Byron Shire Council v Vaughan - [2002] NSWCA 158

NEW SOUTH WALES COURT OF APPEAL

CITATION: Byron Shire Council v Vaughan & Anor [2002] NSWCA 158 revised - 4/06/2002

FILE NUMBER(S):
40428/01

HEARING DATE(S): 21 May 2002

JUDGMENT DATE: 30/05/2002

PARTIES:
Byron Shire Council - Appellant
John Bernard Vaughan and Anne Vaughan - Respondents

JUDGMENT OF: Sheller JA Giles JA Heydon JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 30164/97

LOWER COURT JUDICIAL OFFICER: Lloyd J

COUNSEL:
P Larkin & L Byrne - Appellant
S Rares SC & R Sofroniou - Respondents

SOLICITORS:
Elliot & Sochacki, Mullumbimby - Appellant
Walters, Lismore - Respondents

CATCHWORDS:
Estoppel by representation - distinct from equitable estoppel - whether open to decide case on grounds of estoppel by representation - whether by provision of sewerage connection plan there was a representation as to boundaries of land - whether estoppel from asserting an encroachment. D.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40428/01
LEC 30164/97
SHELLER JA
GILES JA
HEYDON JA
Thursday 30 May 2002

BYRON SHIRE COUNCIL v VAUGHAN & ANOR

Judgment

SHELLER JA: I agree with Giles JA.
GILES JA: This is an appeal from the Land and Environment Court exercising Class 3 jurisdiction in an application for relief under the Encroachment of Buildings Act 1922 (“the Act”). Section 57(1) of the Land and Environment Court Act 1979 provides for appeal on a question of law.
The appeal is from a declaration that the appellant is estopped from asserting any claim pursuant to the Act against the respondents in respect of any encroachment by the respondents’ house onto the appellant’s land and an order that the application be “otherwise dismissed”. The declaration and order were made on 30 May 2001, at the end of a rather tortuous course of the proceedings. The submissions in the appeal make it desirable, if not necessary, to go in some detail to the course of the proceedings.
The Act
In s 2 of the Act “encroachment” is defined as encroachment of a building; “encroaching owner” is defined as the owner of land contiguous to the boundary beyond which an encroachment extends; “adjacent owner” is defined as the owner of land over which an encroachment extends; and “subject land” is defined as that part of the land over which an encroachment extends.
Section 3(1) provides that either an adjacent owner or an encroaching owner may apply to the Land and Environment Court for relief under the Act in respect of any encroachment. Section 3(2) and (3) provide -
“(2)On application the Court may make such orders as it may deem just with respect to:
(a)the payment of compensation to the adjacent owner,
(b)the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto,
(c) the removal of the encroachment.
(3)The Court may grant or…

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.

Keep reading for free

Create a free CaseChat account to read Byron Shire Council v Vaughan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2002] NSWCA 158
Decision Date: 30 May 2002

CaseChat Overview and Summary

This matter concerned an appeal by Byron Shire Council against a decision of Lloyd J. The dispute involved an encroachment by the respondents' property onto land owned by the Council.

The primary legal issue before the court was whether the Council was estopped from asserting its proprietary rights and seeking relief concerning the encroachment. This involved considering whether the Council had made a representation, through the provision of a sewerage connection plan, that indicated the boundaries of the land, thereby giving rise to an estoppel by representation.

The court found that the Council had not established an error of law on the part of the primary judge in giving effect to the defence of estoppel. The court reasoned that the Council's status as a local government body or the classification of its land did not place it in a special position for the purposes of estoppel. Consequently, the appeal against the dismissal of the Council's application for relief was dismissed. The court noted the unsatisfactory nature of the outcome, with the encroachment persisting and neither party having a clear proprietary entitlement, and urged the parties towards a sensible resolution.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In his reasons of 20 October 2000 Lloyd J had referred to the classification of the land. At that time the appellant had resolved to classify it as operational land, although the classification had not formally changed. The classification of the land was not mentioned in his Honour’s reasons of 30 March 2001. It is sufficient to say that the appellant is not in a special position for estoppel purposes because it is a council or because the land was classified as community land, nor when the appellant’s land was apparently to be re-classified as operational land was there any occasion to give it favoured status for estoppel purposes. Conclusion In my opinion, the appellant has not established error of law on the part of Lloyd J so far as his Honour gave effect to the defence of estoppel. It is therefore unnecessary to address para [15] of the reasons of 30 March 2001. The result is that the dismissal of the appellant’s application for relief under the Act stands. This does not seem a satisfactory result. A prodigious amount of money must have been spent in litigation. The house still encroaches on the appellant’s land. The appellant cannot have relief under the legislation intended to cater for such situations. The respondents have a significant part of their house on the appellant’s land, but without any proprietary entitlement. A sensible resolution between the parties is sorely needed, but I do not see anything this Court can do other than urge the parties towards it. I propose that the appeal be dismissed with costs. HEYDON JA: I agree with Giles JA.**********

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.