Reported Decision : [2000] 10 BPR 18,155 [2000] NSW ConvR 55-950 New South Wales Supreme Court CITATION : Grant v Baulkham Hills Shire Council [2000] NSWSC 28 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1520 of 1999 HEARING DATE(S) : 31 January 2000, 1, 2, 3 and 4 February 2000 JUDGMENT DATE : 11 February 2000 PARTIES : Nerez Gwynneth Grant v Baulkham Hills Shire Council JUDGMENT OF : Windeyer J at 1 COUNSEL : in person (Plaintiff/Cross-Defendant) Mr C.M. Simpson (Defendant/Cross-Claimant) SOLICITORS : in person (Plaintiff/Cross-Defendant) Abbott Tout (Defendant/Cross-Claimant) CATCHWORDS : REAL PROPERTY - claim of ownership against person in possession - ownership in Council claimed on basis disputed land part of road one boundary of which is mean high water mark of Hawkesbury River - claim of possessor based on claim land filled into the river - no evidence of change of boundary since date of road survey LEGISLATION CITED : Local Government Act 1919, s232(1) Roads Act 1993, ss7(4), s145(3), s248 DECISION : See paragraph 13. 1 IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WINDEYER J FRIDAY 11 FEBRUARY 2000 1520/99 NEREZ GWYNNETH GRANT v BAULKHAM HILLS SHIRE COUNCIL JUDGMENT General outline of case 1 The question for decision is whether a small fibro cottage known as Berkeley erected on the bank of the Hawkesbury River at Upper Half Moon Bend Lower Portland, is erected on land (the land) which is part of a public road or whether it is erected on land filled into the river or reclaimed from the river without authority. If it is erected on the road then the Baulkham Hills Shire Council, the defendant/cross-claimant in this action, is entitled to possession against Miss Grant, the plaintiff/cross-defendant. If it is not erected on the road then the claim of the Council for possession must fail. 2 The only issue in this action is whether the Council is owner of the land on which the building occupied by the plaintiff is erected. Miss Grant does not claim possessory title against the Council. She is in possession, having a better claim than anyone other than the true owner. Her claims depends upon the Crown being the owner of the land as part of the Hawkesbury River. 3 Miss Grant appeared in person. She obtained an ex parte injunction on 26 February 1999, which was continued on 9 March 1999, restraining the Council from taking proceedings to dispossess her, pending the final determination of the action. Once it was established that no claim for possessory title was made I ordered that the proceedings continue on the cross-claim under which the Council claims entitlement to possession on the basis of its ownership of the land. It is accepted that notice to vacate has been given, if that were necessary. The claim for mesne profit has been abandoned. 4 There was some discussion during the hearing, probably initiated by me, as to whether the roadway land was under Torrens Title or under Old System Title. That was not resolved and seemed to be of interest only to me. Counsel for the Council said he thought it was Old System Title, but I cannot understand how that can be as it has never been the subject of any grant. This may have been relevant to a claim based on possessory title, but Miss Grant at the conclusion of the hearing again confirmed that no such claim was made. Her sole claim was that she was in possession of reclaimed land on the river side of the mean high water mark of the southern bank of the Hawkesbury River, that mean high water mark being the northern boundary of the road. Facts 5 The road the subject of the proceedings runs on the southern side of the Hawkesbury River, in a direction south west from Wiseman's Ferry towards Lower Portland and Windsor. The Hawkesbury River is tidal at this point. The road was surveyed in 1898, mainly it seems for the purpose of subsequent resumption for road purposes of certain areas of land along the river bank which were in private ownership. The evidence did not disclose precisely how it became a public road. Insofar as it was a road over Crown land then it was land used as a road over which the Council indicated an intention to obtain control, and an application to such effect was approved by the relevant minister in 1913. Its position was preserved by the Local Government Act 1919 and thereafter pursuant to s232(1) of that Act the title in fee simple in the road vested in Council. As a result of s7(4) and s145(3) of the Roads Act 1993 the road remains vested in fee simple in the Baulkham Hills Shire Council. None of this is contested and certificates tendered in evidence under s248 of the Roads Act 1993 are evidence the road is a public road. They are also prima facie evidence but not absolute evidence that the road extends to the present mean high water mark adjacent to the subject property, which is below the land which the Council claims. 6 The land abuts the outer bank of the river on Upper Half Moon Bend. The current flows along that bank as opposed to the inner bank which is lower and thus more subject to floods. A map of the Hawkesbury River in 1872 shows river depths in the general area to be quite deep, varying between thirty five and sixty four feet. The evidence is that the river is carved out through rock. 7 The survey for the 1898 plan and field notes made for it show four traverse points in the vicinity of the land three of which show offset distances from the southern boundary of the road to the river as being 120 links. The 1898 plan and field notes are not very clear but copies of the relevant sections are annexures A and B to this judgment. Across the road and opposite the land in question is land which was granted as Portion 216 Parish of Cornelia to Walter Williams in 1942, but which was subject to an earlier conditional purchase. This land is very steep, but the field notes and coloured survey plans in evidence show the road area at the point in question to have been reasonably level before the road was built. 8 Mr Herps has known the land since before the Second World War. His family had owned a down river property for many generations. He said that Mr Williams cut sandstone terraces on Portion 216 so that he could grow some fruit trees and that he constructed a garage on the land here in dispute cutting some rock to enable this to be done on a flat surface. He brought some soil from Margaret's Bight, downstream of the land, and dumped that "between the road and river onto the river edge" and terraced the land a little and grew a few fruit trees there. Later the garage was extended to become the existing fibro cottage, in which Mr Herps lived with his wife between 1960 and 1963. Mr Herps also brought some fill to the site, dumping it along the western side of the land to provide a level area for parking. However, he said that from the time he knew the property to the present time the river bank remained in the same position and that he saw no soil being put into the river. 9 Mr McNally, a highly qualified geologist, conducted tests to determine the composition of the ground between the main road and the existing high water mark. Eight test bores were sunk with sandstone encountered at varying levels. Survey evidence, which was not challenged, indicates that the point where five of the bores encountered medium strength sandstone was above mean high water mark. This encompasses the area covered by the house. As this evidence is unchallenged it seems that unless all rock encountered in the test bores was in the form of colluvial boulders the plaintiff must fail so far as most of the land is concerned. Even if the boulders are colluvial or just rolled down from above there is no evidence that this has happened since the road was surveyed. In fact there is no evidence that there has been any change to the high water mark boundary except perhaps that it has come closer to the road through erosion since 1898. 10 A survey plan prepared for Miss Grant was placed into evidence, but without the writing "reclaimed river bed" which she had placed on it. On this plan the Council surveyor, Mr Coller, placed various marks, resulting from calculations he made having located the original pegs at positions x and a on the original plan and having calculated the position of traverse position z. The effect of that evidence was that the present high water mark at the offset from point a was slightly outside the 120 links distance shown on the survey at point a, but at the offsets from points z and x the present high water was somewhat less than that distance. These are, however, relatively minor alterations which could in no way support the claim of Miss Grant. 11 On the eastern side of the claimed land and east of the improvements, there is a creek type re-entrant which is quite steep, running back to the hillside. This comes to an apex at point y on the survey plan and at that stage it is perfectly clear that the width of the road to the river was substantially more than 120 links. There was no evidence that when this creek flowed it could bring down soil which would be deposited in the area claimed by Miss Grant. In any event, her claim is that the land was filled artificially and not by natural means. Conflicting evidence from geologists 12 Both Mr McNally and Mr Eggers, the geologist engaged by Miss Grant, gave evidence as to the nature of the soil above the rock in the area claimed by Council. It is agreed by the geologists that the top layer was what can be described as fill in the area of the bore holes and test pits beneath which there is a material, the origin of which is disputed. Mr McNally claims that it is sedimentary or alluvium soil which could have come from over bank flooding, whereas Mr Eggers says that it is more likely than not that it is fill. He bases this partly upon its composition and partly upon the unlikelihood of there being permanent over bank deposits on the sloping site in question. He also did not accept the opinion of Mr McNally that it was more likely than not that the rock surfaces on which the auger refused were not colluvial rocks. There are some facts which would support either side. The first is that the amount of fill required is so great that it is quite unlikely that it could have been placed in position at the time it is claimed that it must have been so placed. If the area, which Miss Grant claims to have been filled, was in fact filled then, according to Mr McNally, fill of about eight thousand tonnes would have been required. This must have been put in place some time between 1898 and 1947. That is so unlikely that it can almost be rejected out of hand. It is fair to say on the other had that the slope of the land and the fact that the land is on the outer curve of the river makes it unlikely that alluvium deposits could build up in that area, although it is of course possible that they could build up over a period of thousands of years. There are other points of conflict as to the composition of the material, its components of charcoal and ash and basalt pieces and the question of whether this indicates fill or deposit. 13 In the long run it does not seem to me to be necessary to determine this question. I consider the evidence establishes it more likely than not that in the majority of cases the auger would have refused on a layered rock surface rather than on colluvial rock, which would be likely to cause more deflections in angle. But even if the auger refused on colluvial rock, there is no reason to think that those rocks are part of fill. They could have been there in 1900 and they could have moved slowly down the hill during many years prior to 1900. Fill could then have been placed above those rocks, but that does not mean that the mean high water mark has altered since 1898. All it would mean would be that fill had been placed over those rocks. It follows from all of this that there is nothing to show that the mean high water mark has moved since 1900 as a result of land being reclaimed from the river or filled into the river. In the absence of that the Council is entitled to the land up to the present mean high water mark. While the evidence of that position is not exact, it is certainly below the land in the possession of Miss Grant. Thus the claim of the Council for possession must succeed. In follows from this that the plaintiff's summons should be dismissed and an order for possession in favour of the Council should be made on the cross-claim. As the plaintiff has been in possession since 1983 and the land is obviously not required for vehicular or public traffic, it seems to me that she should be given a period of up to two months in which to vacate. The Council is entitled to an order for costs. Last Modified: 01/04/2002 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. 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