In an opinion given to the Hobart City Council, he said “further advice should be sought from the Crown Solicitor should the potential for significant dispute or costs arise from this issue.”
The contentious question of greater public access to the Battery Point foreshore hinges on the two titles, to Nos 11 and 13 Marine Terrace.
The Surveyor General’s advice of August 2002 is included in a HCC Briefing Paper, dated 24th March 2003. Since then, the Council has become involved in protracted negotiations with the present owners to buy the land between the high and low water marks. The owners are believed to want $700,000 between them, while the Council is thought to have offered $70,000.
The Briefing Paper, obtained by Tasmanian Times, was prepared for the Council’s Parks and Customer Services director by the manager of Surveying Services. It details the history of the titles.
The two Marine Terrace properties were originally on one title to the high water mark. The land was granted to James Mackey, who ran a shipbuilding yard on the site. Between 1874 and 1897, he expanded his business to the low water mark. (The Council’s Metropolitan Drainage Areas Sheet 87 (1897) records the extent of his encroachment).
In 1903, Mackey sold the property to Arthur Watchorn, claiming a transferable interest in the foreshore, which was included in Conveyance 10/8646 dated 17 December 1903.
“This conveyance was prepared by solicitor Arthur D. Watchorn in a conveyance to himself from Arthur James Mackey,” the Briefing Paper notes.
“The foreshore was included as land secondly described in this conveyance on the basis of an ‘uninterrupted and undisturbed possession of the piece of land … for a continuous period of twenty five years and upwards.’ Occupation of the foreshore would not have exceeded 29 years at the time the secondly described land was claimed and conveyed by Mackey. In those days The Crown Suits Act 1769 appears to be the relevant legislation governing claims of adverse possession over Crown land, and provided for claims of possession of land (including the foreshore) which had been occupied for 60 years of more. (The Crown Lands Act 1935 subsequently precluded such claims over foreshore areas).”
In 1941, a surveyor called Radcliff was engaged to survey the boundaries of Nos 11 and 13 Marine Terrace and prepared a Deeds Office survey (13/22)DO. It included all the land in the above conveyance “including the 10 metre encroachment beyond the original grant boundary.”
In 1991, the General Law conveyances were converted to Real Property Act titles and a Land Titles Office conversion plan was compiled from Surveyor Radcliff’s survey ((13/220)DO) by the Recorder of Titles.
On 19 June 2002, the HCC’s City Service director, acting on a Council resolution of 27 May 2002, wrote to the Surveyor General requesting advice on matters affecting a proposed Battery Point foreshore promenade, including the correct location of the riverside boundaries of Nos 11 and 13 Marine Terrace.
The Surveyor General replied on 29 August 2002, advising that “the extent of ownership conferred by changes in the land/river interface is a matter of interpretation of the facts in light of the common law and statutes applicable during the relevant periods. This is a matter that, ultimately, the Courts may be called on to decide.”
However, he also included advice from the Recorder of Titles that “the registered proprietors of folios of the Register Volume 47358 Folios 2 & 3 (Nos 11 & 13 Marine Terrace) have an indefeasible title to the whole of the land comprised in the folios.” In other words, the Recorder of Titles was of the opinion that Surveyor Radcliff’s 1941 survey offered a correct description of the title boundaries.
But the Surveyor General went on to say that “further advice should be sought from the Crown Solicitor should the potential for significant dispute or costs arise from the issue.”
The Briefing Paper supports the Surveyor General’s opinion: “The Recorder’s advice appears to rely on Section 40 Land Titles Act 1980, which defines indefeasible as ‘subject only to such estates and interests as are recorded on the folio of the Register.’ Indefeasibility is, however, subject to the same provisions of subsections 3 and 4 which provide, among other things, that a title’s indefeasibility is not guaranteed with respect to ‘the omission or misdescription of any reservations … or any public right of way (Section 40(3)(c)).”
The paper’s author concludes: “It is evident that prior to 1874, the public enjoyed a common law right of access along the original > foreshore … and it appears that this right has now been extinguished. However, it may be that pursuant to Section 40(3)(C) of the Land Titles Act 1982, the right still exists and has been erroneously omitted from the title. I concur with the Surveyor General’s advice that legal opinion may be required from the office of the Crown Solicitor if this is to be resolved.”
THE validity of two titles on the Battery Point foreshore in Hobart which extend to the low water mark was questioned by the Surveyor General four years ago.