Milner v Busways Management Pty Limited

Land and Environment Court

of New South Wales

CITATION:	Milner v Busways Management Pty Limited [2001] NSWLEC 231
PARTIES:	APPLICANT Stanley William Milner RESPONDENT Busways Management Pty Limited
FILE NUMBER(S):	30027 of 1998
CORAM:	Talbot J
KEY ISSUES:	Encroachment :- minimal subterranean encroachment by footings only - compensation denied.
LEGISLATION CITED:	Encroachment of Buildings Act 1922 s 3, s 3(3)(a), s3(3)(b), s 3(3)(c), s 3(3)(d), s 9 Land and Environment Court Act 1979 s 69 Real Property Act 1900 s 135B, s 135J
CASES CITED:
DATES OF HEARING:	20/09/2001
DATE OF JUDGMENT:	10/02/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr J.A. Coombs (Barrister) SOLICITORS Roderick Storie Solicitors RESPONDENT Mr J.A. Ayling (Barrister) SOLICITORS Gells

JUDGMENT:

IN THE LAND AND Matter No. 30027 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 2 October 2001

Stanley William Milner
Applicant

v
Busways Management Pty Limited

Respondent

REASONS FOR JUDGMENT


1. The applicant is the registered proprietor of Lots 27 – 30 Section 5 DP 744 known as 16 – 22 Wellington Street, Riverstone.

2. The respondent is the registered proprietor of the adjoining property Lot 1 in DP 839626.

3. There is no dispute that part of the footings of a large factory building constructed adjacent to the eastern boundary of the applicant’s land encroach, at least in part, onto Lot 27.

4. Pursuant to an application made by the applicant under s 135B of the Real Property Act 1900 (“the Real Property Act”) for a determination of the position of the eastern boundary of his land, the Director of Land Titles advised that the common boundary of Lot 27 Section 5 DP 744 and Lot 1 DP 839626 had been determined as in a sketch forwarded to the applicant on 22 December 1999.

5. At a point identified on the sketch by the Examining Surveyor it was noted “footing encroaches by up to 0.12. Other footing encroachments unknown” .

6. The advice by the Director of Land Titles also noted it was found that some of the footings of the factory complex on Lot 1 DP 839 626 encroach onto Lot 27 Section 5 DP 744 by up to 0.12 metres. The Director continued “The location and extent of other footing encroachments was not investigated”.

7. In the meantime, on 25 March 1998 the applicant filed an application class 3 in this Court seeking relief under s 3 and s 9 of the Encroachment of Buildings Act 1922 (“the Encroachment of Buildings Act”).

8. Subsequently, at the request of the applicant, the Registrar General referred the determination of the title boundary to this Court in a further application class 3, matter No 30014 of 2000, filed on 2 March 2000 pursuant to s 135J of the Real Property Act.

9. Matter No 30014 of 2000 was finalised on 30 June 2000 by consent orders as follows:-


1. The proceedings be discontinued.

2. Each Party bear its own costs.

3. The Boundary between lot 26 in Deposited Plan…