PROPERTY LAW QUESTION -

please only answer if experienced Read facts and question which is in bold writing! Please apply facts to answer.

Question 1 is a problem- and research-based question.

John Burton is the registered proprietor of 16 Elementary Street, Melbourne (the property). The property runs generally from south (at the front) to north (at the back), with the Tullamarine Freeway (the freeway) to the north of the property and a noise wall (the noise wall) running diagonally at an angle from the northwest corner of the block to the southeastcorner. The unusual shape of the block came about because part of the block had earlier been compulsorily acquired for the purpose of constructing the freeway. VicRoads is the owner of the adjoining land and freeway. During 1999 a noise wall was constructed by CityLink Melbourne Ltd (CityLink). For purposes of construction along the freeway and maintenance of the noise wall a 20-year lease was entered into between CityLink and VicRoads.

The noise wall consists of large panels set between eight-metre-high steel beam poles set in concrete. There are 11 poles on that part of the noise wall. The panels that were intended to run along the boundary of Burtons land was constructed a half a meter into Burtons property. The steel poles are attached to square concrete bases which further extend into Burtons property. Underneath the concrete bases are deep cylindrical concrete foundations that extend into the sub-surface. When one of the poles was being installed, a large amount of concrete spilt underground in an irregular shape (the spillage). The spillage was about 3 metres long, 1.5 metres wide, and three-quarters of a metre deep, and it encroached by this amount into the property. The spillage was 50 centimetres below the surface, covered by soil and not visible.

The cost of removing the spillage would be extremely high given the density of the solid concrete. On 5 December 2012 Burton was granted a planning permit for the construction of 4 housing units upon the property and commenced with construction of the units during 2017. In February 2018, during construction of the units, the building contractor discovered the spillage. The property was re-surveyed and, for the first time, the encroachments by the noise wall became apparent. The noise wall, its support structures and spillage remained in place. It was necessary for the external wall of the two rear units to be brought in from the boundary to accommodate the locality of the noise wall. The size of the respective back rooms of the units had to be reduced, new plans had to be submitted and approvals obtained. The external wall of one of the units could not be constructed on the area of the spillage because it was not even and unstable. Burton applied to court for an order that CityLink remove the noise wall and spillage to the extent that it encroached on Burtons property. Tony Lee, a director of Citylink, approaches you for legal advice.

Provide your client with legal advice about the following legal issues:

1.3 Alternatively, whether Burton acquired any rights in respect of the noise wall (5 marks).