Dunn & Anor v Howard & Anor [2001] QDC 30

DISTRICT COURT OF QUEENSLAND CITATION: Dunn & Anor v. Howard & Anor [2001] QDC 030 PARTIES: W. H. DUNN and C. A. DUNN Plaintiffs And R.T. HOWARD and C.A. HOWARD Defendants FILE NO/S: No. 1965 of 1998 DIVISION: PROCEEDING: ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 5 March 2001 DELIVERED AT: Brisbane HEARING DATE: 26 and 27 February 2001 JUDGE: Judge Forde ORDER: Judgment is given for the plaintiffs against the defendants in the sum of $7,500.00. It is ordered that the defendants do pay the plaintiffs’costs of and incidental to the action including reserve costs, if any, to be assessed. CATCHWORDS: Water Resources Act 1989; Waters Act 1926; The Rights in Water and Water Conservation and Utilisation Act 1910; Water Authorities Act 1891; Beames v. Leader (2000) 1 Qd. R. 346 at 357-358; Randel v Brisbane City Council (1990) 1 Qd. R. 440 at 444- 447; Donaldson v. Hemmant (1901) 11 Q.L.J. 35; Amstad and Anor. v Brisbane City Council and Ward (No.1) (1968) Qd. R.334; Hansen v. Gloucester Developments Pty. Ltd (1992) 1 Qd. R.14. Adjoining property owners – riparian rights – ambulatory boundary – significance of survey and plans as secondary guides – action for trespass – exemplary damages. COUNSEL: Mr M. Conrick for the Plaintiffs Mr K. Geraghty for the Defendants SOLICITORS: Norman & Kingston for the Plaintiffs Richard Hoare & Co. for the Defendants -- 1 of 12 -- 2 Introduction [1] The plaintiffs in this action are W.H. Dunn & C.A. Dunn. They were at all material times the registered proprietors of an estate in fee simple of the land comprised in Lot 8 on RP 201714 County of Canning, Parish of Neara (hereinafter referred to as the “plaintiffs’ land”). The defendants are R.T. Howard and C.A. Howard. The defendants were at the material time the owners of land on the western side of the Brisbane River, on the western side opposite the plaintiffs’ land. The Brisbane River flowed from north to south and so the plaintiffs’ land was on the eastern side. The defendants obtained a permit to excavate gravel from the river so as to improve the water depth to allow more effective irrigation of their land. The plaintiffs’ claim is for damages for trespass by the defendants for placing the spoil from the excavation on their land contrary to the permit and without their consent. The plaintiffs conducted dairy farming and the defendants conducted grazing operations on their respective lands. The plaintiffs had access to the river to water their stock. [2] The plaintiffs plead that by a Deed of Grant (Exhibit 13) their western boundary is defined by the Brisbane River. It is further alleged in the plaint that, by virtue of ss. 2, 5 and 34 of the Water Resources Act 1989, the line of the western boundary of the plaintiffs’ land is the line below which the waters of the Brisbane River normally flow. It is further alleged that the plaintiffs are therefore entitled to bring and maintain an action for trespass to their land which abuts the river and on which the defendants deposited the spoil from the excavation. Both aggravated and exemplary damages are sought. -- 2 of 12 -- 3 [3] The defence case is that the land upon which the spoil was deposited did not belong to the plaintiffs but was part of unalienated Crown land or formed part of the bed and banks of the watercourse and so vested in the Crown. The defendants allege that the appropriate permit was obtained (Exhibit 14) which allowed them to excavate the spoil. Further, they allege that following directions from a Mr. Shoecraft, an authorised person from the Department of Natural Resources, they placed the spoil in a position on the eastern and western banks. Mr. Shoecraft gave evidence in support of that allegation. Photographs of the spoil can be seen in Exhibits 6 to 10. Ownership of Lot 8 [4] The original Deed of Grant was dated 20th June, 1898. The western boundary of the plaintiffs’ land which was originally part of Portion 56 was described as “… and thence by that river (referring to the Brisbane River) upwards to the point of commencement … ”. A plan issued on or about 4th April, 1902 (Exhibit 2) shows a more definitive western boundary. A subsequent survey (Exhibit 17), dated 9th January, 1986, shows the western boundary to be more related to the bank of the river. When that survey is superimposed upon an aerial photo (Exhibit 16), it is clear that the spoil was placed closer to the surveyed boundary of the defendants' land and not on the plaintiffs' land, if one accepts that the survey delineates the correct boundaries. A red mark on Exhibit 16 was accepted by the parties as marking the area where the spoil was dumped. [5] The plaintiffs counsel argued that the critical issue in determining the position of the boundary is the physical feature by which the boundary is defined. The survey lines were to be regarded as secondary guides only. They are capable of correction. -- 3 of 12 -- 4 Support for that proposition was to be found in Beames v. Leader (2000) 1 Qd. R. 346 at 357-358 and Randel v Brisbane City Council (1990) 1 Qd. R. 440 at 444- 447. [6] The evidence of Mr. Alan Tannock, an experienced surveyor, supported the concept of “ambulatory boundaries” as discussed in Beames at 357. Mr. Tannock expressed the view that there was a discrepancy between the surveyed boundary as depicted in Exhibit 17 and the true boundary position as defined by the bed and banks of the Brisbane River as seen by the tree line or vegetation which lines the river. He gave two explanations for the discrepancy: (a) that the line drawn by the surveyor accurately reflected what the surveyor then observed of the water flow at the time the plan was first drawn. The discrepancy is as a result of the water course shifting to the west (paragraph 11 of his statement being Exhibit 22). Such movement simply reflects an ambulatory boundary resulting from accretion. (b) the surveyor chose the “high bank” as being the bank of the river. This, Mr. Tannock says, was not an uncommon practice in the 19th and early 20th centuries. Such “high banks” were usually some distance from the channel in which the normal flow of the river is contained. Mr. Tannock stated that the high bank as observed by him seems to coincide with the western boundary in Exhibit 16. Mr. Tannock in cross- examination accepted that the “point of commencement” is the left bank of the river. By that he meant that it was the left bank as one is looking down the direction of flow of the stream or river. I accept his evidence generally. -- 4 of 12 -- 5 [7] Mr. and Mrs. Dunn gave evidence to the following effect: (a) That they had lived on their property for over 20 years (b) That during that time there had been three (3) floods with the February,1999 flood being the biggest. (c) That the effect of the 1999 flood was to remove the gravel deposited by the defendants and so the gravel was in place for some fifteen months only. (d) That whilst the gravel was in place, it prevented the cattle from getting access at that point in the river, but access was available upstream. (e) The gravel was spread over some 100 metres which was the length of the excavation. (f) That the normal water flow did not cover the areas where the gravel was deposited. (g) That the area where the gravel was deposited adjacent to the bank had been covered with flood waters three times in 21 years. (h) That Mr. Dunn had made it clear to Mr. Howard that he did not want the gravel deposited where it was eventhough on a previous occasion some deposit of gravel was made pursuant to a different permit. [8] I accept that evidence and rely on that evidence as a basis for the findings of fact as relevant to the western boundary of the plaintiffs’ land. There are photographs (Exhibits 6-10) which were taken in November, 1997. Other photographs show more water in the river at the relevant point. These were taken at a later stage. According to Mrs. Dunn they were taken in August, 1998. They do not detract from the plaintiffs’ evidence that the normal flow did not cover the area upon which the spoil or gravel was placed (Exhibit 12). In fact, Mrs. Dunn specifically identified the spoil or gravel as able to be seen (Transcript 17.15). Mr. Howard confirmed her view of this (Transcript 72.40; 75.53). It seemed to be common ground that the dark green area of vegetation on the photographs defined the normal water flow. Mr. Howard also confirmed Mr. Dunn’s evidence that the latter asked him to stop depositing the spoil on the bank. Mr. Howard refused to comply as he had been directed by Mr. Shoecraft to deposit the spoil in that area. -- 5 of 12 -- 6 Nature of the Permit [9] The permit (Exhibit 14) provided that the excavation approved would be ten (10) metres long by ten (10) metres wide and three(3) metres deep. In fact, the excavation was some one hundred (100) metres long. This was not really disputed. I accept the evidence of the plaintiffs’ in this respect and rely also on the affidavit of Mr. Karreman who was the operator of the excavator. He estimated the length to be ninety (90) metres. Therefore, the defendants, I find, have failed to comply with the terms of the permit. Statutory Provisions [10] Section 2 of the Water Resources Act 1989 provides as follows: “ “bed and banks”, with reference to a watercourse or lake, means land over which the water of the watercourse or lake normally flows or that is normally covered by that water whether permanently or intermittently, but does not include land abutting or adjacent to the bed or banks that is from time to time covered by floodwater. For the purposes of this definition “bed” means the relatively flat and “banks” the relatively steep portions of the firstmentioned land. “owner” - (a) when used in relation to land generally means – (i) the registered proprietor thereof: (ii) … (iii) the person or body of persons who, for the time being, has lawful control thereof, on trust or otherwise; “watercourse” means a river, creek or stream in which water flows permanently or intermittently – (a) in a natural channel; (b) in a natural channel artificially improved; -- 6 of 12 -- 7 (c) in an artificial channel that has changed the course of the watercourse.” [11] It was argued by the defence that as the Deed of Grant was issued before the passing of the Waters Act 1926 or the Water Resources Act 1989, then the definitions do not necessarily define the terms in the Deed of Grant. That view seems to be impliedly rejected in Randel v Brisbane City Council (No.2) (1990) 2 Qd. R. 440 at 446-447. Williams J. traced the history of the relevant legislation as it affected the common law. He started from the proposition that at common law, in the case of non-tidal rivers or streams, the bed of such rivers and streams belong to the riparian owners to use same to the middle line of the river or stream. His Honour then made reference to the various statutes from the 19th century. He made specific reference to the Water Authorities Act of 1891. For present purposes, it contained a similar definition of “watercourse”. His Honour made reference to the provisions of s.6 of The Rights in Water and Water Conservation and Utilisation Act 1910. It seemed to be the first alteration to the common law referred to previously. It provided that: “where a watercourse … forms the boundary wholly or in part of a parcel of land alienated by the Crown before the commencement of this Act, the bed and banks thereof shall be deemed to have remained the property of the Crown, and not to have passed with the land so alienated. Where a watercourse … shall form the boundary wholly or in part of a parcel of land alienated by the Crown after the commencement of this Act, the bed and banks thereof shall, notwithstanding such alienation, remain the property of the Crown, and shall not pass with the land so alienated.” Similar provisions were to be found in the Water Act of 1926, although the land vested in the Commissioner. Section 34 of the Water Resources Act of 1989 provides as follows: -- 7 of 12 -- 8 “34.(1) Notwithstanding this Act the owner or occupier for the time being of land abutting a watercourse or lake the bed and banks of which are declared or are deemed to be the property of the Crown – (a) has and may exercise a right of access for himself or herself, his or her family, his or her employees or agents or his or her stock to the part of land comprising the bed and the bank of that watercourse or lake to which the land is adjacent for the purposes of obtaining and using the water therein for domestic or other ordinary purposes and for watering and grazing stock as if this Act had not been passed, for so long as that part remains unappropriated by the Crown for a purpose under this Act; (b) may maintain and enforce against a person who trespasses upon the part of the bed and the bank of a watercourse or lake referred to in paragraph (a) any action for trespass which the owner or occupier might have had if this Act had not been passed and the person in question were a trespasser upon land in the possession of that owner or occupier. (2) Except for the rights conferred upon an owner or occupier by subsection (1), this section must not be construed or operate so as to – (a) restrict the right of the Crown to maintain and enforce against a person who trespasses upon the part of the land comprising the bed and the bank of a watercourse or lake referred to in subsection (1)(a) an action arising out of the trespass. (b) Entitle the owner or occupier referred to in subsection (1) to maintain and enforce against the Crown or a person acting under the authority of this Act or any other Act an action for trespass.” [12] It is submitted by the plaintiffs that the normal flow of the Brisbane River at the relevant point shows that it did not cover the area upon which the spoil was placed. It is argued therefore that as that area is not part of the bed or banks of the river as defined in section 2. [13] One telling point made by Williams J. in Randel’s case was that the earlier legislation did not affect the ownership of land in any way nor did it seek to define -- 8 of 12 -- 9 where the boundary was to be placed when it was determined by a stream or watercourse. His Honour went on to hold that no part of the “bed and banks” of Kedron Brook would have passed to the original owners or successors in title which included the Brisbane City Council which would not have any title to the “bed and banks” of Kedron Brook. The “bed and banks” vested in the Commissioner. Therefore, land outside the “bed and banks” vested in the care and control of someone other than the Commissioner. [14] If the “road reserve” which was Brook Street continued up to the boundary of Kedron Brook then the high cliff where the rocks fell and injured the boys in Randel’s case was within the road reserve. If not then the land between the southern and northern boundary would constitute unalienated Crown land. All of the plans in that case showed Brook Street extending to Kedron Brook and not ending at a boundary drawn on a plan some distance to the north of the stream. His Honour was not persuaded that it overruled the natural presumption which is derived from the fact that on all the registered plans the boundary of the road reserve is shown as the stream. His Honour found that the road reserve in question extended to the boundary of Kedron Brook. [15] Similarly, in the present case the plaintiffs contend that as the original Deed of Grant described the western boundary as “the river upwards to the point of commencement”. Therefore, as in Randel’s case the survey is merely a secondary guide which is capable of correction. Before deciding this point, it is helpful to analyse the approach in Beames case ibid. In that case, the Court of Appeal accepted the following submissions as part of its reasoning: -- 9 of 12 -- 10 (a) That the lengths of the two right or straight lines which purported to define the boundaries were inexact in the sense that as the ambulatory boundary varied so would the lengths of the right lines terminating at that ambulatory boundary. The ambulatory boundary in the present case is the western boundary. (b) That in Beames case the length of each of these two right lines does not establish where the natural feature (Norman Creek) begins and further that it is where the natural feature begins that establishes the length of each of these two right lines (357). Mr Tannock whose evidence I accept, supports that view in the present case (T.82.3). (c) That following the decision of the Full Court in Donaldson v. Hemmant (1901) 11 Q.L.J. 35, the highest regard is had to natural boundaries in re-identifying boundaries. (d) That lines on maps, if subordinated by description of the natural feature, are merely secondary guides which are capable of correction from time to time (358). (e) That the true limit of an ambulatory boundary (such as one defined as the line of a mean high water mark is always “on the ground”. (f) That the plan of survey is helpful but identification is not necessarily made by literally applying the dimensions of boundaries of the lot appearing on the plan where one boundary is ambulatory. Findings [16] Applying those principles and the statutory provisions of the Water Resources Act 1989, I find: (a) the defendants were in breach of their obligations under the permit to excavate the Brisbane River which ran between their property and the plaintiffs’property by excavating some 100 metres and not 10 metres. (b) that the defendants placed spoil on land lawfully controlled or occupied by or belonging to the plaintiffs’ and contrary to the plaintiffs’ wishes (c) that the place where the spoil was placed was not within the bed and banks of the Brisbane River as defined by the Water Resources Act. (d) that the place where the defendants placed the spoil interfered with the plaintiffs’enjoyment of their property. -- 10 of 12 -- 11 (e) that the plaintiffs’ land was defined by an ambulatory western boundary namely “the river upwards to the point of commencement” and moreover abutted the natural channel. (f) that the survey plan was merely a guide and that the western boundary was not determined by the length of the right lines on the northern and southern boundaries. I reject Mr Shoecraft’s evidence to the contrary. Mr Shoecraft deferred to a surveyor as someone who should determine the boundaries (T.55.10). (g) that apart from flood times, the natural water flow in the river did not cover the area where the spoil was deposited. (h) that the defendants committed a trespass by depositing the spoil on the plaintiffs’ land or land over which they had lawful control at all material times. Damages [17] The plaintiffs seek both exemplary and aggravated damages. The spoil was in place for some 15 months before the February, 1999, flood washed it away. It interfered with access to that part of the river only. The length of the common boundary defined by the river was one kilometre. It caused the plaintiffs some anxiety. It is clear that if the excavation had been confined to 10 metres then the extent of the spoil would not have stretched some 100 metres as the excavator deposited the spoil as it made its way along the river. [18] The plaintiffs rely on the case of Amstad and Anor. v Brisbane City Council and Ward (No.1) (1968) Qd. R.334. A council employee entered the premises of the plaintiff contrary to the council ordinances. The gate was locked. The employee did not ask permission to enter. He acted in a “high-handed or insolent” manner. Judgment was entered for $1,000.00. In a case of Hansen v Gloucester Developments Pty. Ltd. (1992) 1 Qd. R.14 an award of $5,000.00 was made where there was a trespass to land and related compensatory damages. -- 11 of 12 -- 12 [19] The defendants in the present case were in breach of their permit. Mr. Howard believed he had permission to deposit spoil on the western bank of the river. He had done so previously. The extent of the deposit in the present instance seems to have caused the plaintiffs to react in a negative fashion. He had obtained permits on each occasion that he excavated. In the circumstances, I assess damages at $7,500.00. Orders [20] Judgment is given for the plaintiffs against the defendants in the sum of $7,500.00. [21] It is ordered that the defendants do pay the plaintiffs’ costs of and incidental to the action including reserve costs, if any, to be assessed. -- 12 of 12 --