Farthing v Wollongong City Council

[2019] NSWLEC 1454

Land and Environment Court

New South Wales

Medium Neutral Citation:	Farthing v Wollongong City Council [2019] NSWLEC 1454
Hearing dates:	Conciliation conference on 9 August 2019
Date of orders:	24 September 2019
Decision date:	24 September 2019
Jurisdiction:	Class 3
Before:	Froh R
Decision:	The Court orders: (1)   The Application is upheld, subject to the terms of Order (2). (2)   The Respondent is to transfer to the Applicants 13.519 square metres of land currently forming part of Lot 1 DP215187, Lot 1 DP40233 and Lot 187 DP13182, as shown as Lots 100,101 and 102 on the plan of proposed acquisition at Annexure A, prepared by C Robson Surveyors, dated 28 June 2019. (3)   The Applicants are to pay the Respondent the amount of $24,247.00 (inclusive of GST) as compensation for the transfer of land referred to in Order (2) within 21 days of the date of this decision. (4)   Each party is to pay its own costs.
Catchwords:	ENCROACHMENT OF BUILDINGS – conciliation conference – agreement between the parties – orders
Legislation Cited:	Encroachment of Buildings Act 1922 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Peter Farthing (First Applicant) Kay Farthing (Second Applicant) Wollongong City Council (Respondent)
Representation:	Counsel: A Pearman (Applicants) J Reilly (Solicitor) (Respondent)   Solicitors: PDC Lawyers and Planners (Applicants) Wollongong City Council (Respondent)
File Number(s):	2019/129540
Publication restriction:	No

Judgment

1. REGISTRAR: These proceedings concern an application to the Court under the s 3(2) of the Encroachment of Buildings Act 1922.

2. The legal description of the site the subject of the proceedings is Lot 2 DP215187, otherwise known as 14 Marine Parade, Towradgie (the Site). The Site is located on the foreshore of Towradgi Beach.

3. The Applicants are the owners of the Site.

4. The Site has a splayed frontage to Murranar Road of 25.995 metres, a splayed frontage to an unnamed council road of 16.50 metres, a rear boundary of 31.972 metres and a south-east boundary of 17.775 metres.

5. The Site is occupied by a two-storey cement rendered building, with a concrete tiled roof (the Building). There are three (3) separate instances of the Building encroaching across the boundary line of the Site onto Council land, being:

1. The south-eastern face of the building encroaches between 10mm and 20mm across the boundary line for 18.215 metres;

2. The south-western face of the building encroaches 240-460mm across the boundary line for 31.972 metres; and

3. The north-western aspect of the brick fence encroaches between 70mm-110mm across the boundary line for 16.96 metres.

The eave of the Building also encroaches the south-eastern boundary by between 200mm and 220mm and the first-floor balcony and supporting wall also encroaches the south-western boundary by between 230mm and 240mm (together, the Encroached Land).

6. The proceedings were commenced in Class 3 of the Land and Environment Court’s jurisdiction and, accordingly, a conciliation conference was arranged under s 34(1) of the Land and Environment Court Act 1979 (LEC Act).

7. At 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 Applicants agreeing to pay the Respondent $24,247.00 (inclusive of GST) as compensation for the transfer of the Encroached Land to the Applicants under the Encroachment of Buildings Act 1922.

8. 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) of the Encroachment of Buildings Act 1922 to make such orders as it deems just with respect to the payment of compensation and the transfer of an interest in land affected by an encroachment.

9. 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.

10. 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.

11. The Court Orders:

1. The Application is upheld, subject to the terms of Order (2).

2. The Respondent is to transfer to the Applicants 13.519 square metres of land currently forming part of Lot 1 DP215187, Lot 1 DP40233 and Lot 187 DP13182, as shown as Lots 100, 101 and 102 on the plan of proposed acquisition at Annexure A, prepared by C Robson Surveyors, dated 28 June 2019.

3. The Applicants are to pay the Respondent the amount of $24,247.00 (inclusive of GST) as compensation for the transfer of land referred to in Order (2) within 21 days of the date of this decision.

4. Each party is to pay its own costs.

……………………………

S Froh

Registrar of the Court

Annexure A (1.30 MB)

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