_State of Qld v Beames_

Judgment (77 paragraphs)

[1]

CONVEYANCING - LAND TITLES UNDER THE TORRENS SYSTEM - SURVEY, DEPOSITED PLAN ETC. - position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law - position of ordinary high water mark at spring tide and mean high water mark - whether area of land increased due to filling or reclamation - ownership of additional land resulting from filling or reclamation

[2]

REAL PROPERTY - CROWN LANDS - position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law

[3]

REAL PROPERTY - FENCING OR BOUNDARIES OF LAND - position of boundary between land owned by registered proprietor and land owned by Crown - effect of s 9 and s 10 Land Act 1994 (Qld) on common law - position of ordinary high water mark at spring tide and mean high water mark - whether area of land increased due to filling or reclamation

[4]

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - whether s 10 Land Act 1994 (Qld) is retrospective in its operation - effect of s 10 Land Act 1994 (Qld) on common law

[5]

Land Act 1994 (Qld), s 5, s 8, s 9, s 10, s 13, Schedule 6.

[6]

Land Title Act 1994 (Qld).

[7]

Transport Operations (Marine Safety) Act 1994 (Qld), s 10.

[8]

Uniform Civil Procedure Rules 1999 (Qld), r 293.

[9]

Attorney-General v Chambers [1854] EngR 733; (1854) 4 De GM & G 206; 43 ER 486 at 215, 489, cited.

[10]

Beames v Leader [2000] 1 QdR 347, considered.

[11]

Brighton and Hove General Gas Company v Hove Bungalows Limited [1924] 1 Ch 372, applied.

[12]

Pascale v Sutherland Shire Council (1995) 87 LGERA 30, applied.

[13]

Southern Centre of Theosophy Inc v South Australia [1982] 1 AC 706, applied.

[14]

Svendsen v State of Queensland and Anor (unreported, Demack J, Supreme Court of Queensland, Rockhampton No 32 of 1996, 29 April 1999), considered.

[15]

RJ Douglas SC and DJ Campbell for the respondent plaintiff

[16]

CW Lohe, Crown Solicitor for the respondent plaintiff

[17]

[1] WILSON J: This is an application by the defendant pursuant to rule 293 of the Uniform Civil Procedure Rules for judgment, together with an application that the plaintiff pay the defendant's costs of hearings on 16 and 30 January 2001 on the indemnity basis.

[18]

[2] The defendant is registered as proprietor of lot 29 on RP 12574 in the County of Stanley, Parish of Bulimba. The land is situated in Gillan Street, Norman Park. It has three boundaries: on one side it adjoins lot 28; on another it adjoins Gillan Street, and its third boundary is Norman Creek. Lot 29 was one of the lots appearing in PC 12574 prepared by Surveyor CE James in 1915 and registered in that year.

[19]

[3] The present location of the Norman Creek boundary of lot 29 is at the heart of the dispute between the plaintiff and the defendant. In consequence of a resurvey, plan 905522 was lodged for registration in March 1997 and ultimately registered after litigation between the present defendant and the Registrar of Titles. That plan is alleged to include in lot 29 some land that is the result of filling or reclamation.

[20]

[4] At common law the boundary of land adjoining tidal water is an ambulatory boundary, ie it is the mean high water mark, which may shift from time to time through natural causes. In Beames v Leader [2000] 1 QdR 347 the submissions of the parties and the judgment of the Court of Appeal proceeded on the assumption that the boundary of lot 29 was the mean high water mark.

[21]

[5] The Land Act 1994 applies to all land, including land below high-water mark (s 5). Chapter 1 Part 4 (ss 8 - 13) is concerned with "Land near high-water mark".

[22]

[6] Sections 9 and 10 of the Land Act 1994 provide -

[23]

9.(1) All land below high-water mark, including the beds and banks of tidal navigable rivers-

[24]

(a) is the property of the State, unless the land is inundated land or a registered interest in the land is held by someone else; and

[25]

(2) To remove any doubt, it is declared that if a tidal navigable river forms the boundary of a parcel of land or a person owns land on both sides of a tidal navigable river-

[26]

(a) the land below high-water mark is and always has been the property of the State; and

[27]

(b) if the line of the high-water mark shifts over time by gradual and imperceptible degrees - the boundaries of the parcel shift with the high-water mark.

[28]

(3) No act to occupy, use, build works or remove material or product, with or without lawful authority, divests the State of its ownership of land below high-water mark.

[29]

10. Land that becomes raised above high-water mark, whether gradually and imperceptibly or otherwise, because of the carrying out of works, belongs to the State and may be dealt with as unallocated State land."

[30]

[7] The "high-water mark" under the Land Act does not denote "the mean high water mark". Rather it is defined as "the ordinary high-water mark at spring tides" (Schedule 6 - Dictionary). For present purposes I accept that they differ in this way.

[31]

(i) The mean high water mark is the line of the medium high tide between the highest tide each lunar month, being the springs, and the lowest tide each lunar month, being the neaps, averaged out over the year (Attorney-General v Chambers [1854] EngR 733; (1854) 4 De G.M. & G. 206 at 215; [1854] EngR 733; 43 E.R. 486 at 489).

[32]

(ii) The ordinary high-water mark at spring tides is the long term average of the heights of two successive high waters during those periods of 24 hours (approximately once a fortnight) when the range of tide is greatest at full and new moon (Svendsen v State of Queensland and Anor, Demack J, Supreme Court Rockhampton No 32 of 1996, 29 April 1999, paragraph [4]).

[33]

[8] The plaintiff alleges that the resurvey plan reflects an increase in area of lot 29 by about 601 square metres. The statement of claim goes on -

[34]

"9. The increase in area reflected in the resurvey plan was made by the alteration of Lot 29's ambulatory boundary with Norman Creek from the ordinary high water mark at spring tide as identified in the 1915 subdivision or alternatively as it was at the time of the 1915 subdivision to a new high water mark identified in the resurvey plan.

[35]

(a) not caused by a shift in the ordinary high water mark at spring tide by gradual and imperceptible degrees of accretion or erosion;

[36]

(b) caused by the reclamation of Norman Creek, by works on and adjacent to Lot 29, which raised up the land, which previously had been below the ordinary high water mark at spring tides, to be land which was above the ordinary high water mark at spring tides ...".

[37]

(Further Amended Statement of Claim filed on 1 February 2001 paras 8A, 9 and 10.) The plaintiff claims title to the added land as unallocated State land.

[38]

[9] As the defendant's counsel submitted, the resurvey plan is not a plan of subdivision creating a new lot 29 of increased area; it is merely a record of the measurement of existing boundaries at the time of the resurvey. See Beames v Leader. Whether the ambulatory boundary of land adjoining a tidal navigable river is the ordinary high-water mark at spring tides, rather than the mean high water mark, depends upon whether the Land Act 1994 has changed the common law definition. In Svendsen v State of Queensland Demack J traced the development of the common law in relation to the boundaries of land adjoining tidal water. He then considered s 77 of the Harbours Act 1955 which fixed the boundary of land bounded by a tidal navigable river as the line of the "high water mark", which was defined as "the ordinary high water mark at spring tides". He then turned to the definition of "high water mark" in the Land Act 1994 and concluded:-

[39]

"32. It follows then that the definition in the Land Act has altered the common law definition. All land in Queensland below high-water mark is the property of the State and high-water mark means the ordinary high-water mark at spring tides."

[40]

In the absence of a ruling on the point by the Court of Appeal, I respectfully adopt that conclusion.

[41]

[10] The defendant complains that the plaintiff has not provided particulars of the alleged unallocated State land sufficient to enable him to identify the land claimed. The absence of any precise measure of the extent of the human intervention makes the identification of the mean high water mark and the ordinary high water mark at spring tides difficult. Not surprisingly, there is dispute as to their location.

[42]

[11] By document dated 14 April 2000 the plaintiff gave particulars of the amended statement of claim filed on 7 December 1999. Subsequent amendments to the statement of claim do not vary the relevant paragraphs sufficiently for those particulars not still to be relevant. In those particulars the plaintiff said -

[43]

(a) The best particulars which the Plaintiff can presently give of the position of the high-water mark at spring tide at the time of the 1915 subdivision is that it approximately equates with a location 2.5 metres further towards Norman Creek than the fixation identified by James in the 1915 survey ...

[44]

(a) There are no words or symbols which constitute identification of the high-water mark in the 1915 survey apart from the reference in the plan to Norman Creek;

[45]

(b) There is no 1915 survey data by which the specific location of the high-water mark may be identified;

[46]

[47]

[12] On the evidence it is not clear whether Surveyor James purported to identify as the boundary of Norman Creek the position "on the ground" of the mean high water mark at the time of his survey, the high bank of the creek or some other feature. As counsel for the defendant submitted, the evidence of Graeme James Rush, a licensed surveyor with the Department of Natural Resources, relied on by the plaintiff, is inconsistent with those particulars. Mr Rush deposed -

[48]

"5. In determining the boundary of lot 29 and Norman Creek (by either MHW or OHWMS) it is necessary to determine the profile of the land before it was modified by human intervention. In my opinion the present profile of the land is different to how it was in 1915.

[49]

6. In 1915 I believe there was a bank at about the position identified by Surveyor James as the boundary between the land and Norman Creek. Below that bank there was an area covered by mangroves. It is on that area (that is, the area formally [sic] covered by mangroves) that fill has been placed which gives the land its present profile.

[50]

7. In my opinion the area formally covered by mangroves would have been below or partly below both the OHWMS and the MHW at that time.

[51]

George John Lettsome Enever, a licensed surveyor with considerable experience in the reinstatement of real property boundaries, prepared the resurvey plan RP 905522. He has deposed to having measured and recorded the position "on the ground' of the mean high water mark at the time of his survey, and in doing so to have concluded that it was a natural position unaffected by human intervention. Mr Rush concluded -

[52]

"18. From the information outlined above I am presently of the opinion that the OHWMS and the MWM [sic] would both be placed at positions presently covered by fill if the 1915 land profile was used. The positions of both boundaries would be different from that shown in Mr Enever's plan...I am of the opinion that Plan No 905522 relating to Lot 29 prepared by Mr Enever does not reflect the Norman Creek boundary of that land in 1915 as it fails to take into account fill with has been placed on the land which extended or raised the land to its present position."

[53]

[13] In his discussion of Surveyor James' survey Mr Rush referred to the "General Directions for the Guidance of Surveyors" issued in 1878. During the period which intervened between the hearing on 8 February 2001 and the delivery of this judgment, the defendant's solicitors wrote to my associate enclosing material which apparently showed that the 1878 directions had been rescinded and replaced by directions issued in 1910. As it was clear that the plaintiff was opposed to my receiving this further material, the parties were advised that the matter would have to be relisted. The defendant's solicitors then advised my associate that their client did not wish it to be relisted. In the upshot, I have not considered the further material. The proper interpretation of the relevant directions (whether they be those issued in 1878 or some other directions), whether Surveyor James followed those directions, and whether he purported to show the mean high water mark at the time of his survey are matters which I cannot resolve on a summary judgment application.

[54]

[14] The proceeding is on the supervised case list. On 15 December 2000 the judge supervising it ordered that -

[55]

"The defendant be granted leave to bring an application for summary judgment to argue the effect of section 10 of the Land Act 1994."

[56]

The application came before me on 16 and 30 January 2001, and again on 8 February 2001. On 16 January, the defendant's counsel explained that in its statement of claim the plaintiff had given particulars of alleged reclamations since 1915, only two paragraphs of which had any relevance to the time since the commencement of s 10 (paragraphs relating to the construction of foundations for a new building and of foundations for a swimming pool); hence it was critical to determine whether s 10 has retrospective effect. The defendant's counsel submitted that it does not have retrospective effect. The plaintiff's counsel conceded that it does not have retrospective effect, and submitted that the common law was applicable until the commencement of s 10, and that the common law was to the same effect as s 10 (transcript p 9 line 50 and following). After further argument the application was adjourned to a date to be fixed to allow further argument on the effect of s 10, including how, if at all, it altered the pre-existing law (both common law and statutory). The concession that s 10 does not have retrospective effect was subsequently withdrawn. On 30 January 2001 I gave the plaintiff leave to amend its statement of claim, and the matter was fully argued on the basis of amended pleadings on 8 February 2001. By then, there were three questions to be considered: the plaintiff's claim pursuant to s 9, the plaintiff's claim pursuant to s 10, and the plaintiff's claim at common law.

[57]

Land Act s 9

[58]

[15] The plaintiff alleges, and the defendant does not admit, that Norman Creek has at all material times been a "tidal navigable river" as defined in s 8 of the Land Act, i.e. a stream where the spring tides ordinarily flow and reflow and where a ship ordinarily used to transport goods can be navigated. Section 8 adopts the definition of "ship" found in s 10 of the Transport Operations (Marine Safety) Act 1994, namely "any kind of boat or other vessel used...in navigation by water or for any other purpose on water" (a definition not concerned with the size of the boat or vessel).

[59]

[16] Section 9 clearly has retrospective effect, as was common ground between the parties. By that section, land below the ordinary high water-mark at spring tides is, and always has been, unallocated State land "unless the land is inundated land or a registered interest in the land is held by someone else." By s 13 land below high-water mark, other than inundated land, may be leased, granted, sold or transferred only under the authority of an Act. Counsel for the defendant submitted that the t the defendant has a registered interest in land below the ordinary high-water mark at spring tides, the title to which is not affected by s 9. As I understood the submission, the land claimed by the defendant is that between the ordinary high-water mark at spring tides and the mean high-water mark, and he claims a registered interest in it on the basis that at the time of the 1915 survey the Norman Creek boundary of lot 29 was ascertained in accordance with the common law, ie it was the mean high water mark. Indeed, I understood the defendant's counsel to contend that the mean high water mark still is the boundary for the purposes of the Land Title Act. I do not accept that it is, because the effect of s 9 and the definition of "high-water mark" in the Land Act was retrospectively to alter the common law in relation to the boundary of land adjoining a tidal navigable river. (It may be that of the legal definition of the boundary of lot 29 had already been altered by s 77 of the Harbours Act 1955. However, that point was not fully argued, and it is unnecessary to determine it on this application.) In my view the reference in s 9(1)(a) to land in which someone else has a registered interest is a reference to land below high-water mark that has been dealt with under the authority of an Act as contemplated by s 13. Having regard to the retrospective operation of s 9, lot 29 is to be regarded as not including and as never having included land below the ordinary high-water mark at spring tides.

[60]

Land Act s 10

[61]

[17] The defendant's counsel submitted that the plaintiff cannot succeed because it cannot prove that the land has become raised above high-water mark since the commencement of s 10 of the Land Act, which is not retrospective. The plaintiff contends that it is retrospective.

[62]

[18] Counsel for the defendant submitted that, in contrast to s 9, s 10 is not expressed to be retrospective, and that the use of the present tense suggests that it was not intended to be so; moreover, there is a rebuttable presumption against retrospectivity. Senior counsel for the plaintiff submitted that the retrospective effect of s 10 is indicated as a matter of language and proximity to s 9, from the operation of other sections such as s 11, and from looking at the whole of part 4, which deals with boundaries of land near the high-water mark comprehensively and necessarily retrospectively.

[63]

[19] The presumption against the retrospective operation of legislation is a strong one. That, coupled with the contrast in wording between s 9 and s 10, leads me to the conclusion that the Legislature did not intend s 10 to be retrospective. The argument based on s 11 (which, expressed in the present tense, provides that land that becomes raised above high water mark is within the local government area of adjoining land) is not a compelling one, especially when it was not shown that it changed the pre existing law in this regard.

[64]

[20] Senior counsel for the plaintiff submitted that his client could succeed regardless of whether s 10 has retrospective effect, because s 9(2) prescribes the only circumstance in which the boundary may shift; s 10 merely confirms s 9(2) and largely reflects the common law position that title to land cannot be gained by undertaking works intended to augment other land.

[65]

[21] The works which have been carried out since 1915 in the vicinity of the Norman Creek boundary of lot 29 and their effect are matters of fact for determination at trial. At common law the doctrine of accretion applied to gradual and imperceptible changes from natural causes, even though those changes had been assisted by or would never have taken place but for man-made works, such as the construction of a groyne to prevent erosion or the building of a bridge, provided the works were not performed with the intention of augmenting the land: Brighton and Hove General Gas Company v Hove Bungalows Limited [1924] 1 Ch 372; Pascale v Sutherland Shire Council (1995) 87 LGERA 30; Southern Centre of Theosophy Inc v South Australia [1982] AC 706 at 720. Section 10 has changed the common law in this regard: in providing that land that becomes raised above high-water mark, whether gradually and imperceptibly or otherwise, because of the carrying out of works, belongs to the State. It makes no exception for unintentional accretions resulting from such works. Section 10 being, in my view, prospective only, the extent of changes unintentionally wrought by man-made works before 1 July 1995 will have to be taken into account in determining the present boundary of lot 29.

[66]

(1) A declaration that the plaintiff is the owner of the land comprising the bed and banks of Norman Creek, Brisbane in the State of Queensland contiguous with or adjacent to Lot 29 on Registered Plan 12574, County of Stanley, Parish of Bulimba:

[67]

(a) below the ordinary highwater mark at spring tides, being the long term average of the heights of two successive high waters during those periods of 24 hours (approximately once a fortnight) when the range of tides is greatest at full and new moon;

[68]

(b) alternatively below the mean high water mark, being the line of the medium high tide between the highest tide each lunar month, being the springs, and the lowest tide each lunar month, being the neaps, averaged out over the year,

[69]

but, in either case, ignoring the effect of any reclamation works undertaken on or adjacent to lot 29;

[70]

(2) A consequential declaration as to the true boundaries of such lands [sic];

[71]

(3) An order that the Registrar of Land Titles bring in and register a re-survey plan reflecting such true boundaries [sic];

[72]

[23] The first declaration sought reflects the difference between the ordinary high-water mark at spring tides (para (a)) and the mean high water mark (para (b)). Whether Norman Creek is, and has at all material times, been a tidal navigable river will have to be determined at trial. Assuming it is, the view I take of s 9 leads me to conclude that the former represents the boundary, but my conclusions that s 10 is not retrospective and that it changes the common law result in there being issues of fact which must go to trial. Similarly, conflicts in the surveying evidence need to be resolved in order to determine the true boundary of lot 29.

[73]

[24] I am satisfied that there are issues which ought to go to trial: The defendant's application for summary judgment is accordingly dismissed.

[74]

[25] As I have recounted, this application was made pursuant to leave granted by the supervising judge to allow argument on the effect of s 10 of the Land Act. Because of the plaintiff's change of position on that issue, it should be ordered to pay the defendant's costs of the hearings on 16 and 30 January 2001. In all the circumstances I accede to the defendant's application for those costs on the indemnity basis. Otherwise, the costs of the application should be reserved to the trial judge.

[75]

1. That the defendant's application for summary judgment be dismissed;

[76]

2. That the plaintiff pay the defendant's costs of and incidental to the hearings on 16 and 30 January 2001 to be assessed on the indemnity basis;

[77]

3. Subject to order 2, that the costs of the application be reserved.

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Judgment (77 paragraphs)

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