J and T Lonsdale v P Gilbert - [2006] NSWLEC 30

Land and Environment Court

of New South Wales

CITATION: J and T Lonsdale v P Gilbert & Ors [2006] NSWLEC 30

PARTIES:
APPLICANTS:
J and T Lonsdale
RESPONDENTS:
P Gilbert and Ors

FILE NUMBER(S): 30860 of 2004

CORAM: Bignold J

KEY ISSUES: Encroachment :- retaining wall and attached fence—Encroachments constituting continuing trespass—Conduct of Parties—discretionary factors.

LEGISLATION CITED: Encroachment of Buildings Act 1922, s 3(2)

CASES CITED: Amatek Limited v Googoorewon Pty Ltd (1993) 176 CLR 471;
Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464;
Giniotis v Farrugia (unreported 19 August 1985);
Kontikis v Schreiner (1989) 16 NSWLR 706;
Mitchell v Waugh (1993) 82 LGERA 44

DATES OF HEARING: 30/08/2005, 02/09/2005

DATE OF JUDGMENT:
01/30/2006

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr A Crossland, Barrister
SOLICITORS
Turnbull Hill
FIRST RESPONDENT:
Mr M Fraser, Barrister
SECOND RESPONDENTS:
Mr M Lawson, Barrister
SOLICITORS:
FIRST RESPONDENT
Sparke Helmore
SECOND RESPONDENT
Thomas Mitchell

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

30 January 2006

30860 of 2004 J AND T LONSDALE v P GILBERT; B AND J ELLSTON

HIS HONOUR:

A. INTRODUCTION

1 This is an application for relief under the Encroachment of Buildings Act 1922, s 3(2) (the Act) brought by the “adjacent owners” against the “encroaching owners” as those two terms are respectively defined by the Act. The properties of the respective owners are adjacent residential properties situate at Belmont in a recently developed estate.

2 The original proceedings (which were filed on 21 July 2004) only claimed relief against the first Respondent who was the “encroaching owner” when the encroachments (comprising a timber retaining wall with a colorbond fence attached thereto) first came into existence but who sold to the second Respondents in December 2003 one of the two lots upon which the encroachment was erected and extended to the Applicants’ land (each of which lots he had developed with dual occupancy residential development).

3 The second Respondents were joined as a party to the proceedings by the Applicant by order made by the Court on 20 June 2005, they having neither consented to nor opposed their joinder. Although they were joined at a time when settlement negotiations between the original parties had failed, apparently on account of the second Respondents’ refusal upon legal advice, to agree to the terms of settlement no relief was claimed against them. (The terms of settlement had contemplated consent orders being made in the proceedings whereby the Applicants would transfer so much of their land as was encroached upon by the timber retaining wall and colourbond fence to each of the Respondents respectively in return for the payment by the first Respondent only of (i) $5,000 being the agreed value of the land subject to the encroachments; and (ii) $10,000 legal costs; and (iii) the costs of the registration of the necessary documents to adjust the respective common boundaries of the properties owned by the respective parties. The sole point at which…

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.

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Details

Case: [2006] NSWLEC 30
Decision Date: 01/30/2006

CaseChat Overview and Summary

The case of J and T Lonsdale v P Gilbert and others is a dispute over the encroachment of a retaining wall and a colorbond fence onto the applicants' property in Belmont. The applicants sought relief under the Encroachment of Buildings Act 1922, seeking the removal of the encroachment and compensation for the trespass. The first respondent, who was the original encroaching owner, had sold one of the lots to the second respondents, who were joined as parties but not directly claimed against. The first respondent opposed the claim on discretionary grounds, arguing that the encroachment was minor, the applicants acquiesced to the encroachment, and he provided some benefit to the applicants by levelling their land. The applicants sought to amend their claim to include the second respondents as encroaching owners. The court found that the encroachment constituted a continuing trespass and that the first respondent was responsible for the creation of the encroachment either intentionally or negligently. The court granted the applicants' relief, ordering the removal of the encroachments by both respondents, and the first respondent to indemnify the second respondents and pay their costs. The court also ordered the first respondent to pay the applicants' and second respondents' costs.

Orders