 4 and 5. In my opinion, however, the assumption as stated in the first of these sentences was shorthand, and did not detract from the earlier findings; indeed in then referring to the respondents' belief his Honour must have intended to take up the belief that the boundaries of the land were approximately in the position of the fences which existed on the land. 62 Lloyd J referred to the sewerage connection plan as "reasonably capable of influencing Mr and Mrs Vaughan to act as they did in completing their purchase of the land without further inquiry", and found that if the respondents had known "the true situation" they would not have completed the purchase "until the resolution of the matter". When he came to the fifth matter in Brennan J's statement, that the action or abstention from action in reliance on the assumption or expectation will occasion detriment if the assumption or expectation is not fulfilled, his Honour said (at [39]) - "The obvious detriment if the estoppel is not established is that the council would be entitled to relief under the Act. Such relief may be either the removal of the encroachment, the payment of compensation to the adjacent owner (the council), a transfer of land to Mr and Mrs Vaughan (with, presumably, a payment by them therefor) or the grant of an easement, right or privilege to Mr and Mrs Vaughan (with presumably a payment by them therefor). In other words, if the estoppel is not established the detriment would be a cost to the Vaughans." 63 Lloyd J ended this part of his reasons, "It follows from my conclusions I have written above that the respondents have established the defence of estoppel in this case". He did not further explain what the defence was, again no doubt because of the two-stage approach he had proposed in the course of submissions. In the ordinary understanding of a defence of estoppel, it could not be said that there was a defence until the way in which it was given effect had been decided. It must have been intended that in the two-stage approach there be findings as to representation and action or inaction on an assumption thereby induced, and that what followed be left for the further hearing. 64 His Honour nonetheless added some further matters, albeit inconclusively. His reasons had a final section under the heading, "Discretionary considerations". It began - "Since the fundamental principle upon which the estoppel is based is to prevent unconscionable conduct, the court must decide what is the minimum equity to do justice between the parties. ( Walton Stores at 419 per Brennan J; The Commonwealth v Verwayen at 411-412 per Mason CJ, 445-446 per Deane J, 487 per Gaudron J, 501 per McHugh J; Giumelli at 113 per Gleeson CJ, McHugh, Gummow and Callinan JJ, 127-128 per Kirby J; Gillett v Holt at 139 per Robert Walker LJ)." 65 This was pure equitable estoppel. His Honour said that this was "expressly referred to in the context of the application under the Act by Fitzgerald JA in the Court of Appeal", and set out the passage from the reasons of Fitzgerald JA in which Fitzgerald JA had footnoted Giumelli v Giumelli. His Honour added, "(See also Handley JA at 326)", but did not note Handley JA's reference to estoppel by representation. 66 Lloyd J then said - "The discretionary considerations include, inter alia , the status of council's land, the fact that Mr and Mrs Vaughan expended money on improvements to the house, the cost of removing the encroachment - the suggested way of doing so being by moving the whole house back onto lots 3-5 - together with the cost of doing so, a boundary adjustment, or an easement for support."

67 His Honour discussed these considerations. In the course of doing so he observed that moving the house was a remedy favoured by Fitzgerald JA in the Court of Appeal, and set out the passage from his Honour's judgment in which Fitzgerald JA concluded that the house should be moved at the joint cost of the parties. 68 His Honour concluded his reasons - "It may be that either the approach suggested by Fitzgerald JA or, alternatively, the granting of an easement for support may well satisfy the minimum equity to do justice between the parties. The parties, however, asked me to make a finding on the defence of the estoppel and to defer the question of the appropriate form of relief, if any, so that they may each then consider their position. Accordingly, in accordance with the parties' request I refrain at this stage from coming to a firm conclusion on the appropriate remedy and refrain from making any formal orders. In publishing these reasons I reserve such questions as well as the question of costs for further argument, if necessary, on a date to be fixed."

The third determination in the Land and Environment Court 69 The proceedings came before Lloyd J once more on 21 March 2001. His Honour delivered reasons on 30 May 2001, [2001] NSWLEC 102. 70 After an introductory paragraph his Honour said - "[2]. In my judgment of 20 October 2000 I found that the respondents had established the defence of estoppel. That is to say, the applicant is estopped from asserting that the building is an encroachment (as defined in section 2 of the Act) and that the applicant is an adjacent owner (as defined in section 2 of the Act).

[3]. It follows that the council is not entitled to any relief on its application under the Act. The estoppel operates to defeat the applicant's claim to be an adjacent owner and its claim that there is an encroachment." 71 His Honour noted that the declaration made on 14 July 1998 remained in place, and that the parties disagreed on the appropriate orders to be made in the light of that declaration and of his finding that the respondents had established the defence of estoppel. 72 His Honour said that the appellant submitted that, notwithstanding the finding of estoppel, orders "can be accommodated on its application under the Encroachment of Buildings Act to the extent necessary to satisfy the minimum equity to do justice between the parties", and that the appellant sought an order that the respondents allow the removal of the house to such of lots 3, 4 and 5 as the respondents identified on condition that the appellant pay the costs of moving it. He summarised the appellant's submissions: although the summary was more detailed, the submissions essentially were that the respondents had assumed that they were purchasing lots 3, 4 and 5 with a house on them, that the proposed order would give them those lots with a house on them, and that any detriment to the respondents would be met if the removal of the house were at the appellant's cost. 73 His Honour then said that the respondents submitted that there should be a declaration "reflecting the fact that there has been a finding that the defence of estoppel has been established and that the application should otherwise be dismissed". He summarised the respondents' submissions: although again the summary was more detailed, the submissions essentially were that the respondents had thought that the lots 3, 4 and 5 and the house they were purchasing were where lots 4, 5 and 6 in fact were, and that their detriment was that they had not deferred completion of the purchase until the matter was resolved. 74 His Honour said - "[13] In considering the submissions I am mindful that in Grundt Dixon J referred to the purpose of the doctrine of estoppel by representation in the following terms (at 674): The purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite the party to adhere to the assumption upon which the former acted or abstained from acting. [14] In my opinion the Court should make a declaration to reflect the fact that the defence of estoppel has been established. Such a declaration is necessary to qualify the declaration which was left undisturbed by the Court of Appeal. … "

75 His Honour added - "[15] I am also of the opinion that the order sought by the applicant should not be made because, as Mr Rares pointed out, the respondents thought they were buying a house on the land on which the house stood, which was not lots 3-5 as they thought, but was in fact the land being lots 4-6 or thereabouts. The order sought by the council would seem to amount to an unjust departure from that assumption." 76 The declaration and order from which the appeal is brought were then made. 77 From para [13] Lloyd J treated the estoppel as estoppel by representation, and in paras [2] and [3] he gave effect to the estoppel by holding that the appellant could not assert that the house was an encroachment or that it was an adjacent owner. The addition in para [15] was apparently an alternative ground for the appellant's failure in its application. It is not clear whether it was an alternative expression of the defence of estoppel (the language of unjust departure from an assumption is found in Grundt v Great Boulder Pty Gold Mines Ltd at 674 as the principle on which estoppel by representation is founded), or whether it was a fall-back exercise of the statutory discretion (the words "order … should not be made" suggest entitlement to assert encroachment and adjacent ownership but failure on the merits). In the view I take it is not necessary to resolve this. This appeal 78 The appellant could not appeal against the findings of fact made by Lloyd J in his reasons of 20 October 2000, and the appellant did not complain of anything which, in the way it said the reasons should be understood, was there found or held. Indeed, its position was that in his reasons of 30 May 2001 his Honour should have given effect to the tentative view in his reasons of 20 October 2000 that moving the house might satisfy the minimum equity to do justice between the parties. The appeal was directed to his Honour's reasons of 30 May 2001, and the appellant sought in place of the declaration and order his Honour then made an order under the Act "that the House be removed onto lots 3-5 at the Council's expense". 79 The appellant's oral submissions, as sometimes reformulated in debate, encompassed such of the repetitious grounds of appeal as were maintained. It is convenient to encapsulate the separate arguments as they emerged from the oral submissions. 80 The first submission was that Lloyd J had not found in his reasons of 20 October 2000 that the appellant was estopped from asserting that the house was an encroachment and that the appellant was an adjacent owner, and that his Honour had "misconstrued" his earlier judgment in stating that he had. 81 This turned upon paras [2] and [3] of his Honour's reasons of 30 May 2001. In my opinion, it involved a misreading of the reasons. In the first sentence of para [2] his Honour correctly stated that he had found that the respondents had established the defence of estoppel. The second sentence of para [2] was a statement of how his Honour considered the estoppel should be given effect, arrived at following the further hearing on 21 March 2001 and explained in the further paragraphs of reasons. That the appellant was estopped from asserting encroachment and adjacent ownership was not, and was not said by his Honour to be, a finding in his reasons of 20 October 2000. 82 The second submission was that it did not follow from the defence of estoppel found to have been established in the reasons of 20 October 2000 that the appellant was estopped from asserting encroachment and adjacent ownership, and that Lloyd J had erroneously held that it did. 83 His Honour had received submissions on what followed from his reasons of 20 October 2000, and when he said in para [2] of the reasons of 30 March 3001, "that is to say … " he was stating the view to which he had come upon the second stage of the two-stage approach. Undoubtedly he had been inclined to a different view in the concluding section of the reasons of 20 October 2000, but on further consideration was moved from it. That the estoppel should be given effect in the manner stated was not an unthinking step. It was taken because his Honour considered that it was called for to achieve the purpose of the doctrine of estoppel by representation, see his citation from Grundt v Great Boulder Pty Gold Mines Ltd. 84 The appellant did not submit that his Honour misdirected himself as to principles of estoppel by representation. It submitted that the representation found in the reasons of 20 October 2000 was a representation that the house stood wholly within the boundaries of lots 3, 4 and 5, and that any estoppel by representation could not go beyond holding it to that representation. It would be held to the representation, it said, if it moved the house at its own expense so that the house was wholly within the boundaries of lots 3, 4 and 5, and it made clear that it would accept the responsibility for associated costs such as the costs of moving services. But, it submitted, denying to it the ability to assert encroachment and adjacent ownership was not responsive to the representation as found. 85 The finding by Lloyd J in his reasons of 20 October 2000 was not as confined as the appellant's argument required. The representation was found in the appellant's conduct in issuing the sewerage connection plan to the respondents' solicitor at the time they purchased lots 3, 4 and 5. As I have explained, his Honour's findings included that the appellant represented that the boundaries of the combined parcel of lots 3, 4 and 5 were approximately in the position of the fences which existed on the land. Contrary to the appellant's submission, that was within the particulars. 86 The respondents purchased lots 3,4 and 5 having been led by the sewerage connection plan to believe that the boundaries were approximately in the position of the fences which existed on the land. Their relevant detriment was purchasing the land under an erroneous belief induced by the appellant, and moving the house so that the house was wholly within the boundaries of lots 3, 4 and 5, albeit at the appellant's expense, would not overcome the detriment - it would bring to fruition the potential in the respondents' reliance on the representation. 87 Holding the appellant to the representation as found means that it can not assert conflicting ownership of land within the fences. That is in essence what Lloyd J held, and I see no error in his doing so. 88 In any event, even if the representation were that the house was wholly within the boundaries of lots 3, 4 and 5 I do not think error has been shown. Such a representation is as to the relationship between lots in a plan and a building. If the relationship were incorrectly represented, there can either be a moving of the lots in the plan to fit the house or a moving of the house to fit the lots in the plan. The former is achieved, as a matter of estoppel, by precluding the representor from asserting ownership inconsistent with a notional movement of the lots in the plan. The relevant detriment is the same. Thus on this basis also it would have been open to Lloyd J to hold as he did. 89 The appellant relied on the detriment as described by Lloyd J in para [39] of his reasons of 20 October 2000, essentially a cost to the respondents. At that point his Honour was concerned with detriment for the purposes of equitable estoppel. The respondents suffered detriment when they purchased lots 3, 4 and 5 with the house standing partly on lot 6. Moving the house would not sound only in money. Land is generally regarded in law as unique, amongst other reasons because location makes it so, and the house should be regarded in the same way. The appellants would lose that which, in an erroneous belief induced by the appellant's representation, they thought they had purchased, a house where the house presently stands. 90 Neither the appellant nor the respondents invited this Court to fashion an overarching doctrine of estoppel or a general doctrine of estoppel by conduct. The nature of estoppel by representation as earlier noted was not in question. At least on the appellant's part, it was concerned to maintain the distinction between estoppel by representation and equitable estoppel in aid of the third submission to which I now come. As a case of estoppel by representation, I do not think error of law has been shown. 91 The third submission was that, as the respondents' had particularised and conducted their case, it was not open to Lloyd J to decide it as a case of estoppel by representation. The appellant submitted that the respondents' case was one of equitable estoppel. 92 It can not be doubted that Handley and Powell JJA saw the respondents' case as one of estoppel by representation. The dissent of Fitzgerald JA one would think would have led the respondents to avoid equitable estoppel, or at least rely on it only as a fall-back case. The particularisation was at the least consistent with a case of estoppel by representation, and tended to indicate such a case by the particularisation of detriment since the detriment was the purchase of lots 3, 4 and 5 in an erroneous belief induced by the appellant. Counsel for the appellant understood the case as a case of estoppel by representation, because her submissions (before counsel for the respondents had addressed) focussed upon estoppel by representation. That makes it difficult for different counsel for the appellant now to contend that it was not open to Lloyd J to decide the case as he did. 93 The waters were muddied at the second hearing before Lloyd J, and it seems that the respondents' case came to be approached in submissions as a case of equitable estoppel. His Honour's reasons took that approach. But at the third hearing before Lloyd J, the second stage of the two-stage process, he was recalled to principles of estoppel by representation. A reading of the submissions then made by the appellant reveals reference to a change of approach, but not protest that the respondents could not put forward a case of estoppel by representation; rather, it was submitted that whether at law or in equity dismissal of the appellant's application was not mandated. 94 In these circumstances I am not persuaded that Lloyd J was unable to decide the case as a case of estoppel by representation. At all times the respondents had raised as an issue or issues that the appellant could not assert title to lot 6 or could not assert that there was an encroachment or that it was an adjacent owner, and holding it to a representation as to ownership was at the forefront. Estoppel by representation as distinct from equitable estoppel was not abandoned, although at times the distinction was not maintained. The evidence was led with estoppel by representation in issue, and although the findings were not made with it specifically in mind they were available when his Honour was recalled to it. 95 As part of this submission the appellant submitted that the respondents had particularised detriment only in that they had purchased lots 3, 4 and 5 in the belief that the house was wholly contained on those lots, and that if by the house being moved at the expense of the appellant the respondents ended up with a house (including subsequent improvements) wholly contained on lots 3, 4 and 5 that detriment was accommodated. It submitted that the respondents had not given evidence to the effect that a house in a different place was a detriment to them or that there were other features of moving the house which were a detriment to them. As I understand it, the submission was that the restricted particularisation and substantiation of detriment meant that grounds for the appellant being held to its representation had not been made out. 96 The particularisation was of detriment appropriate to estoppel by representation, and I do not think it was necessary to particularise or give express evidence that partial demolition of or moving the house, because it straddled the boundary, was unwelcome. In any event, Mr Vaughan gave evidence that he would like to own the land he thought he had bought from the fence line to the north. 97 The fourth submission was that Lloyd J erred in law in failing to pay regard to the fact that the appellant's land had been classified as community land following the commencement of the Local Government Act 1993, so that there was a public interest in the appellant not being inhibited in asserting its ownership and in obtaining relief under the Act by which the encroachment was removed. 98 In his reasons of 20 October 2000 Lloyd J had referred to the classification of the land. At that time the appellant had resolved to classify it as operational land, although the classification had not formally changed. The classification of the land was not mentioned in his Honour's reasons of 30 March 2001. It is sufficient to say that the appellant is not in a special position for estoppel purposes because it is a council or because the land was classified as community land, nor when the appellant's land was apparently to be re-classified as operational land was there any occasion to give it favoured status for estoppel purposes.

Conclusion 99 In my opinion, the appellant has not established error of law on the part of Lloyd J so far as his Honour gave effect to the defence of estoppel. It is therefore unnecessary to address para [15] of the reasons of 30 March 2001. The result is that the dismissal of the appellant's application for relief under the Act stands. 100 This does not seem a satisfactory result. A prodigious amount of money must have been spent in litigation. The house still encroaches on the appellant's land. The appellant cannot have relief under the legislation intended to cater for such situations. The respondents have a significant part of their house on the appellant's land, but without any proprietary entitlement. A sensible resolution between the parties is sorely needed, but I do not see anything this Court can do other than urge the parties towards it. 101 I propose that the appeal be dismissed with costs. 102 HEYDON JA: I agree with Giles JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Byron Shire Council v Vaughan & Anor [2002] NSWCA 158 revised - 4/06/2002 FILE NUMBER(S) : CA 40428/01 HEARING DATE(S) : 21 May 2002 JUDGMENT DATE : 30 May 2002

COUNSEL : P Larkin & L Byrne - Appellant S Rares SC & R Sofroniou - Respondents SOLICITORS : Elliot & Sochacki, Mullumbimby - Appellant Walters, Lismore - Respondents CATCHWORDS : Estoppel by representation - distinct from equitable estoppel - whether open to decide case on grounds of estoppel by representation - whether by provision of sewerage connection plan there was a representation as to boundaries of land - whether estoppel from asserting an encroachment. D. Byron Shire Council v Vaughan & Anor (No 2) (2001) 110 LGERA 424; Byron Shire Council v Vaughan & Anor (No 3) [2001] NSWLEC 102; Giumelli v Giumelli (1999) HCA 10; CASES CITED: Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; Thompson v Palmer (1933) 49 CLR 507; Vaughan v Byron Shire Council (1999) 103 LGERA 321; Verwayen v The Commonwealth (1990) 170 CLR 394; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387. DECISION : Appeal dismissed with costs.

(2001) 110 LGERA 424

(1999) 103 LGERA 321

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