State of New South Wales v Carver

INTRODUCTION

1. The plaintiff is the Crown in right of the State of New South Wales (the Crown).
2. The first defendant (Mr Carver) is a solicitor of this Court. He has practised in conveyancing for 45 years.
3. The second defendant (Mr Burrows) no longer has any role to play in these proceedings.
4. On Crown land in the Sutherland Shire to the south of Sydney, on the southern bank of the Georges River at Illawong, west of Old Ferry Road, stand a number of separate structures ostensibly built with the intention of being lived in. They have at various times been described as cottages.
5. The NSW Government department responsible for the administration of the area is the Department of Planning, Industry and Environment (the Department). The Department was previously known as, or was part of what was previously known as, the Department of Land and Water Conservation. Either way, it is not in dispute that whatever government department dealt with Mr Carver, was acting on behalf of the Crown.
6. One of the cottages is identified as Cottage H. I will refer to it as the Cottage. It is located partially on Crown Plan 22617-3000 and on a Crown Reserve below the mean high water mark. No part of it is on Torrens Title land. The Crown Plan covers what it describes as the Georges River State Recreation Area.
7. Figure 1 is a recent photograph of the Cottage at low tide. Figure 2 is a photograph of it at high tide. Figure 1 Figure 2
8. Mr Carver has occupied the Cottage (and therefore the land on which it stands) since 1996. The Crown has demanded that he vacate it and deliver up possession of the land on which it stands. He has refused to do so.
9. By these proceedings, which were commenced by Summons on 23 December 2021, the Crown seeks orders for possession of the land.
10. It is not in dispute that the Cottage is on Crown land. It is not in dispute that the onus of establishing a defence rests on Mr Carver.
11. He raises two matters in defence of the Crown's claim.
12. First, he argues that the claim is statute barred.
13. Second, he argues that the Cottage is not affixed to the land but is a chattel owned by him. He argues that the consequence of this is that the Crown has no entitlement to possession of its land because the Cottage is Heritage Listed and therefore he cannot demolish or remove it without planning permission. Although I will later consider whether the Cottage is or is not a chattel, because the answer to that question may impact on who is responsible for it, self-evidently, even if the Cottage is a chattel, this cannot preclude the Crown from getting possession of its land (with or without the Cottage). Additionally, there are statutory provisions (which are referred to below) for the removal of any structures on Crown land and for the removal of trespassers.
14. It is not in issue that demolition or removal of the Cottage will require development consent from the local consent authority, the Sutherland Shire Council.
15. There is no evidence that such consent would not be granted. I was informed from the bar table that it has been applied for. There is material in the evidence which indicates that occupation of the Cottage has the potential to pose public health and safety risks. The flood risk is self-evident from Figure 2.
16. To begin with, he also contended that the Crown is precluded by an equitable estoppel from asserting its right to possession of the Cottage because it induced him to believe that he could remain in the Cottage and, to his detriment, he spent money on it. Leaving aside all other difficulties with this proposition, there was no evidence to support it and it was correctly abandoned during argument.

HISTORY

1. The Cottage was constructed, it appears, in the 1930s.
2. In 1935, a Permissive Occupancy (or PO) for the Cottage was granted, possibly to a Mr Price. It may be that a PO had been granted as early as 1903 because in the records of the Department, it has the designation PO1903/410. More about what a PO entails, is said later.
3. Either way, the Cottage was occupied by a Mr and Mrs (Sylvia Joan) Price pursuant to the PO. Mr Price apparently predeceased Mrs Price.
4. In a Submission to the Minister dated 25 November 1977, the Department recommended, in relation to the PO for the Cottage, that it be allowed to remain for the natural lives of the occupants, then terminated and improvements removed, and that no transfer was to be permitted other than to a surviving spouse.
5. On 1 March 1978, the Department wrote to Mrs Price that it had been decided not to terminate the PO, but to allow "pensioners to remain for their natural lives, then the Permissive Occupancies will be terminated and the occupations removed." The letter stated that no transfer of the PO would be permitted other than to the surviving spouse.
6. Mrs Price passed away in June 1980.
7. Records of the Department for late 1980 reveal that there was a review of occupancies fronting the Georges River. A report of the review says, in relation to the PO of the Cottage, that the beneficiary of Mrs Price's estate or the Public Trust Office should be advised that the Cottage has to be demolished within 6 months and the area left clean and tidy. The report states "upon satisfactory removal, the Permissive Occupancy will be terminated".
8. Mrs Price's son, Mr William Hood (Mr Hood), then apparently rented the Cottage to tenants. In a letter dated 10 February 1981, the Department informed him that this was a breach of the conditions of the PO and that it "is to be terminated and the structures will have to be removed". He was directed to remove the Cottage within 6 months and leave the area in a clean and tidy condition.
9. On 6 August 1981, Mr Hood wrote to the Department asking for a copy of the PO and any correspondence between the Department and Mrs Price or her deceased husband over the previous 5 years.
10. Departmental records record that as at 1984, the holder of the PO was Mrs Price, that its purpose was Residence and Swimming Enclosure and that the rental was "$40-00 minimum".
11. Departmental records disclose that as at 22 July 1999, "the current occupant, unauthorised, as per most recent record on file", was Mr Hood, who was believed to be the son of Mrs Price, and that the rent was $70.
12. However, in 1997 (according to his affidavit sworn 19 May 2023) Mr Carver had already taken up residence in the Cottage. There is no evidence that he paid any rent to the Crown.
13. He gave oral evidence under cross-examination that he was on the other side of the river and "saw this little house on Old Ferry Road". He spoke to a Mrs Madden who was living in another of the cottages, who gave him the name of the person she said was in charge of the Cottage, namely, Ms Pat Hood (Ms Hood). He says that Ms Hood told him that there was no lease and that "everybody down here is illegal". He says he offered to purchase the house from her for which he paid her a monthly amount. He understood that Ms Hood had no title to the Cottage and that she had nothing to give him except the house. His affidavit evidence was different. In his affidavit sworn 9 June 2022, he said he reached an agreement with Ms Hood whom he understands to be the owner of the Cottage. Paragraph 3 of that affidavit reads: HISTORY OF COTTAGE OCCUPATION- I am divorced. In 1996, my sons, namely Dean and Mark, for whom I .had the custody of, moved into occupation at the present cottage named Cottage H and I had reached an agreement with M/s Pat Hood (the landlord) who was , as I understand to be the owner of the cottage. It was agreed that the sum of $150 per week would represent rent which was ceased after 12 months. It was agreed that I would occupy the cottage in its present condition and all improvements were my responsibility.
14. He was not challenged on the divergence between his versions of having bought the Cottage and having rented it. However, in paragraph 2 of his affidavit sworn 19 May 2023, he referred to liaising with a Department official, Mr Paul Layt. The material in evidence includes a file note, the date of which is obscured, but which records a phone call between Mr Carver and Mr Layt in which Mr Carver informed him that he was the occupant of one of the cottages (which dates the communication as post-1996). The file note states "Apparently he is a solicitor & is paying $100 to the holder of the PO". The contemporaneous material is consistent with his affidavit evidence and inconsistent with his oral evidence.
15. I interpolate that on 16 October 2013, Mr Carver wrote to the Department applying for a Licence "for PO". In his letter, he stated that he was renting the PO and Cottage from Ms Pat Hood, and that subsequently Ms Hood relinquished the PO and the Department cancelled it.
16. Departmental records reveal that during the period January 1992 to April 2008, numerous payments were received by the Department in respect of the PO. These records disclose (amongst others) various payments of $70, paid by cheque by an unknown payee. However, they record that from January 2000 to February 2007, payments were made by P E Hood. The evidence does not establish the circumstances under which these payments were made but the inference is irresistible that payments were made in consideration for the occupation or right of occupation of the Cottage.
17. On 9 April 2014, the Department wrote to Mr Carver, telling him that his occupation was unauthorised and had the potential to pose public health and safety risks to any occupants and the community generally. The Department requested him to vacate such of the buildings that he still used or occupied as soon as possible. He did not vacate.
18. On 6 January 2020, the Department wrote to Mr Carver, stating that his occupation of the Cottage is unauthorised and requiring him to vacate it by 31 January 2020. He did not vacate.
19. On 23 January 2020, Mr Carver (on his professional letterhead) wrote to the Department on his own behalf and on behalf of Mr Burrows who, at that time, occupied another cottage. He stated that there had been many meetings over the past 24 years and undertakings by the Crown that their occupancies were protected. He made the following statement: Over the period of 24 years in occupation, and 34 years in respect to Burrows, we have been seeking to obtain some clarification and tenure of our residences and willing and offering to pay any License fees or occupation fees.
20. He went on to assert that the buildings of "Carver and Burrows" are owned by them and not by the Crown.
21. On 30 March 2020, the Department once more wrote to Mr Carver, amongst others, responding to his letter of 23 January 2020 and stating that they had not granted tenure of the land or provided any undertakings or guarantees agreeing to Messrs Carver's and Burrows' ongoing occupation of the land.
22. On 23 July 2020, the Department wrote to Mr Carver requiring him to remove all personal possessions and vacate the land by 30 September 2020. The Department informed him that they intended to apply for a trespasser order, but the Department did not apply for one.

Relevant statutory enactments

1. At this point, it is appropriate to identify the statutory framework that applies to Crown land in New South Wales and the statutory provisions pertinent to Mr Carver's limitations defence, as well as to say something about POs.

Legislative Framework for Crown Lands and Permissive Occupancies

1. Between 1913 and 1918, the legislation governing Crown land was the Crown Lands Consolidation Act 1913 (NSW) (the 1913 Act). The 1913 Act was repealed by the Crown Lands Act 1989 (NSW) (the 1989 Act) and that Act was in turn repealed, and all legislation pertinent to Crown land was consolidated, by way of the enactment of the Crown Land Management Act 2016 (NSW) (the 2016 Act), which came into force on 1 July 2018.
2. An informative general synopsis of the statutory framework pertinent to Crown land and a summary of the provisions relevant to POs is contained in B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Company) (Butt), Ch 15 at [15.10]-[15.270]. Additionally, a useful summary of the legislative history of POs was set out by the High Court in Broadcast Australia Pty Ltd v Minister Assisting the Minister for Natural Resources (Lands) (2004) 221 CLR 178; [2004] HCA 4 (Broadcast Australia). At [2] and [4], the High Court said, amongst others, as follows (footnotes omitted): [2] In New South Wales for many years before 1958 it had been the practice of the Lands Department to grant "permissive occupancies" of Crown lands for various purposes, including grazing, boatsheds, jetties, slipways and the extraction of sand and gravel. The Department assumed that it had the power to do this, and that assumption was shared by Parliament in various pieces of legislation, but there was thought to be no express legislative authority for it, and in particular not in the Crown Lands Consolidation Act 1913 (NSW) ('the 1913 Act'). In 1958 challenges to the validity of two permissive occupancies were brought respectively in the Equity Court and the Land and Valuation Court of New South Wales. The government thereupon introduced a Bill on 22 October 1958 in order to place beyond doubt the "title" which it was intended to create by those and all other permissive occupancies, which numbered 16,500, and the right of the relevant Minister to continue the practice of granting them. … [4] The matter proceeded with haste. On 22 October 1958 the Bill was read a first time in the Legislative Assembly; on 23 October 1958 it was read a second time, went into Committee and was read a third time; on 28 October 1958 it returned from the Legislative Council without amendment; and on 3 November 1958 royal assent was given. The effect was to amend the 1913 Act by the insertion of s 136K. Sub-section (1), in its current form, provides: "The Minister may grant permissions to occupy Crown lands, whether above or below or beyond high water mark, or whether reserved from lease or license or not, for such purposes and, subject to this section, upon such terms and conditions as to him may seem fit." Sub-section (5) relevantly provides: " … [A] permission to occupy Crown lands granted under subsection (1) shall be terminable at will by the Minister."
3. The juridical nature of POs has been considered by various courts. The authorities are collected in Butt at [15.100]. But as the learned author points out, the High Court in Broadcast Australia (at 186 [15] fn 20) remarked that the proper characterisation of a PO depends on a close analysis of its particular conditions. In this context, it is to be observed that s 136K(1) does not specify that any particular person must be identified as the object of the permission. On the literal wording of the section, the Minister could grant permission for the occupation of lands on the basis that whilst the permission endures, whomever then occupies the lands becomes liable for any rental.
4. Section 11 of the Crown Lands (Continued Tenures) Act 1989 (NSW) provided that Part 6 of Schedule 2 of that Act applies to and in respect of POs. Paragraph 1 of Part 6 of Schedule 2 provided: 1 Payment of rent etc (1) The rent, royalty, security deposit and any other money payable under the provisions of an Act repealed by the Principal Act in respect of a permissive occupancy are, subject to this Act and the Principal Act, payable under this Act as if those provisions were contained in this Act. (2) Subject to this Act and the Principal Act, any amount shown as payable in the records of the Department in respect of a permissive occupancy is, unless the contrary is proved, payable in the manner and at the time indicated in those records. (3) The rent of a permissive occupancy is payable in advance.
5. Paragraph 5 of Part 6 of Schedule 2 provided: 5 Termination A permissive occupancy is terminable at will by the Minister.

Provisions for the Removal of Improvements when a Holding Ends

1. Part 7 of the 2016 Act is headed "Alienation, withdrawal and forfeiture of holdings". Section 7.16 contains provisions which apply if a holding ends because it is forfeited, surrendered, terminated or ceases to have force for any other reason. Relevantly, the end of the holding results in all improvements to the land becoming property of the Crown without any compensation being payable. It also provides that the Minister may recover the cost of removing an improvement and making good any damage to the land (including to other improvements) from the former holder in any court of competent jurisdiction as a debt due by that person to the Crown. "Improvements to land" is defined to include any structures in and on the land, including any building, post, pile, stake, pipe, chain, wire or any other thing fixed to the soil or to anything fixed to the soil.

Provisions for the Removal of Trespassers from Crown Land

1. Part 9 of the 2016 Act is headed "Protection of Crown Land" and, amongst others, contains provisions for the removal of trespassers to Crown land. Section 9.11(1) provides that an authorised officer may apply to the Local Court for an order authorising the officer to deal with a person as a trespasser of specified Crown land. The Part also contains machinery for the enforcement of such an order.

Limitations Provisions

1. The relevant sections of the Limitation Act 1969 (NSW) (the Limitation Act) are: 8 Saving of specified enactments (1) Nothing in this Act affects the operation of - … (b) section 13.1 of the Crown Land Management Act 2016, or … 27 General (1) An action on a cause of action to recover land is not maintainable by the Crown if brought after the expiration of a limitation period of thirty years running from the date on which the cause of action first accrues to the Crown or to a person through whom the Crown claims. … 38 Adverse possession (1) Where, on the date on which, under this Act, a cause of action would, but for this section, accrue, the land is not in adverse possession, the accrual is postponed so that the cause of action does not accrue until the date on which the land is first in adverse possession. (2) Subject to subsection (3), where a cause of action accrues to recover land from a person in adverse possession of the land, and the land is afterwards in the adverse possession of a second person, whether the second person claims through the first person or not, the cause of action to recover the land from the second person accrues on the date on which the cause of action to recover the land from the first person first accrues to the plaintiff or to a person through whom the plaintiff claims. (3) Where a cause of action to recover land accrues and afterwards, but before the cause of action is barred by this Act, the land ceases to be in adverse possession, for the purposes of this Act - (a) the former adverse possession has no effect, and (b) a fresh cause of action accrues on, but not before, the date when the land is first again in adverse possession. (4) For the purposes of this section - (a) adverse possession is possession by a person in whose favour the limitation period can run, (b) possession of land subject to a rentcharge by a person who does not pay the rent is possession by the person of the rentcharge, and (c) in a case to which section 33 applies, receipt of the rent by a person wrongfully claiming to be entitled to the land subject to the lease is, as against the landlord, adverse possession of the land. (5) Where land is held by joint tenants or tenants in common, possession by a tenant of more than his or her share, not for the benefit of the other tenant, is, as against the other tenant, adverse possession. 65 Property (1) Subject to subsection (2), on the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of Schedule 4, the title of a person formerly having the cause of action to the property specified opposite the cause of action in column 2 of that Schedule is, as against the person against whom the cause of action formerly lay and as against the person's successors, extinguished. (2) Where, before the expiration of a limitation period fixed by or under this Act for a cause of action specified in column 1 of that Schedule, an action is brought on the cause of action, the expiration of the limitation period does not affect the right or title of the plaintiff to property specified in column 2 of that Schedule in respect of which the action is brought - (a) for the purposes of the action, or (b) so far as the right or title is established in the action. (3) This section does not apply where the cause of action is for conversion or detention of goods and, before the expiration of the limitation period fixed by or under this Act for the cause of action, the person having the cause of action recovers possession of the goods.
2. There are pertinent limitations provisions in both the 1989 Act and the 2016 Act.
3. Section 170(1)(d) of the 1989 Act provided: 170 Limitation on acquisition of title by possession against the Crown (1) Title to any land of the Crown which has been: … (d) reserved in a Crown grant or recorded in a folio of the Register as being reserved to the Crown, may not, on the basis of adverse possession, be asserted or established against the Crown or any persons holding the land in trust for a public purpose.
4. Section 170(5)(b)(i) provided: (5) This section does not affect the title to any land: … (b) which the Crown was debarred from recovering by the operation of the Crown Suits Act 1769 or the Limitation Act 1969: (i) at the date of assent to the Crown Lands (Amendment) Act 1931 in the case of land referred to in subsection (1),
5. Section 13.1(1)(b) and (c) of the 2016 Act provide: 13.1 Limitation on acquisition of title by possession against Crown (1) Title, based on adverse possession, cannot be claimed or established against the Crown for any of the following - … (b) any land of the Crown that has been dedicated or reserved under the Crown Land Acts or any other Act for a public purpose, (c) any other Crown land.
6. Section 13.1(3)(b) of the 2016 Act provides: (3) This section does not affect - … (b) the title to any land referred to in section 170 (5) of the Crown Lands Act 1989 immediately before the Act's repeal.
7. Clause 3(1) of Schedule 1 to the 2016 Act provides that a continued PO becomes a licence under the 2016 Act. Clause 31 of Schedule 1 provides that, subject to this Schedule, any amount shown as payable in the records of the Department in respect of a continued PO is, until the contrary is proved, payable in the manner and at the time indicated in those records.
8. Paragraph 32 of the Crown Land Management Regulation 2018 (NSW) provides for rent to be paid annually in advance and that the Minister may terminate the licence at the Minister's absolute discretion.

Brief summary of how sections 27, 38 and 65 of the Limitation Act work

1. For the convenience of the reader, the following is a brief summary of how ss 27, 38 and 65 work: 1. a cause of action to recover land is not maintainable by the Crown after the expiration of 30 years from the date it arose. 2. the cause of action will not accrue where the land is not in adverse possession and is postponed so that it does not accrue until the land is in adverse possession. 3. if a cause of action accrues against a person in adverse possession and thereafter the land is in the adverse possession of a second person, the cause of action to recover from the second person arises on the date upon which the cause of action arose against the first person. In other words, a second adverse possessor gets the benefit of the adverse possession of a predecessor adverse possessor. 4. if the cause of action accrues and then, but before it is barred, the land ceases to be in adverse possession, the former adverse possession has no effect, and a fresh cause of action only arises when the land is again in adverse possession. 5. when the limitation period expires, the title of the person against whom the cause of action formerly lay and against the person's successors, is extinguished. The practical effect of this is that the "squatter" acquires the prior owner's title.

Adverse Possession

1. It is now appropriate to set out the legal principles which relevantly relate to adverse possession. The following principles emerge from the authorities cited below: 1. section 38(4)(a) of the Limitation Act defines adverse possession as possession "in whose favour the limitation can run". This phrase is directed not to the nature of the possession, but to the capacity of the squatter: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30 at [35] per Lord Browne-Wilkinson, who gave as an example of a person not in adverse possession and in whose favour the limitation could not run, a trustee who is unable to acquire a title by lapse of time against the trust estate. 2. adverse possession involves two elements, physical possession and an intention to possess, sometimes referred to as animus possidendi. Whether these elements are established is a question of fact. Physical possession requires an appropriate degree of physical control, which depends on the circumstances, in particular the nature of the land and the manner in which it is commonly used and enjoyed. Animus possidendi is an intention by the possessor on her or his own behalf to exclude the world at large, including the owner with the paper title, so far as is reasonably practicable and so far as the process of the law will allow. The relevant intention is that of the claimant. 3. the possession must be peaceful and not have been acquired by force (nec vi), be open and not stealthy (nec clam) and not be by consent of the true owner (nec precario). These requirements were articulated by Bryson J in Beever v Spaceline Engineering Pty Ltd (1993) 6 BPR 13,270 as "actual, open, visible, notorious, continuous and hostile to the title of the true owner". See: Hughes v Griffin [1969] 1 WLR 23; Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464; Powell v McFarlane (1979) 38 P & Cr 452; BP Properties v Buckler (1987) 55 P & Cr 337; National Australia Bank Ltd v Golden Sea Dragon (Hobart) Pty Ltd (1992) 4 Tas R 250; Lee v Ferno Holdings Pty Ltd (1993) 33 NSWLR 404; Shaw v Garbutt (1996) 7 BPR 14,816; Cooke v Dunn (1998) 9 BPR 16,489; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419; [2002] UKHL 30; McGuren v Simpson [2004] NSWSC 35; McFarland v Gertos (2018) 98 NSWLR 954; [2018] NSWSC 1629; Braye v Tarnawskyj [2019] NSWSC 277; (2019) 19 BPR 39,213; Healey v Fraine [2023] EWCA Civ 549.
2. It will be readily apparent that the notions of animus possidendi and possession without consent are related. Where the possessor seeks the owner's consent, this will be destructive of the suggestion that the possessor has the necessary intention, even more so, if the owner gives consent expressly or implicitly. In such a case, the possession will also not be nec precario.

Mr Carver's Contentions

1. Mr Carver's submissions, as I understood them, are that: 1. upon Mrs Price's death, the PO for the Cottage terminated (without any necessity for revocation by the Minister) because her rights under the PO were purely personal. I took him also to argue that the PO had been terminated by the Crown on the basis that Mrs Price had been notified that the PO "will be terminated" after the death of the pensioners living in the Cottage; 2. the possession then taken by the Hoods (or, either of them), in or about 1981, was adverse possession for the purposes of s 38 of the Limitation Act and remained so until Mr Carver took possession; 3. Mr Carver's possession likewise was adverse when he took it and it remained adverse up to and including the date on which the Crown commenced these proceedings; 4. the Crown's cause of action to recover its land (within the meaning of s 27(1) of the Limitation Act) accrued against the Hoods in 1981; 5. by operation of s 38(2) of the Limitation Act, the Crown's cause of action against Mr Carver is taken to have accrued in 1981; and 6. the Crown's claim therefore became statute barred in 2011.

The Crown's Response

1. The Crown's submissions are that: 1. section 13.1 of the 2016 Act precludes Mr Carver from relying on adverse possession to defeat the Crown's claim to recover the Cottage (I interpolate that Mr Carver's response to this, after discussion with the Court, was that s 13.1 does not apply because he is not claiming or seeking to establish title); 2. the Hood's possession was not adverse because of one or more or all of the following: 1. the PO continued to operate until it was expressly terminated; or 2. the Hoods did not have the requisite animus possidendi because they paid rent or otherwise recognised the Crown's superior title; or 3. they were there with the Crown's consent; 1. Mr Carver's possession was not adverse because: 1. the PO was on foot (until 2009); and 2. he did not have the requisite animus possidendi because rent was paid (until 2007); and 3. on various occasions he applied for a licence or for his occupation to be regularised.

Consideration

1. For the following reasons, Mr Carver's submissions cannot be accepted.
2. By s 13.1 of the 2016 Act, Mr Carver cannot establish title against the Crown in respect of the land on which the Cottage stands. If Mr Carver's contention that the Crown is statute barred was upheld, the consequence by virtue of s 65 of the Limitation Act, would be that he would establish title to the land. This is precluded by s 13.1. [1]
3. Mr Carver bears the onus of establishing that the PO came to an end. He has not discharged that onus. The precise terms of the PO are not in evidence. Whether it terminated or continued would depend on its terms. It is not possible to determine that it was personal to Mrs Price, in the sense that it was not transmissible or that it did not pertain to any subsequent lawful occupier of the land, until terminated by the Minister. The evidence does not establish that the Minister terminated it prior to 2009. The departmental records reflect an intention to terminate it, but do not reflect any actual termination prior to 2009. To the contrary, the departmental records reflect, to the extent that it is relevant, an understanding that it continued.
4. The precise circumstances under which either of the Hoods took occupation of the Cottage, are not revealed by the evidence. However, so far as Mr Hood is concerned, his letter dated 6 August 1981 seeking information about his mother's occupancy is, if anything, inimical to a suggestion that he had animus possidendi, but more importantly, rent continued to be paid to the Crown.
5. Although the Crown's position was that the Hoods were unauthorised occupants, the Crown continued to accept rent and did nothing formally to terminate the PO relating to the Cottage or to enforce an eviction.
6. Mr Carver has not established that the PO was not on foot when he took possession. More importantly, however, I find that he paid rent to Ms Hood as he deposed at paragraph 3 of his affidavit of 9 June 2022. This is destructive of any suggestion that he had animus possidendi at the time he took possession and for the time that he paid rent. The date upon which he took occupation is within his knowledge. When the 12 months expired is not revealed by the evidence.
7. His various requests for a licence or regularisation (by way of his letters dated 16 October 2013 and 23 January 2020) are also destructive of any suggestion that he had animus possidendi at any time.
8. Finally, although Mr Carver never persisted with his estoppel claim, the averments made by him in his verified Further Amended Defence filed on 14 June 2023, include as "Particulars of Inducement" that on no less than 3 occasions Mr Carver spoke to Department officers regarding the possibility of granting a licence and that the officers advised him that he would have or would gain an interest by virtue of a grant of a licence arrangement. His own pleading is destructive of his claim that his possession was adverse.

the chattel defence

1. The applicable principles under common law relating to whether an item is a fixture are settled and set out in Forge Group Power Pty Limited (in liq) (mgrs and recs apptd) v General Electric International Inc [2016] NSWSC 52 at [79]; (2016) 305 FLR 101: Whether an item has become a fixture depends upon the objective intention with which the item was put in place, having regard to the degree and object of annexation, but each case depends on its own circumstances: Agripower v Blomfield [2015] NSWCA 30 at [74]-[81]; (2015) 317 ALR 202.
2. The considerations that the courts generally ought to take into account in determining the purpose or object and degree of annexation were set out by Conti J in National Australia Bank Ltd v Blacker (2000) 104 FCR 288; [2000] FCA 1458 at [13]-[14], as follows: Purpose of annexation [13] In determining the purpose or object of annexation, a variety of considerations may be taken into account. The court ought as a general rule to have regard to: • Whether the attachment was for the better enjoyment of the property generally or for the better enjoyment of the land and/or buildings to which it was attached: see Hobson v Gorringe at 190; Leigh v Taylor [1902] AC 157 at 158; Reid v Smith at 680-1; Litz v National Australia Bank Ltd (1986) Q Conv R 54-229 at 57,550. • The nature of the property the subject of affixation: Metal Manufacturers Ltd v FCT at 411. • Whether the item was to be in position either permanently or temporarily: Australian Provincial Assurance Co Ltd v Coroneo at 712-13. • The function to be served by the annexation of the item: see, for example, Attorney-General (Cth) v RT Co Pty Ltd (No 2) (1957) 97 CLR 146 at 156-7 where printing presses were secured to a concrete foundation by nuts and bolts in order to keep the printing presses steady when in operation. The degree of annexation [14] In determining the degree of annexation, the court may consider the following: • Whether removal would cause damage to the land or buildings to which the item is attached: see Hellawell v Eastwood (1851) 6 Ex 295 at 312; 155 ER 554 at 561; Adams v Medhurst & Sons Pty Ltd (1929) 24 Tas LR 48 at 49; Spyer v Phillipson [1931] 2 Ch 183 at 209-10. • The mode and structure of annexation: Leigh v Taylor at 162; Teaff v Hewitt 1 Ohio St 511 referred to by Griffith CJ in Reid v Smith at 667; Boyd v Shorrock (1867) LR 5 Eq 72 at 78. • Whether removal would destroy or damage the attached item of property: Litz v National Australia Bank Ltd at 57,549. • Whether the cost of renewal would exceed the value of the attached property: Metal Manufactures Ltd v FCT at 411.
3. The Cottage has stood, as a residence, for close to 100 years and has been so occupied over the entire period.
4. In paragraph 13 of Mr Carver's affidavit of 9 June 2022, he deposes to having experienced 2 bushfires, 2 floods and many storms. He gives evidence of surrounding homes having been damaged but does not suggest that the Cottage was damaged. The Cottage has withstood these tests.
5. The Cottage rests on piers sunk into the bed of the Georges River and objectively viewed, was plainly built to stay there, and it has.
6. Mr Carver himself has lived in the Cottage for some 25 years.
7. I find that the Cottage has acceded to the land.

Conclusion

1. The plaintiff is entitled to the orders it seeks.
2. I make the following orders: 1. Judgment for possession of the land referred to as the land of the Crown that is located below the mean high water mark of the Georges River, being land of the Crown that adjoins the Georges River National Park comprised in Crown Plan 22617-3000 (also known as Cottage H). 2. Provisionally, I order the first defendant to pay the plaintiff's costs of the proceedings. This order will solidify 7 days after this judgment is handed down unless either party notifies my Associate in writing that some other order is sought, identifies the terms of the order and provides brief reasons for the order sought. In the event that either party gives such notification, the order will be dissolved and I will give directions for the determination of any costs issues. 3. The plaintiff has leave to issue a writ of possession forthwith. The writ is to lie in the Registry for not less than 42 days from the date of this judgment. This order (3) is stayed for a period of 7 days commencing from the date of this judgment.
3. The exhibits are to be returned.

Endnote

1. Section 170(5)(b)(i) of the 1989 Act preserved an adverse possession claim against the Crown which had arisen at the date of assent to the Crown Lands (Amendment) Act 1931 (NSW) - but relevantly, not otherwise. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2023