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[2025] ACTSC 446
General information, not legal advice.
Supreme Court of the ACT
2025-10-01
Mossop J
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Dimov v The Owners – Units Plan No 2225 (No 2) Citation: [2025] ACTSC 446 Hearing Date: 21 – 22 May 2025 Decision Date: 1 October 2025 Before: Mossop J Decision: (1) Judgment for the first and second defendants against the plaintiff. (2) All questions of costs of the proceedings are reserved. If the parties have not agreed on costs within seven days, the parties have liberty to apply for directions in chambers in relation to the determination of all questions of costs. Catchwords: REAL PROPERTY – FIXTURES – Whether erroneously overpoured concrete wall footings encroaching from neighbouring blocks are fixtures – where, if fixtures, plaintiff not entitled to relief for continuing trespass – where overpours are part of underground foundations of wing walls – degree of annexation informed by fact that encroachments are underground rather than being an overhanging protrusion – where object of annexation was for the concrete to be the footings of wing walls on neighbouring blocks – negligent or mistaken, and non-consensual, annexation does not alter the characterisation – where characterising the overpour as a fixture is more consistent with plaintiff’s proprietary rights – the encroaching footings are fixtures TORTS – TRESPASS TO LAND – Trespass by objects – where builder of neighbouring properties erroneously overpoured concrete wall footings in 2001 or 2002 – where plaintiff alleges continuing trespass against successors in title to neighbouring blocks – where successors in title only liable for trespass if the trespass is continuing and successors knowingly fail to remove the object – encroaching concrete is a fixture and thus forms part of the plaintiff’s land – no continuing trespass established Legislation Cited: Chancery Amendment Act 1858, 21 & 22 Vict, c 27 Encroachment of Buildings Act 1922 (NSW) Cases Cited: Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30; 317 ALR 202 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 Basely v Clarkson (1681) 3 Lev 37; 83 ER 565 Billiet v The Commercial Bank of Australasia Ltd [1906] SALR 193 Bottos v CityLink Melbourne Ltd [2021] VSC 585 Bowyer v Cook (1847) 4 CB 236; 136 ER 496 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; 20 VR 311 Clegg v Dearden (1848) 12 QB 576; 116 ER 986 EPL Corporation Pty Ltd v Diamond 6 Pty Ltd [2024] VCC 168 Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch); [2009] 1 P & CR 1 Hill v Higgins [2012] NSWSC 270 Holland v Hodgson (1872) LR 7 CP 328 Holmes v Wilson (1839) 10 AD & E 503; 113 ER 190 Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185 Kalgovas v Iliopoulos [2022] NSWSC 70 Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2016] NZHC 2141; 2 NZLR 421 Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] NZCA 205; 3 NZLR 336 League Against Cruel Sports Ltd v Scott [1986] QB 240 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 Lord v McMahon [2015] NSWSC 1619 Luben Petkovski v Kai Yin Huang [2018] NSWSC 1667 May v Ceedive Pty Ltd [2006] NSWCA 369 McIntosh v Morris [2021] NSWCA 225 National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288 Penruddock’s case (1597) 5 Co Rep 100b; 77 ER 210 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 Tam v Du (Appeal) [2019] ACAT 94 TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; 241 CLR 576 The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387 XR Property Developments Pty Ltd v Denning Real Estate Pty Ltd [2015] NSWSC 1937 th Texts Cited: Balkin & Davis: Law of Torts (LexisNexis, 6 ed, 2021) th Fleming’s The Law of Torts (Thomson Reuters, 11 ed, 2024) Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 7th ed, 2008) Parties: Philip Dimov (Plaintiff) The Owners – Units Plan 2225 (First Defendant) The Owners – Units Plan 2204 (Second Defendant) Representation: Counsel D Robens (Plaintiff) J Moffett (Defendants) Solicitors Eastwoods Legal (Plaintiff) BDN Lawyers (Defendants) File Number: SC 462 of 2022 MOSSOP J: Introduction
The plaintiff is Philip Dimov, the Crown lessee of block 2, section 34 in Forrest, Australian Capital Territory (“Block 2”). This is a property otherwise known as 4 Dominion Circuit, Forrest. By way of an originating claim dated 13 December 2022 and an amended statement of claim dated 9 July 2024, he has claimed relief against two defendants who are the owners of neighbouring blocks: (a) The first defendant, The Owners – Units Plan 2225, is the owners corporation of block 3, section 34 in Forrest, otherwise known as 2 Dominion Circuit. The building on that land is known as “Grosvenor” (“Block 3”). (b) The second defendant, The Owners – Units Plan 2204, is the owners corporation of block 12, section 34 in Forrest, otherwise known as 15 Fitzroy Street. The building on that land is known as “Astor” (“Block 12”).
The plaintiff claims that footings associated with a wall on each of the adjoining premises encroach upon his property. The relief claimed is in the form of a mandatory injunction against both defendants to do all things necessary to remedy the encroachment into the plaintiff’s property, as well as damages for past and continuing trespass to the property by the defendants. The sole cause of action relied upon to ground such relief is the tort of trespass.
The case was heard over two days. Much of the evidence in the case was directed to whether, if a trespass was established, it was an appropriate case in which to grant a mandatory injunction. However, an antecedent issue is whether or not any relevant trespass occurred. The basis on which the allegation of trespass was made was that, notwithstanding that the encroachment by the footings occurred in 2001 or 2002, it was the failure by each defendant to remove the encroachment after notice was given to it in 2022 which constituted the trespass. Thus, it was necessarily (even if not expressly) alleged that what was occurring was a continuing trespass.
For the reasons which follow, although it is clear that, when the footings were constructed, the encroachment onto Block 2 constituted a trespass, because the encroachment onto the plaintiff’s property became affixed to his land, it became part of his land and its existence could not constitute a continuing trespass. For that reason, the plaintiff’s claim must fail.
Had the plaintiff not failed on this basis, a mandatory injunction would have been appropriate. The encroachments
The adjoining developments each have a zero setback. It is intended that, upon its redevelopment, Block 2 will also have a zero setback. Each of the buildings located on Blocks 3 and 12 have three habitable levels, a habitable loft above, and a basement car park. They were constructed by an entity trading under the name Koundouris Projects and have similar designs.
The certificate of occupancy for Block 3 was issued on 6 March 2003. Units plan no 2225 was registered in relation to Block 3 on 26 March 2003, bringing the first defendant into existence on that date. The certificate of occupancy for Block 12 was issued on 6 December 2002. Units plan no 2204 was registered in relation to Block 12 on 31 December 2002, bringing the second defendant into existence on that date. It can be inferred that the walls associated with the encroachments came into existence prior to the issue of the certificate of occupancy in relation to each building.
The consequences of the encroachments
Potential to remove the encroachments
However, evidence was given by Mr Wilson that removal of concrete over boundaries can be achieved by saw cutting or grinding. Saw cutting is the preferred approach when any reinforcement may need to be cut. A demolition contractor would have a series of options at its disposal. The saws used to cut concrete often have guards removed so as to facilitate cutting at zero offset.
Mr Wilson’s conclusion was as follows: It looks as if there has been a degree of overpour of the footings of blocks 3 and 12 onto block 2 which can be removed at relatively modest cost, especially if that work occurs during the development of the adjacent block.
He went on to suggest that there was much to be gained by “constructive discussions” about when to remove any overpour and whether it would be possible to underpin the existing footings by working across the boundary.
Submissions
The submissions of the parties focused on two issues: (a) whether there was a continuing trespass which would permit the plaintiff to obtain relief against the two defendants, notwithstanding that those two defendants did not cause the trespass; and (b) whether it would be appropriate to grant relief to the plaintiff in the form of a mandatory injunction.
The second issue received the most attention. The differences between the parties focused upon the prima facie entitlement to an injunction and the application of the “good working rule” described by AL Smith LJ in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 322-3, which identified the circumstances in which damages may be awarded instead of the grant of an injunction.
However, it is only necessary to consider whether or not an injunction or damages are an appropriate remedy if there is a continuing trespass.
Continuing trespass
The concrete encroachments were created by the builder of the buildings on Blocks 3 and 12. The concrete was placed intentionally in order to create the footings for the wing walls. Insofar as the concrete encroached upon Block 2, that encroachment was either the result of negligence on the part of the builder or a mistake as to where the boundary lay. Either is sufficient to establish trespass: Balkin & Davis: Law of Torts (LexisNexis, th 6 ed, 2021) at [5.1], [5.10]; Basely v Clarkson (1681) 3 Lev 37; 83 ER 565; League Against Cruel Sports Ltd v Scott [1986] QB 240 at 251-252.
Neither of the defendants existed at the time when the trespass occurred because they only came into existence subsequently, when the respective units plans were registered. They could only be liable if there was a continuing trespass. Where there is a continuing trespass arising from an encroachment, a successor in title may be held liable if, having notice of the trespass, the successor fails to remove it (see the authorities discussed below).
The issue between the parties was whether a trespass constituted by a subterranean concrete encroachment upon adjoining land could be a continuing trespass. That issue requires consideration of the authorities.
Authorities relevant to continuing trespass to land Holmes v Wilson (1839) 10 AD & E 503; 113 ER 190
In this case, the defendants had erected a turnpike and built buttresses on the plaintiff’s land to support the turnpike. The physical details of the buttresses were not described in the judgment. The plaintiff recovered damages for trespass. After having done so, the plaintiff gave notice to the defendants requiring them to remove the buttresses erected upon her land. They failed to do so. In a further action, Lord Denman CJ (Littledale, Patteson and Williams JJ agreeing) held that the continued use of the buttresses for support of the road was a fresh trespass.
The case illustrates the potential for there to be a continuing trespass where chattels (which I assume the buttresses to have been) remain on a plaintiff’s land after the defendant has been asked to remove them.
Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185
Bowyer v Cook (1847) 4 CB 236; 136 ER 496.
In this case, the defendant had placed “stumps and stakes” on the plaintiff’s land. The plaintiff recovered damages for trespass. The plaintiff then gave the defendant notice that, unless he removed the stumps and stakes, a further action would be brought against him.
The plaintiff then succeeded in that further action, the court holding that the leaving of the stumps and stakes on the land was a new trespass. Wilde CJ (Coltman, Cresswell and V Williams JJ agreeing) followed the earlier decisions in Hudson and Holmes to find that there was a continuing trespass. As in those cases, however, the issue of fixtures was not discussed.
Clegg v Dearden (1848) 12 QB 576; 116 ER 986
The owner of a coal mine excavated to the boundary of another mine and wrongfully entered that neighbouring mine, leaving an aperture between the two. This led to water passing through the aperture and doing damage to the neighbouring mine, which came to be owned by the plaintiffs.
The case was distinguished from Holmes — which was described in Clegg as involving the continuation of “something wrongfully placed by the defendant upon the premises of the plaintiffs” — because there was “no such obligation upon a trespasser to replace what he has pulled down or destroyed upon the land of another”, even though the trespasser was liable in an action in trespass to compensate by way of damages for the losses originally sustained. There was therefore no cause of action in trespass arising from the failure to re-enter the land and fill up the excavation. That was held to be “neither a continuation of a trespass nor of a nuisance … [nor] the breach of any legal duty”: at 601; 995.
Billiet v The Commercial Bank of Australasia Ltd [1906] SALR 193
In this case, the wall of a building along the boundary of a block encroached a few inches upon the neighbouring block. At the time the respective buildings were built, the two blocks had separate certificates of title but were owned by the same person. Way CJ held that, when a trespass of a continuing nature has been committed, “the original wrongdoer and his successors in title are liable for the continuance of the wrong”: at 200. For that proposition, he cited Penruddock’s case (1597) 5 Co Rep 100b; 77 ER 210.
The critical point in Billiet was that, in order to establish a continuing trespass, it was necessary to establish an original trespass: at 201. Way CJ found that, because a single owner owned both blocks at the time the encroaching building was constructed, there was no trespass at that time and the plaintiffs therefore could not “found a right of action upon the mere continuance of a state of things lawful in its origin”: at 205. His Honour also noted (at 202-3): The so-called encroachments of brick, stone, iron, and wood were annexed to the freehold by the Bank’s predecessor in title, Mr. McLean … The defendant Bank, in fact, would be a trespasser if it entered upon the plaintiffs’ property to remove walling and other materials belonging to the plaintiffs and annexed to their freehold …
Other cases making the same point — that, if a single person owns two properties and works on one encroach upon another, there can be no trespass and hence no continuing trespass — include XR Property Developments Pty Ltd v Denning Real Estate Pty Ltd [2015] NSWSC 1937 at [18]-[19] and Luben Petkovski v Kai Yin Huang [2018] NSWSC 1667 at [443].
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd [2007] VSCA 311; 20 VR 311
The appellant had refurbished its 12 storey office building by attaching metal cladding. That cladding intruded by 3 to 6 cm into the airspace of the respondent’s neighbouring property. The respondent sought and obtained a mandatory injunction requiring the appellant to remove the cladding, a process which would cost approximately $300,000. The appellant appealed against the judge’s refusal to award damages instead of the injunction.
The primary judge had concluded that the practical consequences of the cladding were “not trifling”. Rather, the primary judge found that the cladding created “major issues for anyone wishing to construct a building up to the boundary line of a height similar to or greater than that of the defendant’s building” (quoted at [14] of the appeal judgment).
Dodds-Streeton JA (Ashley JA and Cavanough AJA agreeing) dismissed the appeal, finding that there was no discretionary error on the part of the primary judge in deciding not to award damages. Dodds-Streeton JA reviewed the relevant legal principles. That included consideration of the decision in Shelfer and a number of subsequent cases in which the “good working rule” there identified had been applied.
The context in which Shelfer arose was the enactment of Lord Cairns’ Act (Chancery Amendment Act 1858, 21 & 22 Vict, c 27) which “provided an express statutory basis for an award of equitable damages which was not limited to cases where damages could properly be awarded at law or as compensation for past injury”: at [38]. It therefore allowed the possibility of damages for trespass to freehold land to be awarded which would represent “compensation ‘once and for all’, in circumstances where the trespass was permanent or continuing”: at [38]. The decision in Shelfer made it plain that this power did not introduce damages as the standard remedy for trespass, as that would allow wrongful acts to be routinely sanctioned, thereby effectively permitting the tortfeasor to forcibly purchase the wronged landowner’s rights. It was in that context that AL Smith LJ in Shelfer identified that, although a plaintiff whose legal right has been invaded is prima facie entitled to an injunction, damages may be an appropriate alternative if certain conditions are established. AL Smith LJ said (Shelfer at 322-3): In my opinion, it may be stated as a good working rule that— (1.) If the injury to the plaintiff’s legal rights is small, (2.) And is one which is capable of being estimated in money, (3.) And is one which can be adequately compensated by a small money payment, (4.) And the case is one in which it would be oppressive to the defendant to grant an injunction— then damages in substitution for an injunction may be given.
The cases after Shelfer that were reviewed by Dodds-Streeton JA were cases in which a decision had been made to award damages. It is not necessary for present purposes to review each of those cases. They are not inconsistent with Shelfer. They are simply illustrations of discretionary decisions as to the circumstances in which it is appropriate to depart from the prima facie position.
Field Common Ltd v Elmbridge Borough Council [2008] EWHC 2079 (Ch); [2009] 1 P & CR 1
This case involved a trespass arising from the defendant laying tarmac on land owned by the plaintiff and the defendant allowing its tenants to use that tarmac. The judgment was confined to the assessment of damages ordered by another judge who had determined the issue of liability.
In relation to the placing of the tarmac, the judgment discussed whether that amounted to a continuing trespass. The court identified that, where the trespass takes the shape of fixing materials to the land, “on one view”, the materials become part of the land and hence cannot amount to a continuing trespass: at [29]. The court identified that this may become an issue where a limitation period relating to a single act of trespass has expired. The court expressed the view that the “continued presence of the tarmac on the [land] … constituted a trespass which continued from day to day”: at [36]. However, even if this was not the case, the court considered that this was an issue which ought to have been argued by the defendant when liability was being considered, as distinct from during the assessment of damages: at [36].
The reasons of the court for determining that the trespass (arising from the existence of the tarmac) was a continuing one are not clear, and that lack of clarity needs to be understood in that decision’s context, namely that the point was not available to be taken by the defendant at that stage of the proceedings.
Hill v Higgins [2012] NSWSC 270
This case involved a residential dispute focusing on a brick retaining wall which encroached by 3 to 15 cm onto the plaintiffs’ property, and some corrugated iron which extended as much as 37 cm onto the plaintiffs’ property. There was also a claim for trespass arising from the temporary deposit of a handful of bricks from the wall upon the adjoining property and a brief entry onto the plaintiff’s property by the neighbour in order to recover them.
The case did not discuss issues of continuing trespass or give rise to limitation issues. That is because the plaintiffs had argued that the “presence of the wall also amounted to a nuisance … [and accepted] that if they are compensated in their action for trespass to land because of the position of the wall, they are not also entitled to damages for nuisance arising out of the same facts”: at [21]. As a consequence, the court did not consider whether the brick wall, being a fixture, could give rise to a continuing trespass.
Lord v McMahon [2015] NSWSC 1619
This case involved the building of a part of a dam by the defendant on the property of the plaintiff. Slattery J recognised that a continuing trespass may exist where, “for example, a building is erected on another’s land without permission, or objects are attached to a building intruding into the air space above neighbouring land, or goods are allowed to remain on another’s land without permission”: at [151]. His Honour also recognised that a continuing trespass may apply to chattels brought onto land. If a chattel is brought onto land with the possessor’s consent, the termination of the licence to so place the chattel creates a duty to remove it and a continuing trespass if the chattel is not removed within a reasonable time: at [152]. However, where a defendant does something to the land and then fails to restore it to the same condition in which it was originally found, that constitutes an initial trespass for which damages may be recovered, but not a continuing trespass: at [156]-[163].
In the case before him, Slattery J identified that the material that had been moved onto the plaintiff’s land ceased to be a readily removable chattel and became part of the plaintiff’s real property: at [160]. There was therefore no continuing cause of action because there was no longer anything belonging to the defendant on the plaintiff’s land.
The statement in the judgment at [151] that the construction of a building erected on another’s land without permission would constitute a continuing trespass was not made by reference to any specific authority. It is difficult to reconcile that general statement with the fact that a building would, most likely, be a fixture and hence part of the plaintiff’s land. It could only constitute a continuing trespass if it was not in fact a fixture (as might be the case for a portable building) or if the building or part of the building that involved the trespass was then used so as to constitute a continuing trespass. Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2016] NZHC 2141; 2 NZLR 421
The decision in Billet was followed in Lakes Edge. In that case, there were two blocks: an uphill one and a downhill one. They were owned by a single person (or a company which that person controlled). A hotel was built on the downhill site and was secured by rock anchors driven into the uphill site. The uphill site went into separate ownership. The owner of the uphill site, who wished to develop its land and considered that the rock anchoring would interfere with that, asserted that the presence of the rock anchors constituted a continuing trespass.
The court at first instance found (at [22]) that, although the insertion of a subterranean object into the land of another can amount to a trespass, a fixture which, with the consent of the landowner, is affixed to neighbouring land cannot give rise to an action in trespass.
Because a fixture, by definition, is property of the landowner, the presence of a fixture which belongs to the landowner cannot give rise to an action in trespass. Unsurprisingly, the court concluded that, having regard to the degree or mode of annexation and the object or purpose of annexation, the rock anchors were fixtures and hence became part of the land under which they were placed (at [46]). There was no trespass at the time of the installation, and as the rock anchors now formed part of the land under which they lay, their continued presence could not give rise to an action in continuing trespass.
McIntosh v Morris [2021] NSWCA 225
This was a case in which the merits of the position adopted by the applicant in court proceedings were relevant to the question of costs. The proceedings related to a sewer pipe, stormwater pipe, stormwater pit and electrical cables cased in conduit, all of which serviced the applicants’ house but were upon the respondent’s land. The issue was whether the applicants’ defence of the proceedings (in which the respondents claimed relief for, among other things, trespass) was unreasonable.
White JA noted that the statement of claim did not allege a trespass as a result of the use of the pipes and other encroachments as distinct from their existence: at [66]. The issue was, therefore, confined to the existence of the pipes, pit and conduit themselves. White JA identified that, if the pipes and other encroachments had been laid with the consent of the respondent’s predecessors in title, the laying of those pipes and other encroachments would not have constituted a trespass. His Honour left open the question as to who bore the burden of establishing consent: at [68]-[70]. His Honour pointed to Hudson as a case supporting liability in trespass of the party who laid the encroachments “if they did not have their adjoining owners’ consent”: at [71]. As noted above, in Hudson, the defendants had placed shores and timbers on the plaintiff’s land and kept them there even though they were requested to remove them.
His Honour identified that “[t]here is authority” that a successor in title to a previous owner who had placed encroachments on another’s land would be liable for a continuing trespass if the original placing of the encroachments constituted a trespass: at [72], relying on Billiet at 200 (discussed above). However, his Honour found the issue unnecessary to determine, stating (at [74]): This is not the occasion to decide issues as to the law of continuing trespass where the defendant was not the party responsible for the encroachment and the encroachment had become part of the plaintiff’s land.
His Honour also observed that, for there to be a continuing trespass, there must have been an original trespass. His Honour said it is “strongly arguable that, at least if the original laying of the pipes were not trespassory, because the pipes and other encroachments became fixtures on the respondents’ land, the applicants were not liable in trespass for failing to remove them”: at [74]. For that proposition, he relied upon the decisions in Lakes Edge and Lord.
White JA then concluded that, even if the applicants were liable for trespass, it was “highly doubtful” that the respondents would be entitled to a mandatory injunction in the circumstances: at [76]. For those reasons, his Honour found that the primary judge had erred in concluding that the applicants had no viable defence: at [77].
Brereton JA agreed with the orders proposed by White JA. His Honour accepted that a trespass may occur where a defendant, without lawful justification, places chattels on or in the subsoil of a plaintiff’s land: at [99]. However, his Honour also pointed to authority (namely Lakes Edge and Lord) to the effect that, where what is placed upon the plaintiff’s land becomes a fixture, there can be no continuing trespass: at [102]. Applied to the circumstances of the case before him, his Honour said that the pipes were no longer chattels as they had become incorporated into the respondents’ land. That had the effect that, whether or not the original installation was consensual or trespassory, there was no longer anything belonging to the applicants on the respondents’ land: at [107]. His Honour described this as a “considerable obstacle” to the respondent’s success in the case.
Bottos v CityLink Melbourne Ltd [2021] VSC 585
This case involved, amongst other things, spillage of concrete onto the plaintiffs’ land arising from construction on adjoining land. The spillage was removed during the course of development of the plaintiffs’ land. Damages were awarded for the trespass. The case did not involve discussion of whether the spillage amounted to a fixture or whether there was a continuing trespass. In addressing the spillage issue, the court recorded that, because it was laid by an “accidental extrusion”, it did not indicate any intention to occupy the land so as to give rise to a claim of adverse possession: at [48].
Although factually similar, the legal issues in Bottos are not of assistance in the present case.
Kalgovas v Iliopoulos [2022] NSWSC 70
In this case, the parties were neighbours. The plaintiffs claimed that the construction of parts of a dry stone retaining wall located on or close to their land amounted to a continuing trespass. This claim was significant because there was otherwise a limitation problem in relation to the original trespass.
Darke J described as “doubtful” that the dry stone retaining wall could amount to a continuing trespass because it was a fixture, referring to the decisions in Lord and McIntosh: at [89]. It was not necessary to reach a final conclusion because any relief for the trespass would not exceed that which was available under the Encroachment of Buildings Act 1922 (NSW): at [90].
The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387
In this case, Parker J had to address the circumstances of an encroaching deck, concrete slab, balcony and roof overhang. Those structures were erected in 2009-2010, with the effect that the applicable six-year limitation period had expired: at [356]. The action could therefore only be successful in relation to continuing trespasses.
His Honour undertook a useful review of the cases. Following his review of the cases, he said (at [375]): [T]he proposition that, in general, trespassory earthwork or building work undertaken entirely within or on a plaintiff’s land do not give rise to a continuing trespass seems well established. The boundary between chattels and fixtures in land law may not exactly define the boundary between continuing and non-continuing trespass, but it seems that usually it will be a reasonable guide.
Because of that conclusion, Parker J found that the statement at [3.40] of Fleming’s The th Law of Torts (Thomson Reuters, 11 ed, 2024) that the failure to remove “a structure or other object” placed on another’s land would constitute a continuing trespass went “too far”: at [377].
In the circumstances of the case before him, his Honour drew different conclusions in relation to the different categories of trespass. In relation to the deck, the conclusion was that any action in relation to the original deck was statute barred. However, the deck had been replaced with a new deck within the limitation period and hence an action was available in relation to it: at [378], [384].
The concrete slab was laid as a single piece of concrete “which provided the foundation for the timber balcony and deck … [and] the roof extension”: at [225]. However, despite being a single piece of concrete, the portion of the slab on the plaintiff’s land did not derive support from the portion on the defendant’s land or vice versa. Parker J therefore found that the slab was a fixture on the plaintiff’s land, meaning the action in trespass in relation to the slab that was on the plaintiff’s land was statute barred, although the plaintiff was free to remove that portion of the slab at its own expense: at [379], [431].
The overhanging roof was held to be a continuing trespass. It gained support from the house on the defendant’s land. It was not a fixture which formed part of the plaintiff’s land: at [380].
Finally, the balcony. It appears from the description (at [381]), images (at [109]-[110]) and plan (at [461]) that the balcony was in part supported by the defendant’s house and in part supported by “supporting poles” on the plaintiff’s land. That gave rise to a classification problem as to whether it should be treated as a fixture on the plaintiff’s land or an intrusion from the defendant’s land. His Honour referred to the decision in Hudson which involved shores and timbers placed on the plaintiff’s land in order to support the house on the defendant’s land. He said (at [383]): But, as in Hudson, the trespassory structure here is connected with, and ancillary to, a building belonging to the defendant. The continued use of the house on [the defendant’s land] to support the balcony structure should similarly be seen as a continuing trespass: see also Holmes v Wilson (1839) 10 Ad & El 503; 113 ER 190. EPL Corporation Pty Ltd v Diamond 6 Pty Ltd [2024] VCC 168
Conclusion as to continuing trespass
So far as trespass simpliciter is concerned, the position is as follows. A trespass involves the unjustified entry onto land, namely, entry effected without the occupier’s consent or some other lawful authority. Trespass includes the physical intrusion onto land by persons or things. Therefore, a trespass may occur as a result of entry onto the land, placing something on the land (at or below the land’s surface), or interfering with the land (such as by digging a hole or erecting a structure which interferes with the airspace above the land).
The existence of a continuing trespass will be relevant in situations where the owner of the land trespassed upon has changed or where a limitation period has expired in relation to the original trespass. The circumstances in which a continuing trespass not involving entry onto the land may be made out are limited. A continuing trespass will exist where a chattel has been placed upon the land and not removed. Examples include Holmes (the buttresses), Hudson (the shores and timbers) or Bowyer (the “stumps and stakes”). However, there will be no continuing trespass where the original trespass constituted damage to the land, such as in Clegg (the digging of a hole between the mines).
The chattel–fixture distinction is significant in determining whether or not there is a continuing trespass. That is because, if the original trespass involved affixing something to the land, it becomes part of the land such that there can be no continuing trespass.
A fixture is an item which has been attached to land in such a way that the law treats it as forming part of the land. A fixture is to be distinguished from a chattel which, although present on land, does not form part of it. The identification of whether an object is a fixture was described by French CJ, Gummow, Heydon, Crennan and Kiefel JJ in TEC Desert Pty Ltd v Commissioner of State Revenue (WA) [2010] HCA 49; 241 CLR 576 at [24] (quoting with approval National Australia Bank Ltd v Blacker [2000] FCA 1458; 104 FCR 288 at [10]) as follows: Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place. The two considerations which are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation, and second, the object of annexation. See also Holland v Hodgson (1872) LR 7 CP 328 at 334.
Where an item is affixed to land to any extent, then prima facie it is a fixture. Where an item is not affixed in any way but merely rests on the land by its own weight, then prima facie it is not a fixture: see May v Ceedive Pty Ltd [2006] NSWCA 369 at [66] (Santow JA, Mason P and Beazley JA agreeing). It is open to prove to the contrary of these prima facie positions, and there are a multitude of cases addressing particular factual circumstances. Evidence of subjective and objective matters may be considered when determining the purpose for which a chattel is on land, although subjective circumstances will usually not override objective circumstances relevant to determining the purpose of annexation: May v Ceedive at [68]. An intention as to the period of time the item is to remain in position can be significant, as can be the capacity in which a person brings an item onto the relevant land. Ultimately, each case needs to be determined upon its own facts. Examples of fixtures include the dam wall in Lord, the rock anchors in Lakes Edge and the underground pipes and electrical conduits in McIntosh.
Application to the present case
Degree of annexation: In the present case, if the intrusions were above the ground, then their continued presence would clearly be a continuing trespass. They would be structures protruding from a building on the defendant’s land into the airspace of the plaintiff’s land. There could be no annexation to the plaintiff’s land because they would have no contact with, let alone connection to, the plaintiff’s land. They would be in the same category as the intrusions into the airspace described in LJP, Break Fast and Crowe (in relation to the eaves). However, here the encroachments are not in the air above the ground, or even merely resting on the plaintiff’s land. Rather, they are below the ground, within the soil on the plaintiff’s property.
The plaintiff relied upon the statement in Crowe — where the intruding balcony was held to be “connected with, and ancillary to” the defendant’s land (see [71] above) — in support of his submission that the encroaching foundations should be characterised in the same way. It is true that the overpours are not secured to the plaintiff’s soil (other than by being within it), and that the overpours are physically most securely attached to the rest of the footings of each defendant’s wing wall. Nevertheless, I do not consider that an aerial intrusion constituted by the balcony in Crowe (with some minor affixation to the plaintiff’s land by means of the supporting poles) should be characterised in the same way as the subterranean encroachments within the plaintiff’s land in the present case. The fact that the encroachments are embedded within the plaintiff’s land makes a difference. So far as EPL is concerned, it is difficult to assess the validity of the analogy (given in the judgment at [44]) between the encroachment in that case and protruding eaves because the photographs and survey plans which describe the nature of the concrete “lip” that encroached were not produced in the judgment itself: see EPL at [1].
Further, though the overpours are only 35 cm at their maximum extent, they constitute part of the underground footings of structures on land (the wing walls). While the evidence suggested the overpour could be removed safely (although not entirely without risk to the wing walls), doing so would involve excavating the plaintiff’s land so that the encroaching parts of the foundations could be removed. If wholly within the defendants’ blocks, it could not be concluded that an overpoured portion of those footings constituted a chattel, notwithstanding that that portion of the footings could be removed by being cut or ground down. The artificial boundary between the lots, though significant for determining ownership, does not alter the physical degree of annexation.
Object of annexation: It has been held that one of the “useful guides” to the determination of this question (Agripower Barraba Pty Ltd v Blomfield [2015] NSWCA 30; 317 ALR 202 at [81]) is whether the object “has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed”, or on the other hand, whether the object was “fixed merely for a temporary purpose”: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 at 712 (Jordan CJ, Davidson and Nicholas JJ agreeing). It is plain that the footings were poured with the intention that they become part of the land, as they were to support a permanent structure on the land. They are, in that sense, for the better enjoyment of the land or a building on it, namely the wing walls which those footings support.
Relief
Having regard to the conclusion that there is no continuing trespass, judgment must be entered for the defendants.
Had I reached different conclusions as to the nature of the encroachments, a mandatory injunction would have been the appropriate remedy. The good working rule set out in Shelfer, as explained in Break Fast, would not have warranted the award of damages rather than mandatory injunctions. I have accepted Mr Wilson’s evidence that, notwithstanding some uncertainty as to the construction of the wing walls, the concrete encroachments are removable. I do not consider that the good working rule would mean that damages rather than injunctions would have been appropriate. That is because the cost of removal of the encroachments is not trivial and the process, although able to be done safely, will involve some risk to the defendants’ buildings. It would not be oppressive to the defendants to require them to carry out the work.
Costs
Comment
Orders
I certify that the preceding ninety-eight [98] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Dimov
The Owners - Units Plan No 2225
(1989) 24 NSWLR 490
A survey conducted in April 2022 identified that concrete footings for a wall on Block 12 encroached upon Block 2’s western boundary. The encroachment was by 34 cm in from Block 12’s eastern boundary. That is illustrated in the extract from the survey plan:
A further survey in September 2022 identified that footings of a wall on Block 3 encroached at two points on Block 2’s eastern boundary. The extent of the encroachment ranged from 14 cm to 35 cm. That is also illustrated in the extract from the survey plan:
The lengths of the encroachments along the boundaries were not identified in the surveys but, as the plans illustrate, they were relatively modest.
A subsequent survey in April 2023, carried out at the request of the solicitors for the defendants, identified the extent of the encroachment from Block 12 upon the western boundary of Block 2 as being approximately 30 cm, consistent with the earlier survey.
Each encroachment is by the footings of what were described in evidence as wing walls extending beyond the buildings proper along the eastern and western boundaries of Block 2. A geotechnical report disclosed that the wing wall footings (observed in “test pits” dug against the wing wall footings to examine the subsurface profile) were “founded at shallow depth (0.5m deep on the western side [Block 12] and 1.8m deep on the eastern side [Block 3])”. However, the evidence did not disclose the precise depths of the encroaching portions of the wing wall footings.
The evidence disclosed that the edges of the encroaching concrete were uneven. The evidence of an experienced structural engineer engaged by the defendants, Mr Malcolm Wilson, was that the encroachments were constituted by “mostly accidental overpour”, although it was possible that they also included part of the intended footing of the wing wall attached to the building on each block. Given the absence of any uniform encroachment by the footings along the whole length of the wing walls and the jagged nature of the appearance of the concrete on the western boundary, it is more likely than not that each of the encroachments arises from concrete overpour. The evidence of Mr Wilson indicated that such overpour can occur when concrete is poured into a trench without formwork and the void of the trench is greater than that required by the footing as designated. Even if, consistent with the opinion of Mr Wilson, the encroachments are only “mostly” due to overpour and there is some minor part forming part of the intended footings of the wing walls wrongly allowed to extend into Block 2, that makes no difference to the outcome of the case. The wing walls
The encroachments relate to an area at the base of wing walls protruding from the apartment buildings on Blocks 3 and 12 along the boundary with Block 2. In each case, the wing wall was not part of the original design of the buildings but was necessary to include because of fire safety issues that emerged after the initial design. The precise design of the walls and their footings was the subject of some dispute because the plans that were in evidence were insufficiently detailed and it was difficult, even for an expert structural engineer, to match what appeared on the plans with what appeared to be constructed on site. Ultimately, because of the conclusion that I have reached, it is not necessary to reach any final conclusion as to the construction of the wing walls and their footings.
The judgment was upheld by the Court of Appeal: Lakes Edge Developments Ltd v Kawarau Village Holdings Ltd [2017] NZCA 205; 3 NZLR 336
Emmett AJA addressed the matter without specifically addressing the issue of consent or whether the pipes became fixtures. However, his Honour did express agreement with the reasons of White JA: at [121].
Although the issue did not need to be finally determined, the decision in McIntosh provides an example in which subterranean fixtures did not, of themselves, constitute a trespass because they had become part of the land. Because no issue of the use of the pipes arose, the issue could be determined on the basis that the pipes had become fixtures, thereby becoming part of the land and hence being incapable of constituting a continuing trespass.
This was another concrete overpour case. The defendant acquired a property on which there was a retaining wall. The footings of that wall had been overpoured resulting in a lip of concrete protruding from the base of the wall onto the neighbouring property, which was owned by the plaintiff. The issue was whether this was a continuing trespass which allowed the plaintiff to sue.
The court relied upon the decision in McIntosh for the proposition that an owner of land may be liable for a trespass created by a predecessor in title if the new owner continued or adopted a trespass, for example, by maintaining it after the trespass was drawn to the new owner’s attention: at [57]. The court identified that, if what is placed on the plaintiff’s land becomes a fixture (and thus becomes the property of the plaintiff), then there would be no actionable trespass. The court noted that, in Bottos, it was not argued that the concrete overpour had become the property of the Bottos brothers: at [58]. The court concluded that the concrete encroachments, “being part of the structure on [the defendant’s land] … did not become the property of [the plaintiff] … or its predecessor in title”: at [58]. The reasons for this conclusion appear to be those at [40]-[47], which indicate that the court placed emphasis upon the degree of annexation to the defendant’s property: see [43]. The concrete overpour was described as “a fixture to the structure” on the defendant’s land. The court treated the situation as being analogous to an encroachment by the eaves of the building into the airspace of a plaintiff’s land.
Where what constitutes the trespass is a structure in some way attached to a building on adjoining land, then an issue of characterisation will arise. Should the trespassing structure be characterised as a fixture on the plaintiff’s land? If it is a fixture on the plaintiff’s land, then no action based on a continuing trespass will be available, but the plaintiff will be entitled to remove the structure. If it is not a fixture on the plaintiff’s land, then there can be a continuing trespass for which relief is available. This characterisation issue has been resolved differently in different cases based on their particular facts.
Aerial intrusions from a defendant’s land clearly cannot become fixtures on a plaintiff’s land. Examples are LJP (the scaffolding), Break Fast (the cladding) and Crowe (the eaves).
In Crowe, the balcony which intruded upon the plaintiff’s land was attached to the defendant’s building, but also had some supporting poles attached to the plaintiff’s land. It was treated as a single “trespassory structure … connected with, and ancillary to” the defendant’s building. As a consequence, the posts were characterised as part of the defendant’s building, meaning “[t]he continued use of the house … to support the balcony structure should similarly be seen as a continuing trespass”: at [381]-[383].
In EPL, the encroachment was overpour at the footings of a wall which produced a lip of concrete which protruded from the base of the wall onto the adjoining property: at [1]. This was characterised as being a fixture affixed to the defendant’s land because the court placed “more emphasis upon [the] degree of annexation rather than [the] object [of annexation]”: at [43]. It was therefore seen as analogous to the eaves of a building which protruded into the airspace of a plaintiff’s land.
I have described at [13] above that the overpour here results from the concrete simply being poured into a dug trench rather than into any kind of formwork which would have resulted in the footings having straight edges. I do not consider that a different characterisation as to purpose should apply to the footings proper and the overpoured encroaching edges of those footings (to the extent that such a distinction can be made) merely because the edges are shaped to the contours of the earthen hole in which they were poured.
For those reasons, consideration of the degree and object of annexation firmly indicates that the overpours are fixtures of the plaintiff’s land.
There remains the question of whether the mistaken and non-consensual laying of a portion of the footings over the boundary in the plaintiff’s land (either by negligence or by a mistaken understanding of where the boundary lay) alters the chattel–fixture characterisation that would otherwise be determined. The authorities referred to by the parties did not resolve this issue.
The plaintiff submitted that “it is open to find that the encroachments are fixtures that remain the defendants’ property, so they should be removed”. In support of that proposition, the plaintiff relied on the absence of consent to the overpour and more generally the lack of approval for such fixtures on Block 2. That submission is inconsistent with the fundamental principle that underpins the fixture–chattel distinction, namely that “whatever is attached to the soil becomes part of it … [and therefore] become[s] the property of the owner of the land”: TEC at [23], quoting Megarry & Wade: The Law of Real Property (Sweet & Maxwell, 7th ed, 2008) at [23-001]. Consent is not relevant to that analysis. The plaintiff’s submissions, which placed reliance on the first instance decision in Lakes Edge, failed to point out that the primary judge held (at [23]): The status of an object as either a chattel or a fixture depends on an objective assessment of its properties. This assessment is not dependent upon whether the landowner initially consented to its placement on the land. If the object is a fixture, then it forms a part and parcel of the land. The concept of a fixture which remains personal or removable property is a contradiction in terms and an impossibility in law.
This statement was not disturbed on appeal (see the appeal judgment at [53]-[54]).
The plaintiff also submitted that a conclusion that the encroachments were owned by him was hard to reconcile with the encroachments having occurred as a result of the negligent or intentional disregard of his rights. However, such an outcome is more protective of the plaintiff’s rights than one which would leave the proprietary interest with the wrongdoer, and no authority pointed to by the plaintiff was inconsistent with that rationale. It appears to be inconsistent with the primacy given to the ownership of land within block boundaries to treat what otherwise would be a fixture forming part of the plaintiff’s land as not being such because of the non-consensual nature of the affixation arising from the negligence or mistake of the person who affixed it as to its position in relation to a block boundary. So far as the doctrine of fixtures is concerned, the consequences of that negligence or mistake should fall upon the negligent or mistaken party (manifested in that party’s loss of ownership of the object mistakenly affixed) rather than be imposed upon the innocent party. It seems more consistent with the primacy of land-based proprietary rights that the error remains an error and does not alter what would otherwise be the purpose of the placement of the footings within the land for the purposes of the chattel–fixture distinction. That way, a plaintiff may sue on the original trespass (subject to any limitation period), remove the fixture at the plaintiff’s own expense, or even build upon it if seen fit.
For those reasons, the concrete encroachments from each of the defendant’s properties onto the plaintiff’s lands are fixtures and hence part of the plaintiff’s land. They do not give rise to any continuing trespass on the plaintiff’s land.