Question 1 Trevor owns a piece of land by the sea, which is shaped like a peninsula. It is connected to the mainland of New South Wales on its western boundary, but the northern, eastern and southern edges of the land jut into the Pacific Ocean. The land is freehold – fee simple – and the original grant of fee simple was made by the Crown to a previous title-holder 170 years ago. The boundary was established at that time by government surveys.Trevor’s western boundary is a non-tidal river, which separates his property from land owned by Dodgy Bob’s Construction Co Pty Ltd. For over eighty years, Dodgy Bob and the previous owners have dumped unwanted landfill (excavated from building sites) along the edge of its land on its side of the river. The effect has been to increase the area of Dodgy Bob’s land. However, since Dodgy Bob and its predecessors have only deposited about a dump-truck load of fill every six months, the increase in area has been imperceptible until last month. Trevor is concerned Dodgy Bob will completely fill the river channel. The activity is highly illegal and Trevor has complained to the relevant authorities but the matter seems to have become bogged down in regulatory procedures. In order to expedite a solution to the matter, Trevor is interested in whether he has a cause of action in property law related to the river boundary of his land. You may assume that due to an historical anomaly, Trevor’s land does not come within theCrown Land Management Act 2016 (NSW), and the original grant does not explicitly reserve the river (or river bed) to the Crown.On the eastern edge of the land, Trevor installed a whale-watching tower. The structure was entirely legal and Trevor had complied with all regulatory and planning requirements in its construction. Because of the sandy soil on which it was constructed, the tower’s supporting pillars were installed very deep into the ground, well below sea-level. Last month, a once-in -a-hundred-year cyclone hit the coast and in a single night eroded all of the sand from under the whale-watching tower. Consequently, the tower now stands in the sea. The State Government claims the structure is now on Crown land and intends to demolish it as an illegal construction on its land.On the southern edge of Trevor’s land, sea currents have deposited sand imperceptibly over the past 170 years, resulting in an increased area of land above sea-level. Trevor wants to build another whale-watching tower on the southern edge. However, cadastral maps of the land based on the government surveys 170 years ago indicate the precise location as sea (as it then was). Consequently, the relevant planning authority refuses to approve Trevor’s development application to build the whale-watching tower, on the basis the proposed location is a sea-bed belonging to the Crown. You may assume that Trevor’s development application would likely be approved in every respect except for the matter of the land ownership. With reference to legal authorities, advise Trevor on his rights and obligations regarding the western, eastern, and southern boundaries of his land.Question 2 (20 marks)You are the in-house legal counsel for the Office of the NSW Registrar-General. You have been asked to prepare a brief advice for an upcoming meeting relating to the following matter.Toby owned a number of parcels of land in the town of Farmidale in the Northern Tablelands of New South Wales. The configuration of the parcels and current owners is shown in thediagram available in Moodle in the 'Assignment' section of theAssessmentstile. Thirty years ago, Toby bought Lots 4 and 5 from the former local government authority – the Humaresq Shire Council – which later amalgamated with the Farmidale Regional Council, the current local government authority.Fifteen years ago, Toby read the novel that was adapted into the movie,The Best Exotic Marigold Hotel. He decided to move abroad to a country with a lower cost of living. To that end, fourteen years ago, he sold Lot 1 to Ruby (who later sold to Gretel) and Lot 3 to Mildred (who later sold to Zahra), and retired to Thailand, where he has lived ever since. However, he retained the remaining lots – 2, 4 and 5 – with plans to sell or develop themover time when he needed more retirement funds.Lot 4 is bushland and is enclosed with a simple fence comprising steel posts with a single strand of metal chain welded to the top of the posts. It is possible for pedestrians to enter Lot 4 from West Street through a rather ancient and ornate arched gateway. There is no gate in the gateway.Lot 5 is a bare, vacant block with grass but no trees.Lot 2 is a vacant lot with no buildings, whereas Lot 3 includes a house and garden. Toby has vague plans to convert Lot 2 to a lookout for tourists to view the superb vistas of the New England gorges, which lie beyond East Street. The only steps he has taken to implement this plan is to construct a road straight through the centre of the lot from East Street to the boundary on Lot 1.Gretel bought her block from Ruby thirteen years ago. Gretel’s cousin Siegfried – a second year law student who had not yet completed Property Law or Conveyancing – offered to handle the conveyance at no cost, to which Gretel agreed. (This was ill-advised and, in hindsight, it would have been better if Gretel had engaged a qualified professional legal practitioner or conveyancer to complete the conveyance). Based on representations from Ruby, Gretel believed that Lot 4 was actually part of her lot – Lot 1. In fact, Gretel has paid council rates on the block for the entire time she has owned Lot 1. The Farmidale Regional Council never discovered the error. Gretel has always enjoyed the bushland and had no plans to develop the block. Therefore, she never undertook any works that changed the block in any way – other than leaving some fold-up, outdoor chairs in the block, which she uses to sit in the bushland listening to the birds. Being a community-minded person, Gretel has always allowed like-minded bird enthusiasts to come onto the block and enjoy the birds whether or not she is present.As soon as Toby left for Thailand, Ruby reconfigured the fence on the boundary of Lots 1 and 2 to allow access to the road on Lot 2. Ruby used the road as a shortcut to East Street and represented to Gretel that it was a legitimate right of way. Thus, Gretel does the same and drives her car along the road to and fro at least five times a week.Originally, Lot 5 was unfenced on its West Street and South Street boundaries. The boundary with Lot 3 comprised a post-and-beam fence. As soon as Toby left for Thailand, Mildred enclosed the unfenced boundaries of Lot 5 with a simple post and wire fence with a single strand of wire and a gate for vehicular access to South Street. She installed a lock on the gate to control access. The fence was robust enough to prevent vehicles accessing the block, but people and animals – including kangaroos and dogs – could climb through the fence with ease.Sometimes people would climb through the fence to take a short-cut from West Street to South Street, and occasionally, a dog and kangaroo would stray onto the land. Mildred would tolerate these incursions without taking any action. However, if people attempted to camp on the block overnight, Mildred would yell at them and tell them to go away. The Farmidale showgrounds are close by, and every year during the annual agricultural show, Mildred would unlock the gates and charge show-goers a fee to park their cars on Lot 5.Mildred never represented to Zahra that she owned Lot 5, nor represented to her that it was part of the sale of Lot 3. Mildred always referred to the land as ‘the Shire strip’. Indeed, when Mildred applied to the Farmidale Regional Council for approval to build a garage on Lot 3, the paperwork she submitted included a map showing Lot 5 marked ‘HSC’, an abbreviation for Humaresq Shire Council – the owner of the block before Toby.Zahra bought Lot 3 from Mildred seven years ago and has not undertaken any work on the Lot 5, nor has continued Mildred’s practice of allowing show-goers to park their cars for a fee. Starting six years ago, Zahra has allowed her brother to keep a horse on the block for two weeks every year, while he goes on holidays. During that time, Zahra cares for the horse. As the horse needs drinking water, Zahra temporarily opens a gap in the fence between Lots 3 and 5 by removing a couple of beams, so the horse can drink from a fountain in her garden in Lot 3. When her brother brings the horse onto the block, he repairs any breaks in the wire of the fence and electrifies it with a portable, solar- powered energizer of the type used by livestock owners. When he removes the horse, he dismantles the energizer so the fence is no longer electrified, and Zahra closes the boundary between Lots 3 and 5 by re-inserting the beams.A few months ago, Toby found out about the circumstances of his remaining blocks. He contracted an agent to install large signs on Lots 2, 4 and 5 that read,.’ Soon after, Gretel and Zahra applied to the Registrar-General for title by possession under theReal Property Act 1900 (NSW) s 45D. Gretel has made to two applications – one for a right of way or easement over Lot 2, and the other for Lot 4. Zahra’s application relates to Lot 5.The Registrar-General has rejected Gretel and Zahra’s applications on the grounds that:(a) Neither Gretel nor Zahra have demonstrated the necessary control and intention required under RPA s 45D,

(b) Zahra’s alleged possession of Lot 5 has not persisted for the requisite period required by theLimitations Act 1969 (NSW),

(c) Gretel’s intentions for Lot 2 are not inconsistent with Toby’s,

(d) Toby has re-asserted possession, and/or

(e) Adverse possession cannot extend to an incorporeal hereditament.Gretel and Zahra have indicated they intend to challenge the decisions in court.The relevant officer at the Registrar-General’s office is meeting with barristers on the matter soon. Ahead of that meeting, the officer (a non-lawyer) has asked you to prepare an outline, with reference to relevant case law and statutes, of the efficacy of grounds (a) to (e) and whether Gretel or Zahra would have grounds to challenge the decisions