The Owners - Strata Plan No. 91016 v Upright Builders Pty Ltd (No 2) [2023] NSWSC 867

The Owners - Strata Plan No. 91016 v Upright Builders Pty Ltd (No 2) [2023] NSWSC 867

The Encroachment of Buildings Act 1922 (NSW) applies to the encroachment of part of the pathway and stairs onto Nancarrow Avenue, a public road, so as to give the encroaching owner and the road authority as adjacent owner the rights and obligations provided for in the Act, but subject to a qualification: the power of the Court is limited so that it cannot order the Council to do what it is not lawfully able to do under relevant legislation (e.g., Roads Act 1993).

Jurisdiction
Australia
Judgment Date
26 July 2023
Procedural Posture
Civil (equity Technology and Construction List) / Separate Determination of a Question
Outcome
Question answered in the affirmative with qualifications.
Legal Topics
['encroachment of Buildings Act 1922 (nsw)' 'public Roads' 'statutory Interpretation' 'powers of Local Councils']
['civil Procedure' 'property Law'] ['encroachment of Buildings Act 1922 (nsw)' 'public Roads' 'statutory Interpretation' 'powers of Local Councils']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil (equity Technology and Construction List) / Separate Determination of a Question

Legal Issues

  1. 1 ['Whether the Encroachment of Buildings Act 1922 (NSW) applies to the encroachment onto public road where the adjacent owner is the relevant road authority' 'Whether the EBA has been impliedly repealed by the Roads Act 1993 (NSW) as to public roads']

Ratio Decidendi

The Encroachment of Buildings Act 1922 (NSW) applies to the encroachment of part of the pathway and stairs onto Nancarrow Avenue, a public road, so as to give the encroaching owner and the road authority as adjacent owner the rights and obligations provided for in the Act, but subject to a qualification: the power of the Court is limited so that it cannot order the Council to do what it is not lawfully able to do under relevant legislation (e.g., Roads Act 1993).

Court Disposition

Question answered in the affirmative with qualifications.

Orders

  • ['Direct parties to bring in short minutes of order to reflect the reasons for judgment and any agreement on costs.' 'If agreement not reached, direct parties to provide the Court with proposed directions for resolving outstanding issues at the next directions hearing.' 'Stand matter over for directions on 11 August...