CityLink later became the sole defendant in the Supreme Court after a settlement was reached with the other parties.
The freeway sound wall at the rear of the property. Credit: Chris Hopkins
The couple sought damages, as well as an order to have parts of the wall removed so it no longer sat on their land.
However, CityLink argued that it had claimed ownership of the property under the law of adverse possession, also known as squatters’ rights.
According to the law, squatters can only claim land if they have had uninterrupted and exclusive possession of it for 15 years.
The Bottos brothers argued that that 15-year period was interrupted in 2012 by an application for planning permission to build six units on the property.
But the real problem of the wall encroaching on the land was not discovered until 2018, when the development took place, the court heard.
The CityLink toll road. Credit: Jessica Shapiro
In 2021, Supreme Court Justice James Gorton accepted that CityLink had successfully acquired the land previously owned by the Bottos brothers.
“In my view, by building the noise wall, CityLink effectively owned and dispossessed the Bottos brothers of the space physically occupied by the noise wall and its supporting structures,” he wrote in his reasons .
“CityLink used the land occupied by the structure as if it were its own.”
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The court heard that CityLink did not intend to possess the property adversely.
As part of their case, the Bottos brothers argued that a concrete spill during the installation of the wall had also entered their property.
While dismissing the rest of their claim, Gorton awarded the brothers $69,035 in damages for the spill, which was three meters long by 1.5 meters wide.