SUPREME COURT OF NORFOLK ISLAND Forrester v Bataille [2003] NFSC 2 REAL PROPERTY – Land title – Claim of adverse possession of strip of land marked in a deed of partition as "Reserved Road" – Whether land is a public road – Whether there was an acceptance by members of the public of the invitation contained in the deed – Finding of no acceptance – Finding that each plaintiff has been in adverse possession of relevant part of the strip for a period exceeding 12 years – Previous title extinguished – Whether plaintiff thereby obtained title. Limitation of Actions (Real Property) Act 1988 (NI) ss 9, 31 Permanent Trustee Company of New South Wales v Council of the City of Campbelltown (1960) 105 CLR 401 followed J A Pye (Oxford) Ltd v Graham [2002] UK HL 30; [2002] 3 All ER 865 applied JOHN KENNETH FORRESTER v ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS and CURATOR OF ESTATES OF DECEASED PERSONS SC 6 of 2002 MARK KNIGHT CAREY v ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS and CURATOR OF ESTATES OF DECEASED PERSONS SC 7 of 2002 WILCOX J 20 JUNE 2003 SYDNEY (Heard at Norfolk Island) IN THE SUPREME COURT SC 6 of 2002 OF NORFOLK ISLAND No 6 of 2002 OF NORFOLK ISLAND BETWEEN: JOHN KENNETH FORRESTER PLAINTIFF AND: ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS FIRST DEFENDANT LYNETTE SALLY BEBAN as CURATOR OF ESTATES OF DECEASED PERSONS SECOND DEFENDANT JUDGE: WILCOX J DATE OF ORDER: 20 JUNE 2003 WHERE MADE: SYDNEY (HEARD AT NORFOLK ISLAND) THE COURT ORDERS THAT: 1. It be declared that the plaintiff, John Kenneth Forrester, holds title to so much of the land designated, in the Deed of Partition registered as dealing 1290, as "Reserved Road Parallel to Cliffs – one chain wide" as abuts Portion 1d, Norfolk Island. 2. The matter of costs be reserved. IN THE SUPREME COURT OF NORFOLK ISLAND SC 7 of 2002 BETWEEN: MARK KNIGHT CAREY PLAINTIFF AND: ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS FIRST DEFENDANT LYNETTE SALLY BEBAN as CURATOR OF ESTATES OF DECEASED PERSONS SECOND DEFENDANT JUDGE: WILCOX J DATE OF ORDER: 20 JUNE 2003 WHERE MADE: SYDNEY (HEARD AT NORFOLK ISLAND) THE COURT ORDERS THAT: 1. It be declared that the plaintiff, Mark Knight Carey, holds title to so much of the land designated, in the Deed of Partition registered as dealing 1290, as "Reserved Road Parallel to Cliffs – one chain wide" as abuts Portions 1e and 1f, Norfolk Island. 2. The matter of costs be reserved. IN THE SUPREME COURT OF NORFOLK ISLAND SC 6 of 2002 BETWEEN: JOHN KENNETH FORRESTER PLAINTIFF AND: ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS FIRST DEFENDANT LYNETTE SALLY BEBAN as CURATOR OF ESTATES OF DECEASED PERSONS SECOND DEFENDANT IN THE SUPREME COURT OF NORFOLK ISLAND SC 7 of 2002 BETWEEN: MARK KNIGHT CAREY PLAINTIFF AND: ALLEN VINCENT ALBERT BATAILLE as REGISTRAR OF LANDS FIRST DEFENDANT LYNETTE SALLY BEBAN as CURATOR OF ESTATES OF DECEASED PERSONS SECOND DEFENDANT JUDGE: WILCOX J DATE: 20 JUNE 2003 PLACE: SYDNEY (HEARD AT NORFOLK ISLAND) REASONS FOR JUDGMENT WILCOX J: 1 Two adjoining landowners, John Kenneth Forrester and Mark Knight Carey, each claims to have established title by adverse possession to a strip of land adjoining his land in the Cascade district of Norfolk Island. The claim is contested by two public officials, Allan Vincent Albert Bataille, as the Registrar of Lands, and Lynette Sally Beban, as the Curator of Deceased Persons. The defendants contend the disputed strip is a public road. 2 As the same issue arises in each case, by consent, the two matters have been heard together. The facts (i) The history of the land 3 The whole of the land with which these cases are concerned was included in a parcel of 55 acres, 3 roods and 28 perches granted by the Governor of Norfolk Island to Matthew Quintal on 14 September 1859. The parcel was known as Portion 1. 4 Matthew Quintal died on 8 December 1865. By his will, dated 7 September 1865, he devised to Adeline Christian an area of "4 acres of land, from where my cornground is and come down to Frederick's land". He devised the remainder of his land, in the events that happened, to Fletcher and Susan Nobbs. 5 It is not clear whether Adeline Christian ever entered into possession of the four acres devised to her by Matthew Quintal. It was not until 1931, after her death, that this land was formally identified and legally severed from the balance of Matthew Quintal's land. 6 On 9 June 1931, a Deed of Partition was executed by numerous people who were collectively described in the deed as "all the persons entitled to the land". This deed was registered as dealing 1290. It divided the land into six parts. An area of about 12 acres (identified as Portion 1d) was released and assured to Fletcher Christian Nobbs. Portions 1e and 1f, each of about 6 acres 1 rood, and Portion 1g, of about 7 acres, were released and assured to Beatrice Young, either absolutely or until her sister came to Norfolk Island; which she apparently never did. Portion 1c was released and assured to "representatives of Adeline Christian, their heirs and assigns". 7 The final parcel of land in the partition was the strip of land that is the subject of these proceedings. This strip lies between the northern boundary of the land granted to Matthew Quintal and the northern boundaries of Portions 1d, 1e and 1f. The strip was marked on the diagram within the Deed as "Reserved Road Parallel to Cliffs – one chain wide". At its eastern extremity, the reserved road reached the western boundary of Portion 1g. Therefore, if the strip were accessible, at some point, to the existing public road system, it would have provided public access to each of Portions 1d, 1e, 1f and 1g. (ii) Mr Forrester's claim 8 By a further deed, registered as dealing 1291, the parties to the earlier deed formally assigned Portion 1d to Fletcher Christian Nobbs. Fletcher Christian Nobbs died in 1954. He left Portion 1d to his grandson, Chris Dunsmere Pedel. Mr Pedel sold the land in 1968. There followed a series of transactions by virtue of which, on 28 November 1980, Portion 1d became vested in Kevin Ransford Pereira and Jill Ashley Pereira. By this time, the area of Portion 1d was being expressed in metric measurements, as 5.007 hectares. 9 On 19 January 1982 Mr and Mrs Pereira executed a Notification of Interest. It was registered as dealing 8448. The notification referred to their acquisition of lot 1d. The notification went on: "3. Partitions registered numbers 1290 and 1291 both dated 9 June, 1931, and subsequent dealings and plans refer to a purported road 1 chain (20.115 metres) wide along the cliff top over (inter alia) the land. 4. We have not, and we deny that our predecessors in title or any of them have at any time, in fact or by implication, dedicated the said purported road to be a public road or public way, at least so far as concerns the land. 5. If any dedication of the said purported way is to be found or implied then we say that: (a) No public road or public way has been created over the purported road because the public has failed to accept and use it as a public road or public way, at least so far as concerns the land; and (b) Intention to dedicate the said purported road as a public road or public way has been revoked by implication by the passage of time and before its acceptance and use by the public as a public road or public way, at least so far as concerns the land, and to the extent (if any) that the same has not been revoked, at least so far as concerns the land, we revoked it immediately upon taking title to the land on 28th November, 1980 and we now confirm that revocation. 6. No public road, public way, easement or right of way of any kind exists over the land." 10 By conveyance 8973, dated 20 July 1983, Mr and Mrs Pereira conveyed Portion 1d to John Kenneth Forrester, the plaintiff in matter SC 6 of 2002. Mr Forrester immediately registered a Notification of Interest in relation to the strip of reserved road. It was expressed in the same terms as the previous notification. 11 In an affidavit read at the hearing, Mr Forrester said: "4. I am aware that there is a narrow strip of land of varying width but approximately 1 chain in width between the top of the cliff and Portion 1d and that there is a similar strip of land between the top of the cliff and the neighbouring land Portion [sic] 1e and 1f now owned [sic] Mark Carey. 5. This strip of land, marked on maps as a 'Reserved Road', meets the end of Young's Road on Portion 5a where the rock quarry is now located. On the Official Survey, by scale, this strip of land seems to be about 10 metres wide where it adjoins Young's Road, 6. The abovementioned strip of land has never during my period of ownership of Portion 1d been used for access to that portion. On the basis of my researches I am not aware of the strip of land ever being used for access to Portions 1d, 1e, 1f or 1g. It has been virtually physically impossible to access Young's Road on Portion 5a from this strip of land because of landfalls and quarrying activities. 7. Access to Portions 1d, 1e, 1f and 1g are only by of the current roadway known as Off Mill Road. 8. I am aware that this roadway was the subject of a Supreme Court decision by Eggleston J. in the 1967 case of Burgess v Randall. 9. During the period I have owned Portion 1d the boundary with Portion 1e has always been completely fenced to the cliff-top. In the mid 1980s I planted Norfolk Island oak trees along the strip as part of the ongoing maintenance and beautification of my property. This area is mown regularly as part of the lawns surrounding our house. 10. During the period we owned Portion 1d my wife and I considered the strip along the cliff top to be part of our land and we would have taken any lawful and necessary steps to exclude persons trespassing onto that land." 12 In oral evidence it emerged that "Off Mill Road" runs to the southern boundary of Portion 1c. In construction, it is an unsealed track. However, the parties conducted these proceedings on the basis that, at law, it is a public road. The track continues through Portion 1c to a point at the southern boundary of Portion 1d and the western boundary of Portion 1e. The judgment of Eggleston J mentioned by Mr Forrester (Burgess v Randall, Supreme Court of Norfolk Island, 27 September 1967, not reported) established there was here a public road 25 links wide; but it is not clear to what extent the track is located on the dedicated public road. However, it is accepted that Mr Forrester is entitled to traverse Portion 1c in gaining access and egress between his property and Off Mill Road. 13 Mr Forrester was asked whether he was aware, at any time, of any persons seeking to use the clifftop road reserve strip "for access or to pass or to repass along that area". He replied: "The answer to that is no, but when we bought the land we also had another legal document that indicated that that land was ours, as did my predecessor. It has all been considered a part of that property and in my time I've never had anybody at any time ask did they have any right to be on that part of the land. It is impassable from the western side. There's a drop of 300 feet or, thereabouts and it's impossible to get to my property off the end of Young's Road. It is literally a sheer cliff, as you will see this afternoon." 14 Young's Road is a public road that runs approximately south-north towards the sea. It is currently constructed to a lookout high above the foreshore, on which is located the ruins of a whaling station. 15 During the course of cross-examination, it was put to Mr Forrester that, if Portions 1e, 1f and 1g were separately owned, and there was no clifftop public road, Portion 1g would become landlocked. He replied: "No, I don't accept that at all. That's all very well saying that, but if you say that is landlocked, on that road running from the edge of 1d land at the northern end of the cliff, you can't get to the bottom of it. It is 300 feet high. It's not a road. It's a drop, a sheer drop." (iii) Mr Carey's claim 16 Mr Carey is the present owner of Portions 1e, 1f and 1g. He has owned the land since March 1990. 17 It appears Mr Carey's grandfather was an executor of the estate of Beatrice Young, the conveyee of three portions under the 1931 Deed of Partition. In 1958 the grandfather conveyed the three Portions to himself and his son, Harvey McKay Carey. The grandfather died in 1960. Harvey McKay Carey died in 1989, leaving the property to Mark Knight Carey, the plaintiff in matter SC 6 of 2002. 18 In his affidavit, Mr Carey referred to the strip of land marked "Reserved Road". He said: "… I am not aware of the strip of land ever being used for access to Portions 1e, 1f and 1g. In approximately 1970 when I was about 16 years of age I attempted to travel on foot along Young's Road from the lookout at Fredericks Edge towards our land. A substantial landslip on the cliff edge of Portion 5a and Portion 1d had made this impossible. Quarrying activities on portion 5a since then have completed the destruction of the cliff top and road at Portion 5a. The perimeter of Portions 1e, 1f and 1g are fenced. The boundary between Portion 1e and Portion 1d has been completely fenced to the cliff-top for as far back as I can recall. I was of the understanding that this fence was erected to keep cattle out back when portion 1d was used to cultivate bean seed. Access to Portions 1e, 1f and 1g are by of the current roadway known as Off Mill Road. As far back as I can recall this has been the only access to our land. I am aware that this roadway was the subject of a Supreme Court decision in 1967. While I am not sure of the legal status of the abovementioned strip of land I and my family have considered it as no different to the rest of the land we own and would have taken any necessary steps to exclude persons trespassing onto that land." 19 Mr Carey was not cross-examined. (iv) The claimed public road 20 In affidavits filed in each proceeding, Mr Bataille, the first defendant, set out the history of the subject land. He gave oral evidence that Young's Road connects with the subject reserved road, but it became clear he was speaking of a paper connection. There is no formed connection. Mr Bataille referred to a quarry that lay between the lookout on Young's Road, the limit of the road construction, and Portion 1d. However, according to his recollection, the quarry commenced only in the early 1970s. So the fact of the quarry did not necessarily negative the possibility of a road opening having been effected before that commencement. 21 At the parties' request, I viewed the subject land. Before departing for the view, I discussed with counsel the purpose of the view. I pointed out that a view was sometimes used only for the purpose of the Court better understanding the evidence in the case. On other occasions, the view was treated as itself constituting evidence, the Court being entitled to take into account its observations on the view irrespective of whether there was oral or documentary evidence about the matters observed. I said that, if the parties agreed on the second alternative, it would seem appropriate for me to draw my observations to their attention, so that they might deal with them. The parties agreed on the second alternative. 22 I found the view highly instructive. It made me realise the impossibility of there ever having been any vehicular access between Young's Road and the reserved road, regardless of the quarry, and the extreme difficulty of even foot access. On resumption of the hearing, on the morning after the view, I said: "I think I should state for the record that after the Court adjourned yesterday, in company with the parties and their legal representatives, I inspected the area the subject of these two claims. In accordance with the procedure that was discussed before we adjourned, I indicated to the parties views that I formed on the inspections and I will record those. We went first to the northern extremity of lot 1d, the land owned by Mr Forrester. The plan indicates that the northern boundary of the land, which is the subject of this action, is marked with the words 'top of cliff'. There is not a sheer drop at that point. However, the land, which is already sloping to the north, increases in slope to the point where, to put it mildly, it would be extremely risky to go very much further to the north. At the eastern end of lot 1d, at the boundary with 1e, the land cuts back to the south at a point much closer to the boundary than the cutback shown in the section of area called 'road reserve' on the plan. The result of this is that, I think without any question, the area which is shown as 'road reserve', abutting and to the north of lot 1e, would in fact be over a void, the land being probably 20 metres below at that point. After we inspected the northern end of lots 1d and 1e, we went around to Young's Road and stopped the vehicles at a barrier which is obviously erected for safety reasons. This was still some distance south of the seafront and probably 200 or 300 metres from the nearest point of lot 1d. As one looked through the barrier, there was a very steep hill down to the seafront and it would be very difficult again, at the least, to put a road down to the water and to a point where it could connect with the road reserve shown on the plan the subject of this proceeding. We then went down to the water near the quarry. Leaving aside the effect of the quarry, there would have been an extremely steep hill to connect the eastern boundary of Young's Road to the road reserve marked on the plan. It seems to me quite plain that this could never have been trafficable in a vehicle and, indeed, only the fittest and most skilled climbers could have progressed over that by foot, in my judgment. I pointed these matters out to the parties. The ramifications of them will be discussed in argument." 23 I should add two riders to this note. First, at the time of the inspection, there was some confusion as to the significance of a survey mark that was visible on the steep hill leading up from the waterfront to the plateau that contains the bulk of Portion 1d. Evidence given on the morning after the view indicated the possibility that the position of the road reserve was a little further south than that assumed at the time of the view. Perhaps this would reduce the athleticism necessary for somebody to traverse the road reserve on foot; but I believe only a minority of people could do so. Certainly no vehicle could climb the hill. 24 Second, my observation about a void over part of lot 1e was related to a plan admitted into evidence as exhibit 1. This was a Norfolk Island Official Survey but it might mis-state the position of the road reserve. If one takes that position from the description in the Deed of Partition, the road reserve faithfully follows the winding line of the clifftop; so there would be no possibility of the road reserve being over a void. Is the strip a public road? 25 In many parts of Australia, there are statutory provisions relating to the opening of a public road. There is no such provision in Norfolk Island. Two statutes have been enacted (the Roads Act 1996 and the Roads Act 2002) but the substantive sections of neither of these statutes have yet come into operation. However, a statutory provision is not essential to a valid road opening. It has always been possible, at common law, to open a public road. The subject was discussed in some detail in the decision of the High Court of Australia, Permanent Trustee Company of New South Wales Limited v Council of the Municipality of Campbelltown (1960) 105 CLR 401. The judgments in that case support the following propositions: (i) The opening of a public road at common law involves two elements: first, an invitation by the landowner to the public to use the land as a public road, not merely as a private right of way; and, second, acceptance of that invitation by members of the public. (ii) The lodging in an official registry of a deposited plan or plan of subdivision showing land as streets giving access to subdivided lots constitutes an invitation to the public to use the streets as public roads. However, receipt of the plan by the registry does not, itself, constitute an acceptance of the invitation. There must be evidence either of public use of the land as a road or of a public body taking it over on behalf of the public; for example, by expending money in forming and maintaining it as a road. (iii) If there is evidence of acceptance of the landowner's invitation, subsequent disuse is irrelevant. 26 It is clear, in the present case, that, by 1931, the disputed strip of land was not part of the estate of Matthew Quintal. By his will, Matthew Quintal purported to dispose of all his land. In the events that occurred, the whole of his land (other than the four acres devised to Adeline Christian) was devised to Fletcher and Susan Nobbs. This included the disputed strip of land. By 1931, Fletcher and Susan Nobbs were apparently both deceased. If they took as joint tenants under the will of Matthew Quintal (as would seem to be the case), in 1931 the land would have been an asset of the estate of the survivor of them. If they took as tenants in common, the land would have belonged in undivided moieties to each estate. Whatever the position, it did not belong to the estate of Matthew Quintal. 27 Although there is no evidence as to the position, I am prepared to assume the correctness of the claim in the Deed of Partition that the releasors included "all the persons entitled to the land". On that basis, it would be reasonable to conclude that the execution and registration of the deed constituted an invitation, by the owners of the land, to members of the public to use as a public road the strip of land that was marked "Reserved Road Parallel to cliffs – one chain wide". Drawing upon an observation by Windeyer J in Permanent Trustee at 423, I also conclude that, the animus dedicandi having been expressed on the face of the deed, "no great amount of public use was necessary to make the dedication complete". However, there is no evidence of any public use of the reserved strip as a road. 28 There is evidence of the absence of public use since 1983, when Mr Forrester purchased Portion 1d. This is not conclusive. If there had been public use between 1931 and 1983, non-use since 1983 would not matter. The common law adage was "once a highway, always a highway". 29 In the absence of my observations on the view, I would have experienced difficulty in making a finding about the possibility of public use between 1931 and 1983. However, the view satisfied me there is no possibility whatever that anyone ever obtained vehicular access to the reserved land from Young's Road or elsewhere on the foreshore; the hill is much too steep. Somebody may have obtained access to the reserved strip of land by driving a vehicle to it through Portion 1d or Portion 1e. However, anybody who had done this would have traversed Portion 1d or Portion 1e either as an invitee of the owner of the relevant portion or as a trespasser, not acting as of right as a member of the public. Members of the public have never had a legal right of access from the southern boundary of Portion 1d or Portion 1e to the reserved strip. 30 As I have indicated, some people might be able to progress on foot along the reserved strip from the foreshore to the plateau area that constitutes the bulk of Portion 1d. However, there is no reason to believe any person has done this, especially in assertion of a public right of passage. 31 Finally, there is no evidence of acceptance of the strip of land by a public authority or of the expenditure of public money on its formation or maintenance as a road. On the contrary, the land presents as part of the enclosed gardens of Mr Forrester and Mr Carey. 32 I find the invitation to the public expressed in the Deed of Partition has never been accepted. The strip of land is not, and never has been, a public road. Do the plaintiffs own the land? 33 Section 9 of the Limitation of Actions (Real Property) Act 1988 (NI) provides: "An action to recover land is not maintainable by a person other than the Crown after the expiration of a period of 12 years commencing on the date on which the person first became entitled to bring the action." It is common ground that this Act applies to the subject land, it being held under Old System title. 34 Upon the basis that the strip of land never attained the status of a public road, the executors of Fletcher and/or Susan Nobbs were entitled to bring an action to recover that land, at least at all times since 1931. If, contrary to my view, the strip of land is to be regarded as an asset of the estate of Matthew Quintal, the right of recovery arose even earlier. During a period exceeding twelve years, Mr Forrester has asserted dominion over the part of the land abutting Portion 1d. Mr Carey has done the same in relation to that part which abuts Portions 1e and 1f. Therefore, s 9 of the Act precludes action against either of them for recovery of the land. 35 Section 31 of the Limitation of Actions (Real Property) Act provides: "At the expiration of the period limited by this Act within which a person may bring an action to recover land, the right and title of that person to the land is extinguished." That means that any interest in the strip of land that might previously have been held by the estates of Fletcher and Susan Nobbs (or Matthew Quintal) has been extinguished. Does it also mean that Mr Forrester and Mr Carey are entitled to declarations that they are the lawful owners of the relevant parts of the strip? 36 A recent decision of the House of Lords indicates this question should be answered in the affirmative. The decision is J A Pye (Oxford) Ltd v Graham [2002] UK HL 30; [2002] 3 All ER 865. The decision concerned the operation of provisions in the United Kingdom Limitation Act 1980 (ss 15 and 17) that are in substance indistinguishable from ss 9 and 31 of the Norfolk Island Act. The House of Lords unanimously restored the decision of the trial judge, Neuberger J: see J A Pye (Oxford) Ltd v Graham [2000] Ch 676. His Lordship found the defendant had possession of the subject land during a period exceeding 12 years and the necessary animus possidendi. He said (at 709): "I therefore conclude that the present action by the plaintiffs for possession of the disputed land must fail in light of section 15 of the Act of 1980 and that the plaintiffs' title to the disputed land has been extinguished by virtue of section 17. Accordingly, I believe that it follows that the defendants are entitled to be registered as proprietors of the disputed land at the Land Registry." 37 In the final paragraph of his reasons, Neuberger J said: " … it seems to me that a proper application of the Act of 1980, as explained and developed in the cases to which I have referred, to the facts of this case leads to the result that the defendants have established title to the disputed land by adverse possession." 38 It was plainly his Lordship's view that adverse possession for a period of twelve years not only answers an action for recovery of possession (s 9 of the Norfolk Island Act) and extinguishes the title of the prior owner (s 31 of the Norfolk Island Act); it also confers a good title on the adverse possessor. Although the House of Lords did not discuss the last point, it is apparent from their Lordships' order that they shared this view of the situation. Disposition 39 It is appropriate to dispose of the two proceedings by making declarations, in each case, that the plaintiff holds title to that part of the land designated, in the Deed of Partition registered as dealing 1290, as "Reserved Road Parallel to Cliffs – one chain wide" as abuts the particular Portion or Portions owned by him. 40 I will reserve the matter of costs. In a case such as this, it may not be appropriate to order the defendants to pay the plaintiffs' costs. Regardless of the defendants' attitude, the plaintiffs needed to come to court. They needed to obtain an appropriate declaration in order to achieve registration of their title. Although the defendants unsuccessfully contended that the land is a public road, this may not have added appreciably to the plaintiffs' costs. If the plaintiffs wish to press a claim for costs, written submissions should be furnished. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 20 June 2003 Solicitor for the Plaintiffs: Wayne Richards Counsel for the Respondents: Ms Lynette Beban, Deputy Crown Counsel Dates of Hearing: 4 and 5 June 2003