SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council

[2025] NSWLEC 1030

Land and Environment Court

New South Wales

Medium Neutral Citation:

SGH Property Holdings Pty Ltd v Canterbury-Bankstown Council [2025] NSWLEC 1030

Hearing dates:

Conciliation conference on 15 and 30 October 2024, 19 November 2024, 11 and16 December 2024.

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Respondent must grant the Applicant an easement to permit encroaching structure to remain, appurtenant to the land of Lot 1 in Deposited Plan 917680, and burdening Canterbury Road and Kingsgrove Road Belmore as shown as (A) in the ‘Plan of Easement Encroaching on to Public Road’ by Mony C Seng dated 18 November 2024 ref ECP2775.L.01 and the accompanying Instrument pursuant to s 88B of the Conveyancing Act 1919 in Annexure A.

Catchwords:

GRANT OF EASEMENTS resulting from minor encroachment of a business identification sign – conciliation conference – agreement between the parties - orders

Legislation Cited:

Conveyancing Act 1919, s 88B

Encroachment of Buildings Act 1922, ss 3, 19

Environmental Planning and Assessment Act 1979, ss 6.23, 8.7

Land and Environment Court Act 1979, ss 19, 34

Category:

Principal judgment

Parties:

SGH Property Holdings Pty Ltd ACN 635 582 160) (Applicant)
Canterbury-Bankstown Council ABN 45 985 891 846
(Respondent)

Representation:

Counsel:
D Plowman (Solicitor)(Applicant)
M Bonnano (Solicitor)(Respondent)

Solicitors:
Hatzis Cusack Lawyers (Applicant)
Canterbury-Bankstown Council (Respondent)

File Number(s):

2024/414626

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an application pursuant to s 3 of the Encroachment of Buildings Act 1922 (Encroachment Act) seeking orders vesting in the Applicant an easement for overhang burdening respectively those two (2) parts of the road reserved owned by Canterbury-Bankstown Council (Council) along Canterbury Road and Kingsgrove Road that are encroached upon by the business identification sign (sign) affixed to the wall at the northeastern corner of the St George Hotel, 618 Canterbury Road, Belmore NSW 2192. The proposed easement is shown in Annexure A as (A) in the ‘Plan of Easement Encroaching onto Public Road’ by Mony C Seng dated 18 November 2024 ref ECP2775.L.01, and the sign encroaches 0.12m on one side of the sign and 0.085m on the other side of the sign.

2. The St George Hotel is situated on the whole of the land in Lot 1 Deposited Plan 125346 and Lot 1 Deposited Plan 917880 (Land) at the corner of Canterbury Road and Kingsgrove Road, Belmore.

3. On 7 November 2024 the application was filed in Court pursuant to s 3(1) of the Encroachment Act.

4. Pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act) the application falls within Class 3 of the Court’s jurisdiction.

5. The statutory power or function to be exercised in determining the proceedings are s 3(2)(b) of the Encroachment Act and s 34(3) of the LEC Act.

6. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 15 and 30 October 2024, 19 November 2024, 11 and 16 December 2024. I presided over that conciliation conference.

7. 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 Court upholding the appeal, and ordering the Council to grant an easement to the Applicant to permit the encroaching structure to remain.

8. 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 its function under s 3(2)(b) of the Encroachment Act and s 34(3) of the LEC Act to uphold the appeal and order the Council to grant the easement. 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 and explained how they have been satisfied as follows:

1. Pursuant to s 3(1) of the Encroachment Act, an ‘Encroaching Owner’ can apply for relief in respect of any encroachment. Pursuant to s 2 of the Encroachment Act the ‘Encroaching Owner’ is the entity that owns the Land contiguous to the boundary beyond which the encroachment extends. The Applicant owns the Land from which the corners of the sign encroaches (0.12m and 0.085m on each side of the sign respectively), and Council owns the road reserves wherein the sign encroaches.

2. In accordance with s 2 of the Encroachment Act ‘encroachment’ is defined as “Encroachment means encroachment by a building, and includes encroachment by overhang of any part as well as encroachment by intrusion of any part in or upon the soil”. The definition of a ‘building’ includes a ‘wall’. The encroaching sign is affixed to the St George Hotel wall on the corner of Canterbury Road and Kingsgrove Road, and encroaches the road reserves by a small amount at each end of the sign, as set out in par [8(1)] above.

3. The relevant legislation to assess the grant of an easement is s 3(3) of the Encroachment Act:

“(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 incurred by the encroaching owner if the encroaching owner were required to remove the encroachment,

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

4. In assessing the application and determining the compensation to be paid by the Applicant to the Council for the grant of the easements the parties have applied ss 3(3) and 4(1) of the Encroachment Act, and have agreed that the amount to be paid is $2.00 as:

1. The encroachment was unintentional;

2. It did not result as a result of the Applicant’s negligence.

3. The area encroached upon is of such marginal value.

4. The value of the land encroached upon is minimal.

5. Council has not suffered loss or damages, nor will it suffer loss or damage following the imposition of the easement.

6. The circumstances do not warrant more than $2 to be paid in compensation.

9. There are three (3) other related proceedings to these proceedings:

1. Proceedings 2024/92786 being an appeal filed 11 March 2024 by Michael Lawrence Wiggins against Council relating to Development Control Order No. 6 (Remove Advertising Order) dated 29 February 2024 issued by Council in respect of the signs the subject of these proceedings. Transport for NSW intervened in these proceedings pursuant to s 64(1) of the LEC Act. A Notice of Discontinuance was filed in proceedings 24/92786 on 19 December 2024, and entered on 24 December 2024. The Applicant, Respondent and Intervenor executed the Notice of Discontinuance..

2. Proceedings 2024/334400 pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against Council’s refusal of development application DA-642/2024 to permit the use of the signs. An Agreement pursuant to s 34(3) of the LEC Act has been filed, and a judgment will be published on the same day as these proceedings.

3. Proceedings 2024/334426 pursuant to the s 6.23 of the EPA Act being an appeal against Council’s deemed refusal (and subsequent refusal) of Building Information Certificate BC-72/2024 dated 3 July 2024 in relation to the eight (8) business identification signs constructed at the St George Hotel. The one (1) sign in these proceedings is one of the eight signs referred to in the Building Information Certificate BC-72/2024. An Agreement pursuant to s 34(3) of the LEC Act has been filed, and a judgment will be published on the same day as these proceedings.

10. On or about 16 October 2024 Transport for NSW (TfNSW) intervened in these proceedings pursuant to s 64(1) of the LEC Act. On 24 December 2024 TfNSW withdrew as an Intervenor.

11. 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. I have considered the matters set out above. I shall uphold the application and order the Council to grant the Applicant the easement to permit the encroaching structure to remain appurtenant to the Land, and as shown in (A) in the ‘Plan of Easement Encroaching onto Public Road’ by Mony C Seng dated 18 November 2024 ref ECP2775.L.01 and the accompanying instrument pursuant to s 88B of the Conveyancing Act 1979 in Annexure A.

12. 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.

13. The Court notes that the parties have agreed:

1. Each party must take all reasonable steps to allow the easements to be registered with the Land Registry Services.

2. The Applicant shall be responsible for any lodgement fees or requisition fees payable to Land Registry Services NSW as a result of the lodgement of the easements and instrument under s 88B of the Conveyance Act 1919.

3. The Applicant must pay the Respondent compensation in accordance with s 4(1) of the Encroachment of Buildings Act 1922 in the sum of two dollars ($2.00) in respect of the grant of the easements, but such agreement for compensation shall not operate as a charge upon the land owned by the Applicant at 618 Canterbury Road Belmore NSW 2192.

14. The Court orders:

1. The appeal is upheld.

2. The Respondent must grant the Applicant an easement to permit encroaching structure to remain, appurtenant to the land of Lot 1 in Deposited Plan 917680, and burdening Canterbury Road and Kingsgrove Road Belmore as shown in (A) in the ‘Plan of Easement Encroaching onto Public Road’ by Mony C Seng dated 18 November 2024 ref ECP2775.L.01 and the accompanying Instrument pursuant to s 88B of the Conveyancing Act 1919 in Annexure A.

M Peatman

Acting Commissioner of the Court 

Annexure A

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Decision last updated: 23 January 2025