My client was planning to demolish and rebuild his home. A neighbour objected to the proposed plans. The concern was that the new building would encroach on a narrow passageway running between the two properties.
My client was not particularly worried. The proposed building footprint was almost identical to the existing one. He was proposing to build exactly where the house already sat.
He was right about that — but unfortunately that wasn’t the end of the story.
The existing building was already over the boundary
When we examined the title and survey more carefully, it became clear that the encroachment was not limited to the proposed development.
The existing house — the one that had been sitting there for decades — also extended beyond the legal boundary.
In other words, what everyone had treated as the practical boundary was not, in law, the boundary at all.
This is more common than people expect. Buildings go up over time, sometimes without precise survey work. Alterations are made. Fences move. Titles, on the other hand, are fixed. The gap between physical occupation and legal title can sit unnoticed for years. A development application — which requires a formal survey — is often what brings it into view.
At this point, the matter could have become complicated. Boundary disputes can involve negotiation with neighbours, competing claims, or the need to revise development plans entirely.
Two things changed the position
The first discovery was that the passageway did not belong to the neighbour who had objected. The neighbour had no claim over the land in question.
The second discovery was more significant. The passageway was privately owned — but tracing the title history revealed that the registered owner had not dealt with the land in over a century. The owner was unidentifiable.
Together, those two facts made the position much clearer. My client did not need to negotiate with the neighbour. He did not need to seek to purchase the passageway from anyone. He did not need to revise his development proposal.
He simply needed to apply to take formal ownership of the small portion of land he had already been occupying for decades — using a process that exists for exactly this situation.
Long-term occupation can be converted into legal title
In New South Wales, if land has been occupied continuously for at least 12 years (ie used as if it were owned), it is possible to apply to have that occupation recognised and converted into title. Depending on whether the land is Old System or Torrens title, this is done through either a primary application or a possessory application, administered by NSW Land Registry Services.
The process is not automatic. It requires a registered surveyor to prepare a plan of survey, statutory declarations from the applicant and at least two other people with knowledge of the occupation, supporting documents, and a notice period during which neighbouring owners can object. If the land is part of a Torrens title laneway, a letter of non-objection from the local council is also required.
It is, in short, a methodical process. It takes time and involves some cost. But it is a well-worn path, and the destination – a clean title – is achievable if the requirements are met.
Critically, it cannot be used where the land is owned by a government body. Private land only.
How this was resolved
An application was made to claim ownership of the portion of the passageway that had formed part of my client’s property in practice for over a hundred years.
That step resolved everything. The boundary question was answered. The development could proceed on a clear and secure footing. No negotiation. No revised plans. No additional purchase.
What had initially looked like a dispute became, on examination, a title correction.
Key takeaways
Boundary issues that surface during a development application can look alarming at first. An encroachment, a neighbour’s objection, a discrepancy between what is on the ground and what is on the title — any one of those things can feel like a significant obstacle.
The outcome depends on what the title history actually shows. Who owns the affected land? Has it been dealt with? Are there competing claims? How long has the occupation been in place?
Long term occupation can ground an application to take possession. In this matter, the title history resolved the question in my client’s favour. That is not always the case. But it is always worth examining carefully before assuming the worst.
If this sounds familiar
Boundary issues identified during a development application are rarely simple, but they are also not always as difficult as they first appear. It is always worth working out what the title actually says before assuming the position is fixed.
