Comserv v Figtree Gardens [1999] NSWSC 124 (26 February 1999)

Last Updated: 7 April 1999

NEW SOUTH WALES SUPREME COURT

CITATION: COMSERV v FIGTREE GARDENS [1999] NSWSC 124

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): 1718/97

HEARING DATE{S): 9-10 February 1998

25-26 August 1998

JUDGMENT DATE: 26/02/1999

PARTIES:

COMSERV (No. 1877) PTY LIMITED

v

FIGTREE GARDENS CARAVAN PARK & ORS

JUDGMENT OF: Bryson J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): N/A

N/A

LOWER COURT JUDICIAL OFFICER: N/A

COUNSEL:

PLAINTIFF: T S HALE

FIRST DEFENDANT: D J DURSTON

SOLICITORS:

PLAINTIFF: LAURENCE & LAURENCE

FIRST DEFENDANT: JEFFREY M JONES

CATCHWORDS:

FENCES AND BOUNDARIES

DP showed boundary by irregular line of western bank of creek with words "western bank is common boundary:" meaning and application of "bank" and ascertainment of position of boundary: interpretation of figured dimensions where geometric expression of bearings and dimensions on plan produces a misclose: on the facts it was found that one figured dimension was erroneous.

ACTS CITED:

Crown Lands Act 1989 s 172.

Crown Lands Consolidation Act 1913 s 235A

s 235A (1).

Real Property Act 1900 s 42 (1) (a)

(c).

Survey Practice Regulation 1933 Regulation 35.

Hindson v Ashby [1896] 2 Ch 1 at 25-26.

National Trustees Executors and Agency Co v Hassett [1907] VLR 404.

Overland v Lenehan (1901) 11 QLJ 59.

Small v Glen (1880) 6 VLR 154.

Southern Centre of Theosophy v South Australia [1982] AC 706.

State of Alabama v State of Georgia [1859] USSC 2; (1860) 64 US 505.

Thames Conservators v Smeed

Dean & Co [1897] 2 QB 334.

Verrall v Nott (1939) 39 SRNSW 89 at 99-101.

Watcham v East Africa Protectorate [1919] AC 533.

DECISION:

SEE PARAGRAPH 64

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

BRYSON J

FRIDAY 26 FEBRUARY 1999

1718/97

COMSERV (No. 1877) PTY LIMITED v FIGTREE GARDENS CARAVAN PARK & ORS

JUDGMENT

1 HIS HONOUR: - The Plaintiff's claim is in these terms:

"1. A Declaration that the land contained in Certificate of

Title Volume 10760 Folio 152, being Lot 1 in Deposited

Plan227479 extends to the boundary with American Creek

in the position shown in:-

a) The plan shown in Certificate of Title

Volume 10760 Folio 152 and/or

b) Deposited Plan 227479.

2. A Declaration that the Plaintiff is the Registered Proprietor

of the whole of the land shown in the plan annexed hereto

and marked `A'."

2 The plan marked "A" was prepared for the purposes of this case by Mr Peter Howick, photogrammetrist, on the basis of an aerial photograph of August 1963.

3 This litigation relates to establishing the position of the boundary between Lot 1 and Lot 2 subdivided by Deposited Plan 227479. The parties' lands are on the eastern side of Princes Highway at Figtree, New South Wales. The Plaintiff's land is the site of the Sovereign Inn Motel and has a long frontage to the Princes Highway. The Defendant's land is the site of Figtree Gardens Caravan Park; as subdivided it had a short frontage to Princes Highway immediately north of American Creek but it has now been thrown in with other land to form Lot 10 DP 609167 and has access to Princes Highway through Woodrow Place. In DP 227479 and in all certificates of title which adopt it to describe land the boundary is the western bank of American Creek. DP 227479 shows the line of the western bank with the words "western bank is common boundary", but the line of the bank is an irregular line as one would expect in nature, no lengths or bearings of the bank are shown, and in all practicality they could not be shown. All the other boundaries of both lots are described with lengths and bearings (and the bearings of the chords of two curved lines).

4 The western bank is the only common boundary between Lot 1 and Lot 2. The northern limit of the common boundary is shown on the Deposited Plan, and the lengths and bearings of other lines enable the position of that point to be established. The southern limit is also shown but the parties are in dispute as to the interpretation of information and dimensions on the plan which enable its position to be established.

5 Orders as claimed in the Summons would do not more than state the obvious and would not function to resolve the controversy. I do not find it easy to state clearly what the controversy is and the parties did not state it clearly, but it is to the effect that the Plaintiff contends that the true boundary is further to the east, and that the Plaintiff owns more land along the margin of American Creek, than the Defendant will accept.

6 The litigation was precipitated by the Plaintiff setting about doing works to build retaining or reinforcing works at the western margin of American Creek so as to protect the Plaintiff's land and its building from erosion. The Plaintiff commenced construction of a retaining wall composed of hard fill with the approval of the Water Resources Commission, but without development consent of the Wollongong City Council. When it embarked on these works the Plaintiff came into collision with powers exercised by Wollongong City Council, and was prevailed on to apply for development consent for the works. The Plaintiff was then subjected to a condition of development consent that it obtain the Defendant's consent for the construction of works on what the Council had satisfied itself was part of the Defendant's land. The Council acted on a survey report which it commissioned for Mr Surveyor Neil Craig Johnston in June 1996. As the Plaintiff did not accept that the land was part of the Defendant's land, and claimed that it was its own, it commenced proceedings in the Land and Environment Court challenging the condition which referred to it, and later commenced the present proceedings.

7 Descriptions of land bounded by water recurringly produce difficulties when there is a need, after elapse of time, to establish what the former margins were. See Mr J E Moore's article "Land by the Water" at 41 ALJ 532. Often the location of a stream has changed with time. Where a boundary description refers to the bank of a stream, the position of the bank may move and observers may differ in their assessment of what the bank is. Where the course of a stream changes over time gradually and imperceptibly, the title boundary defined by reference to the stream will also alter, bringing an accretion in area to one proprietor and a decretion to the other. Accretions consisting of deliberate reinforcement or reconstruction of a bank do not alter title to land. On accretion see Southern Centre of Theosophy v South Australia [1982] AC 706 and Verrall v Nott (1939) 39 SRNSW 89 at 99-101.

8 There have been significant alterations to the surrounding topography and, on several occasions, works have been carried out affecting the banks and bed of American Creek which have altered the flow of the stream and the shape and location of the banks. These artificial works and any changes in the location of the bank which they have produced cannot alter the location of the boundary. The recent survey in evidence dealing with the location of the bank at the southern limit of the common boundary shows that the bank there is in the same position as the bank at the time of the survey work which produced the Deposited Plan.

9 When the plan of survey which became DP 227479 was prepared, Survey Practice Regulation 1933 appears to have contemplated that a boundary of land abutting a non-tidal stream might be described by reference to the bank; see particularly Regulation 35. The practice of surveyors was probably influenced by the definitions of "bank" and "bed" which then appeared in s 235A of the Crown Lands Consolidation Act 1913; that section seems to have affected survey practice although it did not in terms apply to a plan of subdivision of private land and its application to Crown land except as to non-tidal lakes was very limited. (See now s 172 of the Crown Lands Act 1989.) In subs 235A(1) were the following definitions:

" `Bank' means the limit of the bed of any lake or rivers.

`Bed' means the whole of the soil of any lake or river including that portion thereof which is alternately covered and left bare as there may be an increase or diminution in the supply of water and which is adequate to contain it at its average or mean stage without reference to extraordinary freshets in time of flood or to extreme droughts."

10 This definition of "bed" in its turn appears to be adapted from a passage in the judgment of the Supreme Court of the United States applying the word "bank" in State of Alabama v State of Georgia [1859] USSC 2; (1860) 64 US 505 at 514-515 and its citation by A L Smith LJ in Hindson v Ashby [1896] 2 Ch 1 at 25-26; see too Thames Conservators v Smeed, Dean & Co [1897] 2 QB 334 at 338.

11 In Alabama v Georgia the river bank was far inland and was not tidal. The boundary was established by a contract of cession in 1799 by which Georgia ceded to the United States territory which later became Alabama. The boundary was established by words which ceded territory "...west of a line beginning on the western bank of the Chattahoochee river, where the same crosses the boundary line between the United States and Spain; running thence up the said river Chattahoochee, and along the western bank thereof...". Counsel for Alabama contended for "...the usual or common low-water mark..." and counsel for Georgia contended for "...the outer bed line...". The Court was called on to expound the meaning of the word "bank," and did so by distinguishing the bank of a river from its bed. After referring to a number of earlier decisions and learned authors Wayne J for the Supreme Court said, at 514-515:-

"Notwithstanding that there are differences of expression in the preceding citations, they all concur as to what a river is; what its banks are; that they are distinct from the shore or flat, and as to what constitutes its channel.

With these authorities and the pleadings of this suit in view, all of us reject the low-water mark claimed by Alabama as the line that was intended by the contract of cession between the United States and Georgia. And all of us concur in this conclusion, that by the contract of cession, Georgia ceded to the United States all of her lands west of a line beginning on the western bank of the Chattahoochee river where the same crosses the boundary line between the United States and Spain, running up the said Chattahoochee river and along the western bank thereof.

We also agree and decide that this language implies that there is ownership of soil and jurisdiction in Georgia in the bed of the river Chatahoochee, and that the bed of the river is that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn.

The western line of the cession on the Chatahoochee river must be traced on the water line of the acclivity of the western bank, and along that bank where that is defined; and in such places on the river where the western bank is not defined, it must be continued up the river on the line of its bed, as that is made by the average and mean stage of the water, as that is expressed in the conclusion of the preceding paragraph of this opinion."

12 See too the commentary in Hallmann's "Legal Aspects of Boundary Surveying as apply in New South Wales" 2ndedition 1994 at pages 13-123 to 13-125.

13 I see no reason to think that the meaning of "bank" as used by Mr Williams in 1965 was different to its meaning in 1799 or in 1860.

14 Deposited Plan 227479 was prepared by Mr Surveyor Keith Frederick Williams of Wollongong upon survey work completed on 22 June 1965; there were minor (and not presently relevant), amendments to the plan on 28 February 1966 and the plan was registered on 23 March 1966. At that time the land was owned with Old System title by Mr & Mrs J S Barham. A statement on the plan showed that the proprietors intended to dedicate two strips of land of variable width fronting Princes Highway to the public for road purposes. One of these strips lay along the full length of the lines forming the north-western boundary of Lot 1 between Lot 1 and the Princes Highway. (The other strip is not now relevant.) The dedications took effect in some way at or soon after registration of the plan, so that the Princes Highway directly abutted Lot 1 to the north-west.

15 Mr & Mrs Barham conveyed Lot 1 to Mr Kenneth Albert Dean by conveyance dated 1 April 1966 No. 573 Book 2787. Mr Dean brought Lot 1 under the Real Property Act by primary application 44974 lodged on 4 May 1966, and obtained Certificate of Title Vol. 10760 folio 152 on 19 March 1968. The registered proprietorship passed through several hands and at least one later edition of Certificate of Title Vol. 10760 folio 152. The Plaintiff is now the registered proprietor of Lot 1 under computer folio certificate 1/227479, edition 3 of 11 October 1996. The Lot has been reduced by another and later widening of Princes Highway. Deposited Plan 248743 was prepared by Mr Surveyor Denis John Clark, the Department of Main Roads' own surveyor, on survey work completed on 24 June 1974 and registered on 28 November 1974. Two more strips with frontage to Princes Highway became Lots 10 and 11 in DP 248743 and were transferred to the Commissioner for Main Roads by transfer Q 484930 registered on 30 October 1978 and those two lots were later resumed -- notification T198086 registered 12 October 1982. The Plaintiff's Certificate of Title bears a notification that these strips are now public road. Subject to a notification referring to these strips the Plaintiff's Certificate of Title identifies the land as Lot 1 DP 227479, so the meaning of the Certificate of Title depends on the meaning of the Deposited Plan.

16 There have been some changes too in the parcel of land now held by the Defendant. The area of Lot 2 DP 227479 was 27 acres, 2 roods 13¼ perches. Mr Surveyor Robert Ackerman of the Department of Main Roads completed a survey on 17 December 1969 for DP 544690 registered on 7 October 1970. A parcel of 1 acre, 0 roods, 29 perches created by DP 544690 was excised, and was acquired by the Department of Main Roads in or after 1970; that parcel was in the easternmost part of Lot 1 DP 227479 at the most distant point from American Creek, and it was acquired for another road, a Freeway and not for the Princes Highway. That subdivision did not require any survey work relating to the American Creek boundary. The rest of Lot 2 DP 227479 became Lot 1 DP 544690. DP 248743 appears to create a small Lot 13 between Princes Highway and Lot 1 and Lot 2 DP 227479, but so far as appears this was not a deduction from Lot 2 DP 227479.

17 Deposited Plan 609162 was prepared by Mr Surveyor Francis Christopher Collaery, who was a member of Mr Surveyor Williams' firm. He completed his survey work on 23 February 1978 and DP 609162 was registered on 12 June 1980. By this time the land now owned by the Defendant had also been brought under the Torrens System. Lot 1 DP 544690 was thrown in with other land to the north, which also had frontage to Princes Highway, and re-subdivided to form and dedicate Woodrow Place. Part of Lot 1 DP 544690 fell within Woodrow Place. Again the survey work for this plan did not involve establishing the location of the boundary at the western bank of American Creek.

18 The Defendant's title is now shown by folio identifier 10/609167 dated 24 August 1995, which identifies the land as "Lot 10 in Deposited Plan 609167" and so incorporates the description of the common boundary in DP 609167. The Defendant's Certificate of Title is prior in time to the Plaintiff's. The problem is not one of priority between inconsistent Certificates of Title, because each adopts a Deposited Plan in its description of the land certified and the plans use the same description for the common boundary.

19 In these Deposited Plans the boundary is always represented in a way obviously derived from Deposited Plan 227479; no additional survey information was introduced which would establish the location of the western bank or any point on it. In Deposited Plan 609167, the last of the series, the common boundary is indicated with the statement "western bank is common boundary", in the same way as in DP 227479. However, in DP 609167 those words are applied to a longer stretch of the western bank, and also indicate the common boundary between the Defendant's land and other land to the south of the Plaintiff's land, land in DP 162049.

20 DP 162049, formerly known as MPS(OS) 12049 was also prepared by Mr Surveyor Williams, in survey work completed on 14 November 1956. DP 162049 establishes the boundaries of only one lot, Lot 1 DP 162049, of 2 acres, 3 roods, 35¼ perches, and does not state that it is a plan of subdivision. Although DP 162049 does not give comprehensive references to the land to the north and east which the Plaintiff and the Defendant now own it is clear enough that Lot 1 DP 162049 had common boundaries with the lands of the present parties. American Creek is shown and the western boundary bears the notation "bank of creek is boundary" for the boundary between Lot 1 DP 162049 and what is now part of the Defendant's land.

21 DP162049 and DP227479 contain statements which show that the land in each of them is part of the Barhams' land in conveyance Number 27 Book 2300, shown in Mr Dean's primary application as the conveyance dated 3 August 1954 by which Mr & Mrs Barham took their title.

22 In my opinion the location of the parties' boundary is to be established by establishing the meaning of DP 227479 and applying it to the facts. It is DP 227479 by reference to which the Plaintiff's title is certified, and the survey work for the plan by reference to which the Defendant's title is certified is derivative from DP 227479; that survey work introduces no new information and states no other view of where the common boundary is.

23 In National Trustees Executors and Agency Co v Hassett [1907] VLR 404 at 412 Cussen J said to the effect that land surveying is not an exact science like mathematics, and that the plan is intended merely as a picture of what is found on the ground.

24 DP 227479 is a document. Like other documents, to come to an understanding of its meaning it is necessary to have regard to the Deposited Plan as a whole, and to all dimensions and bearings in it which could indicate what was intended to be shown as the western bank and the common boundary. As with other documents, it is possible that the information in it may include statements which are internally inconsistent and that the inconsistencies may require to be resolved to arrive at its meaning. Everything the Deposited Plan says in the many dimensions, bearings and statements on it which are relevant to establishing Lot 1 is a description by a person of a piece of land, and the exercise for any person, including the court, who seeks to ascertain the meaning and effect of the Deposited Plan is to identify the piece of land which Mr Surveyor Williams described in his plan of survey. It is not the exercise to fulfil literally each and every dimension bearing and statement: that may not be possible.

25 It is sometimes necessary to give relatively less weight to figured dimensions than to monuments and reference marks and to abuttals. The Judicial Committee reviewed authorities on ambiguous descriptions in Watcham v East Africa Protectorate [1919] AC 533; at 541 their Lordships said:-

"Where a deed contains an adequate and sufficient definition of the property which it was intended to pass, any erroneous statements contained in it as to the dimensions or quality of the property, or any inaccuracy in a plan by which it purports to be described will not vitiate this description:......"

26 An instance where figures on a plan were not treated as controlling the meaning of the description in the plan was Small v Glen (1880) 6 VLR 154: see 161-162. However there are no general rules of law according primacy in all cases to abuttals or monuments; the question is always one of the construction of the instruments of title. Finding the actual sites of the boundaries as they were at the date of the Deposited Plan is a much more pressing consideration than finding some resolution in which all the stated dimensions are literally fulfilled.

27 A Certificate of Title is an ordinary written instrument and must be construed in accordance with the ordinary rules for the construction of documents of title, and without extrinsic evidence to identify its subject matter it has no intelligible meaning: see per Griffith CJ in Overland v Lenehan (1901) 11 QLJ 59 at 60.

28 The Plaintiff's counsel pointed out correctly that the Plaintiff is not affected by the exception to indefeasibility in s 42 (1) (c) of the Real Property Act 1900, which relates to wrong description of parcels or of boundaries, because the Plaintiff is a purchaser for value. Subsection 42 (1) (c) is obviously not available against the Plaintiff and the Defendant's counsel did not rely on it. Subsection 42 (1) (c) is not the only vehicle for protection in respect of wrong descriptions of parcels or of boundaries, and it is necessary to ascertain, on ordinary principles, the meaning of a Certificate of Title in order to understand to what it is that the protection of s 42 is extended. Resort to s 42 (1) (c) would usually occur where there was competition between a registered title and an old system title. It is not impossible that s 42 (1) (c) might be applicable in some case where both titles were under the Torrens system, although I think that in that case any conflict in the descriptions of land for which title is certified would usually be resolved under s 42 (1) (a).

29 The Defendant's Certificate of Title folio identifier 10/609167 is the earlier in date. The case does not turn on priority in time of certificates of title under s 42 (1) (a) of the Real Property Act.

30 Identifying the land described and accepting the indefeasibility of title to that land are quite different things. The Certificate of Title certifies title and does not certify that the land has all the dimensions and characteristics attributed to it in the Deposited Plan. As with other documents which are human productions, it must be recognised and accepted that there may be inaccuracies and misdescriptions, which may appear either wholly from an attempt to resolve among themselves the statements in the plan or from an attempt to apply the plan to the facts found on the ground. Where inconsistencies appear it is necessary to press on and to make a finding on the probabilities about what land was the subject of description (even imperfect description) in the Deposited Plan when it was written in 1965.

31 If the piece of land actually available at Figtree is not as large as the piece of land shown and described in the Deposited Plan, having regard to the positions of the reference marks, the dimensions and bearings, the western bank of American Creek and the location of lands occupied by adjoining owners, then the Deposited Plan and the description in it have to be accommodated to the facts, and the Court has to accept that there has been an erroneous description. (In a similar way the Court may have to accept that more land is available than a Deposited Plan would show). Elements in a description which it can be taken with fair certainty are in the same position as when the land was subdivided, such as reference marks consisting of galvanised iron pipes and spikes and natural features such as the western bank of American Creek, have a much stronger claim to acceptance than parts of the description such as dimensions and bearings which are the product of surveyor's work and for that reason susceptible to error.

32 If the accuracy of all the bearings and dimensions given by Mr Surveyor Williams is assumed it should be possible to mark out exactly on the ground the positions of all the surveyed lines which form the boundaries of Lot 1 other than American Creek. This is so because they were related by Mr Surveyor Williams to a number of permanent reference marks, four galvanised iron spikes at points on or slightly offset from the boundaries and several others at other points. With that information it is possible to establish by survey where according to the information expressed in the plan the northern and southern limits of the common boundary on the western bank of American Creek were when Mr Surveyor Williams did his survey work in 1965. Mr Surveyor Williams did not incorporate any survey information in his Deposited Plan which can establish where the western bank was, except at the northern and southern limits. He simply adopted an expression which identified the common boundary by reference to a natural feature, and his plan must be understood to have been referring to the position of the western bank as a natural feature at the time of his survey. The words he used referred to the position of the western bank at that time, and to apply them to the facts it is necessary to establish where the western bank then was. The position of the boundary has not been changed by any gradual accretions and decretions, and there cannot have been any change in the meaning of the description of the boundary in the Deposited Plan.

33 For most of the present century survey work has been conducted to a high professional standard and with improving techniques. Plans referred to in the Torrens register have been the subject of meticulous official examination, so that it is unusual (but not unknown) to encounter litigation arising out of anomalies in modern survey work. This happy state of affairs should not conceal the fact that a survey plan is a description of something which exists on the surface of the earth and is different to the exercise of describing it by the plan, and that there may be mistakes or anomalies. Where there is some ambiguity or other doubt about the meaning of a Deposited Plan, evidence about the facts and circumstances which surrounded the preparation of the plan is admissible in order to identify its subject-matter and come to a finding about its meaning, and that evidence can include evidence about the physical features of the land at the time when the plan was prepared and can also include evidence about the survey work, the field notes and the observations of the surveyor at the time of preparing the plan, so as to identify the piece of land he was attempting to describe. I rejected objections to evidence which were based on the view that resort is limited to material publicly available, whether in the Deposited Plan or elsewhere, and I admitted evidence of field notes made by Mr Surveyor Williams or by his technical assistant in this and earlier surveys. I have not found those field notes of much use except as interpreted and applied by Mr Surveyor Johnson in his survey based on them.

34 The survey evidence adduced in chief on behalf of the Plaintiff was given by Mr Surveyor Roger Philip Farrington and by Mr Peter Howick. Mr Howick is an Associate of the Institution of Surveyors, Australia, and has other qualifications in surveying. Mr Howick is experienced in photogrammetry and works as the Manager of AAM Surveys Pty Limited, and has done so for many years. He prepared a series of plans, exhibits C, D, E and F which are based on aerial photography and survey information furnished to him by Mr Surveyor Farrington. Mr Surveyor Farrington established information by survey from existing survey marks so as to define the boundaries of Lot 1, particularly its eastern boundary. He also established and provided to Mr Howick co-ordinates of physical features on the ground which would have been visible in aerial photography of 1963, 1972 and 1984.

35 Mr Surveyor Farrington did not establish the position of the western bank of American Creek as shown in DP 227479, and in my understanding it would not be possible for him to do this by survey from existing survey marks as shown on the Deposited Plan or elsewhere. Mr Surveyor Farrington worked to a high degree of accuracy and furnished Mr Howick with field survey photography dated 1963, 1972 and 1984 from the New South Wales State Aerial Photography Library at the Land Information Centre Bathurst, and Mr Howick used the information available to him to establish and compare changes to the course of American Creek and the position of its middle thread during the period from 1963 to 1984. In his photogrammetric mapping Mr Howick obtained his orientations from topographic maps and from the field survey data provided by Mr Surveyor Farrington. In Exhibit C he showed the position of the middle thread of American Creek as indicated by the 1963 aerial photography and also plotted the line of the south-western boundary of Lot 1 DP 227479 as established by the field survey data. In doing so he adopted the length of that line at 100.115 metres.

36 This is the interpretation which Mr Surveyor Farrington made and for which the Plaintiff contends of what is stated in DP 227479 as the length of that line. 100.115 metres is the result of Mr Surveyor Farrington's conversion of 336 feet to metric measurements and deduction of 2.3 metres for the width of Lot 10 DP 248743 transferred to the Department of Main Roads.

37 Exhibit D plots the position of the south-western boundary in relation to the middle thread of American Creek as interpreted by Mr Howick from the 1972 aerial photography. The position deduced for 1972 is a very small distance west of the position deduced for 1963. Mr Horwick's work shows little change in the position of the middle thread of the creek between 1963 and 1972.

38 Exhibit E shows the position of the boundary line in relation to the position of the middle thread of the creek as deduced from the 1984 aerial photography. This comparison shows that the middle thread of American Creek had again moved a small distance eastward.

39 Exhibit F shows the position of the same boundary in relation to the position of the middle thread of the creek as established by field survey by Mr Surveyor Farrington in 1997. The positions shown for American Creek for 1984 and 1997 are almost identical, a little east of the position deduced for 1963.

40 In relation to the orders of accuracy given by Mr Howick for his conclusions based on photogrammetry the variations appearing from his plans can only be very small. Presumably Mr Howick's work in these plans is the basis of the plan annexed to the Summons, which appears to be part of the same series but asserts, in relation to the interpretation of the 1963 aerial photography, that there was a distance of 3 metres from the south-eastern limit of the south-western boundary to the middle thread of the creek and the same distance from the north-eastern limit of Lot 1 to the middle thread of the creek. Mr Howick's evidence does not however establish that the relevant dimension is 3 metres and it is not dealt with anywhere in the evidence; so no conclusion can be based on the plan annexed to the Summons.

41 Mr Howick's work shows that there have been significant changes in the watercourse in other respects, and also in the line of the points interpreted by Mr Howick as change of grade. In Mr Howick's plans the middle thread of the creek is in the position which Mr Howick's interpretation of that aerial photography would establish. Mr Howick did not purport to establish where the bank was; he was not asked to define the western bank and would not have been able to do so with material on which he worked. In explaining this he said that banks as seen on the photographs are indistinct and there is no fairly visible line of the bank. He said "The shape of the bank of the river is generally a subtle shape and from the water course it curves open out on to the upper flats so therefore the actual position of the bank is a subjective judgment. We are not able to say that is where the edge of the bank is." Some of his drawings show a line which in his interpretation from aerial photography is a line where there is a change of grade; but he does not put this forward as establishing the bank.

42 Essentially the force of Mr Howick's work is to establish the positions of the change of grade and the middle thread of the creek at the dates with which the aerial photography deals and to relate the positions of the middle thread of the creek, the proximity of which to the boundary shows relatively little change, in relation of the orders of accuracy observed.

43 As the distance from the end of the south-western boundary (as established according to Mr Surveyor Farrington's interpretation and survey work) to the middle thread is not shown, as the middle thread of American Creek is not referred to in DP 227479 and is of no assistance in interpreting the Deposited Plan and as the position of the western bank of American Creek is not established at any date by Mr Howick's and Mr Surveyor Farrington's work, I am of the opinion that their work has no real value in interpreting the plan and applying it to the facts. I could not attribute any value to any supposed resolution which did not attempt to establish in some way the position of the western bank of American Creek at the date of Mr Surveyor Williams' survey work, or to find some resolution between the position of the western bank so established and the other available information. The natural feature to which the Deposited Plan so deliberately and prominently referred is too important to be passed by.

44 Mr Howick expressed the conclusion that as at 1963 the middle thread of the creek was within approximately 3 metres of the north-eastern fixed boundary of the site, while it was within approximately 5 metres of the south-eastern fixed boundary of the site. As his evidence does not show how he established what he refers to as fixed boundaries of the site, this evidence is of no value to me. It does not support any finding about where the western bank of American Creek was in 1965.

45 The only evidence which had significant force for establishing the position of the western bank in 1965 was adduced by the Defendant.

46 As the evidence and arguments developed, a predominating burden of attention fell on the southern limit of the common boundary. The evidence exposed an anomaly between the position of the bank there as established by Mr Surveyor Johnson in relatively recent survey work for Wollongong City Council in June 1996 and more recently for this litigation, and as re-established by him using Mr Surveyor Williams' field notes, and the position which the southern limit has as the plan is interpreted by Mr Surveyor Farrington; in that interpretation the south-western boundary of Lot 1 was 336 feet 0 inches long. The Plaintiff's position is that that boundary is 336 feet 0 inches long. This to my reading is the ordinary and natural meaning of the figures marked on the plan. If the ordinary conventions for indicating dimensions on survey plans had been followed, 32 feet 1 inches would appear in brackets if it was part of a longer line the length of which was also given. If that boundary truly is and was 336 feet 0 inches long its south-eastern terminal point is not in any position which is or ever could have been credibly a position on the western bank of American Creek; Mr Surveyor Johnson's evidence seems to show this and there was no endeavour to establish in cross-examination of Mr Johnson or otherwise in evidence that this is not so. In a way Mr Howick's evidence seems to confirm it by showing that terminal point as being very close to the middle thread of the creek. As the presentation of issues developed the case became a struggle about which view was to prevail; the view that the terminal point is where the bank was and is or the view that the terminal point is further eastward, at a point established by accepting that the south-western boundary is 336 feet 0 inches long and disregarding the resulting inaccuracy of the statement that the terminal point was on the western bank of American Creek.

47 Mr Johnson's survey work and evidence show his view that the point at which that line intersects the western bank is the same now as it was in 1965. He conducted a peg survey of the western bank using Mr Surveyor Williams' field notes, re-established the lines of traverse measurement on the eastern side of American Creek together with radiations to the western bank and offsets to the eastern bank, and established and defined the location of points on the bank as they were at the time of his own survey in 1996 and as they were when observed by Mr Surveyor Williams in 1965. Annexure H to his affidavit of 11 September 1997 illustrates that by survey he established eleven positions on the western bank as they were in 1965 from radiations made and noted by Mr Surveyor Williams in 1965. The traverses form part of the Deposited Plan; the radiations do not, and they are found only in the field notes and not in publicly available material. Mr Surveyor Johnson's work shows, as illustrated by Annexure G to his affidavit, that for most of its length the western bank as it now stands is now significantly further east than the western bank was in 1965, to a maximum of 12 metres. These alterations must be attributed to artificial works, and not to gradual accretions, and there was no claim in the Plaintiff's case that there had been gradual accretions.

48 The field notes do not show the length of the disputed boundary as ascertained by survey in 1965, and they do not show by radiation or otherwise that the intersection between the south-western boundary and the western bank was established or marked.

49 To illustrate the contentions about the length of the south-western boundary of Lot 1 I have incorporated an extract from DP227479 as a schedule to this judgment. That boundary is part of a line bearing 110° 51' 40" on which five points can be identified. I have indicated these points in the extract.

50 The first, which Mr Johnson in evidence called Point A (t 27) is at the intersection between the Princes Highway boundary and the "strip for widening variable widths" on DP 227479. This is indicated by a Reference Mark which Mr Williams found, a galvanised pipe at an offset from that point. The next point which I designate Point C is at the intersection of a curved line which is a boundary between Lot 1 DP 227479 and the "strip for widening" on DP 227479, shown as 32 feet 1 inch wide (9.375m). Mr Surveyor Williams gave the location of this point by an offset from a Reference Mark, a galvanised iron spike. The next point on that line is not shown on DP 227479 or designated by Mr Johnson: it is the eastern limit of the second road-widening (Lot 10 DP 248743) which at this point was 2.3m wide: I designate it Point D. The next point is the intersection between the line and the western bank which I designate Point E. The next point is the intersection between the prolongation of the line as a traverse and another traverse line on the eastern side of American Creek which Mr Surveyor Williams established. Mr Johnson designated this Point B. Figured dimensions on DP 227479 give the length of line C - E at 336 feet 0 inches (102.41m) the length of line E - B as 95 feet 6¾ inches and the length of line C - B as 431 feet 6¾ inches: and these are arithmetically consistent.

51 There was no evidence other than the evidence of Mr Surveyor Johnson who was called by the Defendant which would tend to establish where the western bank of American Creek is and was at its intersection with a line bearing 110° 51' 40" from point C.

52 Mr Johnson also established and pegged the position of Point E, and measured the boundary D - E at 90.33m. This is inconsistent with the reading put forward by the Plaintiff, which would produce 100.11m as the length of D - E by deducting 2.3m for line C - D from 336 feet 0 inches (102.41m). However Mr Johnson's measurement of D - E is consistent with 336 feet 0 inches (102.41m) being the length of the line A - E, as deduction of A - C at 32 feet 1 inch (9.775m) and C - D at 2.3m from 102.41m produces 90.335m, which for practical purposes is what Mr Johnson found.

53 Mr Surveyor Johnson also presented an analysis of the dimensions of Lot 1, particularly the south-western boundary, based on closure calculations. If a lot shown on a survey plan is a regular straight-sided figure the dimensions and bearings of each line forming part of the boundary can be analysed in terms of Cartesian geometry. An identical figure can be constructed geometrically using the same dimensions and bearings, and if all the dimensions and bearings are consistent the construction of the figure will return one to the point of commencement. When this occurs surveyors speak of the result as "a close"; when it does not there is "a misclose" and there must have been some error in the statements of dimensions and bearings. Cartesian geometry cannot be easily applied to all boundaries of Lot 1 because the western bank is irregular and its dimensions and bearings have not been given, but the dimensions and bearings which have been given can be tested by a closure calculation on the regular figure produced by the dimensions and bearings which are given and traverse lines shown on DP 227479, which with them produce an imaginary straight-sided geometrical figure. Mr Surveyor Johnson in effect reconstructed the traverse lines in his survey work of July 1997 and used them to establish offsets of points on the western bank from points on the traverse lines. His closure analysis of the figure formed by the traverse lines and the straight and regularly curved lines forming boundaries of Lot 1 showed that there is a misclose if 336 feet 0 inches (102.41m) is taken to be the length of the line C - E; that the extent of the misclose is approximately equal to 32 feet 1 inches (9.775m), and there is no misclose if the dimension 336 feet 0 inches is taken to refer to the line A - E, the south-western boundary of Lot 1 on DP 227479 is taken to be 303 feet 1 inches and the boundary available after alienation of Lot 10 DP 248743 and deduction of 2.3m is 90.335m.

54 A third body of material to which I should have regard is furnished by Mr Surveyor Williams' survey work for Deposited Plan 162049. The north-eastern boundary of Lot 1 DP 162049 can be clearly identified with the line A - E in Lot 1 DP 227479; it is the same line before either of the two widenings of Princes Highway had taken place and it terminated at the western bank of American Creek. Its dimension was given as 336 feet 0 inches.

55 Mr Surveyor Johnson is now a principal of the firm which Mr Williams established. He was not ever a partner of Mr Williams, who retired before Mr Johnson joined the firm and died in 1993. Mr Johnson's survey work in 1997 was not carried out for one of the parties but arose from his being retained by the Wollongong City Council in connection with the development application to it. He had the advantage through his firm of access to field notes and files of Mr Williams which are not publicly available. His explanations of his methods were clear and cogent. Particularly telling was his exposition of the close calculation, which was not challenged by cross-examination or countervailing evidence. I found Mr Johnson an impressive witness. His evidence illustrated by his Annexures G and H which established the position of the western bank as of 1965 with information from Mr Williams' field notes was not challenged in cross-examination and in my finding he had a sound basis for his conclusions about the position of points on the western bank as of 1965, including, most significantly, the intersection of the western bank and the south-western boundary line. As Mr Surveyor Farrington, who did not have the same access to Mr Williams' notes and files but acted on the basis of information in DP 227479, was of the view that on that information it was not possible to define the western bank, and as Mr Howick did not attempt to do so, Mr Surveyor Johnson's conclusion is not met by any countervailing material.

56 Mr Surveyor Johnson explained his treatment of the bank in his survey work of June 1996 (affidavit 11/9/97 para 17) in this way:-

"For the purposes of my plan I adopted as the current bank the top of the bank to the flow of the creek at the time I effected my survey inspection. I did not include inside the current bank definition the leading edges of the bank where it falls into the waterway. Similarly the batter down was excluded..."

57 This appears to apply correctly the meaning of "bank" as explained in the State of Alabama v State of Georgia. (I have omitted the last passage of his para. 17, which is difficult to understand and may be confused.) As evidence shows that the rate of flow of water in American Creek and the height of the flow ranges very widely, it appears to me that Mr Johnson acted appropriately. For establishing the location of the bank as it was in 1965, Mr Johnson's re-working of the traverse and radiation from Mr Williams' field notes, and the pegs which Mr Johnson placed as a result have greater significance than his assessment on site of the location of the bank; both produced the same result. (The plans showing location of the bank using Mr Williams' radiations are Exhibits 3 and 4 -- slightly amended from annexures to Mr Johnson's affidavit.)

58 Mr Howick's work did not enable him to establish the position of the bank or the length of the south-western boundary. Mr Surveyor Farrington said in evidence that the boundary is not readily definable and is not physically evident any more; the bank has been subject to water flow and has been altered, and the position of the western bank now is not the result of natural accretion or erosion.

59 As I have stated earlier, the need to resort to extrinsic evidence to identify the subject matter described in the Certificate of Title and Deposited Plan is inherent in the subject matter of applying a description in a document to a parcel of land; extrinsic evidence may be resorted to for that purpose without showing the existence of an ambiguity or any other ground for resorting to extrinsic material in order to determine the meaning of the document. Ascertaining the meaning of the Deposited Plan involves relating it to its factual context. Resort to extrinsic material is further justified by the misclose which in my opinion is a patent ambiguity in the Deposited Plan. It is a patent ambiguity because the application of mathematical reasoning to the information in the plan demonstrates, as a matter of logic, that there is a misclose; this is no less so because many persons including myself have not retained the mathematical ability to discern that there is and are in need of exposition from someone with expertise.

60 The Plaintiff's counsel accepted in submissions that there is a misclose and that there is an error somewhere in the statements about dimensions relating to the south-western boundary, and contended that the most likely place where there is a discrepancy of 32 feet 1 inches is in the distance E - B of the traverse taken between the bank and the traverse line on the eastern side of American Creek, given in the plan as 97 feet 6¾ inches. The reasoning offered in support of this contention was that it is highly unlikely that a line which was an actual boundary line would not be measured, that the length of this traverse is not part of a boundary as such but is likely to be the product of deduction rather than measurement and that that is an opportunity for intrusion of an error. I do not accept this submission because it is not based on any evidence which raised the possibility that the traverse length might be erroneous, and given that there is in fact a dimension of 32 feet 1 inches elsewhere on the line it seems to me to be far more probable that where there is an error of exactly 32 feet 1 inches the error relates to the inclusion in some stated dimension of the 32 feet 1 inches which was expressly referred to.

61 In my opinion, the statement that the length of the boundary is 336 feet 0 inches does not gain any force from its repetition in the conveyance to Mr Dean, his primary application and in other places, as all are obviously based on the Deposited Plan, to which all expressly refer.

62 Taking these bodies of material together it appears in my finding with fair certainty that the dimension 336 feet 0 inches which on a fair reading of DP 227479 is the length of line C - E is a mistake on the part of Mr Surveyor Williams and that the information available to him was that the length of line A - E was 336 feet 0 inches. It is not possible to say exactly how the mistake occurred but it may be that he proceeded by transcribing 336 feet 0 inches from DP 162049 to his new work without adverting to the availability of the interpretation that the dimension related only to the boundary of Lot 1 DP 162049, and without adverting to the need to indicate clearly the length of the boundary of Lot 1.

63 This finding resolves the controversy debated before me in favour of the Defendant. Understood literally, claim 1 in the Summons is an undisputable truism but the Plaintiff should not have the benefit of a declaration which has no utility.

64 The orders are:

1. The proceedings are dismissed.

2. Costs reserved.

65 SEE PLAN ANNEXURE "A" TO THE JUDGMENT ATTACHED.

I hereby certify that paragraphs 1-65 and Annexure "A" are the reasons for judgment of the Honourable Justice John Bryson.

Dated 26 February 1999. (H D LEWIS)

Associate.

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LAST UPDATED: 01/04/1999