Trespass v Adverse Possession
Bottos v CityLink Melbourne Ltd  VSC 585
The owners of land abutting the Tullamarine Freeway in Brunswick West sought damages in the Supreme Court of Victoria for trespass and the relocation of CityLink’s noise wall after it was discovered in February 2018 that the noise wall, which is some 8 metres high and made of concrete, its steel supports, foundations and some concrete spill was encroaching onto their land. The noise wall, its supports and foundations remain in place today but after discovery, CityLink removed the spill. The period from discovery to removal was a total of 55 days.
As the noise wall was erected in 1999, CityLink relied on the Limitation of Actions Act 1958 (Vic) and the well-established line of cases regarding adverse possession and argued that the plaintiffs had lost their right to claim damages in or around October 2014. The plaintiffs raised a number of arguments in response to CityLink’s adverse possession claim.
Justice Gorton dismissed the plaintiffs’ case almost entirely, save for the spillage component of the encroachments. His Honour found that CityLink had adversely possessed the land on which the noise wall, its supports and foundations lay. As to this, the plaintiffs had submitted that as they had retained possession of the surface of the land right up to the noise wall, they were not dispossessed of the underground land occupied by the supports and foundations. CityLink relied on the case of Symes v Pitt  VLR 412 in which Sholl J stated as a principle of law that “a disseisor of […] strata under the surface, or of other cubical spaces under the surface, acquires only that of which he takes actual possession”. Justice Gorton agreed and said further that “it is implicit in this expression of principle that a person who takes occupation of underground land is taking possession of that ‘cubical space’ (albeit only that space) for the purposes of the Limitations Act”. As to the spillage, his Honour found that CityLink had not intended to take possession of the land upon which the spillage encroached. The trespass claim was successful to that limited extent.
The damages claimed by the plaintiffs related to their development of the land into a subdivision of 6 units that was interrupted by the discovery of the encroachments. The total damages claimed by the plaintiffs at trial was $1,133,383, which was made up of loss on sales on the units, additional construction costs, additional interest expenses, additional finance fees and charges, additional legal fees and additional development finalisation costs, plus interest.
At trial, the plaintiffs led evidence from a delay expert who said the encroachments caused a delay of 232 days to the overall project. His Honour determined that he could not simply adopt that calculation as he had rejected the plaintiffs’ claim save for the spillage. The plaintiffs had lost their right to claim damages for the adversely possessed land, being the land on which the wall, its supports and foundations was located. His Honour was therefore required to identify what losses flowed from, in the sense that they were natural and probable consequences of, the spillage. His Honour found that the concrete spillage caused a 55-day delay to the plaintiffs’ development and made an order that CityLink pay the plaintiffs $69,035 in damages.
The author appeared as junior counsel for the defendant at the trial of the proceeding.