Encroachment of Buildings Act of 1955 (4 Eliz Ii No. 18) (Qld)

REAL PROPERTY. 4 E liz II. N o . 18, 1955. Encroachment of Buildings Act. 415 REAL PROPERTY. An Act to make provision for the Adjustment of 4 loLIZlSn- Boundaries where Bu _ i _ lding w s Encroach on E nc M r B o N a T ch ­ Adjoining Land; To Facilitate the Deter- BcI^I[res mination of Boundaries; and for purposes AiZt connected therewith. [A ssented to 22 nd A pril , 1955.] B E it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legis­ lative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:— 1. This Act may be cited as “ The Encroachment of short title. Buildings Act of 1955.” 2. In this Act, unless the context or subject-matter Definitions, otherwise indicates or requires, the following terms shall have the meanings respectively assigned to them, that is to say— “Adjacent owner” — The owner of land over Adjacent which an encroachment extends ; owner. “ Boundary ”—The boundary line between Boundary, contiguous parcels of land ; “Building”—A substantial building of a Building, permanent character : The term includes a wall; “ Court ”—The Supreme Court or a Judge court, thereof; “ Encroaching owner ”—The owner of land Encroaching contiguous to the boundary beyond whichownor' an encroachment extends ; “ Encroachment ”—Encroachment by a building, Encroach- including encroachment by overhang of anyment- part as well as encroachment by intrusion of any part in or upon the soil; “Owner”—Any person entitled to an estate ofOwner, freehold in possession— (a) Whether in fee-simple or for life or otherwise ; ( b) Whether at law or in equity ;

416 REAL PROPERTY. Encroachment of Buildings Act. 4 E liz . II. No. 18, Subject land. (c) Whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under *“ The Beal Property Acts, 1861 to 1952 ” ; “ Subject land ”—That part of the land over which an encroachment extends. Encroachments. Application 3 . (1.) Either an adjacent owner or an encroaching respect V^ owner may apply to the Court for relief under this Act in encroach- respect of any encroachment. merits. (2.) On the application the Court may make such order as it may deem just with respect to— (а) The payment of compensation to the adjacent owner; (б) The conveyance, transfer, or lease of the subject land to the encroaching owner, or the grant to him of any estate or interest therein or of 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 he were required to remove the encroachment; (/) The circumstances in which the encroachment was made. * 25 V. No. 14 and amending Acts.

REAL PROPERTY. 417 1955. Encroachment of Buildings Act. (4.) This section applies to encroachments made either before or after the commencement of this Act. 4. (1.) The minimum compensation to be paid to pensation. the adjacent owner in respect of any conveyance, transfer, lease, or grant as aforesaid 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. (2.) In determining whether the compensation shall exceed the minimum, and if so by what amount, the Court shall have regard to— (a) The value, whether improved or unimproved, of the subject land to the adjacent owner ; (b) The loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner; (c) The circumstances in which the encroachment was made. 5. (1.) The order for payment of compensation charge on may be registered in the office of the Registrar of Titles laad‘ in such manner as the Registrar of Titles determines and shall, except so far as the Court otherwise directs, upon registration operate as a charge upon the land of the encroaching owner, and shall have priority to any charge created by him or his predecessor in title. (2.) In this section the land of the encroaching owner means the parcel of land contiguous to the boundary beyond which the encroachment extends, or such part thereof as the Court may specify in the order. 6. Wherever the Court sees fit, and in particular Encroaching where the encroaching owner is not an owner beneficially entitled to the fee-simple free from encumbrances, the pensation Court may determine— conveyance. (a) By whom and in what proportions the compensation is to be paid in the first instance, and is to be borne ultimately ; o

418 REAL PROPERTY. Encroachment of Buildings Act. 4 E liz . II. No. 18, (6) To whom, for whose benefit and upon what limitations the conveyance, transfer, or lease of the subject land or grant as aforesaid in respect thereof is to be made. Adjacent 7. Wherever the Court sees fit, and in particular coowmne­ r— where the adjacent owner is not an owner beneficially pensation entitled to the fee-simple free from encumbrances, the aconndveyance. Court may determine— (a) To whom, for whose benefit, and in what proportions the compensation is to be paid or applied; and (b) By whom the conveyance, transfer, or lease of the subject land or grant in respect thereof is to be made. Vesting order. 8. Wherever the Court may make or has made an order under this Act with respect to the subject land, the Court may make such vesting order as it may deem proper in lieu thereof or in addition thereto, or in default of compliance therewith. Boundaries. Boundaries. 9. (1.) Where any question arises as to whether an existing building encroaches or a proposed building will encroach beyond the boundary, either of the owners of the contiguous parcels of land may apply to the Court for the determination under this Act of the true boundary. (2.) On the application the Court may make such orders as it may deem proper for determining, marking, and recording the true boundary. (3.) This section applies to buildings erected either before or after the commencement of this Act. General. Suit, action 10 . (1.) In any suit or proceeding before the Court, porrocoethedeirng. however originated, the Court may, if it sees fit, exercise any of the powers conferred by this Act, and may stay the suit or proceeding on such terms as it may deem proper. (2.) Where any action or proceeding is taken or is about to be taken at law by any person, and the Court is of opinion that the matter could more conveniently be

REAL PROPERTY. 419 1955. Encroachment of Buildings Act. dealt with by an application under this Act, the Court may grant an injunction, on such terms as it may deem proper, restraining the person from taking or continuing the action or proceedings at law. (3.) In any action at law a Judge may, if he is of opinion that the matter could more conveniently be dealt with by an application under this Act, stay the action or proceeding on such terms as he may deem proper. 11. Until otherwise prescribed by Rules of Court, Application any application under this Act may be made by originating originating summons. summons. 12. In any application under this Act the Court Persons may require— interested. (а) That notice of the application shall be given to any person interested ; ( б ) That any person interested shall be made a party to the application. 13. In any application under this Act the Court Cost*, may make such order as to payment of costs, charges, and expenses as it may deem just in the circumstances and may take into consideration any offer of settlement made by either party. 14. (1.) All such Rules of Court as may be deemed Rules of necessary or convenient for regulating the practice andp°^ic“d procedure of the Court for the purpose of giving full effect to this Act may be made and the provisions of *“ The Supreme Court Act of 1921,” and The Supreme Court Acts Amendment (Rules Ratification) Act of 1928,” shall apply and extend in respect of such Rules of Court. ( 2 .) The practice and procedure of the Court shall, except so far as inconsistent with this Act or any Rules of Court, apply to applications under this Act. * 12 G. 5 No. 15. t 19 G. 5 No. 3. SCAFFOLDING, INSPECTION OF See L abour .