Mt Kembla Kids Pty Ltd v McCallum

[2019] NSWLEC 1634

Land and Environment Court

New South Wales

Medium Neutral Citation:	Mt Kembla Kids Pty Ltd v McCallum [2019] NSWLEC 1634
Hearing dates:	Conciliation conference on 19 December 2019
Date of orders:	19 December 2019
Decision date:	19 December 2019
Jurisdiction:	Class 3
Before:	Gray C
Decision:	The Court orders that: (1) The building erected on the property with folio identifier 1/158694 known as 2 Benjamin Road, Mount Kembla, New South Wales encroaches on the property with folio identifier 2/158694 known as 4 Benjamin Road, Mount Kembla; (2) The Respondent is to remove the encroachments identified in the Survey Report prepared by Masters Surveying dated 22 December 2017 annexed to these orders and marked "A" by 31 March 2020; (3) No orders as to compensation; and (4) Each party is to bear its own legal costs.
Catchwords:	APPLICATION – encroachment – conciliation conference – agreement reached – encroachment to be removed
Legislation Cited:	Encroachment of Buildings Act 1922 Land and Environment Court Act 1979
Category:	Principal judgment
Parties:	Mt Kembla Kids Pty Ltd (First Applicant) Modvest Pty Ltd (Second Applicant) Marion McCallum (Respondent)
Representation:	Counsel: O Yeatman (Solicitor) (Applicants) J Corradini-Bird (Solicitor) (Respondent)   Solicitors: RMB Lawyers (Applicants) Marsdens Law Group (Respondent)
File Number(s):	2019/122174
Publication restriction:	No

Judgment

1. COMMISSIONER: These proceedings are an application to the Court pursuant to the Encroachment of Buildings Act 1922. The application concerns parts of a balcony, eave and gutter that are attached to a building erected at the property with folio identifier 1/158694 known as 2 Benjamin Road, Mount Kembla (“Lot 1”), which encroach onto land at folio identifier 2/158694 known as 4 Benjamin Road, Mount Kembla (“Lot 2”). The first and second applicants are the owner of the land at Lot 2, and seek the removal of the encroachment by the respondent, who is the owner of Lot 1.

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (“LEC Act”) between the parties, which was held on 19 December 2019. I presided over the conciliation conference.

3. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the removal, by the respondent, of those parts of a balcony, eave and gutter that encroach onto the property at Lot 2. A survey of the property also identifies an encroachment of a timber walkway from the building on Lot 2 onto the property at Lot 1, but that is not the subject of these proceedings or the subject of the agreed orders.

4. As the presiding Commissioner, I am satisfied that the decision to make orders to remove the encroachment is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 3(2)(c) of the Encroachment of Buildings Act empowers the Court to make orders for the removal of the encroachment.

5. Having reached the state of satisfaction that the decision is one that the Court could make in the exercise of its functions, s 34(3)(a) of the LEC Act requires me to “dispose of the proceedings in accordance with the decision”. The LEC Act also requires me to “set out in writing the terms of the decision” (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties.

6. The Court orders that:

1. The building erected on the property with folio identifier 1/158694 known as 2 Benjamin Road, Mount Kembla, New South Wales encroaches on the property with folio identifier 2/158694 known as 4 Benjamin Road, Mount Kembla;

2. The Respondent is to remove the encroachments identified in the Survey Report prepared by Masters Surveying dated 22 December 2017 annexed to these orders and marked "A" by 31 March 2020;

3. No orders as to compensation; and

4. Each party is to bear its own legal costs.

………………………

J Gray

Commissioner of the Court

Annexure A (1.22 MB, pdf)

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