Cicek v Department of Customer Service

Land and Environment Court (NSW)|2020-03-10|Before: Robson J

Judgment

These proceedings concern an appeal brought by Febionia Cicek pursuant to s 135J of the Real Property Act 1900 (NSW) ('Real Property Act') against Boundary Determination AN763260 made by the first respondent, Department of Customer Service ('Department'), formerly known as the Department of Finance, Services and Innovation.
The applicant is a registered proprietor of Lot 7 in Deposited Plan 8505 ('DP8505') known as 252 Burraneer Bay Road, Caringbah South. Donald Jeffery Nash and Julie Maree Grimish, the second and third respondents, are owners of an adjoining lot being Lot 8 in DP8505 known as 254 Burraneer Bay Road, Caringbah South. The second and third respondents oppose the application.
The hearing proceeded on 9 and 10 March 2020. The applicant and second respondent appeared without legal representation and Ms L A Walsh of counsel appeared for the Department. The second respondent also appeared as agent for the third respondent.
For the reasons that follow, I have determined that the common boundary between Lots 7 and 8 in DP8505 is located in the position as adopted by the Department in Boundary Determination AN763260.

Background

As the disposition of this appeal primarily requires consideration of the appropriate methodology to be used to define the common boundary of Lots 7 and 8 in DP8505, an understanding of the relevant historical plans of survey (hereafter 'plans') in relation to DP8505 generally, and Lots 7, 8, 10 and 11 specifically, including those accompanying the Lot 7 and Lot 11 Applications, is necessary.
The earliest plan before the Court was DP8505 which was drawn in 1914 and registered in 1916, and is referred to in the evidence as the 'Base Plan'. The relevant part of DP8505 showing the location of the common boundary in dispute, and Lots 7, 8, 10 and 11 (located toward the north-east corner of the plan), is extracted below. Each of the four lots is contained within an area of land bounded by Burraneer Bay Road to the north, Jellicoe Street to the south, Port Hacking Road to the east, and Willarong Road to the west (hereafter referred to as the 'subject area').
For clarity and to assist the explanation of the evidence which follows, a complete copy of DP8505 with more recent additional descriptors provided by Mr Cooper is annexure A to this judgment - there were no reference marks placed on the Base Plan.
DP882077, a plan of survey dated 5 November 1998, was prepared by surveyor John Holt as a redefinition survey of Lot 23 in DP8505 ('Holt Plan'). Relevant to the applicant's claim, Mr Holt also prepared a number of handwritten "field notes" produced in the preparation of, but not necessarily reflected in, DP882077 ('Holt Field Notes').
DP1243018, a plan of survey dated 5 October 2016, was prepared by Jim Bates, surveyor, and accompanied the Lot 11 Application ('Bates Plan'). Although unregistered at the time of Boundary Determinations AN763260 and AN615264 (collectively, the 'determinations'), it was agreed between the experts in the Joint Expert Report as considered below, that this plan identified an excess of land (that is, as per [10] above, land in excess of the title dimensions of the relevant lots) between Port Hacking Road and Strata Plan 58423 (which was formerly Lot 23) of 265mm. This excess is revealed by comparing the sum of measurements along Burraneer Bay Road marked on the Bates Plan with the corresponding total in DP8505.
The applicant's application for Boundary Determination AN763260 similarly attached a plan of survey dated 29 April 2018 prepared by Dragomir Catic, surveyor ('First Catic Plan'). This plan of survey found an excess of 253mm between Port Hacking Road and SP58423. NSW LRS did not register this plan.
A second plan of survey lodged 20 July 2018 prepared by Mr Catic was thereafter provided to the Department through NSW LRS and was similarly not registered ('Second Catic Plan').
A third plan of survey prepared by Mr Catic was lodged on 5 March 2019 after Boundary Determinations AN763260 and AN615264 had been made ('Third Catic Plan').
Although the evidence records that Mr Catic prepared five separate plans of survey, the Court was neither directed to nor received submissions in relation to the remaining two plans which have not been mentioned. As such, the numbering of each of the abovementioned plans prepared by Mr Catic in this judgment varies from the numbering ascribed in the background material. In any event, I note that the methodology which Mr Catic opines should be adopted to determine the position of the common boundary is recorded later in the judgment.
As a result of discrepancies in the excess of land calculated by the Bates Plan and both the First and Second Catic Plans, the Department's registered surveyor, Mr Cooper, conducted an "investigation survey" of the subject area on 23 November 2018 in order to determine the extent of any excess and to assist the determination of the applications made by Lot 7 and Lot 11.
The investigation survey conducted by Mr Cooper discovered an excess of approximately 38cm between Port Hacking Road and Willarong Road. In a process explained further below, Mr Cooper thereafter adopted a method involving mathematical apportionment whereby this excess was distributed across the lots located between Port Hacking Road and Willarong Road such that the common boundaries between the lots the subject of both applications were positioned in a manner which reflected the distribution of this excess.
Although not determinative in this appeal, I note that the practical effect of the positioning of the common boundary between Lots 7 and 8 in the manner determined by the Department causes the recently constructed duplex development located on Lot 7 to be slightly non-compliant with building setback requirements contained within the Sutherland Shire Development Control Plan 2015.

Evidence

The evidence in the proceedings was extensive and both parties provided detailed written and oral submissions. The Court received a lengthy agreed bundle of documents (Exhibit A), a Joint Expert Report dated 12 July 2019 prepared by Matthew Cooper, Robert Lahood and Dragomir Catic (Exhibit B), and a further bundle of documents styled "Amended statement of facts and contentions" containing a collection of plans of survey (Exhibit 1).
The applicant reads her affidavit sworn 11 October 2019 styled "Affidavit/Written Submission" which contains detailed submissions and annexes extensive historical documentation. As this document forms the basis for the applicant's argument, it will be summarised later in the judgment. The applicant also relied upon her expert witness, Mr Catic, who did not prepare a separate report however participated in the Joint Expert Report and gave oral evidence.
The Department reads the affidavits of Matthew Cooper and Robert Lahood each sworn 3 February 2020. Given that each deposes to the methodology adopted by the Department to calculate the position of the common boundaries in each of the determinations and criticism of this approach is the basis of the applicant's concerns, I will later summarise their evidence in some detail.
The second and third respondents read the affidavit of Donald Jeffery Nash sworn 23 September 2019.
In her affidavit, the applicant details the background to the proceedings noted above and states that the current fence between Lots 7 and 8 (shown in the extract at [7] above) is approximately 10 years old. She also states that the application for Boundary Determination AN615264, brought by the owner of Lot 11, was originally for a determination of all boundaries "between Lot 7-11 inclusive" and that she had held a concern that the redefinition requested by Lot 11 would subsequently affect Lot 7. The applicant states that the Lot 11 Application was later amended such that it only concerned the common boundary of Lot 10 and Lot 11 and this was done without notifying other lots, including Lot 7.
The applicant deposes to the fact that she filed a notice of motion on 22 March 2019 seeking leave to join the owners of Lot 8 and Lot 10 to this appeal and that, following orders made by Pain J, only the Lot 8 owners were joined to the proceedings.

The surveyors' evidence

Mr Cooper, a registered surveyor employed by the Office of the Registrar-General of NSW, deposes as to the work he carried out in relation to Boundary Determination AN763260 and Boundary Determination AN615264. As considered below, in summary, he describes the area of his investigation; the registered plans he considered; the background to each of the applications for boundary determinations; and, the method he used to conduct his investigation and determine the position of the two boundaries in question (being the common boundaries between Lots 7 and 8 and Lots 10 and 11 respectively).
Mr Cooper deposes that DP8505 (being the Base Plan registered in 1916) was prepared "at a time when the steel band was the primary method of measurement." Mr Cooper notes that the use of "steel bands" is subject to "inaccuracies of measurement based on sag, tension and expansion caused by temperature changes, and the need for calibration" and that "[m]odern electronic distance measurement discloses a difference in lengths compared to those shown in in DP8505".
In conducting the investigation, Mr Cooper undertook the following: 1. In order to ascertain the original intention for all lots within the subject area, he first defined the location of the relevant streets surrounding the subject area (being Port Hacking Road, Willarong Road, Jellicoe Street and Burraneer Bay Road) through consideration of the Base Plan and other relevant registered plans on record. 2. On the basis of his survey definitions of the abovementioned streets, he identified an excess of 380mm in Jellicoe Street and 405mm in Burraneer Bay Road. He notes that the amount of excess discovered is greater than the amount shown in recent plans because he used a different survey definition of Willarong Road. 3. In establishing a reliable "starting point" for his investigation, he selected Jellicoe Street to orient his survey as, first, his survey definition of Jellicoe Street is consistent with all survey plans since 1995 (unlike Burraneer Bay Road); second, the relatively longer length of Jellicoe Street assists for both orientation and mathematical purposes; third, the intersection of Jellicoe Street and Port Hacking Road is clearly defined by an "old brick shop"; and, fourth, given that his survey definition of Port Hacking Road was slightly different to the Base Plan, using Jellicoe Street as the starting point meant that the difference in survey definition did not cause Lots 1-6 to lose any land (as the difference in angle would have "cut off" a portion of the front of Lots 1-6 if the corrected bearing of Port Hacking Road was taken from Burraneer Bay Road). 4. As he was unable to determine where the excess of land should lie, he proceeded to apply hypothetical scenarios to ascertain "if there was any pattern among registered survey plans, old buildings and occupations which could be established to explain where the excess of land was." He considered three hypothetical scenarios to determine the positions of the boundaries: first, adopting the Holt Plan's survey redefinition of the Lot 23 boundary as the starting point (as suggested by Mr Catic); second, adopting the intersection of Port Hacking Road and Jellicoe Street as the starting point and measuring boundaries in a westerly direction; and, third, adopting a mathematical apportioning method to distribute the excess of land, with the aim to distribute all excess evenly across the lots within the subject area. 5. In assessing the above hypothetical scenarios, he concluded that the first two scenarios "did not deal with the 247mm excess of land between Lot 23 and Port Hacking Road" as no registered survey plans existed in the eastern half of the subject area at the time of his investigation survey; and, further, that these scenarios resulted in a "poor overall fit of occupations and buildings with the boundaries". 6. To assess the third hypothetical scenario involving mathematical apportionment of the discovered excess, he overlaid a scaled-up or "stretched" copy of the Base Plan over the original Base Plan, in a process he describes as similar to "stretching the base plan like a rubber band, holding onto the two ends of Jellicoe Street." The scale at which the Base Plan was "stretched" was determined using a proportional adjustment referred to as an Apportioning Scale Factor ('ASF'), which he calculated using the following equation: 1. As part of the "stretching" process, he essentially multiplied each boundary-to-boundary measurement contained within the subject area of the Base Plan by the ASF. By way of example, this resulted in Lot 7's frontage onto Burraneer Bay Road of 15.24m being multiplied by 1.000706 such that it would consequently become 15.251m. Similarly, Lot 23's original frontage of 17.513m (as defined by Mr Cooper's survey) was also multiplied by the same scale factor such that it became 17.526m. He further explained in oral evidence that, although the ASF was applied to every boundary in the subject area, these mathematical adjustments were, except for the boundaries being determined, only hypothetical and were made so that the relative positions of the common boundaries between Lots 7 and 8 and Lots 10 and 11 could be ascertained. 2. He then overlaid his survey definition of each of the surrounding streets (as described in subpar (1) above) onto the scaled-up Base Plan, which revealed that the angle of Port Hacking Road on the original Base Plan did not correspond (albeit only slightly) with his survey definition of Port Hacking Road, therefore creating a "gap" of 35mm between Port Hacking Road and the Base Plan at Burraneer Bay Road; 3. He then compared several other plans for consistency with his apportioned boundaries and survey definitions of the four streets, resulting in hypothetical discrepancies in individual boundary locations compared to previous surveys of 8mm to 247mm. He notes that there was no solution that would cause the dwellings on Lots 7 and 11 to both comply with 900mm setback controls because the Base Plan defined a distance of 45.72m between Lots 7 and 11. 4. The final step in his investigation was to analyse the fit of the three aforementioned hypothetical scenarios with existing occupations and dwellings. He notes that the apportionment method causes dwellings located on five of the lots to no longer comply with 900mm local council setback requirements, ranging in severity from 15mm to 130mm (including the dwellings on both Lots 7 and 11) and that there would be two resulting encroachments of 30mm. Nonetheless, he concluded that the apportionment method resulted in a more even distribution of excess and a better overall fit with existing occupations across the subject area, as adopting either the first or second hypothetical scenario would result in, first, a bias such that occupations were not evenly distributed; second, a higher number of encroachments; and, third, the same number of resulting non-compliant dwellings as would result from adopting the apportionment method (although with smaller discrepancies if the apportionment method was used). 5. He concluded that an analysis of the first and second hypothetical scenarios therefore supported the use of the apportionment method to distribute and account for the excess as this method generated a better fit. He also notes that a number of other plans in the area have used apportionment or similar methods to distribute excess.
Mr Lahood, a registered surveyor employed by the Office of the Registrar-General of NSW, conducted a review of Mr Cooper's investigation. Mr Lahood supports the approach taken by Mr Cooper and deposes first, Mr Cooper's method of defining the relevant streets took into account the most reliable pre-existing survey definitions of those streets; second, it is not the aim of a boundary determination to ensure building compliance and that any methodology adopted must be applied fairly and not to the benefit of any one party; third, where the source of the excess is inconclusive, apportionment is generally a more just and reasonable method; and, fourth, apportionment provided the best overall fit with fencing occupations whilst maintaining a greater proportion of compliant dwellings and minimising encroachments.
Mr Lahood disagrees with the submission of the applicant that an apportionment method is "rarely used" and points to a number of registered plans pertaining to other lots also within DP8505 where an apportionment methodology has been adopted.
Mr Catic, the applicant's registered surveyor, criticises the approach adopted by Mr Cooper. He first opines that it was inappropriate for Mr Cooper to take the corner of Jellicoe Street and Willarong Road as a starting point for his further work, as the only peg shown in the relevant block on the Base Plan was on the corner of Burraneer Bay Road and Port Hacking Road; and, further, Lots 7 and 8 front onto Burraneer Bay Road and not Jellicoe Street which is effectively "the back street".
Secondly, Mr Catic opines that, in his professional experience, excess may only be defined between established reference marks such as monuments or walls and, as the boundary corner does not have an original reference mark from the time of the Base Plan, an excess cannot therefore be proved.
Thirdly, Mr Catic deposes that, in the preparation of each of his plans of survey, he took the eastern side of Lot 23 as shown in the Holt Plan as the starting point, as he did not identify any excess between Willarong Road and the eastern boundary of Lot 23. He states that after he added the measurements associated with Lots 22 to Lot 1 inclusive, he discovered a discrepancy between the total measurement and the physical distance between those lots of about 250mm. Having regard to the Holt Field Notes, he opines that the location of the presumed excess is in fact identifiable in the section closest to Port Hacking Road (that is, between Lot 7 and the corner of Lot 1).
Mr Catic also notes there is a discrepancy between the Holt Plan and the Holt Field Notes. Mr Catic also states that he took into account occupations when creating his plans and acknowledges that some, but not all, fences and occupations are located in the same positions as they were at the time the Holt Plan was prepared in 1998.
Mr Catic opines that, in a recent registered plan made after Boundary Determinations AN763260 and AN615264 in relation to a separate determination concerning the eastern boundary of Lot 9, the same boundary location was adopted as that which had been shown in the Holt Plan. Mr Catic also notes that there is a discrepancy in the measurement of Lot 23's frontage across the Holt Plan and the Bates Plan.
The Joint Expert Report, given its form and content, was of limited assistance. The matters agreed therein were limited to a record of the survey measurements taken; that the decision to use either an apportionment methodology or use "per original" ('P.O.') measurements to determine a common boundary is a "matter of opinion" and that either methodology may be appropriate depending on the situation; that the survey evidence hierarchy begins with monuments (which I note refers to objects permanently fixed in the soil such that the location is considered to be a reliable reference point) before resorting to measurements and then occupations (being, in a general sense, improvements or structures on the land); and, that an excess of land exists between Lot 23 and Port Hacking Road. The central areas of disagreement concerned the most appropriate method to distribute the excess, the soundness of the survey definition of Port Hacking Road, and the relevance of DP441222 (a survey prepared in 1955).
The Joint Expert Report also makes clear that there is a dispute concerning the measured frontage of Lot 7 onto Burraneer Bay Road. Although the experts agree that the Holt Plan from 1998 depicts the Lot 7 frontage as 15.38m, the Department experts (Messrs Cooper and Lahood) note that this measurement is based upon occupations and does not change the legal entitlement of Lot 7 to only 15.24m (which is the original measurement on the Base Plan). While the Department experts agree that the land may have been occupied for more than 30 years and throughout this time "the fence line has been in existence in one form or another", the Department experts opine that they cannot determine that these occupations are a true reflection of where the originally marked boundaries were meant to be located, and opine that boundaries should be redefined in accordance with the intention of the original subdivision.

Other evidence

In his affidavit, on behalf of the second and third respondents, Mr Nash deposes that he and his wife, the third respondent, are the registered proprietors of Lot 8 and details their various concerns relating to the correct frontage of Lot 7 and matters pertaining to the compliance of building works recently completed by the applicant along the common boundary of Lots 7 and 8.
Mr Nash further deposes that he and the third respondent have been adversely affected by the past actions of the applicant in relation to the common boundary and supports the positioning of the boundary in the manner determined by the Department. Mr Nash's affidavit also annexes a number of documents which include additional survey plans; a copy of a letter from Sutherland Shire Council dated 6 October 2017 approving a modification application of a development consent relating to the applicant's property; correspondence between Mr Nash and the applicant's private certifier; and a bundle of photographs.

Issues in the proceedings

The issues in this appeal are: first, the relevance of Boundary Determination AN615264 to the proceedings (being the application in relation to Lots 10 and 11) and the applicant's standing to challenge that discrete determination; second, and more importantly, whether the available evidence in relation to the position of the common boundary between Lots 7 and 8 is inconclusive (pursuant to s 135H of the Real Property Act) such that the boundary may be determined on the basis of what is just and reasonable in the circumstances; and, third, whether apportionment of excess across all the lots is the most appropriate methodology in the circumstances.

Applicant's submissions

The applicant submits that the amendment of the Lot 11 Application such that it removed Lots 7-9 and refined the application to concern only Lots 10 and 11, coupled with the Department's subsequent failure to notify the owners of the other lots which were originally included in the application of the outcome of the determination, precluded the applicant and the other owners from exercising their "legal rights to dispute and appeal [that] boundary redefinition." The applicant makes many criticisms of the Department's conduct in relation to the determinations. The applicant claims that the decision to determine the boundaries separately (as noted at [10] above) "bizarrely disregarded all the evidence" that the redefinition of Lots 7 and 11 would affect all lots within DP8505. The applicant also submits that NSW LRS' practice requires that all amendments to applications to be made in writing and claims that this process was not followed.
In relation to her appeal, in essence, the applicant contends that any presumed excess is speculation and without a factual or evidentiary basis and, alternatively, if an excess does exist, that it was not distributed correctly, as Mr Cooper's examination survey clearly shows that the excess falls between Lots 1 and 22. In the further alternative, if the excess were to fall between Willarong Road and Port Hacking Road as Mr Cooper found, the applicant submits that such excess would need to be "evenly distributed" between Lots 1 and 35 and claims that this was not done by Mr Cooper.
The applicant further submits that the Holt Field Notes indicate that the "presumed excess", if it exists, falls between Lots 7 and 1. The applicant submits that the Holt Field Notes were required to be considered during the course of the boundary determination, but were not. The applicant submits that, upon examination of the Holt Field Notes, they record that 200mm of excess is discovered between the relevant Lot 7 boundary and the brick wall at the corner of Burraneer Bay Road and Port Hacking Road (being the north-east corner of Lot 1), as the Holt Field Notes measure the distance between these points as 200mm longer than the corresponding distance displayed in DP8505. The applicant therefore submits, that 200mm of excess should be specifically distributed between the Lot 7 and Lot 8 common boundary and the corner of Lot 1.
The applicant claims that Mr Cooper's examination survey supports this contention in that it confirms that the excess ought to be located within these lots. The applicant consequently submits that, as the location of the excess was identifiable, the apportionment method used by Mr Cooper was therefore not appropriate.
The applicant submits that neither the Bates Plan or any of the Catic Plans indicate that an apportionment method was used in their preparation, and further claims that the Bates Plan "contained many errors, inconsistencies and omissions." The applicant further submits that private plans of survey cannot be relied upon as they are not matters of public record and cannot legally define boundary locations.
The applicant, noting that the parties hold conflicting views as to the reliability of various survey plans, submits that the survey definition of boundaries to the west of Port Hacking Road in a number of survey plans on public record, disagree with Mr Cooper's examination survey. The applicant further submits that the excess was found through Mr Cooper's use of adjoining plans which cannot be proven to be correct and, as the subdivision of the area occurred more than 100 years ago and without the original survey references being marked, the boundary position should be based upon other information such as occupations and dwellings.
The applicant submits that the method adopted by the Department was "rare" as it surveyed the entire block in order to determine the two common boundaries (between Lots 7 and 8 and Lots 10 and 11) by apportionment and that this apportionment method has not been consistently applied.
The applicant submits that the Department has a responsibility to make sure any determination is fair and does not disadvantage any one property by considering all available evidence. The applicant claims that the methodology adopted by the Department in determining both boundary determinations only disadvantages her property in the sense that, as the common boundary is now closer to her dwelling than previously thought, it causes a non-compliance with local government development controls.
In the applicant's view, the correct approach to deal with an excess of land is not to take a mathematical approach, but instead take a just and sensible approach so that, if possible, no party is affected. The applicant submits that a clear solution exists as the "legal frontage" of Lots 8, 9 and 10 provides adequate "room" for this excess such that the Lot 7 dwelling could remain compliant with the relevant building setback requirements.
The applicant also submits that, first, the wrong side of Lot 11 was adopted in the redefinition; second, she was not given notice of Boundary Determination AN615264 despite being an affected party; third, that Mr Cooper's investigation applied reverse engineering such that Lot 11 was first allocated 915mm to the boundary; fourth, there is a discrepancy of 10mm between the frontage of Lot 23 shown on both Mr Cooper's examination survey and the Bates Plan compared to previous survey plans; and, fifth, that Mr Cooper failed to take into account the location and compliance of occupations and dwellings.

Department's submissions

As a preliminary matter, the Department first submits that, if it still be an issue, the applicant does not have standing to appeal Boundary Determination AN615264 which concerns the common boundary between Lots 10 and 11. The Department notes that, as the applicant acknowledges in her submissions, that she is not an adjoining owner of that particular boundary, she does not fulfil any of the standing requirements prescribed by s 135J(2) in relation to that boundary determination.
The Department submits that the Bates Plan accompanying the Lot 11 Application did not include key occupations or dwellings and, as such, the source of the excess of land indicated by that plan could not be ascertained. The Bates Plan was thus not registered.
The Department submits that the First Catic Plan could not be registered due to the existence of "mathematical errors, inconsistent dimensions and errors in street definition". Further, the First Catic Plan claimed the entirety of the excess for the benefit of Lot 7 which would generate major encroachments on other lots. The Second Catic Plan, which provided a boundary offset on Lot 7 such that it would be compliant with local planning controls, was similarly not registered. The Third Catic Plan was provided after the boundary determination had already been made and this could not be considered in the Department's investigation.
The Department submits that it was the very inconsistencies in the excess of land identified by the aforementioned plans that led to Mr Cooper's investigation. The Department submits that this was a "logical, detailed and wide-ranging investigation based on all evidence available to the [Department]". The Department submits that, unlike Mr Cooper's detailed investigation, Mr Catic fails to explain or justify the steps taken in the preparation of the First Catic Plan and the Second Catic Plan, which were the plans available and considered by the Department at the time the determinations were made.
The Department submits that the position of the boundary was inconclusive on the basis that there was disagreement between various plans, varying measurements of excess, and changes to occupations and dwellings over time. The Department submits that this in turn allowed the Department to determine the relevant boundaries in accordance with what it considered to be just and reasonable in the circumstances.
The Department makes a number of submissions in response to the contentions of the applicant. First, both boundary determinations were made on the basis of the same investigation over the subject area, contrary to the applicant's submission; second, the applicant's assertion in relation to her frontage measurement is incorrect, as the Holt Plan was based upon distances between occupations which have mostly now moved such that the plan cannot be used as an accurate representation of boundary distances; third, the apportionment methodology was not inconsistently or unfairly applied as asserted by the applicant and, it is plain, that Mr Cooper applied the ASF consistently; fourth, Mr Cooper did not rely on "the wrong side of Lot 11" as claimed, but instead used the defined locations of Willarong Road and Port Hacking Road as his starting point; fifth, the applicant cannot rely on the submission that long-standing occupations are evidence of the boundary position as, unlike in Turner v Myerson (1917) 18 SR (NSW) 133, there is little agreement in historical plans as to the locations of old and current occupations and dwellings; sixth, Mr Cooper took into account various considerations to determine that apportionment was just and reasonable in the circumstances; and, seventh, that apportionment is not a "rarely" used method of dealing with excess as claimed by the applicant.

Consideration

Part 14A of the Real Property Act contains the relevant statutory provisions in relation to the determination of a common boundary: 135B Application may be made for boundary determination (1) Application may be made to the Registrar-General for the determination under this Part of the position of the common boundary of adjoining lands. (2) Such an application can be made only by or on behalf of: (a) an owner of land on either side of the boundary, or (b) the purchaser under a contract for sale of land on one side of the boundary but only if the owner of the land consents to the application or the whole of the purchase price has been paid to the owner or the owner's agent, or (c) a public or local authority or the Head of a Government Department. … 135D Requirements for application (1) An application for a boundary determination under this Part: … (b) is to be accompanied by such information and documents in support of the application as the Registrar-General may require (either generally or in the particular case), and … (2) The Registrar-General must refuse to make the determination unless satisfied, on investigation, that there is doubt as to the position of the boundary concerned. (3) The Registrar-General is to give notice to an applicant if the Registrar-General refuses to make the determination and is to give reasons for that refusal. 135E Notice of application to be given to certain persons (1) Before determining the position of a boundary pursuant to an application, the Registrar-General is to give notice of the application: (a) to the owner of each parcel of land adjoining the boundary concerned (other than land owned by the applicant), and (b) to such other persons as the Registrar-General considers appropriate. … 135F Procedure in determining boundaries (1) In determining the position of a boundary under this Part, the Registrar-General must consult with a registered land surveyor within the meaning of the Surveying and Spatial Information Act 2002. (2) If the Registrar-General decides that a survey or other investigation should be carried out to assist the Registrar-General in determining the position of the boundary, the Registrar-General: (a) may require any applicant for the determination to pay the reasonable costs of any such survey or investigation (and for that purpose may require payment in advance), and (b) may refuse to proceed with the determination until the required payment is made. 135G Determination of other boundaries (1) If as a result of considering an application under this Part in respect of a boundary of land, the Registrar-General becomes aware that there is doubt as to the position of another boundary of that or other land, the Registrar-General may determine the position of that other boundary. (2) Before making a determination under this section, the Registrar-General: (a) is to give notice of the proposed determination to the owner of each parcel of land adjoining that other boundary inviting the person to make a written submission on the matter within a specified period (not less than 21 days), and (b) is to take into consideration any submissions made in accordance with the requirements of such a notice. (3) The Registrar-General must not make a determination under this section without prior consultation with the Surveyor-General. 135H Basis of determination The Registrar-General is to determine the position of a boundary on the basis of all the evidence available to the Registrar-General but, if that evidence is inconclusive, may determine it on the basis of what appears to the Registrar-General to be just and reasonable in the circumstances. … 135J Appeals to Land and Environment Court (1) A person who is dissatisfied with a determination under this Part may appeal to the Land and Environment Court for determination by the Court of the position of the boundary. (2) Only the following persons can appeal: (a) an owner of land adjoining the boundary, (b) a person who applied for the determination as purchaser under a contract for the sale of land adjoining the boundary, (c) a public or local authority or the Head of a Government Department. (3) An appeal must be made not later than 28 days after notice of the Registrar-General's determination is given to the person concerned. …
Before considering the issues, I note the following observations made almost a century apart which I have taken into account.
Sir Leo Cussen in National Trustees Executors and Agency Co of Australasia Ltd v Hassett (1907) 13 ALR 208; [1907] VLR 404 at 412 noted: "It has been pointed out in several cases that land surveying is not an exact science like mathematics; that in the early days surveying was roughly done, and that many of the old Crown Grants showed erroneous measurements, and are vague and indefinite in the extreme; that, usually in the consequence of the use of chains which were too long, the land marked on the ground is in excess of that shown by grant, and that where there is a discrepancy the actual boundaries of the allotment sold prevail over the measurements and bearings shown in the grant, the map or plan being intended merely as a picture of what is found on the ground. It is further decided that in the absence of survey marks, there can be no better indication of the land to which a grant relates than long and unchallenged occupation."
Further, as observed by Bryson J in Comserv (No 1877) Pty Ltd v Figtree Gardens Caravan Park [1999] NSWSC 124; (1999) 102 LGERA 74 at [33]: "For most of the present century survey work has been conducted to a high professional standard and with improving techniques. Plans referred to in the Torrens register have been the subject of meticulous official examination, so that it is unusual (but not unknown) to encounter litigation arising out of anomalies in modern survey work. This happy state of affairs should not conceal the fact that a survey plan is a description of something which exists on the surface of the earth and is different to the exercise of describing it by the plan, and that there may be mistakes or anomalies. Where there is some ambiguity or other doubt about the meaning of a Deposited Plan, evidence about the facts and circumstances which surrounded the preparation of the plan is admissible in order to identify its subject-matter and come to a finding about its meaning, and that evidence can include evidence about the physical features of the land at the time when the plan was prepared and can also include evidence about the survey work, the field notes and the observations of the surveyor at the time of preparing the plan, so as to identify the piece of land he was attempting to describe."
In addition, the task of determining a boundary was described in Hallmann's Legal Aspects of Boundary Surveying as apply in New South Wales (2nd ed, 1994) at [13.16] as follows: "Having settled on a datum line, it is the surveyor's duty, where there has been an original survey made of the boundaries, to attempt to retrace the steps of the original surveyor, i.e. of the surveyor who first determined the position of the boundaries on the ground (unless that plan has been superseded by an established re-survey). In cases of a boundary dispute, however, the original survey may well constitute the more important part of the evidence. Where the artificial boundary has not been previously surveyed or no evidence of any survey can be found, the surveyor's job is one of determination rather than re-determination. The determination of the position of a boundary usually requires most careful research."
In an appeal such as the present, the Court has all the functions and discretions which would otherwise have resided with the Registrar-General in respect of the subject matter of the appeal: Land and Environment Court Act 1979 (NSW), s 39(2).
Further, in considering the expert evidence, I am conscious of the work of surveyors in New South Wales as governed and regulated under the Surveying and Spatial Information Act 2002 (NSW). As part of the statutory requirements relevant to surveying practice, cl 33 of the Surveying and Spatial Information Regulation 2017 (NSW) provides: 33 Procedure if monuments of original survey missing To the extent that the relevant monuments of an original survey are missing, a surveyor must determine the boundaries and corners of the land surveyed by measurement in correct relation to - (a) adjoining or adjacent parcels of land, and (b) parcels of land on opposite sides of roads, and (c) fences, and (d) such other evidence of correct location as may be found after full investigation and inquiry.

The applicant's standing to challenge Boundary Determination AN615264

Although there was an initial concern residing with the Department in relation to the applicant's standing to challenge Boundary Determination AN615264 in this appeal concerning Boundary Determination AN763260 (Tcpt, 9 March 2020, p 94(45)), it appears that this is no longer a concern to the applicant and that she does not seek to overturn that determination. In any event, I consider that s 135J(2) of the Real Property Act, for present purposes, limits the persons who may apply to the Court for a determination of a boundary to "an owner of the land adjoining the boundary". Despite this, I understand that the applicant submits that determination AN615264 and the manner in which that determination was undertaken, is relevant to her appeal.
Further, to the extent that the applicant had a concern that the drawing of "hypothetical boundaries" by the Department when applying the apportionment methodology to determine the Lot 10 and 11 boundary would similarly define the Lot 7 and 8 common boundary, it is clear that that is not the case. The evidence of Mr Lahood makes it clear, if it be necessary, that the mere application of an apportionment "fabric" that is stretched over an area under investigation does not define all the boundaries within that area, but instead assists in determining the relative position of the boundary under consideration. Both Mr Lahood and Mr Cooper in their evidence refer to this as a "hypothetical" boundary relocation: (Tcpt, 9 March 2020, pp 115(33)-116(35)).

Whether available evidence in relation to the position of the common boundary is inconclusive

As noted above, s 135H of the Real Property Act, headed "Basis of determination", provides, inter alia, that the Registrar-General is to determine the position of the boundary "on the basis of all the evidence available" and, in circumstances where that evidence is "inconclusive", it is to be determined by what appears to the Registrar-General to be "just and reasonable in the circumstances". In simple terms, and although somewhat infelicitously worded, the Real Property Act provides that the Registrar-General, and I interpose the Court in an appeal, is able to so determine the position of the relevant boundary on a just and reasonable basis only if "all the evidence available" is "inconclusive". It follows that if the evidence is not inconclusive, s 135H of the Real Property Act has no application: Westfield v Registrar-General of New South Wales [2003] NSWCA 343 ('Westfield') at [32]. To the extent that it is not otherwise apparent, whether the available evidence is inconclusive is to be decided as a matter of probability: Westfield at [34].
Further, s 135D(2) of the Real Property Act mandates the refusal to make a determination unless the Registrar-General is satisfied on investigation that there is doubt as to the position of the boundary concerned.
I consider that the position of a boundary would be inconclusive in accordance with s 135H of the Real Property Act if, first, an excess of land exists; and, second, if that excess is unattributable in a manner which casts doubt upon the correct position of the boundary in question. If an excess does not exist or, alternatively, if the excess could be attributed to an area or lot such that the excess could be appropriately and sufficiently accounted for when considering the relevant plans, then the evidence as to the position of the boundary may not be inconclusive such that recourse to consideration of what is "just and reasonable" may not be necessary.

Whether an excess exists

I have detailed the history of the application, the Department's consideration thereof, and the manner in which Mr Cooper undertook his investigation. It is clear that when the applicant lodged her application for a boundary determination (shortly after an application was lodged by the owners of Lot 11), the investigation thereafter undertaken considered the whole of the area bounded by Willarong Road to the west, Port Hacking Road to the east, Burraneer Bay Road to the north, and Jellicoe Street to the south.
The owners of Lot 11 relied upon a redefinition survey of Lot 11 prepared by Jim Bates, surveyor, on 5 October 2016. That plan indicated an excess of 265mm between SP58423 (formerly Lot 23) and Port Hacking Road.
Mr Catic's survey of Lot 7, being the First Catic Plan, measured an excess of land between SP58423 (Lot 23) and Port Hacking Road of 253mm. Mr Catic's amended plan of survey (Second Catic Plan), lodged on 20 July 2018, similarly measured an excess of 253mm.
I note the above to record that there were a number of differing plans which recorded various amounts of excess. This led the Department, through Mr Cooper, to undertake the investigation. Mr Cooper's investigation similarly discovered an excess.
The sequence of investigative steps undertaken by Mr Cooper and the manner in which the historical plans were taken into account is detailed with some precision in Mr Cooper's evidence, commencing with DP8505 and then considering the subsequent plans including those that take into account the survey pegs at the time of creation (for example, DP441222 prepared in 1955) and thereafter considering the relevant plans on record which define each of the streets bordering the subject area.
I have considered the approach adopted in Mr Cooper's evidence and the manner of the conduct of his investigation. I find that the investigation undertaken by Mr Cooper was a logical, detailed and wide-ranging investigation that was based on "all evidence available" to the Department at the time of the survey. Moreover, having closely considered the evidence of Mr Catic as well as the detailed criticisms of Mr Cooper's approach made by the applicant, to the extent that there was dispute between the experts regarding the very existence of the excess, the manner in which the survey definitions of the surrounding streets have been determined by Mr Cooper satisfies me that those definitions, which form the basis of the determination and calculation of the excess, while not without some doubt, is sufficiently justified for it to be persuasive, if not compelling.
Further, I note that both Mr Cooper's affidavit at pars (34)-(38) and the submissions of the Department (summarised at [64] above) provide a comprehensive response to various contentions made by the applicant, which I accept.
Apart from the conclusions reached by Mr Cooper, I have separately considered the determination of the survey definitions by way of reference to the deposited plans which are in evidence. It is clear that there are differences in the various measurements in relation to Burraneer Bay Road in a number of the plans produced subsequent to the Base Plan which show, at least in an arithmetic sense, inconsistent measurements of Burraneer Bay Road between Willarong Road and Port Hacking Road over a period of time. In simple terms, these measurements show a greater distance than that which is otherwise depicted in the Base Plan. Based upon the material and the analysis undertaken, I am comfortable that there is, as found by Mr Cooper, an excess of land which has not been distributed between the lots therein.
Contrary to this approach, the precise investigative steps undertaken by Mr Catic are not as clear. Although not meant as criticism, for example, in each of the different versions of Mr Catic's plans he provided a different definition of the subject boundaries, with the First Catic Plan claiming the majority of the excess between SP58423 and Port Hacking Road; the Second Catic Plan moving the western boundary of Lot 7 to the west by 57mm so that Lot 7 claims the entirety of the excess between SP58423 and Port Hacking Road; and the Third Catic Plan differing again by changing the position of both boundaries, moving the western boundary by 100mm to the east and positioning the 100mm excess between Lot 7 and SP58423.

The Holt Field Notes

Given my finding that an excess exists in accordance with the evidence marshalled on behalf of the Department, the question then arises as to whether the excess can be accounted for such that the evidence as to the boundary position is conclusive or otherwise for the purposes of s 135H of the Real Property Act.
In support of her position, the applicant contends that the Holt Field Notes (which are not on the Holt Plan) demonstrate that the excess is located within Lot 7 and that these notes have not been given appropriate weight in the Department's consideration and use of the Holt Plan.
Field notes can be of assistance in certain circumstances and I note the following passage from Hallmann's Legal Aspects of Boundary Surveying as apply in New South Wales (2nd ed, 1994) at [3.4]: "The field notes are the basic record of any survey and, as evidence, rank only second in importance to the actual layout of the survey on the ground. The plan, if any, is prepared from the field notes but a lot of useful information is not carried forward on the plan."
The applicant maintains that the Holt Plan provides evidence supporting a frontage for Lot 7 of 15.38m and that, if the frontages of Lots 1 and 7 depicted on the Holt Field Notes are added together, the total distance between the common boundary and Port Hacking Road is 200mm greater than what is shown on DP8505. The applicant therefore relies on this arithmetic to support her contention that 200mm of the excess should be allocated to her property.
The evidence of Mr Cooper and Mr Lahood disagrees with this position. It is the evidence of Mr Lahood (Tcpt, 9 March 2020, p 119(35-50)) that the Holt Plan does not accurately depict currently existing occupations and fences, and as such cannot be used as an accurate basis for establishing boundary positions in the subject area. Mr Cooper did seek to compare the positions of occupations measured in his survey with the positions depicted in the Holt Plan, but deposes that "very poor agreement was obtained overall". Although the matter is not without doubt, and even giving close consideration to the discrete matters in the Holt Field Notes to which I have been directed, I accept the evidence of Mr Cooper.
Further, I consider that there are three issues with the Holt Field Notes: first, the notes do not correspond with the Holt Plan, which was a matter accepted by the applicant; second, there is no way to discern the intention of the author in writing those notes and the author was not called to give evidence, as submitted by the Department; and, third, it appears that the Holt Field Notes were based upon occupations and therefore do not necessarily reflect the positions of those boundaries as originally intended. As such, I accept the Department's submissions that the Holt Field Notes do not indicate that the excess has existed within, or ought to be allocated to, Lot 7 in the manner sought by the applicant.

A fair and reasonable positioning of the common boundary

I find that the material that was before the Department, and the material that was considered by Mr Cooper prior to undertaking his survey, was inconclusive as to the position of the boundary. This is based on lack of agreement between the registered plans relating to the subject area; varying measurements of excess within the subject area; and the changing positions of occupations and dwellings over time, as submitted on behalf of the Department.
Given my findings above, it then falls to determine the position of the boundary on the basis of what appears to be just and reasonable. Although the applicant did not concede that the position of the boundary is inconclusive, for reasons stated above, I do not accept that position.
In considering what is just and reasonable, I have considered all of the expert evidence before the Court. In particular, while I accept that land surveying is not an exact science, doing the best I can, I accept, as the experts agreed, that there are various methodologies that are available to determine the relevant boundary. In the circumstances, Mr Cooper considered three scenarios because it was not possible to determine where the excess of land should lie and concluded that the apportionment method is the most appropriate. I consider this approach was properly available to him and, similarly, in the circumstances is appropriate for the determination of the matter.
I accept Mr Cooper's evidence that in making his determination, he considered the whole of the subject area, taking into account fences, buildings and occupations, to make what he considered a just and reasonable determination of the location of the relevant boundary. I also accept the evidence of Mr Cooper that the position of the improvements, although not determinative, was a matter he took into account in relation to the adoption of the apportionment methodology. I accept that this is based upon the principle that the redetermination of a boundary is considered as a reinstatement of the original intention of that boundary. Further, I accept the evidence that the investigation was conducted over the whole of the subject area and the fact that one lot may have faced some adverse consequence would have been taken into account. As such, to the extent that "fair and reasonable" requires consideration of the impact upon adjoining landowners, I consider that an apportionment methodology is nonetheless appropriate in the circumstances.
Further, I find that the use of the apportionment methodology was applied consistently for each of the lots in the subject area, as each of the lot frontages onto Burraneer Bay Road were multiplied by the same scale factor (which Mr Cooper described as the ASF). The mere fact that such a factor was not used in the Base Plan or more recent plans which did not relate to any lots in the eastern half of the subject area, as asserted by the applicant, is not persuasive. Rather, it is precisely because of inconsistent measurements recorded on the Base Plan compared to more recent plans (which resulted in the excess) which necessitated the use of an apportionment methodology. I similarly do not accept the applicant's submission that this amounted to "reverse engineering" because it "started" on the eastern boundary of Lot 11 and worked backwards towards Port Hacking Road and SP58423 (Lot 23), as the evidence does not support this submission.
I also accept that the decision to adopt the apportionment methodology over the other possible methodologies which Mr Cooper considered, including the approach of Mr Catic, was appropriate given the lack of agreement Mr Cooper identified in relation to the historical registered plans when considering the possible application of alternative methodologies, including the lack of agreement as to the current position of occupations and dwellings within the subject area. More particularly, I consider that this is an appropriate methodology because I also accept the evidence, which was not challenged, that this methodology results in the least disturbance to currently existing fences, dwellings and occupations, although it did have some minor effect upon the applicant's recent improvements.
In summary, given my finding that an excess of land exists between Willarong Road and Port Hacking Road and that it is not possible to determine precisely where this excess ought to be located, it therefore follows that, in the absence of evidence demonstrating a long-standing occupation, the most fair and reasonable outcome would be for that excess of land to be distributed in a proportionate fashion across the lots which occupy the land within which the excess lies. As such, I consider the use of the apportionment methodology to identify the correct position of the boundary, as adopted by the Department, is appropriate in the circumstances.

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Judgment (20 paragraphs)

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Legislation Cited (7)

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