Collick v Robinson [2022] NSWLEC 1243

Collick v Robinson [2022] NSWLEC 1243

It was just to order removal of the laundry/toilet, brick carport and paling fence because the encroachments occupied valuable land owned by the applicant and prevented practical direct access from Dumaresq Road, and the existing impediments to future access did not displace the applicant's entitlement to removal. It was not reasonable or just to require construction of a replacement external laundry because five of six unit interests did not want or need it, the respondents' loss of the laundry facility need only be temporary, an internal laundry or washing machine in unit 3 was an available alternative on the evidence, and the co-ownership deed did not apply to the parts of the laundry...

Jurisdiction
Australia
Judgment Date
10 May 2022
Procedural Posture
Class 3 Application for Relief Under the Encroachment of Buildings Act 1922 / Principal Judgment After Hearing
Outcome
Application granted in part; encroachments ordered to be removed on terms, with no order requiring replacement of the laundry.
Legal Topics
['encroachment of Buildings' 'removal of Encroaching Structures' 'co Ownership Deed' 'demolition Costs' 'dividing Fence']
['property Law' 'land and Environment Court Jurisdiction'] ['encroachment of Buildings' 'removal of Encroaching Structures' 'co Ownership Deed' 'demolition Costs' 'dividing Fence']

Case Brief

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Procedural Posture

Class 3 Application for Relief Under the Encroachment of Buildings Act 1922 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the laundry, brick carport and paling fence encroaching on 2C Dumaresq Road should be removed under the Encroachment of Buildings Act 1922.' 'Whether demolition should be conditional upon construction of a new external laundry on 4 Dumaresq Road.' 'How the costs of demolition, fence removal and related works should be allocated between the parties.']

Ratio Decidendi

It was just to order removal of the laundry/toilet, brick carport and paling fence because the encroachments occupied valuable land owned by the applicant and prevented practical direct access from Dumaresq Road, and the existing impediments to future access did not displace the applicant's entitlement to removal. It was not reasonable or just to require construction of a replacement external laundry because five of six unit interests did not want or need it, the respondents' loss of the laundry facility need only be temporary, an internal laundry or washing machine in unit 3 was an available alternative on the evidence, and the co-ownership deed did not apply to the parts of the laundry...

Court Disposition

Application granted in part; encroachments ordered to be removed on terms, with no order requiring replacement of the laundry.

Orders

  • ['Within six months of the date of these orders, or such later date as may be agreed between the parties, the applicant and the respondents are to remove the encroachments on no. 2C Dumaresq Road, Rose Bay (as depicted in the survey dated 8 July 2020 by Harrison Friedman & Associates Pty Limited) upon the following...