Attard v Canal - [2005] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:
Attard & Anor v Canal & Anor [2005] NSWLEC 222
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANTS:
Frank Attard and Sylvia Attard
RESPONDENTS:
Luigino Antonio Canal and Guiseppina Maria Canal

FILE NUMBER(S):
31227 of 2004

CORAM:
Pain J

KEY ISSUES:
Encroachment :- exercise of discretion under Encroachment of Buildings Act 1922 s 3(3)

LEGISLATION CITED:
Encroachment of Buildings Act 1922 s 2, s 3, s 4
Miscellaneous Acts (Rating and Valuation) Amendment Act 1981
Occupational Health and Safety Regulation 2001
Valuation of Land Act 1916 s 6A

CASES CITED:
Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209;
Bronzel v State Planning Authority of SA (1979) 21 SASR 513;
Mark Dawkins v A R M Holdings Pty Limited (Pearlman J, NSWLEC, 14 April 1994, unreported);
Morris v Thomas (1991) 73 LGRA 164;
Vaughan v Byron Shire Council (1999) 103 LGERA 321

DATES OF HEARING: 02/05/2005
03/05/2005
04/05/2005

DATE OF JUDGMENT:

05/12/2005

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr A Pickles (barrister)
SOLICITORS:
Robilliard & Robilliard
RESPONDENTS:
Mr A Thompson (barrister)
SOLICITORS:
G Cerin

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

12 May 2005

31227 of 2004 Frank Attard & Anor v Luigino Antonio Canal & Anor
JUDGMENT

1 Her Honour: This is a Class 3 application made pursuant to s 3 of the Encroachment of Buildings Act 1922 (“the Act”). The Applicants own land at 112-122 Selkirk Avenue, Cecil Park (“the Applicants’ property”). The Respondents own land at 124-134 Selkirk Avenue, Cecil Park (“the Respondents’ property”). Along the boundary between the Applicants’ property and the Respondents’ property is a large metal clad shed (“the encroaching shed”) owned by the Applicants. A survey conducted on 28 September 2003 showed that the north-western wall of the shed encroaches 3.59m over the Respondents’ boundary and the south-eastern wall of the shed 4.70m over the Respondents’ property. A fence between the properties is situated on the boundary at the north-western end, but encroaches 8.68m over the Respondents’ property on the south-eastern end (see Attachment 1).

2 The Applicants seek orders that the Respondents transfer 1,190sq m of land to the Applicants and that the Applicants pay an amount of compensation as assessed by the Court for the transfer of that land.

3 The Respondents filed a cross-claim alleging that the encroachment arose from the Applicants' negligence and sought an order that the Applicants remove the encroaching shed from the Respondents’ property or, in the alternative, an order that the Applicants pay compensation pursuant to s 4(2) of the Act.

Relevant statutory provisions

4 “Adjacent owner” is defined in s 2 of the Act as "the owner of land over which an encroachment extends" (the Respondents). “Encroaching owner” is defined in s 2 of the Act as "the owner of land contiguous to the boundary beyond which an encroachment extends" (the Applicants).

5 “Encroachment” is defined in s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attard v Canal

Details

AGLC: Attard v Canal [2005] NSWLEC 222
Case: [2005] NSWLEC 222
Decision Date: 05/12/2005

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, the applicants, Frank Attard and Sylvia Attard, sought relief under the Encroachment of Buildings Act 1922 against the respondents, Luigino Antonio Canal and Guiseppina Maria Canal, in relation to a metal clad shed that encroached on the respondents' property. The applicants sought an order that the respondents transfer a specified portion of their land to them and that the applicants pay compensation for the transfer of that land. The respondents filed a cross-claim alleging that the encroachment arose from the applicants' negligence and sought an order for the removal of the encroaching shed or, in the alternative, compensation for the encroachment. The court considered various factors under the Act, including the situation and value of the land, the character of the encroaching building, and the circumstances in which the encroachment was made. The court found that while the encroachment was significant, it did not substantially alter the physical property boundaries or impact the respondents' property. The court also found that the respondents would not suffer any significant loss or damage by reason of a transfer of the land, provided they were adequately compensated. Given the substantial loss and damage the applicants would suffer if the encroachment was removed, the court exercised its discretion to grant the relief sought by the applicants. The court ordered the respondents to transfer 1,190 square meters of land to the applicants and that the applicants pay the respondents $77,500 as compensation for the transfer of land. The question of costs was reserved, and the exhibits were to be returned.

Orders