Carlin v Mladenovic

CARLIN & ANOR v MLADENOVIC & ANOR
[2002] SASC 206
Full Court Prior, Perry and Gray JJ

PRIOR J: I agree with Justice Gray. The appeal is allowed, the order under appeal set aside. The respondents are now ordered to remove the encroachment no later than 2 August 2005. The appellants’ claim for compensation is dismissed. Liberty to any party to apply to a single judge of the Court on notice to all others for such further or other order or direction as may be necessary to carry this order into effect.
PERRY J I agree with the reasons for judgment of Gray J, and with the order which he proposes.
GRAY J This is an appeal against a decision of a judge of this court ordering a transfer of land without compensation pursuant to the Encroachments Act 1944 (SA). The order was made in favour of the encroaching owner.
Background
Patrick and Betty Carlin, the appellants, made an application under the Encroachments Act to remove part of a building which encroached over their land. The encroaching owners were the respondents Slobodan Mladenovic and Alexandra Jurisevic.
The appellants, the adjacent owners reside at 8A Grayson Street, Kilkenny. The respondents own 8 Grayson Street, the adjoining allotment. A 2.5 metre besser block wall runs between the two properties. The wall is not built on the true boundary. It lies 1.65 metres inside the boundary of the appellant’s land. The wall was built in 1977, nine years before the respondents purchased the encroaching property. It replaced a paling fence that had previously been in that position.
On each block of land there is a house. The respondent’s house has a lean-to addition that contains a laundry, bathroom and toilet. This lean-to encroaches 0.9 metres on the appellant’s land. The position of both houses and the two allotments are shown in the following diagram.
The appellants purchased the property at 8A in 1961. At that time, they believed that the existing paling fence delineated the boundary between the two properties. It was not until some five months later that the appellants discovered that the fence was inside the boundary of their land.
The appellants’ neighbours in 1961 were the Rices, an elderly couple who were both ex-service personnel. The appellants enjoyed a good relationship with them and as they were elderly and Mr Rice had cancer the appellants took no action to remedy the encroachment. Discussions between the neighbours led to an agreement that the appellants would have a right of first refusal to buy the property at No. 8 after Mr Rice’s death. When he died the appellants exercised the option to buy. According to Mr Carlin’s evidence, the property changed hands in 1969. The certificate of title indicates that registration of the sale was not made until 1972.
The appellants sold No. 8 at an auction in 1972. Mr Carlin instructed the agent handling the sale to inform prospective buyers of the encroachment and that the wall did not signify the boundary of the property. Mr Carlin attended the auction and heard the agent make a specific announcement to that effect.
The wall was erected in 1977 at the expense of the appellants. They received planning approval from the council to build it in its current position. In his evidence Mr Carlin said that he understood that the wall had to be built in that position because of its height. The wall was built to support a shed and to screen the property from difficult neighbours who were living at No. 8 at this time.
The encroaching property now owned by the respondents changed hands several times after the appellants sold it in 1972. Mr Carlin said that he was unaware of any of the sales and that he believed that subsequent residents were tenants and not new owners. He was also unaware of the sale in 1986 to the respondents. Mr Carlin told the court that there was only one occasion on which a “For Sale” sign was displayed on the property. That occurred in 1993. He wrote to the relevant land agent at the time to make them aware of the encroachment.
The appellants took no steps to remove the encroachment until 1993. In August of that year they had the property surveyed. This confirmed the existence of the encroachment. The appellants then instructed a solicitor to contact the respondents with a view to having the encroachment removed.
Throughout 1994 and 1995, two firms of solicitors attempted to contact the respondents by mail. It is unclear whether the correspondence was ever received. On 25 July 1995 the respondents wrote to the appellants from Cooper Pedy. The letter indicated that they did not believe there was a problem with the wall. It further said:
“If you have a dispute about the boundary between our properties we can discuss this matter in court”.
The appellants issued proceedings pursuant to the Fences Act 1975 (SA) in 1995. That action did not provide a satisfactory resolution. On 13 November 1998 proceedings were issued pursuant to the Encroachments Act. The following orders were sought.
-that the defendants [respondents] remove the buildings or those portions of the buildings that are encroaching on a portion of the land comprised in Certificate of Title Register Book Volume 2170 Folio 82.
- further or such other incidental orders as this Court may deem just or
expedient.
Mr Carlin is a pensioner and an ex-serviceman who is currently in his mid eighties. He and his wife still reside at Grayson St. The respondents have lived in Coober Pedy for many years and have never resided at No 8. The respondents have expressed a desire to move into the house, but say that they are waiting for the resolution of this case.
The Trial
The learned trial judge (“the judge”) refused to grant relief to the appellants.
In his reasons the judge referred to evidence given by Mr Carlin about the use to which the appellants intended to put the land subject to the encroachment. In an affidavit, Mr Carlin had expressed his desire to demolish the wall. He said it was in need of repair and that he intended to erect a new fence on the true boundary. In a subsequent affidavit, he repeated that intention and also indicated a desire to utilise the area as a vegetable garden and to plant fruit trees. Four days after swearing that affidavit Mr Carlin gave a different account. He told the court that he and his wife intended to build a double garage which required the demolition of a portion of the wall. No plans were produced to the court. No application had been submitted to the council. The judge found that Mr Carlin’s plan for the garage was of recent invention. He found that the appellants had no plans to develop that part of the land.
The judge found that the appellants use and enjoyment of their land had not been affected by the encroachment. He reiterated that the appellants had made no attempt to rectify the situation since their initial complaint in 1994. The judge noted that at the time each of the parties purchased their properties, they believed that the fence constituted the true boundary. The judge accepted that the encroachment may affect future development, but he did not accept that the appellants had any real intention to develop that area of their land.
The judge concluded that the appellants “stood by and allowed this position to remain for at least 33 years without taking any steps to remove the encroachment”. He considered that it would be inequitable to order the removal of the encroachment as the appellants had ample opportunity to address the encroachment and rectify the situation.
He ruled that the boundary should be redefined. That redefinition necessitated a transfer of the land on and surrounding the encroachment to the respondents. He ordered that both parties share the costs involved with the transfer of the land. He made no order for compensation to the appellants.
The judge accepted Mr Mladenovic’s evidence that the respondents intended to return to Adelaide and live at his property. He noted that a Housing Improvement Act notice was still current and that the dwelling would have to be restored if it were to be made habitable. The judge recognised the cost that would be involved in demolishing the part of the building that encroached over the land. The only bathroom, toilet and laundry were contained in this portion of the dwelling. Accordingly the cost of the relocation of those facilities would be significant. Those costs were estimated by the court appointed valuer to be $27,500. No estimate was made of the cost of renovating the existing structure. However, it was likely that such cost would be substantial.
The judge rejected the appellant’s submission that the respondent should pay compensation in the amount of three times the unimproved capital value pursuant to section 5(1) of the Encroachments Act. He observed that both parties believed the wall to be the true boundary at the time they purchased their land. The respondents genuinely believed that they had purchased the land up to the wall. The judge considered that it was inappropriate for the respondents to pay for land which they had believed was theirs at the time of purchase. He reasoned that the removal of the encroachment and the return of the land to the appellants would be inequitable. However the transfer of land to the respondents would maintain a situation which the appellants had by their inaction tacitly agreed to for over 30 years.
The notice of appeal in this matter was filed on 16 June 2000. The appeal was not set down within the required six months. An application by the appellant’s solicitors to extend the time in which to appeal was made in February 2001 and heard by the judge. He refused the application[1] in October 2001. Leave to extend time was granted by the Full Court on 13 March 2002.[2]
[1] [2001] SASC 358
[2] [2002] SASC 90
The Appeal
The respondents were unrepresented. They made no written submissions but Mr Mladenovic addressed the court orally. They continued to maintain that they intended to reside at No. 8 as soon as this matter was resolved.
The purpose of the Encroachments Act is to provide for the adjustment of boundaries, facilitate their determination, and to ensure that a fair remedy is available. Section 2 of the Act defines “encroachment” to mean:
“encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.”
and “subject land” to mean:
“that part of the land of the adjacent owner over which an encroachment extends”
Section 4 of the Act provides:
adjacent ownerencroaching ownercourtthis Actencroachment
(1)         Either an or an may apply to the for relief under in respect of any .
court
(2)         On the application the may make such orders as it deems just with respect to-
adjacent owner
(a)             the payment of compensation to the ;
subject landencroachingowner
(b)            the conveyance transfer or lease of the to the , or the grant to him of any estate or interest therein, or any easement, right, or privilege in relation thereto;
encroachment
(c)       the removal of the .
court
(3)         The may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters-
adjacent ownerencroaching owner
(a)   the fact that the application is made by the or by the , as the case may be;
subject land
(b) the situation and value of the , and the nature and
encroachment
extent of the ;
building
(c)   the character of the encroaching , and the purposes for which it may be used;
adjacentowner
(d) the loss and damage which has been or will be incurred by the ;
(e) the loss and damage which would be incurred by the
encroaching owner
if he were required to remove the
encroachment
;
(f) the circumstances in which the encroachment was made.”
Section 5 provides:
“The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the court that the encroachment was not intentional, and did not arise from negligence, be the unimproved capital value of the subject land, and in any other case three times such unimproved capital value.”
Construction of Section 4
Counsel for the appellants submitted that the judge miscontrued section 4 of the Act. It was contended that the “subject land” was a substantially smaller area than that ordered to be transferred to the respondents. It was submitted, therefore, that this order was beyond power. It was also said that his interpretation conflicted with the interpretation of comparable interstate provisions.
In Amatek Ltd v Googoorewon Pty Ltd[3] the High Court took the view that the terms of the Encroachment of Buildings Act 1992 (NSW) did not provide for a wide meaning of encroachment[4]. Although this case is not directly on point, the meaning of the term “subject land” and the breadth of that concept were considered. Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ said:[5]
“The purpose of the Act is to be ascertained from its language. So far as one may define the purpose of the Act from its long title, that purpose does not extend to the conferring of a general power to change the boundaries between contiguous parcels of land. It is an Act “to make provision for the adjustment of boundaries where buildings encroach on adjoining land; to facilitate the determination of boundaries; and for purposes connected therewith”. The twin purposes of the Act are to facilitate the determination of existing boundaries (provided for by s. 9) and to permit the adjustment of boundaries when, but only when, buildings encroach on adjoining land (provided for by s. 3). The language of the Act shows clearly that the encroachment to which it relates is not an encroachment by a person but an encroachment by a building: the definition of “encroachment” in s. 2 explicitly says so. The term is defined by extension to include “encroachment by overhang of any part”’ or “by intrusion of any part in or upon the soil”. By the definition of “subject land”, the land of the “adjacent owner” which the court may order to be conveyed, transferred or leased to the encroaching owner pursuant to s. 3(2)(b) is only “that part of the [adjacent owner’s] land over which an encroachment extends”. The subject land is thus identified as the land vertically under the encroachment.’ …
[3] (1992-1993) 176 CLR 471 at 477
[4] The SA and NSW legislation are identical in language.
[5] (1992-1993) 176 CLR 471 at p477-478
The portion of land subject to the transfer order in the present case was substantially more than the land ‘vertically under the encroachment’.
In Healam v Hunter[6] the New South Wales Supreme Court considered the situation of a house encroaching onto adjacent land. The plaintiff applied to have that portion of the land transferred as well as reasonable curtilage. The court concluded that its power was limited to orders with respect to the “subject land” and did not extend to include reasonable curtilage.
Waddell CJ said:
“It is said that in the present case the encroachment extends only to the area of land on which the house and its eaves and gutters now stand. This being so, the power of the Court is limited to making an order with respect to the transfer of this land. However, no doubt for reasons of convenience, the defendants ask the Court to transfer to the plaintiff a larger area of land…”
“In my opinion, this submission is inconsistent with the definition of ‘encroachment’ quoted above, which speaks only of encroachment by a building or by overhang of any part of a building. ‘Building’ is defined as meaning ‘a substantial building of a permanent character’ and as including ‘a wall’. The definitions are inconsistent with there being an encroachment to the extent of the curtilage of a building.”
[6] [1992] ANZ Conv R 592,
In Tallon v Proprietors of Metropolitan Towers Building Units Plan No 5157[7], the Queensland Court of Appeal considered a similar situation.[8] It was submitted that the court should order the transfer of not only the land over which the encroachment stood but also reasonable curtilage. Pincus and Davies JJ took a narrow view of the statutory power to order a transfer of land:
“The question is whether the order requiring conveyance of the Tallon land up till line D is an order within the description in s. 185(1), as being “with respect to…the conveyance…of the subject land to the encroaching owner”. The simple answer made on behalf of the appellant Tallon is that the conveyance of the land up to line D would convey not only land over which an encroachment extends, but land … over which no encroachment extends. …We were referred to various other provisions of the Act, but none of them is capable of extending the power given by s185 (1)(b) in such a way as to enable the Court to order transfer of land other than that over which an encroachment extends. It may be that in many circumstances the Court might think it convenient to require transfer to the encroaching owner of additional land, …, but the statutory power to require transfer is confined as we have indicated; we think the confinement to be unambiguous.”
[7] [1997] 1 Qd R 102
[8] Section 185 of the Property Law Act 1974 (Qld) was in the same terms as section 4 of the Encroachment Act.
Section 4 of the Encroachments Act gives the court power to make orders regarding land. That power is limited to the “subject land” namely “the land ... over which an encroachment extends.” The High Court has construed that phrase to mean the land vertically under the encroachment. The decisions in Healam and Tallon are to the same effect. “Subject land” is to be understood as confined to the area of the encroachment and nothing more. In this case the judge took too wide a view of his powers under section 4. He erred in ordering a transfer of land that was beyond the “subject land”. It was not within his power to order the transfer of an area of land greater than the subject land - that land over which the encroachment extends.
Construction of Section 5
Counsel for the appellants submitted that there was no discretion in the court not to award compensation upon a transfer of land. It was said that the judge had incorrectly interpreted section 5 and misconstrued the interaction between sections 4 and 5.
It was submitted by the appellants that compensation should be ordered if the encroachment remained. The argument was advanced that section 4(3) was to be read in conjunction with section 5. It was the appellant’s contention that section 5 set out a statutory regime for the payment of minimum levels of compensation when there had been any order for transfer or conveyance of the subject land under section 4(3).
The judge interpreted section 5 as giving a broad discretion with respect to compensation. He was of the view that it allowed a transfer of land to be ordered with no compensation if appropriate. He also referred to terms such as ‘make such orders as it deems just’ and the court can exercise its discretion ‘as it deems proper’.
In Bunney v State of South Australia,[9] the judge considered the issue of compensation:
“Although the Act should receive a liberal construction, regard must be had to its terms. For the reasons which follow, when s4 and s5 are read together, it is apparent that the intention is to invest the court with a wide discretion to fashion appropriate relief. The court therefore has a wide discretion as to the circumstances in which compensation will be ordered.
Section 4 gives an overall discretion whether or not to award compensation. Subsection (2)(a) lists compensation as one form of relief and then in par (b) lists, among other things, a transfer of the land to the encroaching owner as yet another form of relief. Thus, compensation is clearly identified as a separate item of relief which may or may not be ordered when the court orders a transfer of an interest in the land to the encroaching owner. It is implicit in s40 (2) that the court may order, say, a transfer of the land without payment of compensation.”
[9] (2000) 77 SASR 319 at 327

In this case the judge found that there was a relationship between sections 4 and 5 of the Act. He accepted that the discretion provided in section 4(3) that
“The court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, …”
extended to the grant of compensation upon a transfer as set out in section 5. He said that there were three options open. He could award no compensation, order that the unimproved capital value be paid, or order that three times the unimproved capital value paid[10]. Having regard to the period during which the appellants had “stood by” and not rectified the situation created by the encroachment he concluded that no compensation should be ordered. The judge characterised the transfer as achieving no more than formalising a situation that had existed for some time.
[10] Gladwell v Steen (2000) 77 SASR 310
Interstate authorities support the judge’s construction.[11] In Morris v Thomas[12] the judge commented:
“In my judgment when s3 and s4 [equivalent to sections 4 & 5 in SA] of the Act are read together it is tolerably clear that when s 4 refers to “the minimum compensation to be paid” there is implied into the section the qualification “where the Court pursuant to s3 (2) orders compensation to be paid”. In other words I agree with Young J that the payment of compensation is not mandatory in every case where the Courts grant relief under the Act to an encroaching owner[13].”
In Re: Melden Homes No. 2 Pty Ltd’s Land[14] Dunn J said:
“When an application for a determination of compensation is made, the first question (which arises under s.3) is whether compensation should be ordered to be paid at all. Ordinarily there will be such an order, particularly in a case in which the adjoining owner is required to transfer land to the encroaching owner. But even in such a case it may on occasions be appropriate to make an order for compensation, having regard to the conduct of the parties. If an encroaching owner transfers land to the adjoining owner, as has happened in this case, that may make it unfair to order him to make a money payment. And unreasonable conduct, especially if it smack of oppression and demonstrates unwillingness to take a reasonable step to avoid or to mitigate loss, may lead the court to conclude that no order for compensation should be made.
Any person whose land suffers an encroachment must in my opinion take all reasonable steps to mitigate his loss and ought not to be treated as having suffered damage if there is a loss which could have been avoided but is not avoided either because of an unreasonable action or because of inaction [P19].”
[11] Anagnostou v Vinicio (1995) 87 LGERA 232, Butland v Cole (1995) 87 LGERA 122, Re Melden Homes Pty Ltd No 2 (1976) 35 LGRA 15 at 17
[12] (1991) 73 LGRA 164
[13] (1991) 73 LGRA 164 at 169
[14] (1976) 35 LGRA 15 at 17
Section 5 has an implied qualification built in that the minimum compensation to be paid is subject to an order being made under section 4(2) that compensation be paid.
The judge’s interpretation was correct. The Act provides a broad discretion including a discretion to refuse to order compensation.
Other Complaints
Counsel for the appellants submitted that the judge proceeded on an incorrect factual basis. It was said that he was wrong to conclude that the appellants stood by and acquiesced in the encroachment. It was also said that insufficient regard was had to the dilapidated state of the encroaching property.
The Appellant’s Inaction or Acquiescence
In his reasons for refusing the appellant’s initial application, the judge mentioned the appellant’s failure to rectify the encroachment. However, as earlier observed, the appellants initially took no action because of their friendship with the Rices and also because they had obtained a right of first refusal when the property was sold. It was accepted by the judge that at the auction in 1972 the appellants made the existence of the encroachment known to the purchaser.
His Honour made no findings with regards to Mr Carlin’s evidence that he was unaware of all of the changes of ownership or that when he learned of the potential sale in 1993 he took steps to notify the agent. The judge also made no finding regarding Mr Carlin’s evidence that he spoke with workmen on the encroaching property pointing out that the wall was not the true boundary of the properties. There had been no real challenge to Mr Carlin’s evidence at trial.
The trial judge found that the appellants had acquiesced by their lack of any action to remove the encroachment over a long period of time. It is true that the appellants took no action until 1993, but it cannot be said that they acquiesced or stood by silent. Acquiescence involves conduct indicating deliberate and intentional compliance to a situation. As Deane J said in Off v Ford,[15]
‘Acquiescence is relied on in the sense of calculated (i.e. deliberate and informed) inaction or standing by which encouraged another reasonably to believe that his assertion of rights and consequent actions were accepted or not opposed.’
[15] Orr v Ford (1988-1989) 167 CLR 316 at 340
That was not the case here. As earlier discussed, Mr Carlin acted on several occasions to make others aware of the encroachment, and to prevent them from taking action which would be inconsistent with his assertion that the land was his land. The appellants followed a course of conduct in which they maintained their rights to the area of land the subject of the encroachment. As earlier observed Mr Carlin said that on the occasions in 1993 when he was aware that the property was for sale he notified the real estate agent of the encroachment and requested that any buyer be informed of the situation. He said that he was unaware of other sales. Although new neighbours had moved in from time to time he believed that they were tenants. The judge made no finding with respect to this evidence. The appellant’s account was confirmed by several letters in 1993. On 17 June 1993 Mr Carlin wrote to LJ Hooker Real Estate Services.
“This letter is to confirm my phone call to you on Tuesday 15/6/93. As stated by myself that the Besser Block wall between No 8 and No 8A is wholly on the property owned by PF & B Carlin and was permitted too by the Woodville Council and all costs were met by the people named above. At the time the wall was erected we had particularly nasty neighbours (Tenant of the owner at that time). We could not put the wall on the correct line and so we had to put the wall up and then remove the existing paling fence a little at a time. So when your firm sell the property please inform them that a new fence on the original boundary should be erected, because we will not tolerate the new owners interfering with the wall as it is on our property.”[16]
[16] Appeal Book p94
On 5 July 1993 Mr Carlin wrote again[17]:
“I am the owner of the adjacent property No 8A Grayson St. I write in reference to the proposed sale by auction of No 8 Grayson Street Kilkenny. It has become apparent upon a survey being completed of the property that there is a substantial encroachment upon my property. In particular I hereby request that this information is conveyed to all potential purchasers of the property located at 8 Grayson Street Kilkenny. I further more suggest that the sale is deferred until this matter can be discussed.”
[17]Appeal Book p 93
The appellants did not acquiesce in the situation. At the times they believed the property to be for sale they acted to protect their position and their rights. Their failure to take steps to have the encroachment removed for many years may be a consideration relevant to the issue of relief, but it was incorrect to characterise their conduct as acquiescence.
Dilapidation
The condition of the encroaching property was described by the court appointed valuer Mr Maloney in his report:
“This can best be described as a symmetrical cottage of four main rooms which appears to have been constructed commencing in 1880 with the materials being generally stone and/or brick which has been rendered and generally in poor condition. Subsequent additions to the original four rooms include a leant-to enclosed verandah along both the western frontage of the cottage and also the southern frontage of the cottage and also the lean-to additions which form part of the encroachment, the subject of this Report. This lean-to addition appears to have been added at some time after the original building was completed and is along the northern boundary of that original building, comprises bathroom, toilet and laundry facilities and protrudes approximately 0.9 metres into the land parcel owned by the Plaintiffs.
The condition of this house is substandard and the level of care and maintenance has been minimal for many years. My investigations have disclosed that there are certain “Orders” on this house … The list of defects shown relate to the standard of the property as reported in August 1976 although I can confirm that from my recent inspection of these premises, these defects are still evident and I believe are generally of a greater degree than in 1976.
…
I have formed the opinion that the nature and condition of the building improvements on this land are such that they contribute nothing to the value of the underlying land were it able to be offered as vacant land cleared of these improvements. Futhermore I have observed that the “allowable rent” … set in June 1986 is a rent which if able to be obtained, would hardly meet the costs of rates, taxes and other imposts arising from the ongoing ownership of this property in this present configuration.”[18]
[18] Taken from the Assessment of Value 8 & 8A Grayson Street, Kilkenny; Carlin v Mladenovic LVD 1537 of 1998 prepared by Maloney Field Services Property Consultants and Valuers.
A letter from the Housing Trust dated 29 June 1999 confirmed the following details:
1.A notice stating the intention of the Trust to declare the house to be sub-standard was served upon the owner or upon the registered mortgagee of the land on which the house is situated on 18 August 1976.
2.A notice declaring the house to be sub-standard was published in the Government Gazette on 23 September 1976 and is still current.
3.A notice fixing the maximum rental payable in respect of the house was published in the Government Gazette on 26 June 1986 and is still current. The amount of maximum rent is $46.00 per week.
The Trust’s reasons for considering the above mentioned property as sub-standard are noted on the attached defects list as identified at the Trust’s last inspection…
EXTERNALLY
Walls are damp, cracked and fretted
Exposed woodwork and joinery decayed and rotted
Roofing iron is rusted, buckled and loose
Stormwater poorly directed
Yard is overgrown
INTERNALLY
Walls are damp and fretted
Timber floors are uneven
Some rooms have inadequate natural light and ventilation
Bathroom, laundry lean-to structures unfit
Sleepout rooms unfit
Mr Maloney was of the view that the dwelling and lean-to addition did not add any value to the property. As can be observed from his report the property was in poor condition in 1976 and deteriorated further since that time. The respondents have not lived at the property since its purchase. The evidence suggested only intermittent occupation by tenants.
In 1976 the encroaching lean-to was considered by the Housing Trust to be substandard. No evidence was led regarding the costs of refurbishing the lean-to addition. The inference to be drawn from Mr Maloney’s valuation report was that no such expenditure was warranted. He considered that having regard to the dilapidated state of the property
“the status quo should remain as regards the occupation of portion of the Plaintiffs’ land by the building improvements until at some later time these building improvements are demolished…”
I accept the appellant’s submission that the judge failed to have adequate regard to the dilapidated state of the encroaching property. The encroaching lean-to was declared substandard in 1976 and continued to deteriorate further by 2000. It added no value to the property.
Conclusion
Having regard to the judge’s erroneous interpretation of section 4 of the Encroachments Act it is necessary for the issue of relief to be reconsidered. I consider that the judge was in error in concluding that the appellants had acquiesced. I also accept the submission that the judge failed to have full regard to the dilapidated state of the dwelling, and the views of the court appointed expert.
This case “cried out” for a negotiated settlement. The court on several occasions raised that possibility and allowed time for discussion. However, there was no reconciliation. Both the appellants and the respondents have suffered in this matter. Justice will be best achieved by allowing the encroachment to remain for a limited period. This accords with the view of the court-appointed expert. The order for the transfer of land must be set aside. The respondents must remove the encroachment no later than 2 August 2005. In the circumstances it is not appropriate to award compensation.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 [2001] SASC 358
2 [2002] SASC 90
3 (1992-1993) 176 CLR 471 at 477
4      The SA and NSW legislation are identical in language.
5 (1992-1993) 176 CLR 471 at p477-478
6      [1992] ANZ Conv R 592
7 [1997] 1 Qd R 102
8 Section 185 of the Property Law Act 1974 (Qld) was in the same terms as section 4 of the Encroachment Act.
9 (2000) 77 SASR 319 at 327
10     Gladwell v Steen (2000) 77 SASR 310
11Anagnostou v Vinicio (1995) 87 LGERA 232, Butland v Cole (1995) 87 LGERA 122, Re Melden Homes Pty Ltd No 2 (1976) 35 LGRA 15 at 17
12 (1991) 73 LGRA 164
13 (1991) 73 LGRA 164 at 169
14 (1976) 35 LGRA 15 at 17
15     Orr v Ford (1988-1989) 167 CLR 316 at 340
16     Appeal Book p94
17     Appeal Book p 93
18Taken from the Assessment of Value 8 & 8A Grayson Street, Kilkenny; Carlin v Mladenovic LVD 1537 of 1998 prepared by Maloney Field Services Property Consultants and Valuers.

[2002] SASC 206

2 August 2002