School of Surveying and Spatial Information Systems

The University of New South Wales


Summaries of Recent Court Cases

by A. J. Gray

Supervised by Mr M. B. Green

Edited by J. M. Rüeger

October 2003


Introduction

"The true nature of the boundary surveyor’s role lies not in theories of exact measurement but in the proposition that the basic determinant of the limits of any region in respect of which some person or body holds exclusive legal rights is not a matter of surveying but a matter of law" (Hallmann, 2000). This summary is concerned with aspects of law commonly encountered by surveyors in practice. Easements for Right of Way, the Encroachment of Buildings, and Boundary Disputes are the aspects dealt with in the ten cases.

 

Easements for Rights of Way

The cases to do with Easements for rights of way are:

In the first two cases, the Dominant Tenements asserted that the Rights of Way had been abandoned. The period of non-use, the availability of alternative access and obstructions to the Rights of Way were significant factors in the findings of no abandonment. The latter two cases deal with the creation of Rights of Way. The Doctrine of the Lost Modern Grant was applied in the case of Fernance v Simpson (2003).

The Encroachment of Buildings

The cases to do with the Encroachment of Buildings are:

In the first case, an easement was applied for under Section 88(K) of the Conveyancing Act 1919 to permit an encroachment in the form of a subterranean footing. In the latter two cases, relief was sought under the Encroachment of Buildings Act 1922. In Hofer v Howell (2002), the rear of the former Vaucluse Town Hall (Lot A in Fig. 1) encroached onto Lot B. The heritage significance of the buildings was held to be an important factor in deciding whether or not the encroachment should be removed. It was found that only the front facade of the building (on Lot A) was capable of being restored to its original appearance (Fig. 2), so that its heritage significance would not be diminished by removing the encroachment.

 

Fig. 1: Part of Deposited Plan 103616 showing the Town Hall Building (Lot A) and the adjoining building (Lot B).

 

Fig. 2: The front facade of the Town Hall Building

Boundary Disputes

The cases to do with Boundary Disputes were:

These cases are to do with the practice and procedure adopted when determining the position of a boundary. The first case dealt with an artificial boundary while the latter two cases dealt with water boundaries. In Grant v Baulkham Hills Shire Council (2001), the geology of the bank of the Hawkesbury River was used to determine whether a cottage had been erected on a road or on land filled in to the Hawkesbury River (Fig. 3).

 

Fig. 3: The land between River Road and the Hawkesbury River at Lower Portland, NSW.


Further Information
For more information, please contact:

Mr M. B. Green
Email: Michael.Green@unsw.edu.au

Mail:
School of Surveying and Spatial Information Systems
University of New South Wales
UNSW SYDNEY NSW 2052
Australia

Phone: +61-2-9385-4193
Fax:      +61-2-9313-7493
WWW: http://www.gmat.unsw.edu.au

Mr A. J. Gray
Email: mrajgray@yahoo.com