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Johnston v Cutbush

Johnston v Cutbush

Case [2025] NSWLEC 1482 7 July 2025

Encroachment

Removal of Structures

Adverse Possession

Property Law

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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

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…

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 Johnston v Cutbush

Details

AGLC: Johnston v Cutbush [2025] NSWLEC 1482
Case: [2025] NSWLEC 1482
Decision Date: 07 July 2025

CaseChat Overview and Summary

The case of Johnston v Cutbush was heard in the Local Court of Australia, where the plaintiff, Johnston, brought an action against the defendants, Cutbush, concerning property encroachments on Lot 3 of DP 583234, located at 47 Emerson Road, Rosebank. Johnston sought the removal of several structures and fixtures on their property, which the defendants had allegedly built without permission. The defendants argued that the encroachments were either not theirs or that they had permission from Johnston to build them. The primary legal issue the court needed to address was whether the encroachments were unlawful and, if so, whether the defendants were responsible for them.

The court examined the evidence presented, including surveys and other documentation, to determine the precise location and nature of the encroachments. The court found that the encroachments, including a detached studio building, a waterless composting toilet, and a grey water tank, were indeed on Johnston’s property and had been constructed without authorisation. The court considered the defendants' arguments but found them unconvincing, particularly given the clear demarcation of the property boundaries and the absence of any evidence that Johnston had granted permission for the construction of these structures. The court concluded that the defendants were responsible for the encroachments and ordered their removal.

In light of the findings, the court ordered the defendants to remove the specified encroachments within 60 days and return certain exhibits while retaining others. This decision clarifies the property boundaries and reinforces the importance of obtaining proper authorisation before constructing any structures on another’s land.

Orders

Orders of the court

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

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Johnston v Cutbush [2025] NSWLEC 1482

Most Recent Citation

Johnston v Cutbush [2025] NSWLEC 130

Cases citing this decision · 1 of 1 shown

Johnston v Cutbush
[2025] NSWLEC 130 Para 2

…Commissioner Gray determined the substantive proceedings in Johnston v Cutbush [2025] NSWLEC 1482 ( the Substantive Decision ), requiring the Respondents remove the structures from the Applicant’s land.…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

The Uniting Church in Australia Property Trust (NSW) v Crowe
[2024] NSWSC 1387 Para 77

…he 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 rem…
Pye v Johnson
[2021] NSWLEC 1479 Para 88

…chment. 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…
Ku-ring-gai Council v Buyozo Pty Ltd
[2021] NSWCA 177 Para 39

…pment 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]).…
Lu v Walding (No 2)
[2021] NSWLEC 21 Para 62

…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).…
Lord v McMahon
[2015] NSWSC 1619 Para 73

…ilding 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]):…
Campbell v Crane
[2009] NSWSC 363 Para 88

…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 multipl…
Hillpalm Pty Ltd v Heaven's Door Pty Ltd
[2004] HCA 59 Para 39

…dy 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…
Shadbolt v Wise
[2003] QCA 241 Para 113

…s 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).…
Shadbolt v Wise
[2002] QSC 348 Para 113

…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).…
Ireland v Cessnock City Council
[1999] NSWLEC 153 Para 60

…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…
Cantamessa v Sanderson
[1993] NSWCA 48 Para 75

…und the studio, including below the verandah roof. There is no evidence of there being a concrete slab below. Consistent with the decision in Cantamessa v 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…
Amatek Ltd v Googoorewon Pty Ltd
[1993] HCA 16 Para 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 foun…
Attard v Canal
[2005] NSWLEC 222 Para 88

…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 inc…
[1993] AC 573
[1993] AC 573 Para 69

…oses 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 st…

Legislation cited in this decision · 4

Encroachment of Buildings Act 1922 (NSW)
14, 2, 3, 4 5 mentions (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW)
1.4, 149A, 149B, 149E 5 mentions (from Para 37)
Local Government Act 1993 (TAS)
68, 68A, 78 4 mentions (from Para 31)
Land and Environment Court Rules 2007 (NSW)
3.10 2 mentions (from Para 122)

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