Byron Council v Vaughan & Anor - [1998] NSWLEC 158

Land and Environment Court

of New South Wales

CITATION: BYRON COUNCIL v. VAUGHAN & ANOR [1998] NSWLEC 158 (14 July 1998)copy [1998] NSWLEC 40

PARTIES: BYRON COUNCIL v. VAUGHAN & ANOR [1998] NSWLEC 158 (14 July 1998)copy

FILE NUMBER(S): 30164 of 1997

CORAM: Lloyd J

KEY ISSUES: :-

LEGISLATION CITED: Encroachment of Buildings Act 1922, ss 2, 3
Limitation Act 1969, ss 14(1)(d), 23, 27(2), 38(2)
Interpretation Act 1987, s 34(1)
Real Estate (Limitation of Actions) Act 1837
Real Property Act, 1900, Pt 6, s 45D

CASES CITED: Breskvar v Wall (1971) 126 CLR 376 at 385;
Quach v Marrickville Municipal Council (1990) 22 NSWLR 55 at 62-63;
Amatek Limited v Googoorewon Pty Limited (1993) 176 CLR 471 at 477;
Amatek v Googoorewon Pty Limited;
Cantamessa v Sanderson (1993) 6 BPR 13,127;
Ramsden v Dyson (1866) LR 1 HL 129;
Ex parte Beane (1987) 162 CLR 514, at 518, per Mason CJ, Wilson and Dawson JJ;
Cantamessa v Sanderson;
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193;
assumption (Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387;
Limitation Act, s 38(2); Mulcahy v Curramore Pty Limited [1974] 2 NSWLR 464 at 476;
Shaw v Garbutt (1996) 7 BPR 14,816;
Seddon v Smith (1877) 36 LT 168 at 169;
possession (Harnett v Green (No 2) (1883) 4 LR (NSW) 292 at 301;
Knox v Gye (1872) LR 5 HL 656 at 674;
Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28, par 70; 72 ALJR 841 at 855

DATES OF HEARING: 22 & 23 June 1998

DATE OF JUDGMENT:
07/14/1998

LEGAL REPRESENTATIVES:
J H H Blackman
M J Leeming

JUDGMENT:

HIS HONOUR: This is a claim for relief under the Encroachment of Buildings Act 1922 (the Act). The applicant, Byron Council, is the owner of lots 6 and 7 of Section 3 in Deposited Plan 1623, having a frontage to Manfred Street, Byron Bay. It is also the owner of adjoining land to the north of lots 6 and 7. The respondent is the owner of lots 3, 4 and 5 of Section 3 in Deposited Plan 1623, also having a frontage to Manfred Street. Lots 3, 4 and 5 are to the south of and adjoin the applicants land (lots 6 and 7). The respondent also owns the adjoining land to the west. A house erected, it seems, about forty-five years ago straddles the boundary between lots 5 and 6. An old dividing fence which partly encloses the curtilage of the house is erected within lot 7. The position is best understood by reference to the survey plan hereunder:

INSERT SURVEY PLAN

Relevant Facts

2. Lots 3, 4 and 5 were acquired by Alfred William Vidler on 20 April 1949. Although the applicants records do not disclose when the house was erected, it seems that it was erected by Mr Vidler in the early 1950s. The applicant acquired lots 6 and 7 on 5 November 1973. On…

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.

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Details

Case: [1998] NSWLEC 158
Decision Date: 07/14/1998

CaseChat Overview and Summary

Byron Council brought an action against Vaughan and another respondent, seeking relief under the Encroachment of Buildings Act 1922. The applicant, Byron Council, is the owner of lots 6 and 7 of Section 3 in Deposited Plan 1623, having a frontage to Manfred Street, Byron Bay. The respondents own lots 3, 4 and 5 of Section 3 in Deposited Plan 1623, also having a frontage to Manfred Street. A house erected about forty-five years ago straddles the boundary between lots 5 and 6. The applicant's claim for relief was contested on various grounds by the respondents. The court was required to decide whether there was an encroachment within the meaning of the Act, whether the applicant was estopped from asserting its rights as an adjacent owner, and whether the applicant was statute barred from asserting any rights as an adjacent owner. The court found that there was an encroachment within the meaning of the Act, and that the applicant was not estopped or statute barred from asserting its rights as an adjacent owner. The court exercised its discretion to grant relief, requiring the removal of the encroachment, but postponed the relief for a period of twelve months. The court also reserved the question of costs.

Orders