Milner v Busways Management Pty Limited [2001] NSWLEC 231

Milner v Busways Management Pty Limited [2001] NSWLEC 231

Although some part of the respondent's footings encroached onto the applicant's land, the encroachment was slight, subterranean and had no impact on the applicant's present or future use of the land. The applicant did not establish the relevant matters concerning the situation and value of the subject land, the character of the encroaching building, or loss and damage. The proper exercise of the Court's discretion was therefore to refuse the relief sought and dismiss the application, with costs to the successful respondent.

Jurisdiction
Australia
Judgment Date
02 October 2001
Procedural Posture
Class 3 Application Seeking Relief Under S 3 and S 9 of the Encroachment of Buildings Act 1922 / Final Hearing and Judgment
Outcome
Application dismissed; applicant ordered to pay the respondent's costs.
Legal Topics
['encroachment' 'subterranean Footings' 'compensation' 'costs']
['property Law' 'land and Environment'] ['encroachment' 'subterranean Footings' 'compensation' 'costs']

Case Brief

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Procedural Posture

Class 3 Application Seeking Relief Under S 3 and S 9 of the Encroachment of Buildings Act 1922 / Final Hearing and Judgment

Legal Issues

  1. 1 ["Whether the respondent's factory building footings encroached onto the applicant's adjoining land." 'Whether relief should be granted under s 3 of the Encroachment of Buildings Act 1922, including compensation, lease, easement or removal of the encroachment.' 'Whether the applicant established loss or damage from the encroachment.' 'Whether costs should be ordered in favour of the respondent.']

Ratio Decidendi

Although some part of the respondent's footings encroached onto the applicant's land, the encroachment was slight, subterranean and had no impact on the applicant's present or future use of the land. The applicant did not establish the relevant matters concerning the situation and value of the subject land, the character of the encroaching building, or loss and damage. The proper exercise of the Court's discretion was therefore to refuse the relief sought and dismiss the application, with costs to the successful respondent.

Court Disposition

Application dismissed; applicant ordered to pay the respondent's costs.

Orders

  • ['Application dismissed.' "The applicant is ordered to pay the respondent's costs." 'The exhibits, except exhibit 2, may be returned.']