Moini Pty Limited v Lam

[2023] NSWLEC 1349

Land and Environment Court

New South Wales

Medium Neutral Citation:

Moini Pty Limited v Lam [2023] NSWLEC 1349

Hearing dates:

Conciliation Conference 14 and 27 June 2023

Date of orders:

7 July 2023

Decision date:

07 July 2023

Jurisdiction:

Class 3

Before:

Espinosa C

Decision:

The Court orders:

(1)   The appeal is upheld.

(2)   By 11 September 2024, the Respondent is to remove, at its own costs, the steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs, attached to 59 Parramatta Road, Annandale, legally described as Lot 29 DP1023, which are encroaching on 1a Trafalgar Street, Annandale, legally described as Lot C in DP331667.

Catchwords:

APPEAL – encroachment – conciliation conference – agreement between the parties - orders

Legislation Cited:

Land and Environment Court Act 1979, ss 19, 34

Encroachment of Buildings Act 1922, ss 2, 3

Cases Cited:

Wirth v Will [2022] NSWLEC 118

Category:

Principal judgment

Parties:

Moini Pty Limited (Applicant)
Josephine Kam Shan Lam (Respondent)

Representation:

Counsel:
A Whealy (Solicitor)(Applicant)
N Hammond (Respondent)

Solicitors:
Mills Oakley (Applicant)
Robert J Kok (Respondent)

File Number(s):

2023/26254

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 3 Appeal commenced pursuant to s 3(1) of the Encroachment of Buildings Act 1922 (EB Act), seeking the removal of an encroaching structure, namely steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs at 1a Trafalgar Street, Annandale, legally described as Lot C in DP 331667 (the Site).

2. The proceedings fall within the Court’s jurisdiction pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act).

3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which has been held on 14 June 2023. I presided over the conciliation conference.

4. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties and the parties filed an agreement pursuant to s 34 of the LEC Act on 27 June 2023. The parties’ decision involves the Court upholding the appeal and exercising the function under s 3 of the EB Act to grant the relief by ordering the removal of the encroachment.

5. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

6. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 3 of the EB Act which provides as follows:

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 inurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

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

(4)  The Court may refer any question involved in proceedings on the application to:

(a)  any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or

(b)  any valuer.

(5)  This section applies to encroachments made either before or after the commencement of this Act.

7. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed jurisdictional note which I summarise below.

8. The Respondent is the owner of the property at 59 Parramatta Road, Annandale, legally described as Lot 29 in DP 1023 (Respondent’s Land). The encroachment is attached to the existing building located on the Respondent’s Land and extends over the boundary onto the Site.

9. Pursuant to s 2 of the EB Act the Applicant is the ‘adjacent owner’ and the Respondent is the ‘encroaching owner’ and pursuant to s 3(1) of the EB Act, an ‘adjacent owner’ may apply to the Court for relief under the act in respect of an encroachment.

10. I am satisfied that the steel flight of stairs and handrails, the landing at the top of the stairs, and the awning over the landing at the top of the stairs is a structure that is substantial and of a permanent character. As such, consistent with the decision in Wirth v Will [2022] NSWLEC 118, the structure is properly considered a ‘building’, and in turn an ‘encroachment’ for the purposes of s 2 of the EB Act.

11. Pursuant to s 3(2)(c) of the EB Act, the Court may make orders with respect to the removal of an encroachment.

12. For these reasons, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

13. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

14. The Court notes that each party has agreed to pay its own costs of the proceedings, except in relation to the order for costs made by the Court on 2 June 2023.

Orders:

15. The Court orders:

1. The appeal is upheld.

2. By 11 September 2024, the Respondent is to remove, at its own costs, the steel flight of stairs and hand rails, landing at the top of the stairs, and awning over the landing at the top of the stairs, attached to 59 Parramatta Road, Annandale, legally described as Lot 29 DP1023, which are encroaching on 1a Trafalgar Street, Annandale, legally described as Lot C in DP331667.

E Espinosa

Commissioner of the Court

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Decision last updated: 07 July 2023