Berry v The Owners Strata Plan 1621 [2022] NSWLEC 1507

Berry v The Owners Strata Plan 1621 [2022] NSWLEC 1507

The Court, being satisfied that the parties' Section 34 agreement is a decision it could make in proper exercise of its functions, orders by consent the removal of the encroaching wall and footing, provision for expert consideration regarding the footing, and, if necessary, the grant of an easement and payment of $1 compensation in accordance with statutory powers.

Parties
First Applicant: Catherine Deanne Berry; Second Applicant: James Gregory Berry; Respondent: The Owners Strata Plan 1621
Jurisdiction
Australia
Judgment Date
20 September 2022
Procedural Posture
Class 3 Encroachment of Buildings / Decision Following Conciliation Conference and Section 34 Agreement
Outcome
Orders made by consent under Section 34 agreement disposing of proceedings
Legal Topics
Encroachment of Buildings, Easement Creation, Removal of Encroachment, Compensation for Encroachment
Property Law Planning and Environment Law Encroachment of Buildings Easement Creation Removal of Encroachment Compensation for Encroachment

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Parties

Catherine Deanne Berry

First Applicant

James Gregory Berry

Second Applicant

The Owners Strata Plan 1621

Respondent

Procedural Posture

Class 3 Encroachment of Buildings / Decision Following Conciliation Conference and Section 34 Agreement

Legal Issues

  1. 1 Whether part of a brick wall and its footing on the Respondent's land encroaches upon the Applicants' land
  2. 2 What relief should be granted under the Encroachment of Buildings Act 1922 including removal and/or creation of an easement

Ratio Decidendi

The Court, being satisfied that the parties' Section 34 agreement is a decision it could make in proper exercise of its functions, orders by consent the removal of the encroaching wall and footing, provision for expert consideration regarding the footing, and, if necessary, the grant of an easement and payment of $1 compensation in accordance with statutory powers.

Court Disposition

Orders made by consent under Section 34 agreement disposing of proceedings

Orders

  • Applicants to remove or procure the removal of part of a brick wall encroaching on their land within 28 days
  • Applicants' and Respondent's engineers to confer and prepare joint report on methodology for removal/cutting of footing within 21 days