The Owners Strata Plan No. 91016 v Upright Builders Pty Ltd (No 2)

The Owners Strata Plan No. 91016, comprising the owners of a number of lots in a strata title development, brought proceedings against Upright Builders Pty Ltd, a company that had constructed buildings on land adjacent to the development. The dispute centred on the encroachment of the buildings onto the public road. The matter was heard in the Supreme Court of New South Wales, with Justice Nye presiding.

The legal issue the court was required to decide was whether the Encroachment of Buildings Act 1922 (NSW) applied to the encroachment onto the public road, given that the adjacent owner, rather than the local council, was the relevant road authority. The Owners argued that the Act applied and that Upright Builders was liable to pay compensation for the encroachment. Upright Builders contended that the Act did not apply because the adjacent owner was the relevant road authority, not the local council, and that therefore they were not liable for compensation.

The court found that the Act did not apply to the circumstances of the case, as the relevant road authority was the adjacent owner, not the local council. Justice Nye held that the Act was designed to provide a remedy for encroachments onto streets or roads, and that the Act did not apply where the adjacent owner is the relevant road authority. The court also found that Upright Builders was not liable for compensation for the encroachment. The Owners' appeal was dismissed, and Upright Builders was not required to pay compensation for the encroachment.

The final orders of the court were that Upright Builders was not liable to pay compensation for the encroachment of the buildings onto the public road, and that the Owners' appeal was dismissed with costs.