Whittlesea City Council v Abbatangelo [2009] VSCA 188

Whittlesea City Council v Abbatangelo [2009] VSCA 188 - VSCA 2009 case summary — Zoe

[10]

The law is clear enough. A number of the basic principles were summarised by Slade J in Powell v McFarlane. Thus, pertinently:

"It will be convenient to begin by restating a few basic principles relating to the concept of possession under English law:

(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner.

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... It is impossible to generalise with any precision as to what acts will or will not suffice to evidence factual possession ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.

(4) The animus possidendi, which is also necessary to constitute possession, ... involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow ... the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the [requisite] animus possidendi and consequently as not having dispossessed the owner."

To those principles should be added and/or highlighted the following:

[11]

"When the law speaks of an intention to exclude the world at large, including the true owner, it does not mean that there must be a conscious intention to exclude the true owner. What is required is an intention to exercise exclusive control: see Ocean Estates v Pinder [1969] 2 AC 19. And on that basis an intention to control the land, the adverse possessor actually believing himself or herself to be the true owner, is quite sufficient: see Bligh v Martin [1968] 1 WLR 804.
As a number of authorities indicate, enclosure by itself prima facie indicates the requisite animus possidendi. As Cockburn C.J. said in Seddon v. Smith (1877) 36 L.T. 168, 1609: 'Enclosure is the strongest possible evidence of adverse possession.' Russell L.J. in George Wimpey & Co. Ltd. v. Sohn [1967] Ch. 487, 511A, similarly observed: 'Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.
It is well established that it is no use for an alleged adverse possessor to rely on acts which are merely equivocal as regards the intention to exclude the true owner: see for example Tecbild Ltd. v. Chamberlain, 20 P. & C.R. 633, 642, per Sachs L.J.
A person asserting a claim to adverse possession may do so in reliance upon possession and intention to possess on the part of predecessors in title. Periods of possession may be aggregated, so long as there is no gap in possession.
Acts of possession with respect to only part of land claimed by way of adverse possession may in all the circumstances constitute acts of possession with respect to all the land claimed. ...
Where a claimant originally enters upon land as a trespasser, authority and principle are consistent in saying that the claimant should be required to produce compelling evidence of intention to possess; in which circumstances acts said to indicate an intention to possess might readily be regarded as equivocal. ...
At least probably, once the limitation period has expired the interest of the adverse possessor, or of a person claiming through him, cannot be abandoned.[2]

[96]

The absence of the fence along the eastern boundary of the disputed land may be used in support of the claim by Mrs Laurice Abbatangelo but, in my view, so too might its presence. I am not inclined to disbelieve the direct testimony of the members of the Abbatangelo family about the absence of the fence from some time in the mid 1980s in circumstances where its absence makes sense, is consistent with other evidence, and its presence would, on one view, not be fatal to Mrs Laurice Abbatangelo's claim whilst, on another view, could assist the claim if there had been a fence. In addition, it seems clear that the Council in 2004 thought that there was certainly no structure sufficient for a fence and, accordingly, took steps to build one. That they might have done so on a line with old remnants appearing as a fence in earlier aerial photos may be an explanation for the apparent inconsistency between the lay witnesses and the expert evidence but, in the circumstances, I am not disposed to disbelieve the lay witnesses on this matter. I should also add, if it were necessary for me to do so, that my visual inspection of aerial photographs taken in 1984 and 1987 (in particular) but also those taken in 1989, 1991, 1992, 1998 and 2000, lead me [to] conclude that there was not a fence on the eastern boundary of the disputed land, or, if there was, that it was little more than some remnants of a fence. It is clear from the 1987 photograph that if there was a fence along that boundary, it was quite different from the one within the Abbatangelo property which started from the north-eastern corner of the disputed land: that fence (wholly within the Abbatangelo property) is clear and stands out in a visual inspection. The contrary evidence of the photogrammatrists is, at best, of the existence of some structure along the eastern boundary of the disputed land amounting to a fence. The evidence was not that the fence they could see through the stereoscope was anything like the others clearly visible to the naked eye on the other aerial photographs. The difference between the fence which Mr Watts said that he could detect through the stereoscope was quite different from that running from the north-east corner of the disputed land on the Abbatangelo property to their northern boundary. The fact that the fences are different does not assist the defendant because that too would show a treatment of the boundaries of the disputed land to suit the uses and conveniences of the plaintiff in disregard of others.

A similar issue arose for consideration in Traykof v Shanco Holdings Pty Ltd where the photogrammic evidence of a Mr Watts was described as "the only objective evidence of the land" in the years in question. In that case the decision of the trial judge was overturned because it could not be reconciled with the objective photogrammic evidence. In this case I am faced with the evidence of Mr Watts being in stark contrast with the direct evidence of individuals who should know the facts (but whose evidence I am urged not to accept), the inferences from the evidence of third parties (for example Mr Hanlon) or from events (for example the injury to the horse) and conduct (for example the construction of a fence by the council in 2004) and my own inspection of aerial photographs (but without the 'benefit' of the impact of the creation of a three dimensional impression from other aerial photographs viewed through a stereoscope). The photographs used by Mr Watts for his evidence do not show a fence after 1986 without the assistance of the stereoscope which created a three dimensional impression when two photographs were put side by side and looked at through the viewer. The evidence of Mr Potter was less positive than that of Mr Watts in expression or as primary focus of inquiry. In those circumstances, if it mattered, I would prefer the direct evidence of witnesses which accords with my own observations from photographs to the indirect interpretation by Mr Watts from impressions manufactured by aid of a stereoscope.[33]

At a glance

Court

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Judgment (216 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)