Monash City Council v Melville [2000] VSC 55

5. The land in question is owned by Monash City Council as successor in title of the City of Waverley. The Registrar gave notice of the application to the Council, which then lodged a caveat under s.26R and, pursuant to s.26R(6)(a), then commenced proceedings in this Court against the Melvilles as firstnamed defendant, and the Registrar as secondnamed defendant.

8. The Melvilles issued a counterclaim against the Council seeking declaratory relief confirming that they have been in possession and occupation of the land continuously and exclusively since 1964 and have acquired title by adverse possession.

11. The claim and counterclaim were listed for a 10 day hearing before me, to commence on Friday 25 February, at which time counsel for the Monash City Council confirmed the advice given to the Court some three days earlier that his client no longer wished to pursue its claim. He advised that Council intended to withdraw its caveat, although it had not yet done so. Counsel advised that the only issues that now required my attention were the questions of costs and the form of the orders which should be made. Upon discussion, however, it emerged that there were still significant areas of dispute between the parties. In particular, Monash City Council submitted that I should not proceed to hear the counterclaim, save to the extent of making a declaration (by consent) that the Melvilles are now entitled to proceed with their application before the Registrar. That position had been taken also in the letter of advice to the court dated 22 February 2000 from the plaintiff's solicitors.

14. Counsel for Monash City Council submitted that upon the withdrawal of the caveat the Registrar would have power under s.26R(3) to proceed to deal with the application by the Melvilles and he submitted that it should be left to the Registrar to deal with the matter, and the court itself should make no order, nor declarations concerning the matter (apart from the declaration discussed earlier). For reasons given at the time, I did not accede to that submission and upon dismissing the claim by Monash City Council (which did not resist that order) I proceeded to hear the counterclaim brought by the Melvilles.

17. The evidence relating to the counterclaim was tendered by affidavit, as had been earlier ordered by Warren J to be the means by which the evidence would be tendered at the trial. Although counsel for Monash City Council remained during the hearing he took no further part in those proceedings, but indicated that his client wanted to be heard, generally, on questions of costs.

20. The only order sought (apart from costs) by the Melvilles on the counterclaim was a declaration that the Melvilles have acquired title by possession to the land in question. The size of the claimed area of land has been reduced from that originally specified in the pleadings, but only to correct a small error in the calculation made by a surveyor, and the size of the area now claimed is some 428 square metres.

23. Very many affidavits have been filed in support of the counterclaim. A significant number of affidavits had also been filed by the solicitors for the plaintiff Council, but counsel for the Melvilles submitted that, given the fact that the plaintiff no longer maintained its action (that claim having now been dismissed) and did not seek to be heard in opposition to the Melvilles' counterclaim, I should have no regard to those affidavits filed by the plaintiffs.

26. I agree that that is the appropriate manner in which I should proceed, although it leaves me with the position that there is no contradictor as to the facts or law relevant to the application brought by counterclaim.

29. Both Mr and Mrs Melville are solicitors, as are two of their sons who also filed affidavits in support of the counterclaim. Additionally, I have affidavits made by friends of the family, by other family members, by deponents who produced significant evidence relating to surveys which have been made on the land over many years, and by persons who were familiar with the area and could attest to the apparent usage of the disputed land over many years.

32. It is unnecessary that I examine the affidavits separately in the course of these reasons. What they disclose are the following facts, which remain uncontroverted.

35. In 1964 the Melvilles purchased the land now known as 27 Regent Street Mount Waverley, on a terms contract of sale, which purchase was completed in 1996. The block ran east west with entrance from Regent Street being on the east. The land was vacant land and its boundaries were not fenced. There was however a row of pine trees which ran along the approximate northern boundary of their property. To the north of those pine trees was an area of land with an old post and wire fence running in an east west direction.

38. The Melvilles built a house on their land, in which they resided and reared their family. At some time after 1978 they constructed a steel dropper and wire fence to the north of their land. Rather than run a fence along what they knew to be the boundary of their own property, which ran, roughly, along the line of the pine trees, they choose to erect the new fence along the same line as that taken by the old fence, that is on land owned, as they knew, by the predecessor of the Monash City Council. In 1992 they replaced the western most 25 metres of that steel dropper and wire fence with new high steel post and wire mesh fencing. That fence was located slightly to the south of the existing steel dropper fence because of a large gum tree, which was in the way.

41. Having thus fenced the land, the Melvilles thereafter used, as their own, the land now the subject of these proceedings, together with the land to which they held title. The area thus gained comprised bush, low shrub, seedling trees, but was gradually cleared and tidied by the Melvilles. As photographs show, it is now very attractive, treed land. The claimed land had formerly been part of a large area held by the predecessor Council as public open space, and known as Valley Reserve.

44. Since 1966 the Melvilles have been in possession of the disputed land to the exclusion of anyone else, without interruption and without claim of ownership having been asserted by anyone else. They used the land as a garden area, have stored firewood on it, have planted shrubs, and have removed blackberries and other infestations from it. The fencing, both the original and the later fencing was quite apparent to any person passing the boundary, but no complaint about its presence was ever made by the Monash City Council or its predecessor. Over the years the Council has performed much beautification work and gardening work on Valley Reserve but, with one exception, has never sought to perform such work on the land now under claim. The Melvilles or their agents have performed such gardening work as was needed on the claimed land.

47. The one exception was when the council sought to remove a hawthorn tree, which was on the disputed land, it being the only non-native tree on the land. The council wanted it removed because it was non-native but to do so the Council sought permission from the Melvilles to enter the land and remove the tree. The Melvilles granted that permission, and - at the expense of the Council - planted a native tree where the old tree had stood. After that occurred the Melvilles extended the high steel post fence to a point being the northern projection of the western boundary of their property. The disputed land was thus completely enclosed (save for a very small area, which was fenced later).

50. Between 1998 and 1990 the council served a fire hazard notice on the Melvilles relating to the claimed land and they complied with it. The Melvilles have not paid rates on the claimed land.

53. I received affidavits from a surveyor and also friends and family of the Melvilles, which together with survey plans which were tendered show without question that the old fence existed on the disputed land at the time when the Melvilles acquired the title to their block. Those plans show that the existing fence was some 20 feet to the north of the northern boundary of the Melvilles land, and I am satisfied that there was no other fence erected between the line of that old fence and the northern boundary of the Melville's land. A survey plan produced by surveyor, Alan Brown, in 1965, showed what he called the "remains of a post and wire fence", and when he re-examined the land in 1999 he found one very old fence post with remains of old fencing wire.

56. One deponent, Christopher Kloppenborg, a real estate agent who resided in Regent Street from the early 1960's to the early 1970's, described the old fence as forming an effective boundary between the Melvilles land and the valley reserve to the north, but other witnesses described the fence when they saw it as being derelict.

59. Mr and Mrs Melville deposed that the old post and wire fence was in approximately the same position as the present steel dropper and wire mesh fence, ( which I take to be the same as what is called elsewhere the star picket fence) That fence, as shown on a survey plan by William Pattison (exhibit 1), runs parallel to and about 20 feet to the north of the northern boundary of the Melvilles' property for an approximate distance of about two thirds the length of the northern boundary, at which point, on the survey plan, it joins the point where the, later added, high steel post and wire mesh fence commenced. That fence then ran for the last, westernmost, third of the length of the property.

62. Mr and Mrs Melville deposed, however, that the steel dropper and wire mesh fence, when first installed, ran parallel to and for the entire length of the northern boundary of their property. They do not specify a date in their own affidavit as to when that occurred, save that it is subsequent to 1978, but as I later conclude, it was at a time longer than 15 years ago. The Melvilles deposed that in 1992 the western most 25 metres of the steel dropper and wire mesh fence was replaced with the high steel post and wire mesh fence, although the new fence was located slightly to the south of the fence it replaced so as to avoid a gum tree.

65. The plan produced by Mr Pattison suggests that the original old fence ran parallel to and for the entire length of the Melvilles' property and beyond, but it seems unlikely that there could have been a fence which was actually there for that length, and certainly not as a complete fence, when the Melvilles purchased the property.

68. Mr and Mrs Melville depose in an affidavit that the old post and wire fence was for much of its length overgrown by tea trees, blackberries and other shrubs and small trees, and that a row of tea trees had been planted along some of its length. They added, however: "where the fencing had broken, the tea trees and shrubs along the fence line combined with the remnants of the fence to make an effective boundary between the land applied for and the remainder of Valley Reserve".

71. I would not conclude that the old fence was, itself, a particularly effective barrier to any animals or persons seeking to gain entry to the claimed land. Nor could I conclude that it ran the entire length of what is now the northern boundary of the claimed land. Thus, I could not be satisfied that the old fence represented a complete enclosure of the claimed land. However, defective as it may have been, when coupled with vegetation which had grown over it, the fence nonetheless provided a substantial delineation, and barrier, between the balance of Valley Reserve, to the north of that fence line, and the land now under claim. In any event, the steel dropper and wire mesh fence, which substantially replaced it, has been on the land well in excess of 15 years. One witness, David Sutherland Smith, recalled the new fence being erected in about 1979, and that thereafter it provided an effective and substantial barrier between the reserve and the land to its south. Antony Melville, a solicitor, and a son of the firstnamed defendants, also deposed that the steel dropper and wire mesh fence had been present well in excess of the last 15 years.

74. Affidavits of persons living in the neighbourhood, demonstrate that they regarded the disputed area as being part of the Melvilles' property.

77. As is clear from the many supporting affidavits filed in the case, the disputed land was used by the Melvilles and their children for a range of activities, including parties, horse riding, and recreation generally. It has been cleared over time and vegetation been planted making it effectively an extension of the garden of the Melvilles' property.

80. By s.8 of the Limitations of Actions Act 1958 no action for the recovery of land may be brought after the expiration of 15 years from the date of accrual of the right of action. Section 14 provides that the right of action to recover land does not accrue unless and until the land is the subject of adverse possession.

83. The question, then, is whether on the basis of the evidence placed before me, and which is uncontradicted, I should conclude that the Melvilles have made out their case for the declaration they seek as to their acquisition of a possessory interest by virtue of adverse possession.

86. The question must be determined by having regard to the peculiar facts and circumstances relevant to the specific case. To succeed in a claim for adverse possession the claimant must show that for the relevant period he had both factual possession, to the exclusion of others, and the requisite intention to possess the claimed land to the exclusion of others. To constitute the appropriate degree of actual possession the possession must be actual, open (that is without stealth), continuous and exclusive (and without the licence of the actual owner). Enclosure will itself amount to prima facie evidence of the necessary intention: see Buckinghamshire County Council v Moran[1]. The physical features of the land are also relevant, and in this case there is a natural dip between the Reserve to the north of the old fence line and the land to its south.

89. Although the Melvilles in an affidavit, to use their words "deny wrongfully entering onto the land applied for" they nonetheless assert that they have been in actual possession, to the exclusion of all others, since 1966. Given the fact that they are both solicitors, and chose to fence what is now the northern boundary of the claimed area, rather than to fence what they knew to be the northern boundary of their own land, the conclusion is inescapable that they well knew, and intended by their actions, that the taking of such steps might later place them in the situation of being able to assert a claim based on adverse possession over what was known to be land set aside as open space for the benefit of the public.

92. I have had regard to the fact that the claimed land is a part of public open space held with the intention that it be used by the public as a reserve. It has, over later years, been developed to that end, although the Council did not similarly develop the claimed land. In Riley v Pentilla[2] in setting out the principles relevant to determining whether there had been adverse possession, applied what has been called the rule in Leigh v Jack[3]. In that case Bramwell LJ, at 273, held that to be a dispossession of the owner's rights, acts must be done over the land which are inconsistent with the purpose for which the owner intended to use it, and where the intended future use was not to cultivate the land or to build on it but to use it as a reserve for public purposes, it would not be dispossession if some person takes possession of it in the meantime.

95. That rule was apparently approved by the Court of Appeal in Treloar v Nute[4], but in the subsequent decision of that court in Powell v McFarlane[5] and in the Buckinghamshire County Council case, the court substantially modified the scope of the rule. In the latter case Slade LJ, with whom the other members of the court agreed, adopted his statement from the earlier case, and also approved the reasons of Stamp LJ in Wallis' case[6], to the effect that the rule had to give way to an examination of all the facts and circumstances of the case, where those facts otherwise demonstrated that adverse possession had, indeed, occurred.

98. To the limited extent that the rule still applies its effect, now, is as follows. Where the trespassers' acts had not been inconsistent with the future planned use, not therefore manifesting the requisite intention of dispossessing the owner, one might conclude that the requisite elements for adverse possession had not been established; Likewise, it may more readily be concluded that the requisite elements to constitute adverse possession had not been established where the land is waste land and the possessor had not done any acts to manifest an intention to dispossess the owner.

101. However, where the trespasser had done acts which plainly manifested an intention to dispossess the owner, and where the acts would otherwise lead to the conclusion that adverse possession had been established, the fact that the land was waste land or was set aside for some future public purpose, did not introduce any special rule which gainsaid that conclusion.

104. In the present case the evidence which I have considered leads to the conclusion that all of the requisite factors relevant to the question whether there has been adverse possession for the requisite period, favour that conclusion.

107. Accordingly I conclude that the Melvilles have made out their case for the declaration which they seek on their counterclaim, and I will make the appropriate orders, after discussing the precise terms of the order with counsel. I next turn to questions of costs on the claim and counterclaim.

[1] [1989] 3 WLR 152 at 166-168 per Slade LJ

[2] [1974] VicRp 67; [1974] VR 547, at 561-2 Gillard J

[3] (1879) 5 Ex D 264

[4] [1976] 1 WLR 1295

[6] [1975] QB 94 at 109-110