Preston v Baker

[2020] NSWLEC 1038

Land and Environment Court

New South Wales

Medium Neutral Citation:	Preston v Baker [2020] NSWLEC 1038
Hearing dates:	Conciliation conference on 20 January 2020
Date of orders:	20 January 2020
Decision date:	23 January 2020
Jurisdiction:	Class 3
Before:	Gray C
Decision:	The Court orders that:  (1) An easement for support 0.4 wide is granted in favour of Lot 335 DP869069 known as 48 Thompson Road, Speers Point over Lot 223 DP1102893 known as 48A Thompson Road, Speers Point in accordance with the survey by Troy SUMNER registered surveyor, dated 9 July 2018 and shown in Annexure (A) to these orders. (2) The terms of the easement are to be in accordance with the easement terms recorded in Annexure (B) to these orders. (3) The respondents are to pay the applicants compensation for the grant of the easement in the sum of $3500. (4) The respondents are to pay the costs of registration of the easement including mortgagee’s fees and PEXA fees. (5) The respondents are to pay the applicants’ costs to the sum of $4000 plus GST.
Catchwords:	Encroachment – conciliation conference – agreement between the parties – creation of an easement - orders
Category:	Principal judgment
Parties:	Benjamin Preston (First Applicant) Gail Elizabeth Preston (Second Applicant) David Mills Baker (First Respondent) Anne-Marie Baker (Second Respondent)
Representation:	Solicitors: A Kirsop, MRM Lawyers (Applicant) T Morgan, Baker Love Lawyers (Respondent)
File Number(s):	19/242335
Publication restriction:	Nil

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 retaining wall erected at the property at Lot 335 DP869069 known as 48 Thompson Road, Speers Point, the footings of which encroach onto land at over Lot 223 DP1102893 known as 48A Thompson Road, Speers Point. The first and second applicants are the owner of the land at 48A Thompson Road, and the first and second respondents are the owner of the land known as 48 Thompson Road. The footings that encroach onto the land at 48A Thompson Road are below the ground level of that land.

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 20 January 2020. I presided over the conciliation conference. At the conciliation conference I made orders finalising the proceedings in accordance with s 34(3) of the LEC Act, but I reserved my reasons for making the orders. The reasons for making those orders are now set out below, together with an additional order that I now make for a correction to those orders.

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 creation of an easement for support 0.4 wide in favour of Lot 335 DP869069 known as 48 Thompson Road, Speers Point over Lot 223 DP1102893 known as 48A Thompson Road, Speers Point, together with the payment of compensation.

4. As the presiding Commissioner, I was satisfied that the decision to make orders for the creation of an easement and the payment of compensation 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) of the Encroachment of Buildings Act empowers the Court to make orders for the creation of an easement.

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)). At the conciliation conference, I therefore made orders in accordance with the terms of the decision agreed between the parties (recorded at paragraphs 1-5 of their agreement), and I noted the further agreement between the parties concerning additional work to be carried out on the retaining wall and dividing fence.

6. I now consider that a further order should be made pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005, which allows a correction of a “clerical mistake, or an error arising from an accidental slip or omission, in a judgment or order.” The correction is to change the lot number in order 1 from “233” to “223” to reflect the correct lot number burdened by the easement created. The correct lot number is reflected in both Annexure A and Annexure B to the orders. As such, the Court orders that:

1. The reference to Lot 233 DP1102893 in order 1 made on 20 January 2020 be corrected to refer to Lot 223 DP1102893.

7. The orders set out below are the orders that were made on 20 January 2020, as corrected by the above order.

8. The Court orders that:

1. An easement for support 0.4 wide is granted in favour of Lot 335 DP869069 known as 48 Thompson Road, Speers Point over Lot 223 DP1102893 known as 48A Thompson Road, Speers Point in accordance with the survey by Troy SUMNER registered surveyor, dated 9 July 2018 and shown in Annexure (A) to these orders.

2. The terms of the easement are to be in accordance with the easement terms recorded in Annexure (B) to these orders.

3. The respondents are to pay the applicants compensation for the grant of the easement in the sum of $3500.

4. The respondents are to pay the costs of registration of the easement including mortgagee’s fees and PEXA fees.

5. The respondents are to pay the applicants’ costs to the sum of $4000 plus GST.

The Court notes the agreement between the parties that:

6. The Respondents will carry out the following works within three months of the registration of the easement:

1. Connection of the subsoil line behind the retaining wall to the existing vertical 300mm pipe.

2. Installation of a submersible pump to discharge to the adjoining storm water pit.

3. Construction of an integrated curb above the aggregate layer behind the retaining wall to prevent ingress of water into the aggregate layer.

7. The Applicants will carry out the following works within three months of the registration of the easement: Reduce the height of six panels of the dividing fence from the most southern panel to a height not exceeding 1800mm as measured from the current ground level on 48 Thompson Road, Speers Point.

…………………………

J Gray

Commissioner of the Court

Annexure A (715 KB, pdf)

Annexure B (314 KB, pdf)

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Decision last updated: 24 January 2020