Pye v Johnson

[2021] NSWLEC 1479

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pye v Johnson [2021] NSWLEC 1479

Hearing dates:

Conciliation conference on 30 June 2021 and 21 July 2021

Date of orders:

23 August 2021

Decision date:

23 August 2021

Jurisdiction:

Class 3

Before:

Peatman AC

Decision:

See orders at [11]-[12] below

Catchwords:

ENCROACHMENT OF BUILDINGS – rural land – compensation payable – conciliation conference – agreement between the parties – orders

Legislation Cited:

Encroachment of Buildings Act 1922 ss 2, 3

Land and Environment Court Act 1979 ss 19 (c1), 39

Category:

Principal judgment

Parties:

David William Pye (Applicant)
Brad Johnson (First Respondent)
Teresa Johnson (Second Respondent)
Bryan Maurice Johnson (Third Respondent)

Representation:

Counsel:
J Walker (Applicant)
L Raffaele (Respondents)

Solicitors:
Brock Partners Lawyers (Applicant)
Bartier Perry (Respondents)

File Number(s):

2021/109996

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an application by the Applicant pursuant to s 2(1) of the Encroachment of Buildings Act1922 (EB Act) to transfer certain land to the Applicant pursuant to s 3(2)(a) and for the Applicant to pay compensation to the Respondent pursuant to s 3(2)(b) of the EB Act. In summary:

1. The proceedings have been brought under s 3(1) of the EB Act.

2. The proceedings fall within Class 3 of the Court jurisdiction pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act).

3. The statutory power or function to be exercised in determining the proceedings is pursuant to s 3 of the EB Act, and ss 34(3) and 39 of the LEC Act.

Background

2. The Applicant is the owner in fee simple of Lot 75 DP 657804, also known as 338 Baldry Road, Cumnock (the Applicant’s Land).

3. The Respondents are the owners in fee simple of Lot 15 DP 753224 (the Respondents’ Land).

4. The boundaries of the Applicant’s Land and the Respondents’ Land are as shown in the attached Sketch by Carpenter, Collins & Craig at Annexure A to this judgment.

5. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 30 June 2021 and 21 July 2021. I presided over the conciliation conference.

6. 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. This decision involved the Respondents transferring certain land to the Applicant, and the Applicant paying compensation to the Respondents in the sum of $25,000 together with all legal costs, including the costs of the Respondents’ mortgagee granting consent to the said transfer of land.

7. 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. The parties’ decision involves the Court exercising the function under ss 3 and 4(1)(a)-(c) of the EB Act and s 39 of the LEC Act to transfer the relevant part of the Respondents’ Land to the Applicant, and…