Hofer v Howell Developments Pty Limited - [2000] NSWLEC 191

Land and Environment Court

of New South Wales

CITATION: Hofer v Howell Developments Pty Limited [2000] NSWLEC 191

PARTIES:
APPLICANT:
Victoria Hofer
RESPONDENT:
Howell Developments Pty Limited

FILE NUMBER(S): 30218 of 1999

CORAM: Lloyd J

KEY ISSUES: :- Encroachment:- heritage building - whether easement for support should be granted or encroachment removed - discretionary considerations

LEGISLATION CITED: Encroachment of Buildings Act 1922 s 3

CASES CITED:

DATES OF HEARING: 28/06/2000; 29/06/2000;30/06/2000; 03/07/2000; 22/08/2000 and 23/08/2000

DATE OF JUDGMENT:
08/31/2000

LEGAL REPRESENTATIVES:

APPLICANT:
J E Robson (barrister) (28/06/2000 - 03/07/2000)
P J McEwen SC (22/08/2000 and 23/08/2000)
SOLICITORS:
Abbott Tout
RESPONDENT:
R A Parsons (barrister)
SOLICITORS:
Bray Jackson

JUDGMENT:

IN THE LAND AND Matter No. 30218 of 1999

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 31 August 2000

Victoria Hofer
Applicant

v
Howell Developments Pty Limited
Respondent

REASONS FOR JUDGMENT

1. This is an application for relief under the Encroachment of Buildings Act 1922. The applicant, Mrs V Hofer, is the encroaching owner. The respondent, Howell Developments Pty Limited, is the adjoining owner. The applicant seeks an easement for support over the respondent’s land for so much of the applicant’s building which encroaches over that land and offers the respondent the sum of $75,000 for such an easement. The respondent, on the other hand, seeks the removal of the encroachment and although under no obligation to do so, offers the sum of $25,000 towards the costs thereof. Moreover, the respondent offers the applicant’s builder the right of access over its land for the more convenient removal of the encroachment.

2. The applicant’s property is known as No. 17 Military Road, Watsons Bay. The respondent’s property adjoins the rear boundary of the applicant’s property and is known as No. 8 Gap Road, Watsons Bay. Both properties were originally a single parcel of land held in common ownership. In about 1908 a two-storey building known as the Vaucluse Town Hall was erected on the land, with a street frontage to Military Road. The building was erected principally on that part of the parcel which now comprises the applicant’s land but it extended into what is now the respondent’s land. In about 1924 the Vaucluse Municipal Council sold the parcel to Trustees of the Masonic Lodge Vaucluse No. 266. The Trustees of the Masonic Lodge build a two-storey Masonic Temple on that part of the parcel which now comprises the respondent’s land. The Masonic Temple was constructed as an L-shaped addition to the town hall. Part of the town hall auditorium, including the stage, comprised part of the ground floor of the Masonic Temple. Two steel columns at the leading edge of the stage were erected to support the external wall of the upper floor of the Masonic Temple. The town hall was converted for use as a cinema.

3. In 1939 a decision was taken by the Trustees of the Masonic Lodge to subdivide the land and sell the former town hall. For this purpose the buildings were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hofer v Howell Developments Pty Limited

Details

AGLC: Hofer v Howell Developments Pty Limited [2000] NSWLEC 191
Case: [2000] NSWLEC 191
Decision Date: 08/31/2000

CaseChat Overview and Summary

This case involves an application for relief under the Encroachment of Buildings Act 1922. The applicant, Victoria Hofer, seeks an easement for support over the respondent's land for the portion of her building that encroaches over the respondent's land, offering $75,000 for such an easement. Howell Developments Pty Limited, the respondent, seeks the removal of the encroachment and offers $25,000 towards the costs. The respondent also offers the applicant's builder the right of access over its land for the more convenient removal of the encroachment. The applicant's property, No. 17 Military Road, Watsons Bay, is a heritage item and was originally part of a single parcel of land with the respondent's property, No. 8 Gap Road, Watsons Bay.

The court had to decide whether to grant an easement for support or order the removal of the encroachment. The key issues included the heritage significance of the encroaching building, the practical considerations of removal, and the potential impact on the structural stability of the building. The court also had to consider the compensation payable to the respondent if the encroachment were to remain and the financial implications for both parties.

The court found that the heritage significance of the building was principally derived from its front facade and the front portion facing Military Road. The court preferred the opinions of the heritage experts called by the respondent, who stated that the encroachment could be removed without adversely affecting the heritage significance of the building. The court also considered the practical considerations of removal, such as the potential for ongoing conflict over maintenance responsibilities and the enhancement of the financial value of both properties if they were freestanding. The court found that the encroachment could be removed without adversely affecting the structural stability of the applicant's building and that the cost of removal was not prohibitive. The court exercised its discretion under the Encroachment of Buildings Act by ordering the removal of the encroachment.

The court made the following orders: (1) the applicant must remove the encroaching portion of the building on or before 30 May 2001; (2) the question of costs was reserved; (3) liberty to apply was reserved; and (4) the exhibits were to be returned.

Orders