Gabriel v Billett

[2023] NSWLEC 85

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gabriel v Billett [2023] NSWLEC 85

Hearing dates:

17 July 2023

Date of orders:

15 August 2023

Decision date:

15 August 2023

Jurisdiction:

Class 3

Before:

Robson J

Decision:

See orders at [87]

Catchwords:

Encroachment — Application for transfer of land by encroaching owner — Exercise of discretion under Encroachment of Buildings Act 1922 (NSW), s 3(3) — Encroaching structure located in a heritage conservation area — Whether the encroachment should be removed

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Clarence Valley Local Environmental Plan 2011, Sch 5, Ptt 1, 2, cl 5.10

Clarence Valley Residential Zones Development Control Plan 2011

Dividing Fences Act 1991 (NSW)

Encroachment of Buildings Act 1922 (NSW), ss 2, 3, 4, 14

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; [1993] HCA 16

Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138

Category:

Principal judgment

Parties:

Eric Stephen Gabriel (Applicant)
Karen Billett (Respondent)

Representation:

Counsel:
E S Gabriel, self-represented (Applicant)
L Nurpuri (Respondent)

Solicitors:
Self-represented (Applicant)
Daniel Butt & Co Solicitors (Respondent)

File Number(s):

2023/00011710

Publication restriction:

Nil

Judgment

1. By Class 3 application filed 12 January 2023 (and subsequently amended 16 May and 17 July 2023), Eric Stephen Gabriel, the owner of land known as 10 Clyde Street, Maclean, seeks relief under the Encroachment of Buildings Act 1922 (NSW) (‘Encroachment Act’) against Karen Billett, the adjacent owner of land known as 7 Morven Street, Maclean. The encroaching structure the subject of these proceedings is an old timber and metal shed of approximatively 18m² of which 11m² is located on Ms Billett’s property. The shed is exclusively accessible from Mr Gabriel’s property.

2. Mr Gabriel seeks the transfer, presumably under s 3(2)(b) of the Encroachment Act, of an area of (approximatively) 34.5m² of Ms Billett’s property, with the effect that the whole of the shed (and some further area adjacent thereto) would become part of his property. In exchange, he offers to pay Ms Billett compensation based on the unimproved land value of the parcel of land to be transferred.

3. Ms Billett opposes the transfer and seeks the removal (pursuant to s 3(2)(c) of the Encroachment Act) of that part of the shed which encroaches onto her property (being 11m²) at Mr Gabriel’s cost.

4. As it is common ground between the parties that the shed encroaches onto Ms Billett’s property, the primary issue for determination is whether Mr Gabriel is entitled to the transfer of the parcel of land the subject of these proceedings.

5. For the reasons that follow, I find that, subject to any necessary approvals, it is appropriate for an order to be made requiring the removal, at Ms Billett’s expense (by way of indemnification, or other arrangements otherwise agreed between the parties), of that part of the shed which currently encroaches onto her property.

Background

6. To provide context to…