Gabriel v Billett [2023] NSWLEC 85

Gabriel v Billett [2023] NSWLEC 85

The relief of transfer of land is refused because the Encroachment of Buildings Act only permits transfer of land directly beneath the encroachment, not the additional area sought by Mr Gabriel. The appropriate relief, given the circumstances, is the removal of the encroaching part of the shed. Ms Billett is to indemnify Mr Gabriel for the reasonable costs of this limited removal, with such removal subject to any necessary development approval.

Jurisdiction
Australia
Judgment Date
15 August 2023
Procedural Posture
Application Under Encroachment of Buildings Act / Final Judgment
Outcome
Application dismissed; partial relief to respondent
Legal Topics
['encroachment' 'building Encroachment' 'heritage Conservation' 'dividing Fences' 'discretionary Relief Under Encroachment of Buildings Act 1922 (nsw)']
['property Law' 'land Law'] ['encroachment' 'building Encroachment' 'heritage Conservation' 'dividing Fences' 'discretionary Relief Under Encroachment of Buildings Act 1922 (nsw)']

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Procedural Posture

Application Under Encroachment of Buildings Act / Final Judgment

Legal Issues

  1. 1 ['Whether the encroaching owner is entitled to transfer of subject land under Encroachment of Buildings Act 1922 (NSW)' 'Whether the encroachment should be removed given heritage conservation considerations and potential loss/damage to either party']

Ratio Decidendi

The relief of transfer of land is refused because the Encroachment of Buildings Act only permits transfer of land directly beneath the encroachment, not the additional area sought by Mr Gabriel. The appropriate relief, given the circumstances, is the removal of the encroaching part of the shed. Ms Billett is to indemnify Mr Gabriel for the reasonable costs of this limited removal, with such removal subject to any necessary development approval.

Court Disposition

Application dismissed; partial relief to respondent

Orders

  • ["Eric Stephen Gabriel is to remove the 11m² encroaching part of the shed from Karen Billett's land within 4 months or such further period as required for approvals." 'Karen Billett is to indemnify Eric Stephen Gabriel in respect of the costs incurred for removal of the shed portion on 7 Morven Street, Maclean,...