Cinelli v Newcastle City Council [2022] NSWLEC 1666

Cinelli v Newcastle City Council [2022] NSWLEC 1666

Because the Applicants were the registered proprietors of the land from which the structures encroached, the Respondent was the registered proprietor of the adjoining land, the encroaching structures extended onto the Respondent's land, the relevant applications for the Building Information Certificate and Swimming Pool Certificate had been lodged, and the Respondent agreed to grant the easement and accept $1.00 compensation, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Jurisdiction
Australia
Judgment Date
08 December 2022
Procedural Posture
Class 3 Application Under the Encroachment of Buildings Act 1922 / Conciliation Conference; Agreed Orders Under S 34(3) of the Land and Environment Court Act 1979
Outcome
Appeal upheld; easement ordered by agreement subject to preliminary works and compensation of $1.00.
Legal Topics
['encroachment of Buildings' 'easement Under S 88 B of the Conveyancing Act 1919' 'compensation for Encroachment' 'conciliation Conference Orders']
['property Law' 'land and Environment Court Jurisdiction'] ['encroachment of Buildings' 'easement Under S 88 B of the Conveyancing Act 1919' 'compensation for Encroachment' 'conciliation Conference Orders']

Case Brief

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Procedural Posture

Class 3 Application Under the Encroachment of Buildings Act 1922 / Conciliation Conference; Agreed Orders Under S 34(3) of the Land and Environment Court Act 1979

Legal Issues

  1. 1 ["Whether the Court could make orders granting an easement to permit encroaching structures on the Respondent's land to remain." 'Whether the jurisdictional prerequisites for relief under the Encroachment of Buildings Act 1922 were satisfied.' "Whether the parties' agreed decision was one the Court could have made in the proper exercise of its functions under s 34(3) of the Land and Environment Court Act 1979." 'Whether $1.00 compensation satisfied ss 3(2)(a) and 4(1) of the Encroachment of Buildings Act 1922.']

Ratio Decidendi

Because the Applicants were the registered proprietors of the land from which the structures encroached, the Respondent was the registered proprietor of the adjoining land, the encroaching structures extended onto the Respondent's land, the relevant applications for the Building Information Certificate and Swimming Pool Certificate had been lodged, and the Respondent agreed to grant the easement and accept $1.00 compensation, the parties' agreed decision was one the Court could have made in the proper exercise of its functions. The Court was therefore required by s 34(3) of the Land and Environment Court Act 1979 to dispose of the proceedings in accordance with that decision.

Court Disposition

Appeal upheld; easement ordered by agreement subject to preliminary works and compensation of $1.00.

Orders

  • ['The appeal is upheld.' 'The Respondent is to grant to the Applicants an easement pursuant to s 88B of the Conveyancing Act 1919 to permit the encroaching structures to remain, subject to the Applicants carrying out preliminary works necessary for the grant of BIC number BC2021/00039 pursuant to Division 6.7 of...