Vaughan v Byron Shire Council

Reported Decision: 103 LGERA 321

New South Wales

Court of Appeal

CITATION:	Vaughan v Byron Shire Council [1999] NSWCA 235
FILE NUMBER(S):	CA 40596/98
HEARING DATE(S):	26/03/99-29/03/99
JUDGMENT DATE:	15 July 1999
PARTIES :	John Bernard Vaughan & Anor v Byron Shire Council
JUDGMENT OF:	Handley JA at 1; Powell JA at 33; Fitzgerald JA at 34

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	30164/97
LOWER COURT JUDICIAL OFFICER:	Lloyd J

COUNSEL:	N C Hutley SC/M J Leeming (Appellant) J C Campbell QC/J Blackman/L Byrne (Respondent)
SOLICITORS:	Walters (Appellant) Elliot & Sochacki (Respondent)
CATCHWORDS:	Estoppel by representation; actual notice; constructive notice; consideration of order for removal of encroachment of building; "adjacent owner".
DECISION:	Appeal allowed.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40596/96
LEC30164/97
HANDLEY JA
POWELL JA
FITZGERALD JA
Thursday, 15 July 1999

John Bernard VAUGHAN v BYRON SHIRE COUNCIL

JUDGMENT

1   HANDLEY JA: This is an appeal from a decision of the Land and Environment Court (the Court) in Class 3 of its jurisdiction in a case under the Encroachment of Buildings Act (the Act). I have had the benefit of reading the reasons for judgment of Fitzgerald JA in draft form. He has set out the relevant facts and the history of these proceedings and I need not repeat these matters. I agree that, consistently with the decision in Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, and subject to the defence of estoppel, the Vaughans were encroaching owners, their house an encroachment on Lot 6, and the Council an adjacent owner within the meaning of the Act. I therefore agree that the Court had jurisdiction, in its discretion, to consider the grant of relief under s 3(2). The relief sought by the Council, as the applicant in the proceedings, was an order under s 3(2)(c) for the removal of the encroachment.
2   However, with respect, I am unable to agree with his Honour’s conclusions on the estoppel issue, or with the orders he has proposed for the resolution of this appeal. The agreed Statement of Issues signed by counsel for the parties in April 1998 some two months before the trial included:

“10 Whether the Respondents [the Vaughans] are entitled to raise a defence of estoppel in these proceedings.

11 If such a defence can be raised, whether the Applicant is estopped by reason of its conduct and representations concerning Lot 6, from asserting any title over Lot 6”.

3 The defence of estoppel, if successful, could be an answer to the Council’s application for the removal of the encroachment. Depending on the relief granted to accommodate the estoppel, it could defeat the Council’s claim to be an adjacent owner, and establish that there was no encroachment. The estoppel would also be relevant to the exercise of the Court’s discretion under s 3(2).
4   The Court therefore had jurisdiction to entertain the defence of estoppel and grant appropriate relief in accordance with…