Johnston v Cutbush

[2025] NSWLEC 1482

Land and Environment Court

New South Wales

Medium Neutral Citation:

Johnston v Cutbush [2025] NSWLEC 1482

Hearing dates:

1-2, 29 May 2025

Date of orders:

07 July 2025

Decision date:

07 July 2025

Jurisdiction:

Class 3

Before:

Gray C

Decision:

The Court orders that:

(1) Within 60 days of the date of these orders, the respondents remove, at their expense, the following encroachments from Lot 3 of DP 583234, known as 47 Emerson Road, Rosebank:

(a) The detached studio building (including verandah) marked as ‘studio’ on the survey dated 30 April 2025, a copy of which is Annexure A to these orders;

(b) The detached building containing a waterless composting toilet and all components of the waterless composting toilet, marked as ‘W/C’ on Annexure A; and

(c) The grey water tank and associated pipework, marked as ‘Rad. Abt 1’ and ‘pipe’ on Annexure A.

(2) Exhibit D is returned, the remaining exhibits are retained.

Catchwords:

APPLICATION — encroachment — application under the Encroachment of Buildings Act 1922 concerning multiple structures — whether structures are encroachments — discretion as to whether orders should be made

Legislation Cited:

Encroachment of Buildings Act 1922, ss 2, 3, 4, 14

Environmental Planning and Assessment Act 1979, s 1.4, former provisions ss 4, 149A, 149B, 149E

Local Government Act 1993, s 68, 68A, 78

Environmental Planning and Assessment Regulation 2000, Sch 1 cl 2(2)

Land and Environment Court Rules 2007, r 3.10

Cases Cited:

Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471

Anagnostou v Vinicio [1995] NSWLEC 104

Attard v Canal [2005] NSWLEC 222

Campbell v Crane [2009] NSWSC 363

Cantamessav Sanderson (1993) 6 BPR 13,127

Cuthbert v Hardie (1989) 17 NSWLR 321

Ex Parte Van Achterberg [1984] 1 Qd R 160

Famous Makers Confectionery Pty Ltd v Sengos (No 1) (1993) 6 BPR 13,222

Hardie v Cuthbert (1988) 65 LGRA 5

Healam v Hunter (1991) NSW Conv R 55-569

Ireland v Cessnock City Council [1999] NSWLEC 153

Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177

Lord v McMahon [2015] NSWSC 1619

Lu v Walding (No 2) [2021] NSWLEC 21

Pye v Johnson [2021] NSWLEC 1479

Shadbolt v Wise [2002] QSC 348

Shadbolt v Wise (2003) 126 LGERA 59

Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192

The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387

Texts Cited:

Practice Note – Classes 1, 2 and 3 Miscellaneous Appeals

Category:

Principal judgment

Parties:

Skye Noel Johnston (Applicant)
Peter William Cutbush (First Respondent)
Shachi Estler (Second Respondent)

Representation:

Counsel:
L Walsh (Applicant)
C Simpson (Respondents)

Solicitors:
Castrikum Adams Legal (Applicant)
Somerville Laundry Lomax Solicitors (Respondents)

File Number(s):

2024/238835

Publication restriction:

No

Judgment

1. COMMISSIONER: Ms Johnston is the owner of land that shares a common boundary with land owned by the respondents, Mr Cutbush and Ms Estler. Ms Johnston has made an application pursuant to the Encroachment of Buildings Act 1922 (the Act) for the removal of structures which encroach on her land. The encroaching owners are the respondents.

2. The applicant, Ms Johnston, is the adjacent owner under the Act, and owns property at 47 Emerson Road, Rosebank legally identified as Lot 3 DP 583234 (Lot 3). It is 40.68ha and has frontage to both Emerson Road and Eureka Road. The respondents own 200 Eureka Road, Rosebank, a 6ha parcel fronting Eureka Road and legally identified as Lot 6 DP 621355 (Lot 6). A significant portion of the boundary of Lot 6 is contiguous with the boundary of Lot 3. This is shown in Figure 1.

3. The structures that arise for consideration include the following:

1. A detached studio that encroaches onto the applicant’s land by up to 5.57m (including its eaves), which is equipped with a solar hot water system, air conditioning units, 2 satellite dishes and a TV antenna;

2. A detached building containing a waterless composting toilet (WCT) located wholly on the applicant’s land but that services the studio and is connected to it by a paved area and underground electrical conduit;

3. A grey water tank that forms part of a system of sewage management, located wholly on the applicant’s land but connected to the WCT by underground pipework and to a reed bed and absorption trenches located on the respondents’ land; and

4. A detached wooden shed located wholly on the applicant’s land but connected to the studio by a paved area.

4. These structures are shown in Figure 2.

5. There is also a gravel access driveway that traverses Lot 3, that the respondents use to access their property on Lot 6. This gravel access driveway is not before the Court in these proceedings, but the use of it by the respondents remains the subject of an ongoing dispute between the parties.

6. Ms Johnston seeks an order pursuant to s 3(2)(c) of the Act for the removal of such of the studio, the WCT and the grey water tank that encroach on the applicant’s land. By an amendment to the Class 3 Application made by leave of the Court at the hearing, she does not seek any orders with respect to the detached wooden shed.

7. In the alternative, Ms Johnston seeks an order for the transfer of the area of land comprising the encroachments to the respondents with the payment of compensation to the applicant. Ms Johnston’s fundamental position is that orders should be made for the encroachments to be removed, but, in the event that the Court declines to make an order for the removal of the encroachments, she seeks the alternative relief.

8. The respondents have not filed a cross-application but instead support Ms Johnston’s alternative relief for the transfer of land to the respondents, with the payment of compensation. Whereas the Class 3 Application, as amended, contemplates the transfer of an area of 177m² to the respondents, the respondents seek the transfer of an area of 280m², which includes the wooden shed and a 900mm setback from all buildings and the grey water tank.

9. For the reasons that are set out below, I have determined that the appropriate outcome is to order the removal of that part of the detached studio and system of sewage management that is on Lot 3.

The statutory framework

10. The power to make orders with respect to an encroachment arises pursuant to s 3 of the Act, which relevantly provides:

3 Encroachments

(1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment.

(2) On the application the Court may make such orders as it may deem just with respect to:

(a) the payment of compensation to the adjacent owner,

(b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or 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 the encroaching owner were required to remove the encroachment,

(f) the circumstances in which the encroachment was made.

(4) …

11. To enliven the Court’s jurisdiction pursuant to s 3(1), there must be an “encroachment”. The Act empowers the Court to make orders “in respect of any encroachment”, and the power to order removal relates only to the encroachment. Encroachment is defined in s 2 of the Act as follows:

Encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil.

12. The encroachment must be “by a building”, and building is defined in s 2 of the Act as meaning “a substantial building of a permanent character and includes a wall”.

13. With respect to the power to order the conveyance transfer or lease of land pursuant to s 3(2)(b), that land must be the “subject land”, which is defined in s 2 of the Act as “that part of the land over which an encroachment extends”.

14. The definitions of adjacent owner and encroaching owner are also set out in s 2, as follows:

Adjacent owner means the owner of land over which an encroachment extends.

Encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends.

15. With respect to orders for compensation, s 4 of the Act provides:

4 Compensation

(1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant 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 land value of the subject land, and in any other case three times such land 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.

16. The High Court considered the scope of the Act in Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, and the Court unanimously held that it concerns only buildings that traverse the common boundary between contiguous parcels of land, and not buildings wholly located on one parcel of land. At 477-478, the Court found:

“The encroachment by a building of which the Act is speaking is a horizontal encroachment “beyond the boundary” between the land of the encroaching owner and the land of the adjoining owner. The definition of “encroaching owner” makes it clear that the encroaching building extends beyond the boundary of the encroaching owner's land. And in s. 5, which provides for the creation of a charge on the land of the encroaching owner, that land is described as “the parcel of land contiguous to the boundary beyond which the encroachment extends, or such part thereof as the court may specify … ”. Thus an “encroachment” under the Act is an encroachment by a building that traverses the “boundary” between the contiguous parcels of land.”

Evidence

17. Lay and expert evidence was given in support of each parties’ position. The applicant read the affidavit of Ms Johnston dated 6 December 2024 and relied on a town planner’s expert report prepared by Mr Stephen Connelly and a land valuation expert report prepared by Mr Jeremy Rutledge.

18. The respondents read the affidavit of Ms Estler dated 24 April 2025, and relied on a town planner’s expert report prepared by Mr Damian Chapelle and a land valuation expert report prepared by Mr Martin Gooley.

19. I note that, for each individual expert report and affidavit, there were some portions that were not admitted into evidence, either because they were not pressed or because they were the subject of objections that were upheld.

20. A joint expert report concerning the town planning issues, prepared by Mr Connelly and Mr Chapelle was also before the Court.

21. The Lismore Council (the Council) file concerning Lot 6 also formed part of the evidence.

22. Relevant findings concerning the evidence, including findings of fact, are dealt with in my consideration below.

The history of the structures

23. The respondents acquired Lot 6 on about 12 March 1992. At that time, there was an existing shed in the approximate location of the now studio (existing shed). By reference to aerial photographs, this was constructed at some time prior to July 1991, but did not exist in 1987, based on an aerial photograph dated August 1987. There is no record of any approval for its construction, and no evidence that it was exempt from the requirement to obtain consent.

24. There is evidence that, prior to the respondents’ purchase of Lot 6, the existing shed was used for residential accommodation over the period that works were being carried out to convert another building on Lot 6 to a dwelling house. The construction of the other building was approved by the Council (BA82/44) and the works to convert it to a dwelling were approved following a development application (DA 86/86) and a building application in 1986 (BA 86/94). Contrary to what was put to the Court by the respondents, the fact that the existing shed was used for accommodation during the works carried out following these approvals is of little to no relevance, and is also no indication of its size. In any event, the evidence is that the existing shed did not come into existence until sometime after August 1987.

25. The evidence of Mr Connelly is that, based on the aerial photograph dated July 1991, the existing shed was wholly located on Lot 6.

The respondents carried out works on the existing shed

26. Following the respondents’ purchase of Lot 6 in 1992, they undertook works to the existing shed. Those works may have been carried out by someone else on their behalf, but nonetheless they were undertaken by the respondents. Ms Estler’s affidavit evidence is silent on the extent of these works, and she denied that she carried out works that enlarged the existing shed.

27. The agreed evidence of Mr Connelly and Mr Chapelle is that those works, by the date of an aerial photograph taken 22 April 1997, increased the size of the existing shed from around 5% of the size of the main dwelling located on the property, to about 60% of the main dwelling (Ex 1 Vol II, p.5). This evidence was challenged in cross-examination, including based on parallax error, but those questions did not lead either of the experts to change or modify their expert testimony. I prefer their evidence concerning the enlargement of the building footprint, which is based on observable facts, to that of Ms Estler, who, in cross-examination, remained vague about the early improvements made to the existing shed and denied that she had done works to enlarge its footprint.

28. The fact that the works were carried out between 1992 and 1997, and were significant works, is supported by a structural certificate by a chartered engineer dated 22 August 2007, in support of a later development application, which states that the structure “is a 10-12 year old building” (Ex C, p.249). The dating of this building in this way supports the conclusion that the works to enlarge the existing shed were carried out by the respondents after their purchase of Lot 6 in 1992, and prior to the lodging of a building application in 1996.

29. It was these works that created the initial encroachment, given the evidence of Mr Connelly that the existing shed was wholly located on Lot 6 in the 1991 aerial photograph.

30. Accordingly, the submission made on behalf of the respondents that the work to enlarge the existing shed was carried out prior to their purchase of Lot 6 is not supported by the evidence.

A building application was lodged

31. In 1996, a building application was lodged concerning the studio (BA 96/858) (Ex C, p 103 of 492). This was presumably made pursuant to the former version of s 68 of the Local Government Act 1993 (LG Act), which at that time required approval to be obtained from the Council for the erection, demolition or change of use of a building. The building application described the studio as being already erected, single storey and 13.7m x 6.28m in size. The application was accompanied by ‘as built’ plans that included the approved plans for the main dwelling (from BA 86/86), a marked up site plan that mis-represented the location of the studio as being wholly on Lot 6, and the floor plan and elevations for the studio. The ground floor depicted in the floor plan accompanying the building application is of the same dimensions as the footprint of the ground floor shown on the current survey (excluding verandah roof and eaves), and the sliding doors on the elevations appear to be in the same location as where they are presently located on the studio.

32. The building application form for BA 96/858 did not seek approval for any water supply work, sewage work or waste treatment device, which suggests that the WCT and the grey water tank were not in situ at that time. This is supported by the evidence of Ms Estler that those structures had not been constructed at that time.

33. A building approval was not forthcoming, and the respondents were advised by letter dated 2 January 1997 that the “Council is unable to assess the Building Application until Development Consent has been granted”. The letter required that a development application be submitted, and said that the application would be assessed as “a combined Development/Building Application” (Ex C, p 108 of 472). However, the respondents did not submit a development application at that time and the building application was left in abeyance.

The respondents carried out further works to the existing shed

34. Between 1996 and 2007, the respondents carried out further works to the existing shed, including the paving around the building, the installation of a roof over the verandah area, and increasing the floor space of the studio by adding a mezzanine level. By the end of 2007, the wooden shed and the WCT were constructed, and there was a grey water treatment system.

35. These further works are evidenced in the letters to the respondents from the Council’s Environmental Health Officer and Building Surveyor, dated 23 May 2007 and 30 October 2007 (Ex C, pp 393-395). The letter dated 23 May 2007 refers to there being a “studio structure” as well as an “existing on-site sewage management system”, and the letter dated 30 October 2007 similarly refers to the studio and the “on-site sewage system”. They are also evidenced in the Certificate of Installation for the termite work dated 12 July 2007 (Ex C, pp 367-376), which contains a diagram that shows the roof outline of the studio (naming it a house) as well as the wooden shed and WCT, and indicates that a termite barrier was installed in the area of the “slab perimeter of house and shed, subfloor of WC shelter”. In the certificate, the height is described as “multi-storey”.

36. That these works were carried out between 1996 and 2007 is also confirmed by the plans that formed part of the 2008 development application (considered below) which show the detail of the paving, roof above the verandah, roof above the entry, wooden shed and WCT, none of which were contained in the plans accompanying BA 96/858.

The erection of the structures was not authorised by any approvals or development consent

37. Neither the works to the existing shed nor the installation of the onsite sewage management system (including WCT) were authorised by an appropriate approval, either under the LG Act or the Environmental Planning and Assessment Act 1979 (EPA Act). There is no record on the Council file of any such approval or consent being granted prior to the respondents carrying out the works described above.

38. This is made clear in the letter of 23 May 2007, in which the council officer states:

“The studio structure does not have any Development Consent or Building Approval. Accordingly, Council requires the structure either be demolished and/or removed, or obtain retrospective approval for the use of the structure via the development assessment process… Within ninety (90) days”.

39. With respect to the onsite sewage management system (including the WCT), an internal memorandum dated 16 April 2008 states that “Council appears to have no record of any approval for a compost toilet and greywater treatment system that is proposed to service the studio” (Ex C, p 258 of 497). The other approvals that pre-date 2008 relate to the sewage management system for the dwelling house.

39. It is well established that a council cannot grant a retrospective approval to carry out an activity under s 68 of the LG Act if that activity has already been commenced or carried out, and any such approval is directed only towards the prospective carrying out of the activity (see Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192 at 195). The same is true of the grant of development consent under the EPA Act, which “cannot be granted to authorise development that has already been carried out, such as the erection of a building that has already been erected” (Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 at [39]).

The 2008 applications

41. In 2008, the respondents submitted a development application for the conversion of the existing shed to a studio (DA 2008/144) (Ex C, p 263 of 472), as well as an application for approval of the WCT and onsite sewage management system (SL 2659.2) (Ex C, p 213 of 472).

The development application

42. Despite the reference to “conversion of shed to studio” in the development application, the proposed works were limited to removing the stove and washing machine, and the development application was principally an application for use of the building as a studio. The “use of land” is a type of development under the EPA Act, and “land” includes “a building erected on the land” (s 1.4 of the EPA Act, or s 4 of the version of the EPA Act that applied at the time the development application was lodged).

43. The development application was accompanied by a Statement of Environmental Effects, prepared by Nowlan Bryant Building Surveyors and dated 16 January 2008 (SEE) (Ex C, p 291 of 472). The SEE acknowledged that the development application was for the use of the building as a studio by stating that “the owners are seeking to retain the structure however alter the use from outbuilding/dwelling to a studio which will be utilised to further the musical and creative pursuits of the owners”.

44. The SEE contains a number of errors, including the description of the prior modifications as being “minor”, the location of the studio as being entirely on Lot 6 and the studio being compliant with setback requirements. To be clear, the SEE misrepresented to the Council that the studio was wholly located on Lot 6 and complied with the setback requirements.

45. The development application was also accompanied by plans of the studio, which included a site plan, ground floor plan, first floor plan, and a section through the building. The site plan did not accurately depict the location of the building in relation to the boundaries of the land, contrary to the requirements of Sch 1 Cl 2(2) of the Environmental Planning and Assessment Regulation 2000.

46. In the notes taken by Mr Smith in the assessment of the development application, it was clear that the development application was for use (Ex C, pp 266-272 of 472). The notes state “The subject application is to change the use of the illegally converted shed/house to a studio”. However, the assessment wrongly assumes that the existing shed was erected pursuant to BA82/44, DA 86/86 and BA 86/94, whereas these approvals relate to the main dwelling structure and not to the existing shed that became the studio.

47. The development consent was subsequently granted on 19 August 2008 for the “conversion of shed to a studio”. Properly construed, it is a development consent for the use of the building as a studio. The consent relates to Lot 6. This consent could only operate to authorise the prospective use of the existing shed as a studio on Lot 6, subject to conditions requiring the carrying out of some works. As a matter of law, the development consent could not have authorised any of the physical works that had already taken place that enlarged the existing shed or converted the structure of the existing shed to a studio structure.

The s 68 application

48. The application for approval of the WCT and onsite sewage management system (SL 2659.2) was received by the Council on 26 March 2008, the same date on which the development application was received. It was accompanied by a statement from a plumber dated 15 October 2007 that “the existing plumbing and drainage… would appear to be quite adequate”. As lodged, this application did not propose any upgrade works.

49. By 9 April 2008, the council officers understood that this application was not an application for a new system. This is clear from an internal memorandum dated 9 April 2008, in which it is stated that the application was for approval to operate “the Humus closet and Grey water Treatment System” (Ex C, p 259). It stated:

“I contacted the applicant who has advised that the system available is a composting toilet and is existing. The owner has advised that they are unable to have a septic disposal area due to the close proximity to a creek. The application would be for an approval to operate the Humus closet and Grey water Treatment System and not an application for a new system.

…

Can you advise what specific information you require to issue an approval to operate for the existing humus closet and grey water treatment system?”

50. On 17 April 2008, the Council wrote to the respondents to request additional information concerning the WCT and the grey water treatment system (Ex C, p 256). This included a requirement for “an assessment of the current condition/status of both the compost toilet and the greywater treatment system”, and “a plan to a suitable scale”.

51. In response to this letter, an On-site Wastewater Management Assessment Report was prepared by Ms Haley Thornton of BCA Check Building Surveyors, and provided to the Council by letter dated 28 May 2008 (Ex C, p 151). This report recommended an upgrade of the greywater tank, and the provision of a concrete reed bed and two ETA beds.

52. By email dated 30 June 2008, a council officer advised that there was some concern over the location of the ETA beds. Further information was provided by Ms Thornton on 30 July 2008 and 13 August 2008 (by facsimile) (Ex C, pp 148 and 143), including the location of the ETA beds and reed bed, and the design for the reed bed. In both these facsimiles, a plan was attached that showed all structures as being located within lines that appeared to be the boundaries of Lot 6.

53. On 13 August 2008 an approval was granted by the Council, and a Notice of Determination was issued for the application “to install a human waste storage facility and drainage” (Ex C, p 136). The approval related to 200 Eureka Road, Rosebank, erroneously referred to as Lot 2, and was for “the provision of a composting toilet and a greywater treatment system that manages wastewater arising from bathroom and kitchen facilities servicing a studio”, and was given licence number SL2659.2.

54. This approval could not have operated to authorise the installation of the WCT, which was already in situ at the time of the application. Further, the approval did not authorise the installation of any structure on Lot 3, and relied on the plan that showed all structures (both existing and proposed) being within the boundary of the land.

55. Condition 26 made it clear that the facility is not to be operated without a Certificate of Approval. There does not appear to be a Certificate of Approval on the Council file, although one was later issued following the commencement of these proceedings (referred to below).

The building certificate

56. On 19 September 2008, the respondents were invited by letter to apply for a building certificate (Ex C, p 129 of 472), and an application was also required by condition 12 of the 2008 development consent. Mr Smith, who was the assessing officer for the 2008 development consent, authored the letter and indicated that a survey was not required.

57. The building certificate application was supported by the floor plans and elevations that accompanied the 2008 development application, together with the site plan that misrepresented the location of the studio as being wholly on Lot 6 (Ex C, pp 377-380).

58. A building certificate was subsequently issued on 16 October 2008 (Building Certificate No.2008/35). The building to which the certificate relates is “Studio”. The note at the end of the certificate states “Building Certificate to authorise works carried out without Council approval on the studio” (Ex C, p 344-345).

59. The building certificate was issued pursuant to the then s 149A of the EPA Act, which has the effect described in the then s 149E, preventing the Council from issuing orders or taking proceedings in relation to the building the subject of the certificate. Section 149E, as it then was, provides:

149E Effect of building certificate

(1) A building certificate operates to prevent the council:

(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters existing or occurring before the date of issue of the certificate.

(2) A building certificate operates to prevent the council, for a period of 7 years from the date of issue of the certificate:

(a) from making an order (or taking proceedings for the making of an order or injunction) under this Act or the Local Government Act 1993 requiring the building to be repaired, demolished, altered, added to or rebuilt, and

(b) from taking proceedings in relation to any encroachment by the building onto land vested in or under the control of the council,

in relation to matters arising only from the deterioration of the building as a result solely of fair wear and tear.

(3) However, a building certificate does not operate to prevent a council:

(a) from making order No 6 in the Table to section 121B, or

(b) from taking proceedings against any person under section 125 with respect to that person’s failure:

(i) to obtain a development consent with respect to the erection or use of the building, or

(ii) to comply with the conditions of a development consent.

(4) An order or proceeding that is made or taken in contravention of this section is of no effect.

60. The building certificate therefore does not actually operate to approve the works or building the subject of the certificate, but instead prevents the Council from taking enforcement action in relation to the works or building. This much was confirmed by Bignold J in Ireland v Cessnock City Council [1999] NSWLEC 153, who stated that “the issue of a building certificate is something quite different from a retrospective development consent or building approval for the erection of building that already exists” (at [44]). His Honour goes on to state (at [93]):

“In respect of such an unlawfully erected building, s 149E does not declare its erection to be lawful. Rather, it prescribes certain forms of legal immunity (by no means complete or absolute) in respect of such a building. I do not think it desirable or necessary to look beyond the legal effect prescribed by s 149E.”

61. The building certificate issued on 16 October 2008 with respect to the studio does not declare lawful the works that were carried out to convert it to a studio. The building certificate refers to Lot 6.

62. I note also that the building certificate application was required to be made either by the owner of the land on which the building is erected, or with the consent of the owner of that land (EPA Act, s 149B as at 2008). Given that the building, in fact, stood on both Lot 3 and Lot 6, the fact that the application was not accompanied by the consent of the owners of Lot 3 means that the building certificate would be liable to be set aside by reason of the non-compliance with the provisions of the EPA Act, for the same reasons that a development consent authorising works on other land would be liable to be set aside by reason of it not being accompanied by owners’ consent (see, for example, Lu v Walding (No 2) [2021] NSWLEC 21 with respect to absence of jurisdictional fact).

A recent s 68 approval

63. On 16 December 2024, after the commencement of these proceedings, the Council issued a Certificate of Approval to Operate a System of Sewage Management. The certificate is issued pursuant to s 68 of the LG Act. It relates to Lot 6, and covers the WCT, the grey water system including constructed wetland, and the ETA bed, notwithstanding that by the time of its issue the respondents were aware that the WCT and greywater tank were not located on Lot 6.

64. It was issued by Mr Spring, a senior regulatory services officer from the Council, and the holder of the approval is stated to be “Mr P and Ms S Cutbush”.

65. The certificate refers to an application, but no such application is located on the Council file (in Ex D) and Ms Estler denied that any such application was made. Any such application is required to be accompanied by owners’ consent, as “the applicant must be the owner of the land or a person who has the consent of the owner” (s 78(2) of the LG Act).

66. By way of observation only, it is extraordinary that the Council would exercise the power to issue the certificate, absent a written application, in circumstances where there are current court proceedings for the removal of structures that form part of the system because they encroach on other land not covered by the certificate or an approval for installation. The absence of an application, and of owners’ consent for that part of the system that is not on Lot 6, could render the certificate either invalid or liable to be set aside.

The discovery of the encroachment

67. The applicant became aware of a potential encroachment around September 2016, prior to settlement of her purchase of Lot 3 on 17 October 2016 (but after exchange in July 2016). This was then confirmed by her surveyor in March 2017, and the respondents became aware of the encroachments in June 2017 when the applicant’s surveyor came to the area of the encroachments.

What is the encroaching building?

68. As set out above at [12]-[16], under the Act, the encroachment must be “by a building”, which is defined as meaning “a substantial building of a permanent character and includes a wall”. Further, the building must traverse the common boundary between Lot 3 and Lot 6 for it to be an encroachment. There is no doubt that the studio is an encroaching building, being a substantial building of a permanent character, that traverses the boundary. However, the wooden shed, the WCT and the grey water tank are wholly built on Lot 3. The parties agree that both the WCT and the grey water tank are part of the studio encroachment, but they diverge as to whether the paving and the wooden shed form part of the encroachment.

The applicant’s position on what constitutes the encroaching building

69. The applicant submits that the building is comprised of the studio, together with the WCT and the grey water tank, both of which are fixtures to the studio, which is the principal encroaching building. The applicant relies on the decision in Ex Parte Van Achterberg [1984] 1 Qd R 160 as authority for the proposition that the law of fixtures can be used to determine whether or not a particular structure is a ‘building’ for the purposes of the Act. Consistent with the principles concerning the law of fixtures, summarised in Famous Makers Confectionery Pty Ltd v Sengos (No 1) (1993) 6 BPR 13,222 by McClelland J, the applicant submits that the WCT and the grey water tank satisfy the criteria of annexation that define them as fixtures of the studio. She says that they both are necessary components and therefore annexations of the principal encroaching building, the studio, and therefore form part of the encroachment.

The respondents’ position on what constitutes the encroaching building

70. The respondents agree with the applicant’s position concerning the application of the law of fixtures. Their position is that all of the structures constitute an encroachment, including the wooden shed, as they are all part of the studio and connected to it. They point out that the grey water tank is connected by underground pipework, the WCT by electrical conduit and paving and the wooden shed by electrical conduit and paving. The respondents submit that the paving also forms part of the encroaching building, as the Act includes encroachment “by intrusion of any part in or upon the soil”.

71. The respondents rely on a decision of Young J in Hardie v Cuthbert (1988) 65 LGRA 5 to support their position that the paving is an encroachment. However, the decision was overturned on appeal on that very point: Cuthbert v Hardie (1989) 17 NSWLR 321.

The encroaching building is the studio, WCT and grey water tank

72. As outlined at [68] above, there are two elements that need to be satisfied for a structure to be an encroachment that enlivens the Court’s jurisdiction under the Act: the structure must be a building, and it must traverse the boundary between the two lots.

73. As to the first, a building must be a “substantial building” of a “permanent character” (s 2 of the Act). This has been interpreted broadly, and in Lord v McMahon [2015] NSWSC 1619 Slattery J summarises the case law as follows (at [254]):

“The requirement that a “building” be a “substantial building” of a “permanent character” and that it “includes a wall” has been interpreted broadly. It has been held, for example, to encompass a concrete driveway (Ward v Griffiths (1987) 9 NSWLR 458), a concrete block wall (Cuthbert v Hardy (1989) 17 NSWLR 321), a retaining wall (Boed Pty Limited v Seymour (1989) 15 NSWLR 715), protruding floor beams (Droga v Proprietors Strata Plan 51722 (1996) 93 LGERA 120) and a weld mesh fence set in concrete foundations (Ex parte Van Achterberg (1984) 1 Qd R 160). But it is been held not to include small structures such as swimming pool pump houses and filters (Cuthbert v Hardy (1989) 17 NSWLR 321) or courtyard paving (Cantamessav Sanderson (1993) 6 BPR 13,127).”

74. In the decision of the NSW Court of Appeal in Cuthbert v Hardie, Hope AJA (with whom Gleeson CJ and Clarke JA agreed) endorsed the approach taken by Carter J in the Queensland case of Ex parte Van Achterberg that, in understanding the meaning of the word “building”, it is intended to deal with something that is man-made of substantial and lasting character, and “which is of such a kind that the legal rights of those affected by it may best be adjusted by permitting it to remain in place” (Ex parte Van Achterberg, at 162).

75. With respect to the paving relied upon by the respondents in the present proceedings, I do not consider it to be a “substantial building” of a “permanent character”. The paving is rectangular terracotta coloured pavers laid on the ground around the studio, including below the verandah roof. There is no evidence of there being a concrete slab below. Consistent with the decision in Cantamessav Sanderson (1993) 6 BPR 13,127 and Cuthbert v Hardie, it is an addition to the area around the studio that could not be regarded as a substantial building for the purpose of the Act. This alone is sufficient to prevent the paving from being a building, and therefore an encroachment under the Act. In addition, given that there is no evidence that the pavers are fixed to a structure below, they are similarly not of a “permanent character”.

76. Whilst each of the other structures referred to at [3] meet the definition of a building under the Act, to be an encroachment, they must traverse the boundary between the two lots.

77. In considering this second element, contrary to the parties’ agreed position, there is no authority for the proposition that the law of fixtures governs whether an independent structure, wholly located on the adjoining neighbour’s land, can be considered as forming part of the encroachment for the purpose of the EPA Act. The decision in Ex parte Van Achterberg, relied upon by the applicant, concerns whether a structure is a building as defined, and the reference to a fixture in property law was in relation to that question only. That decision concerned a fence with concrete footings, which was determined to be a building. At no point in that decision was the fence considered an encroachment by reason of annexation, as the parties are seeking to put to the Court in the present proceedings. In fact, the opposite conclusion was reached in The Uniting Church in Australia Property Trust (NSW) v Crowe [2024] NSWSC 1387 where the Court found that a deck built by one neighbour wholly on an adjoining owner’s land was a fixture on the adjoining owner’s land and could be removed by them (at [415]).

74. The reference to the law of fixtures in the manner advanced by the applicant, and supported by the respondents, is therefore contrary to case law and of no assistance to the Court.

75. Further, a pipe connection that traverses the boundary and that connects two buildings is not sufficient to make a building that is wholly on the adjoining owner’s land an encroachment. This was the factual circumstance in Amatek, in which there was a 50mm polyethelene pipe from a dam on the respondent’s property to a water tank on the appellant’s property, and another from the same dam to a watering system on the appellant’s property. Despite these pipes traversing the boundary, the High Court found that there “were no buildings encroaching across the boundary between Lot 18 and Lot 17 which might have enlivened the jurisdiction of the Court to make an order under s 3(2)(b)” (Amatek, at [11]).

76. Based on the established case law, I consider that a connection by a pipe or electrical conduit to the studio is not sufficient to render a building wholly located on the applicant’s land an encroachment. In that respect, I do not accept the respondents’ position that all of the structures described above at [3] are part of the studio. The wooden shed is wholly on the applicant’s land and the connection to the studio by electrical conduit and paving does not make it part of the building that is the studio. The wooden shed is therefore not an encroachment within the meaning of the Act.

77. However, I reach a different view in relation to the WCT and grey water tank, for different reasons to those advanced by the parties. The WCT and grey water tank, together with the absorption system (EVT beds) and reed beds located on the respondents’ land, form a system of sewage management which is considered a single system under s 68A of the Local Government Act 1993. This system of sewage management is a “substantial building” of a “permanent character”, particularly when having regard to in-ground nature of the composting portion of the WCT, the in-ground nature of the grey water tank, and the concrete encasing of the reed bed. This structure traverses the boundary between Lot 3 and Lot 6, as part of it is on Lot 3 and part is on Lot 6. Accordingly, I consider that the WCT and grey water tank form part of a building that is an encroachment within the meaning of the Act.

78. I therefore find that the Court’s jurisdiction under s 3 of the Act is enlivened in relation to the studio, the WCT and the grey water tank. This means that I reach a position that is consistent with what was advanced by agreement between the parties, albeit for differing reasons. The wooden shed, however, is outside the scope of the Court’s jurisdiction under the Act.

The applicant’s position that the structures should be removed

83. Ms Johnston’s position is that the most appropriate outcome is an order for the removal of the encroachments. Ms Johnston submits that, given her commercial and environmental endeavours for Lot 3, the prejudice that would be suffered by her if the alternative relief was given outweighs the prejudice that would be suffered by the respondents if the encroachments are ordered to be removed. Ms Johnston’s evidence is that she seeks to make use of both road frontages of Lot 3, and to upgrade the access from Eureka Road. Her evidence is that this area of land can also be accessed from walking tracks on Lot 3. As observed onsite, the area where the encroachments are situated has an appealing aspect and is in proximity to Turkey Creek, such that it has significant amenity, which Mr Johnston seeks to use as a valuable attraction for her ecotourism business.

84. The applicant submits that, based on the evidence, the studio encroachment was created by the respondents between 1991 and 1997, and the WCT and greywater tank was created by them between 1996 and 2008.

85. The applicant points out that, from the time that she became aware of the encroachments, she endeavoured to make genuine attempts to resolve the issue, whereas the respondents were unwilling to relinquish an entrenched sense of entitlement to the area of encroachment. She relies on the evidence of their continued use of the area of encroachment, despite letters from her solicitors requiring them to cease that use, and their attempt to seek a transfer of a larger area of the applicant’s land than that required to resolve the encroachment issue.

86. In the event that the Court considers it necessary to order a transfer of land and the payment of compensation, the applicant submits that it is appropriate for the compensation payable to exceed the minimum amount pursuant to s 4(1) of the Act, given that the respondents have failed to satisfy the Court that the encroachments were not intentional and did not arise from negligence. The applicant submits that the evidence is instead to the contrary, that Ms Estler’s attempts to absolve herself from pre-existing knowledge of the location of the Lot 6 boundaries cannot be accepted as credible, and that false information was given to the Council in the SEE regarding the location of the studio in relation to the lot boundaries. The applicant points out that the source of that false information would either be the respondents themselves, or the building surveyors who prepared the SEE. The applicant submits that the appropriate order for compensation would be three times the value of the subject land, and relies on Mr Rutledge’s evidence that the value of the land to be transferred (if an order for transfer is made) is $80,000, or $100,000 taking into account the respondents’ intention to continue trespassing on the applicant’s land. The applicant also disputes the evidence of Mr Gooley, who had not been to the site when preparing a valuation of the land.

The respondents’ position that an order for transfer of land should be made

87. The respondents’ position is that an order for the transfer of 280m² of land should be made, with compensation that is equal to the value of the transferred land. This area of land captures the area of the studio encroachment, the wooden shed, the WCT, the grey water tank and the pipes connecting the grey water tank to other structures.

88. The respondents submit that there is power to make such an order, pursuant to s 3(2) of the Act, which provides that the Court “may make such orders as it may deem just with respect to… (b) the conveyance transfer or lease of the subject land”. The respondents submit that this means an order can be made that land additional to the subject land be conveyed together with the subject land, which is the land vertically under the encroachment. In support of this submission, the respondents rely on the decisions of the Court in Attard v Canal [2005] NSWLEC 222 and Pye v Johnson [2021] NSWLEC 1479, and the Supreme Court in Campbell v Crane [2009] NSWSC 363, in which the order for transfer of land under the Act included more land than that immediately under the encroachment. The respondents submit that multiple inconveniences and impracticalities would arise from an interpretation of the Act that limited the transfer to the land under the encroachment, including the inability to maintain or repair the external parts of buildings, the creation of jagged boundaries, and the contravention of planning laws requiring setbacks.

89. Having regard to the situation and value of the subject land, the respondents contend that it is remote from the dwellings and related areas on the applicant’s land, being around 500m from her house with a ridgeline lying between the house and the subject land. The respondents say that access to the subject land cannot be gained without traversing their land and that there is no evidence of a bridge or causeway to cross Turkey Creek. Further, the respondents submit that the impact of transferring that land to the respondents will be insignificant to the applicant, given that it comprises less than 1% of the applicant’s land and is of no particular importance. It is also submitted on behalf of the respondents that the studio is a substantial and important building for their ongoing use of the land, which would be lost if the encroachment is required to be removed. The respondents therefore submit that the loss or damage suffered by the respondents from a demolition order outweigh the loss incurred by the applicant if the structures remain and a transfer order is made.

90. The respondents also submit that the encroaching buildings, and the wooden shed, are lawful structures “but for the encroachment” (RWS, p.14). In this respect, the respondents rely on the 2008 development consent, the s 68 approvals and the building certificate.

91. It was also submitted on behalf of the respondents that, in carrying out the works for the WCT, the grey water tank and the wooden shed, they relied on documentation on the Council file from an earlier development application that indicated that area was within their boundary. However, there is no evidence in support of this submission, and the evidence of Ms Estler was that she relied on an understanding of the boundaries ascertained from the real estate agent for the sale of Lot 6 and did not see the council documents until after the discovery of the encroachments in 2017. There is no evidence of what else Ms Estler or Mr Cutbush relied upon to ascertain the location of the boundary prior to the works that enlarged the existing shed or prior to the works for the WCT, grey water tank and wooden shed, and there is no evidence that they obtained the council file from earlier approvals to ascertain the boundary location.

92. In the written submissions, the respondents say that the “Council approved the proposed works, did not require a survey and did not raise any concerns in that regard.” (RWS, p.20). The respondents’ position is that, because the Council raised no issue concerning the site plan that depicted the location of the studio, and did not require a survey for the building certificate, it was not unreasonable for them not to obtain a survey or to “rely on the information they had” (RWS, p.20).

93. Further, with respect to the payment of compensation, the respondents say it should be calculated at $89.68 for each square metre, relying on the evidence of Mr Gooley. The respondents submit that the land has no value to the applicant beyond the market value attributed to it by Mr Gooley, and that there is no compensation entitlement above the minimum, because the requirement for there to be negligence must go beyond a mere mistake and involve actual negligence by the breach of a duty of care.

94. The respondents’ position is that the Court ought make a determination on the extent of the land to be transferred, order the payment of compensation based on the square metres to be transferred, and then require the parties to prepare and agree on orders for the preparation of a plan of subdivision consistent with that determination and the payment by the respondents of the costs of the preparation, filing and registration of transfer documents.

95. The respondents’ position is also that, if an order is made for the removal of the encroachments, a period of 9 months should be given for that to occur, so that the respondents can obtain approval from the Council for the re-siting of the structures.

Heads of consideration under the Act

96. The existence of an encroachment does not compel the Court to grant the relief sought. Instead, there remains a broad discretion as to whether the relief should be granted, with s 3(3) of the Act making it clear that the “Court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case”. Section 3(3) then provides a non-exhaustive list of matters that can be considered in the exercise of this discretion. In relation to each of these matters, I make the following observations.

(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be

97. The application is made by the adjacent owner, and follows a period over which the parties sought to reach agreement on an area of land to be transferred by way of boundary adjustment.

98. The parties initially sought to reach agreement themselves, but were unable to do so. The communication between the parties included an indication by the applicant in 2019 that she did not seek the demolition of the studio.

99. By letter dated 21 April 2021, the applicant’s former solicitors wrote to the respondents, stating that “our client is not agreeable to any boundary adjustment whereby you acquire any portion of our client’s land which is not necessary to resolve the encroachment issue” (Ex 1, p.137). The letter invited the respondents to advance proposals for a boundary adjustment, and foreshadowed legal proceedings for either the transfer of land or removal of the encroachment if it is not resolved on a commercial basis.

100. The parties attended mediation on October 2022, and signed heads of agreement. On 11 July 2023, the applicant, through her solicitor, communicated that she did not wish to proceed under the heads of agreement.

101. From 2021 and over the periods that the parties sought to reach agreement on a transfer of land, including at and following the mediation, the areas sought by the respondents for transfer to them ranged from 4,567m² to 6574m², and the consideration offered for the transfer of the land was up to $170,000. I note that these areas are well beyond the area required to be transferred to resolve the encroachment issue, but were sought by the respondents to achieve an Asset Protection Zone around the studio for bushfire protection.

102. On 24 May 2024, the applicant proposed an alternate offer, for the transfer of 156.9m² of land, demanding consideration of over $380,000. No response to this offer was received before these proceedings were then commenced by the applicant on 28 June 2024.

(b) the situation and value of the subject land, and the nature and extent of the encroachment

103. The subject land, the area of land beneath the encroaching structures, is limited to around 50m², but the area affected by the encroaching structures is around 177.3m² as a result of the area of land between the boundary and the structures. A significant portion of the studio traverses the boundary, and, as set out above, the WCT and greywater tank, which form part of the system of sewage management, are wholly located on the applicant’s land.

104. As submitted by the respondents, the area affected by the encroaching structures is remote from the dwellings and related areas on the applicant’s land, with a ridgeline lying between the dwelling and the subject land. It is also less than 1% of the area of Lot 6. However, it is an area with high amenity, with an outlook to Turkey Creek and the ridgeline. It is within an area of Lot 3 that has frontage to Eureka Road, although, at present, it can only be accessed by the access driveway that traverses both Lot 3 and Lot 6.

105. The value of the land affected by the encroachments is in dispute.

(c) the character of the encroaching building, and the purposes for which it may be used

106. The encroaching buildings are the studio and the system of sewage management that services the studio. It is common ground that the studio is not permitted to be used as a dwelling. The evidence of Ms Estler is that the improvements were made to the existing shed, now studio, so that it could be used by her children. Her evidence is that it has been used “as a private recording studio, art space, office space, children’s craft and yoga space for many years”. The SEE in support of the 2008 development application stated that it is “the owners intentions to utilise the building for recreational, musical and craft pursuits” and the “owners are desirous of providing suitable study environments for their children who are also pursuing artistic subjects” (Ex C, pp. 296, 298).

(d) the loss and damage which has been or will be incurred by the adjacent owner

107. The evidence of Ms Johnston is that, since the purchase of Lot 3, she has intended to carry out environmental conservation works and use the property for farm stay, eco-tourism, camping, special events and accommodation. Her evidence is that she was aware of Turkey Creek being on the property, and considered that it offered valuable potential, with plateaus on either side providing for camping and glamping. Her evidence is that this particular area adjacent to Turkey Creek, within close proximity of the land effected by the encroachments, is of particular value to her and her desires for the use and development of Lot 3. Further, she values the second access to Lot 3 from Eureka Road. Her evidence is that it is very important to her to have the full use of the land she purchased so that she can achieve the plans that she had for the property. She is concerned that the continuing presence of the encroachments and the ongoing conduct of the respondents to continue using her land will have a significant impact on her commercial and environmental endeavours.

(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment

108. The evidence is that the cost of removal of the encroachment is $65,900. There is no evidence of any other loss or damage that would be incurred by the respondents if they were required to remove the encroachment.

(f) the circumstances in which the encroachment was made

109. The encroachment was made as a result of work carried out by the respondents, or on their behalf, over three time periods. This includes:

• Works between 1992 and 1996 to expand the footprint of the existing shed from around 5% of the size of the main dwelling located on the property, to about 60% of the main dwelling, which created the encroachment.

• Works between 1996 and 2007 to instal a roof over the verandah area of the studio, add a mezzanine level, and instal the onsite system of sewage management, including WCT, creating additional encroachments.

• The installation of the upgraded grey water tank sometime after 2008.

110. The above works to the existing shed, that expanded it to its current form, were not carried out following the grant of development consent, and neither the initial installation of the system of sewage management nor the later installation of the grey water tank on Lot 3 were authorised by an approval under the LG Act.

111. The evidence in chief of Ms Estler was silent as to the timing of the works and their true extent, and no evidence was given by Mr Cutbush. Further, the respondents advanced no evidence as to what they relied upon to ensure that they were carrying out these works on their own land. This is not a case where they have identified some information on which they mistakenly relied at the time of construction, such as the erroneous location of a boundary fence. Ms Estler’s evidence was that she thought the boundaries were in a location indicated by the real estate agent, including that the existing shed was located within the property boundary. However, based on the evidence before the Court, the respondents took no steps, at the time of carrying out the works to expand the studio and construct the onsite system of sewage management, to ensure that those works were on their own land.

The appropriate outcome is to order the removal of the encroachment

112. Having regard to the evidence before the Court and the circumstances of the encroachments, including the matters for consideration pursuant to s 3(3) of the Act, I consider that the appropriate outcome is for an order for the removal of the encroachments. I reach this conclusion for the following reasons.

113. Firstly, other than the cost of the removal, there is no evidence of the hardship that will be suffered by the respondents for the loss of the encroaching buildings. Whilst there are some references to the loss of privacy, the privacy issues from overlooking from Lot 3 to Lot 6 are the same whether or not the encroachment is removed. They will lose a building that has been available to them as a recording studio, art space, office space and children’s craft and yoga space, but there is no evidence of what hardship they will suffer as a result.

112. Secondly, the works that created the encroachment were carried out by the respondents without development consent or building approval, and without the taking of any steps to ensure that the works were within the boundaries of their own land. As set out above, there were three time periods over which works were carried out, and for each, those works were carried out either without development consent, without requisite approval pursuant to s 68 of the LG Act, or contrary to the 2008 approval granted pursuant to s 68 of the LG Act, the latter which only related to Lot 6. The respondents have not advanced any evidence that those works were exempt from the requirement for development consent (other than the wooden shed). There is therefore no evidence that the WCT, the studio and the grey water tank can be described as lawfully constructed, contrary to the submission made on behalf of the respondents.

113. Thirdly, these works were carried out without the taking of any steps to ascertain the location of the boundaries of Lot 6. This is not a case where there was some mistake over the location of the boundary due to an error in the location of a fence, such as in Anagnostou v Vinicio [1995] NSWLEC 104. Instead, the respondents relied on a representation made by a real estate agent at the time of purchase, and took no steps to satisfy themselves that their understanding of the boundary location was correct and that the works they carried out were on their own property. Such steps could involve obtaining a survey, or could involve engaging a surveyor to mark out the boundary. This is true even if Ms Estler was under a misapprehension that the western boundary of her property adjoined council land. In failing to take any steps to ensure that the work was within their property boundaries, the respondents had total disregard to the rights of the adjoining property owner, whether private owner or council (see Shadbolt v Wise [2002] QSC 348 at [51], which was not disturbed on appeal in Shadbolt v Wise (2003) 126 LGERA 59).

114. Fourthly, each of the 2008 approvals or certificates issued by the Council, and relied upon by the respondents to ‘regularise’ the carrying out of work without consent, were obtained by the making of misrepresentations to the Council. The grant of the 2008 development consent for the use of the studio was based on misrepresentations in the SEE and on the site plan that the studio was wholly located on Lot 6, when, in fact, it encroached onto Lot 3. The SEE also misrepresented, whether mistakenly or negligently, that the studio complied with setback requirements, whereas it did not, due to the encroachment into Lot 3. The issue of the 2008 approval for installation of the sewage management system was based on a sketch plan that depicted all structures as being located within lines that can be presumed to depict the boundary. The 2008 building certificate application was also accompanied by the site plan that misrepresented the studio as being wholly on Lot 6. Whether these misrepresentations were mistaken, negligent or deliberate, the very fact that they were advanced by or on behalf of the respondents without them taking steps to ensure their accuracy demonstrates their continued disregard for their neighbour’s property rights.

115. The fact that the Council did not require a survey for the development application or the building certificate is irrelevant, and does not excuse the conduct of the respondents in carrying out works without development consent or approvals under the LG Act and without taking reasonable steps to ascertain the true location of their property boundary, and in misrepresenting the location of the structures to the Council.

116. Indeed, the fact that the Council, by its letter from Mr Smith dated 19 September 2008, indicated that it did not require a survey, can be explained by the circumstances. Mr Smith was the assessing officer for the 2008 development application, who had erroneously noted that the building for which consent was sought was originally constructed pursuant to BA82/44, DA 86/86 and BA 86/94, whereas these approvals relate to the main dwelling structure. Given that Mr Smith was under the misapprehension that the studio was originally constructed lawfully, and that the building certificate only related to works to the studio, he did not require a survey to confirm the location of the studio relative to the boundaries on Lot 6.

117. Fifthly, none of the approvals or certificates relied upon by the respondents render the studio, WCT or greywater tank lawful in their current form. The 2008 development consent does not operate to authorise the works that were carried out prior to the grant of consent, and only gives consent for the prospective use of the studio on Lot 6. Similarly, the 2008 approval to instal the system of sewage management did not authorise the installation of the WCT, which occurred prior to the grant of that approval. It also did not authorise the installation of the grey water tank, which was installed on Lot 3 even though the 2008 approval related to Lot 6. The building certificate for the studio issued in 2008 also does not operate to approve the studio, as explained above at [60]. Further, the 2024 approval to operate the system of sewage management only concerns Lot 6. As such, the submission made by the respondents that the studio, WCT and greywater tank are lawful other than the encroachment, is not established by the evidence.

118. Sixthly, given the extent of the encroachments into the applicant’s land (up to 5.57m for the studio, 11.83m for the WCT, and 3.6m for the WCT), it is not appropriate for the encroachments to remain as is. The primary relief sought by the applicant is appropriate in circumstances where the encroaching building is separated into parts that, if an order for the transfer of the land was made, it would require the transfer of an area of land that is more than double or three times the area of the subject land as defined by the Act. Whilst the subject land is around 50m² plus the area of the underground pipe, the area to be transferred under the alternative relief sought is 177.3m². Although the parties consider that the Court has the power to make such an order (notwithstanding that a real question arises on this point, see Healam v Hunter (1991) NSW Conv R 55-569), I consider that the extent of the area required to be conveyed to resolve the encroachment issue is relevant to the exercise of the Court’s discretion in determining the appropriateness of an order for transfer of the land. In circumstances where the encroachments came about by the respondents carrying out works without development consent or requisite approvals, without evidence that such works were exempt from requiring consent, and without taking steps to ensure those works were on their own land, they ought not benefit from an order granting them the transfer of land that is much greater than the subject land as defined under the Act. The fact that the area that would be transferred is a very minor portion (less than 1%) of the applicant’s large parcel of land is not sufficient to dissuade me from this point.

119. For those reasons, I find that the removal of the encroachments is the appropriate outcome in the circumstances. Whilst this comes at a cost to the respondents, that cost does not justify an alternative order in circumstances where the encroachment was created by works carried out without development consent or approval under the LG Act, and where all approvals that were sought to “regularise” the structures involved a misrepresentation to the Council as to the location of the structures.

Costs

122. In the Class 3 Application, the applicant seeks her costs of the proceedings. A question arises as to whether s 14 of the Act confers the power to make an order for costs, or whether such an order is beyond the power of a Commissioner by reason of r 3.10(1)(a)(iv) of the Land and Environment Court Rules 2007.

123. The parties agree that any application for costs ought to follow the procedure outlined in the Practice Note – Classes 1, 2 and 3 Miscellaneous Appeals, which requires the filing of a Notice of Motion seeking an order for costs within 28 days of the making of final orders.

The final orders

124. As set out above, the appropriate orders are for the removal of the encroachments, comprising the WCT, the grey water tank, and that part of the studio that encroaches into Lot 3. I do not accept the respondents’ position that 9 months is an appropriate period of time for their removal, given that there is no basis upon which any encroachment into Lot 3 ought to remain. Any application for the construction of replacement structures on Lot 6 ought not delay the removal of the encroachments. I will allow a period of 60 days.

125. The Court orders that:

1. Within 60 days of the date of these orders, the respondents remove, at their expense, the following encroachments from Lot 3 of DP 583234, known as 47 Emerson Road, Rosebank:

1. The detached studio building (including verandah) marked as ‘studio’ on the survey dated 30 April 2025, a copy of which is Annexure A to these orders;

2. The detached building containing a waterless composting toilet and all components of the waterless composting toilet, marked as ‘W/C’ on Annexure A; and

3. The grey water tank and associated pipework, marked as ‘Rad. Abt 1’ and ‘pipe’ on Annexure A.

2. Exhibit D is returned, the remaining exhibits are retained.

J Gray

Commissioner of the Court

Annexure A (109 KB, pdf)

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Decision last updated: 07 July 2025