Nicole-Anne Hickey v The Owners Strata Plan 78825 [2022] NSWLEC 135

Nicole-Anne Hickey v The Owners Strata Plan 78825 [2022] NSWLEC 135

The Gabion Wall crossed the common boundary and was an encroachment, but the proper characterisation under the Encroachment of Buildings Act 1922 (NSW) turned on where the building was primarily located and where it extended from that primary location. Because the overwhelming majority of the Gabion Wall was on the Applicants' land and only a minor part crossed into the Respondent's land, the Applicants were the encroaching owners. The relief sought by the Applicants, including an easement over their land, maintenance obligations on the Respondent and compensation, was not available to them as encroaching owners, so the proceedings had to be dismissed.

Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Class 3 Application Pursuant to the Encroachment of Buildings Act 1922 (nsw) / Principal Judgment After Hearing of Application Filed 5 August 2021 and Amended With Leave on 1 August 2022
Outcome
Application dismissed; costs reserved.
Legal Topics
['characterisation of Encroaching Owner and Adjacent Owner' 'gabion Retaining Wall Crossing Boundary' 'easement for Encroaching Structure' 'compensation Under the Encroachment of Buildings Act 1922 (nsw)' 'discretion to Grant Relief']
['property Law' 'land and Environment Court' 'encroachment of Buildings'] ['characterisation of Encroaching Owner and Adjacent Owner' 'gabion Retaining Wall Crossing Boundary' 'easement for Encroaching Structure' 'compensation Under the Encroachment of Buildings Act 1922 (nsw)' 'discretion to Grant Relief']

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Procedural Posture

Class 3 Application Pursuant to the Encroachment of Buildings Act 1922 (nsw) / Principal Judgment After Hearing of Application Filed 5 August 2021 and Amended With Leave on 1 August 2022

Legal Issues

  1. 1 ['Whether the Applicants or the Respondent are an "Encroaching Owner" under ss 2 and 3 of the Encroachment of Buildings Act 1922 (NSW).' 'The purpose of the Gabion Wall pursuant to s 3(3)(c) of the Encroachment of Buildings Act 1922 (NSW).' 'Whether the Court should grant an easement for the Gabion Wall, and the terms of that easement.' 'Whether the Court should award compensation under s 3(2)(a) of the Encroachment of Buildings Act 1922 (NSW).' 'If compensation should be awarded, what quantum of compensation should be awarded.' 'The entitlement of the parties to costs.']

Ratio Decidendi

The Gabion Wall crossed the common boundary and was an encroachment, but the proper characterisation under the Encroachment of Buildings Act 1922 (NSW) turned on where the building was primarily located and where it extended from that primary location. Because the overwhelming majority of the Gabion Wall was on the Applicants' land and only a minor part crossed into the Respondent's land, the Applicants were the encroaching owners. The relief sought by the Applicants, including an easement over their land, maintenance obligations on the Respondent and compensation, was not available to them as encroaching owners, so the proceedings had to be dismissed.

Court Disposition

Application dismissed; costs reserved.

Orders

  • ['The Application filed on 5 August 2021 and as amended by leave granted on 1 August 2022 is dismissed.' 'Costs of the proceedings are reserved.' 'The matter is listed for mention at 9.15am via audio-visual link on Friday, 9 December 2022 for the making of directions and the fixing of a hearing on the issue of...