ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TAM v DU (Appeal) [2019] ACAT 94
AA 3/2019 (XD 1191/2018)
Catchwords: APPEAL – civil dispute – general principles regarding encroachment of buildings and structures – application of the common law – encroachment of neighbour retaining walls – whether the encroachment is minor – whether the appellant should be required to rectify the encroachments of the sandstone wall, above and below ground level – remedies where grounds of appeal do not raise any question of substance – recommendation for legislation
Legislation cited: ACTCivil and Administrative Tribunal Act 2008 ss 7, 56, 79
Common Boundaries Act 1981 s 10
Encroachment of Buildings Act 1922 (NSW)
Encroachments Act 1944 (SA)
Encroachment of Buildings Act (NT)
Property Law Act 1974 (Qld)
Property Law Act 1969 (WA)
Subordinate
Legislation cited: Planning and Development Regulation 2008 Sch 1A, s 1A.10
Cases cited:Blackshaw & Evans v Campbell (No.2) [2016] ACAT 108
Brand v Chris Building Co Pty Ltd [1957] VR 625
Campbell v Blackshaw & Evans [2017] ACAT 64
Campbell v Blackshaw & Evans [2018] ACTSC 39
Campbell v Blackshaw & Evans [2019] ACTCA 1
Clarke v Wilkie (1977) 17 SASR 135
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Faull v Commissioner for Social Housing [2013] ACTSC 121
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Hill v Higgins [2012] NSWSC 270
In the Matter of AB [2018] ACAT 18
J&D Butland v M&J Cole [1995] NSWLEC 9
Williamson v Friend (1901) 1 SR (NSW) 23
List of
Texts/Papers cited: Warren Swain, Unjust enrichment and the Role of Legal History in England and Australia (2013) 36(30) University of New South Wales Law Journal 1030
Tribunal:Presidential Member G McCarthy
Date of Orders: 16 October 2019
Date of Reasons for Decision: 16 October 2019
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 3/2019
BETWEEN:
AMANDA TAM
Appellant
AND:
XIA DU
Respondent
APPEAL TRIBUNAL: Presidential Member G McCarthy
DATE:16 October 2019
ORDER
The Tribunal orders that:
1.The orders of the Original Tribunal made on 21 January 2019 are set aside.
2.Sim Hom Tam is removed as an appellant to this proceeding.
3.The appellant, at her own expense, construct a sandstone retaining wall on Block 4, Section 34, Lawson extending from the existing sandstone wall on Block 4, Section 34, Lawson, to a point where it abuts at right angles with the westernmost bluestone wall on Block 3, Section 34, Lawson. The construction work include all drainage and structural support work necessary to retain all soil on the respondent’s land caused by any excavation (or cut) by the appellant on Block 4.
4.Upon completion of the work required by order 3, the respondent engage Lindsay Hicks Fencing and Maintenance to construct a Colorbond fence along the boundary between Blocks 3 and 4, 1.8m high, ‘Monument’ in colour and in a style to match the existing fence on the respondent’s block PROVIDED THAT:
(a)the fence may, by agreement, be to a lesser height depending on…
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- AGLC
- Tam v Du (Appeal) [2019] ACAT 94
- Case
- [2019] ACAT 94
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the tribunal were whether the encroachment of the sandstone wall was minor and, if not, whether the appellant should be required to rectify the encroachments. The tribunal also considered the remedies available to the parties under the common law and whether the grounds of appeal raised any question of substance.
In its decision, the tribunal found that the encroachment of the sandstone wall was not minor and ordered the appellant to construct a new sandstone retaining wall on her property, extending from the existing wall to the boundary with the respondent's land. The tribunal also ordered the parties to share the cost of constructing a fence along the boundary between their properties. The tribunal noted that the issue of encroachment of buildings and structures had not been comprehensively addressed by statute and recommended that legislation be enacted to address such issues in the future.
The tribunal ordered that the original orders made on 21 January 2019 be set aside and that the appellant construct a new retaining wall and share the cost of constructing a fence with the respondent. The tribunal also recommended that legislation be enacted to comprehensively address issues of encroachment of buildings and structures.
Orders
Orders of the court
ORDER
The Tribunal orders that:
1. The orders of the Original Tribunal made on 21 January 2019 are set aside.
2. Sim Hom Tam is removed as an appellant to this proceeding.
3. The appellant, at her own expense, construct a sandstone retaining wall on Block 4, Section 34, Lawson extending from the existing sandstone wall on Block 4, Section 34, Lawson, to a point where it abuts at right angles with the westernmost bluestone wall on Block 3, Section 34, Lawson. The construction work include all drainage and structural support work necessary to retain all soil on the respondent’s land caused by any excavation (or cut) by the appellant on Block 4.
4. Upon completion of the work required by order 3, the respondent engage Lindsay Hicks Fencing and Maintenance to construct a Colorbond fence along the boundary between Blocks 3 and 4, 1.8m high, ‘Monument’ in colour and in a style to match the existing fence on the respondent’s block PROVIDED THAT:
(a) the fence may, by agreement, be to a lesser height depending on the height of the sandstone retaining wall, to achieve a uniform distance not exceeding 1.8m between finished ground level on Ms Du’s side of the retaining wall and the top of the fence along the entire length of the fence; and
(b) the appellant may at her discretion agree to construction of the fence on top of the existing sandstone wall and on top of the sandstone wall to be constructed under order 3.
5. The appellant and the respondent pay 50% each of the cost of constructing the fence described in order 4, including any costs relating to drainage, support and strengthening of the fence, PROVIDED THAT if the appellant agrees to construction of the fence on top of the existing and required sandstone wall per order 4:
(a) the respondent must obtain a quote from Lindsay Hicks Fencing and Maintenance to construct the fence on top of the existing and required sandstone wall; and
(b) if the cost of constructing the fence on top of the existing and required sandstone wall exceeds the cost of constructing the fence on the boundary, the respondent must pay any amount exceeding 50% of the cost of constructing the fence on the boundary.
6. The respondent provide the appellant with a copy of the final tax invoice for the fence constructed under order 4, and the appellant pay the respondent the amount determined under order 5 within four working days of receiving the tax invoice.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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