Hofer v Howell Developments Pty Limited [2000] NSWLEC 191

Hofer v Howell Developments Pty Limited [2000] NSWLEC 191

The Court exercised its discretion to order removal of the encroachment because the heritage significance of the applicant's building was principally in its front facade and front portion, removal would not adversely affect the remainder's heritage significance or structural stability, detached buildings would be more valuable and easier to maintain, removal would improve the respondent's amenity and natural light, and the likely removal and reconstruction costs were not disproportionate, particularly given the respondent's offers of $25,000 and access over No. 8 Gap Road.

Jurisdiction
Australia
Judgment Date
31 August 2000
Procedural Posture
Application for Relief Under the Encroachment of Buildings Act 1922 / Judgment After Hearing
Outcome
Order made requiring the applicant to remove the encroaching part of the building; costs reserved; liberty to apply reserved.
Legal Topics
['encroachment of Buildings' 'easement for Support' 'removal of Encroachment' 'heritage Building' 'discretion Under Encroachment of Buildings Act 1922 S 3' 'compensation']
['property Law' 'land Law' 'heritage Planning'] ['encroachment of Buildings' 'easement for Support' 'removal of Encroachment' 'heritage Building' 'discretion Under Encroachment of Buildings Act 1922 S 3' 'compensation']

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Procedural Posture

Application for Relief Under the Encroachment of Buildings Act 1922 / Judgment After Hearing

Legal Issues

  1. 1 ["Whether the applicant should be granted an easement for support over the respondent's land for the encroaching part of the applicant's building." 'Whether the encroachment should instead be removed.' 'Whether heritage considerations required retention of the encroaching portion of the building.' 'Whether removal of the encroachment would adversely affect structural stability or create disproportionate cost or inconvenience.' 'What discretionary considerations applied under Encroachment of Buildings Act 1922 s 3.']

Ratio Decidendi

The Court exercised its discretion to order removal of the encroachment because the heritage significance of the applicant's building was principally in its front facade and front portion, removal would not adversely affect the remainder's heritage significance or structural stability, detached buildings would be more valuable and easier to maintain, removal would improve the respondent's amenity and natural light, and the likely removal and reconstruction costs were not disproportionate, particularly given the respondent's offers of $25,000 and access over No. 8 Gap Road.

Court Disposition

Order made requiring the applicant to remove the encroaching part of the building; costs reserved; liberty to apply reserved.

Orders

  • ['Order that on or before 30 May 2001 the applicant remove so much of the building on No. 17 Military Road, Watsons Bay which encroaches on No. 8 Gap Road, Watsons Bay.' 'I reserved the question of costs.' 'I reserved liberty to apply.' 'The exhibits may be returned.']