Cinelli v Newcastle City Council

[2022] NSWLEC 1666

Land and Environment Court

New South Wales

Medium Neutral Citation:

Cinelli v Newcastle City Council [2022] NSWLEC 1666

Hearing dates:

Conciliation conference on 9 November 2022

Date of orders:

08 December 2022

Decision date:

08 December 2022

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

See orders at [8] below.

Catchwords:

ENCROACHMENT OF BUILDING – conciliation conference – agreement between the parties – orders

Legislation Cited:

Conveyancing Act 1919 s 88B

Encroachment of Buildings Act 1922 ss 3, 4

Environmental Planning and Assessment Act 1979 Div 6 Part 6.7

Land and Environment Court Act 1979 ss 19, 34

Swimming Pools Act 1992 s 22D

Category:

Principal judgment

Parties:

Maurie Cinelli (First Applicant)
Anna Cinelli (Second Applicant)
Newcastle City Council (Respondent)

Representation:

Counsel:
P Kilpatrick (Solicitor)(Applicant)
N Eastman (Respondent)

Solicitors:
Kilpatrick Hatton Lawyers (Applicant)
Matthews Folbigg (Respondent)

File Number(s):

2022/237412

Publication restriction:

No

JUDGMENT

1. COMMISSIONER: The Applicants filed an application seeking orders that the Respondent allow encroaching structures in respect of a child resistant barrier and timber deck adjacent to a swimming pool (the Encroaching Structures) erected on land being Lot 23 Deposited Plan 838133 known as 4 Decora Crescent, Warabrook NSW (Applicants’ land) and encroaching on Lot 49 Deposited Plan 845614 (the Respondent’s land) to remain by granting them an easement pursuant to s 88B of the Conveyancing Act 1919 (Conveyancing Act) pursuant to s 3(2)(a) and (b) of the Encroachment of Buildings Act 1922 (EB Act) for structures built over the Respondent’s land.

1. The proceedings have been commenced pursuant to s 3(1) of the EB Act.

2. The proceedings fall within Class 3 of the court’s jurisdiction pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings are s 34(3) of the LEC Act, s 2(a),(b) and 4(1) of the EB Act, and s 88B of the Conveyancing Act 1919.

4. The physical encroachment can be seen in Annexure B – Survey Plan dated 19/09/22 by Jason Lee Harman being reference 6431-DP: the encroachment is identified at “(A) Easement to permit encroachment structure to remain variable width”.

Legislation

Encroachment of Buildings Act 1922

3   Encroachments

(1)  Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2)  On the 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 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:

(a)  the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be,

(b)  the situation and value of the subject land, and the nature and extent of the encroachment,

(c)  the character of the encroaching building, and the purposes for which it may be used,

(d)  the loss and damage which has been or will be incurred by the adjacent owner,

(e)  the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

(f)  the circumstances in which the encroachment was made.

……

(5)  This section applies to encroachments made either before or after the commencement of this Act.

4 Compensation

(1)  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 land value of the subject land, and in any other case three times such land value.

……

2. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 9 November 2022. I presided over the conciliation conference.

3. At or after the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court:

1. Upholding the appeal;

2. Ordering the Respondent to grant the Applicants an easement to permit the Encroaching Structures to remain, subject to the Applicants carrying out preliminary works necessary for the grant of Building Information Certificate number BC2021/00039 (BIC) pursuant to Division 6.7 of Part 6 of the EPA Act, and the Swimming Pool Certificate of Compliance number SP2020/00028 (Swimming Pool Certificate) pursuant to s 22D of the Swimming Pools Act 1992 (Swimming Pools Act) on the Applicants’ land which encroaches on the Respondent’s land, in accordance with:

1. Survey Plan by Jason Lee Haman dated 19 September 2022, referenced 6431-DP set out in Annexure A;

2. Deposited Plan Administration Sheet dated 19 September 2022, referenced6431-DP-1 set out in Annexure B.

3. Terms of the easement as set out in the Section 88B instrument pursuant to the Conveyancing Act in Annexure C.

4. The Applicants are to pay $1.00 in compensation to the Respondent.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 3(2)(a) and (b) of the EB Act to order the Respondent to grant an easement over the Encroaching Structures to the Applicants, subject to the Applicants first complying with the Respondent’s requirements in relation to the BIC and the Swimming Pool Certificate. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been satisfied:

1. The Applicants are the registered proprietors of the Applicants’ land, and entitled to bring the proceedings pursuant to s 3(1) of the EB Act.

2. The Respondent is the registered proprietor of the Respondent’s land, being the adjoining owner.

3. The Applicants have extended the Encroaching Structures from their land onto the Respondent’s land.

4. The Applicants have lodged applications for the BIC and Swimming Pool Certificate with the Respondent, and are awaiting the issue of the BIC and Swimming Pool Certificate.

5. The Applicants filed the Class 3 application pursuant to s 3(1) of the EB Act.

6. Upon the Respondent’s issuing the BIC and the Swimming Pool Certificate the Respondent has agreed to grant an easement for the Encroaching Structures over the Respondent’s land to the Applicant in accordance with s 88B of the Conveyancing Act.

7. The Respondent has agreed to accept $1 for compensation for the grant of the easement in accordance with s 3(2)(a) of the EB Act from the Applicants. The parties agree that $1 paid in compensation satisfies s 4(1) of the EB Act.

5. As set out above, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court notes the parties have agreed that:

1. The Applicant may do anything reasonably necessary for the purpose of undertaking the preliminary works as set out in Order (2) below:–

1. Entering Lot 49 DP845614

2. Taking anything on to the lot burdened, and

3. Carrying out work.

2. The Applicant does not need to remove the child-resistant barrier, being the encroaching structure situated on Lot 23 DP838133, from its present location;

3. The Applicants will pay all costs associated with the preparation and registration of the easements referred to in Order (2) below; and otherwise the parties have agreed that there will be no order as to costs.

4. The terms of the easements referred to in Order (2) below will be binding upon successors in title of the Applicant’s land.

8. The Court orders:

1. The appeal is upheld.

2. The Respondent is to grant to the Applicants an easement pursuant to s 88B of the Conveyancing Act 1919 to permit the encroaching structures to remain, subject to the Applicants carrying out preliminary works necessary for the grant of BIC number BC2021/00039 pursuant to Division 6.7 of Part 6 of the Environmental Planning and Assessment Act 1979, and the Swimming Pool Certificate of Compliance number SP2020/00028 pursuant to s 22D of the Swimming Pools Act 1992, on the land at Lot 23 Deposited Plan 838133 known as 4 Decora Crescent, Warabrook, NSW, which encroach upon Lot 49 Deposited Plan 845614 in accordance with the following documents:

1. Survey Plan by Jason Lee Haman dated 19 September 2022, referenced 6431-DP set out in Annexure A;

2. Deposited Plan Administration Sheet, dated 19 September 2022, referenced 6431-DP-1 set out in Annexure B;

3. The terms of the easement for encroachment of structures set out in the instrument pursuant to s 88B of the Conveyancing Act 1919 in Annexure C.

3. The Applicants are to pay the Respondent compensation in the sum of $1.00 pursuant to ss 3(2)(a) and 4(1) of the Encroachment of Buildings Act 1922.

M Peatman

Acting Commissioner of the Court

**********

Annexure A

Annexure B

Annexure C

Decision last updated: 08 December 2022