Land and Environment Court New South Wales Medium Neutral Citation: Reis v Patrick [2021] NSWLEC 1109 Hearing dates: Conciliation conference on 2 November 2020, 3 December 2020, 18 January 2021, 29 January 2021 and 16 February 2021 Date of orders: 02 March 2021 Decision date: 02 March 2021 Jurisdiction: Class 3 Before: Peatman AC Decision: See orders at [12] below Catchwords: ENCROACHMENT – boundary in residential area – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 Encroachment of Buildings Act 1922 Land and Environment Court Act 1979 Category: Principal judgment Parties: Ronald Joseph Reis (First Applicant) Connie Siew Khoon Reis (Second Applicant) Paul Malcolm Patrick (First Respondent) Stephanie Marie Patrick (Second Respondent) Representation: Counsel: M Newton and then B Dabscheck (Solicitor) (Applicants) M Astill, and then S Kleinhans (Solicitor) (Respondents) Solicitors: Mayweathers (Applicants) James Tuite & Associates Lawyers (Respondents) File Number(s): 2019/359538 Publication restriction: No Judgment 1. COMMISSIONER: The Applicants are the registered proprietors of Lot 1 in Deposited Plan 3707 known as 37 Therry Street, Drummoyne NSW (Applicants' Land). 2. The Respondents are the registered proprietors of Lot 9 in Deposited Plan 3707 known as 39 Therry Street, Drummoyne NSW (Respondents' Land). 3. On 15 November 2019 the Applicants filed a Class 3 Application in the Court against the Respondents alleging that parts and/or structures on the Respondents' Land encroach on the Applicants' Land (the Alleged Encroachments). 4. In their Class 3 Application, the Applicants sought orders pursuant to ss 3(2) and 14 of the Encroachment of Buildings Act 1922 (NSW) (Encroachment Act) for the Respondents to remove the Alleged Encroachments and pay the Applicants' costs, charges and expenses, and such further or other order as the Court thinks fit. 5. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 2 November 2020, 3 December 2020, 18 January 2021, 29 January 2021 and 16 February 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 granting an easement to the Applicants to permit existing structures to remain in respect of the alleged encroachment (as further described in the Orders in [12] below), and the Respondents to pay the sum of $50,500 to the Applicants within 28 days from the date of the Orders. Legislation Encroachment of Buildings Act 1922 2 Definitions In this Act, unless the context or subject-matter otherwise indicates or requires: Adjacent owner means the owner of land over which an encroachment extends. Boundary means the boundary line between contiguous parcels of land. Building means a substantial building of a permanent character and includes a wall. Court means the Land and Environment Court. Encroaching owner means the owner of land contiguous to the boundary beyond which an encroachment extends. 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. Owner means any person entitled to an estate of freehold in possession: (a) whether in fee simple or for life or otherwise, (b) whether at law or in equity, (c) whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Real Property Act 1900. Subject land means that part of the land over which an encroachment extends. 3 Encroachments (1) Either an adjacent owner or an encroaching owner may apply to the Court for relief under this Act in respect of any encroachment. (2) On the application the Court may make such orders as it may deem just with respect to: (a) the payment of compensation to the adjacent owner, (b) the conveyance transfer or lease of the subject land to the encroaching owner, or the grant to the encroaching owner of any estate or interest therein or any easement right or privilege in relation thereto, (c) the removal of the encroachment. (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) The Court may refer any question involved in proceedings on the application to: (a) any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or (b) any valuer. (5) This section applies to encroachments made either before or after the commencement of this Act. Land and Environment Court Act 1979 16 Jurisdiction of the Court generally (1) The Court shall have the jurisdiction vested in it by or under this or any other Act. (1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. (2) For the purposes of this Act, the jurisdiction of the Court is divided into 8 classes, as provided in this Division. 19 Class 3—land tenure, valuation, rating and compensation matters The Court has jurisdiction (referred to in this Act as "Class 3" of its jurisdiction) to hear and dispose of the following— … (c1) proceedings under the Encroachment of Buildings Act 1922, … 33 Exercise of jurisdiction generally (1) Classes 1, 2 and 3 of the Court's jurisdiction shall, in accordance with this Act, be exercised by a Judge or one or more Commissioners. 34 Conciliation conferences … (3) If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner— (a) must dispose of the proceedings in accordance with the decision, and (b) must set out in writing the terms of the decision. … (7) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3) or (4)(b) has and may exercise the functions of the Court. (8) The decision of the Commissioner under subsection (3) or (4)(b) is taken to be the decision of the Court. … Conveyancing Act 1919 88B Creation and release of easements, profits à prendre and restrictions on use of land by plans (1) In this section public road and road have the meanings respectively ascribed to those expressions by the Roads Act 1993. (2) A plan shall not be lodged with the Registrar-General for registration or recording under Division 3 of Part 23 unless it indicates in the manner prescribed in respect of the plan by regulations made under this Act or the Real Property Act 1900 or in the manner required by the lodgment rules under the Real Property Act 1900— (a) what easements, if any, are intended to be created— (i) burdening land comprised in the plan and appurtenant to any existing roads shown on the plan, and (ii) appurtenant to any roads to be vested upon registration of the plan, (b) what easements, if any, referred to in section 88A are intended to be created burdening land comprised in the plan and in whose favour those easements are intended to be created, (c) what other easements or profits à prendre, if any, are intended to be created appurtenant to or burdening land comprised in the plan, and (c1) what easements or profits à prendre, if any, appurtenant to or burdening land comprised in the plan are intended to be released or partially released, and (d) what restrictions on the use of land or positive covenants, if any, are intended to be created benefiting or burdening land comprised in the plan. (3) On registration or recording under Division 3 of Part 23 of a plan upon which any easement, profit à prendre, restriction or positive covenant is indicated in accordance with paragraph (a), (b), (c) or (d) of subsection (2) then, subject to compliance with the provisions of this Division— (a) any easement so indicated as intended to be created as appurtenant to any existing public roads shown in the plan or any roads to be vested in the council upon registration of the plan shall be created and shall without any further assurance vest in the council by virtue of such registration and of this Act, (b) any easement so indicated as intended to be created pursuant to section 88A shall be created and shall without any further assurance vest in the relevant prescribed authority referred to in that section by virtue of such registration and of this Act, (c) any other easement, profit à prendre or any restriction on the use of land (not being a restriction as to user of the type that may be imposed under section 88D or 88E) so indicated as intended to be created shall— (i) be created, (ii) without any further assurance and by virtue of such registration or recording and of this Act, vest in the owner of the land benefited by the easement or profit à prendre or be annexed to the land benefited by the restriction, as the case may be, notwithstanding that the land benefited and the land burdened may be in the same ownership at the time when the plan is registered or recorded and notwithstanding any rule of law or equity in that behalf, and (iii) not be extinguished by reason of the owner of a parcel of land benefited by such easement, profit à prendre or restriction holding or acquiring a greater interest in a separate parcel of land burdened thereby, and (d) any restriction on the use of land or positive covenant that is of the type that may be imposed under section 88BA, 88D or 88E and is so indicated as intended to be created takes effect as if it had been so imposed. (3AA) On registration or recording under Division 3 of Part 23 of a plan on which a release of an easement or profit à prendre is indicated in accordance with subsection (2)(c1), the easement or profit à prendre is released. (3A) When creating a folio of the Register kept under the Real Property Act 1900 for land benefited by any easement, or for land burdened by any easement, restriction on the use of land or positive covenant, created by this section, the Registrar-General shall record in that folio, in such manner as the Registrar-General considers appropriate, the easement, restriction on the use of land or positive covenant, as the case may be. (4) Any restriction on the use of land or positive covenant created by this section shall for the purposes of this Act and the Real Property Act 1900, have effect as if it was contained in a deed. 1. 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 s 3 of the Encroachment Act, and ss 33 (1), 34(3), (7) & (8) of the LEC Act to make orders for the creation of an easement pursuant to s 88B of the Conveyancing Act 1919, the payment of monies by the Respondent to the Applicant, and otherwise dismissing the proceedings. Jurisdictional Prerequisites 1. 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 to be ss 16, 19(c1), 33(1), 34(3), 34(7) and 34(8) of the LEC Act. 2. 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. The jurisdictional prerequisites have been satisfied as follows: 1. The Applicants brought the proceedings in accordance with the definitions of encroaching owner and owner in s 2, and filed their Class 3 application in this Court pursuant to s 3 (1) of the Encroachment Act. 2. The proceedings fall within Class 3 of the Court's jurisdiction pursuant to s 19(c1) of the LEC Act. 3. The Court arranged a s 34 conciliation conference pursuant to s 34(1) of the LEC Act. 4. The parties reached agreement for the grant of an easement pursuant to s 88B of the Conveyancing Act 1919 and payment of monies. The grant of the easement and the payment of monies by the Applicants to the Respondents resolved the issues between the parties. 1. The Court has power to make those orders as requested by the parties in accordance with s 2(a) and (b), after considering the issues raised in s 3(a) to (f) of the Encroachment Act. The 88B instrument for the creation of the easement giving the Respondents a legal right to encroach upon the Applicants' land is created and registered pursuant to s 88B of the Conveyancing Act 1919. The Court also has power to make the orders in accordance with s 16(1) of the LEC Act. 2. 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. 3. The Court orders: 1. Respondents to prepare and register an easement to permit existing structures to remain in respect of the alleged encroachments which are the subject of the proceedings, at the Respondents' own cost, consistent with the: 1. Section 88B Instrument, created pursuant to s 88B of the Conveyancing Act 1919, annexed to these Orders and marked "A"; and 2. Plan of Survey annexed to these Orders and marked "B", (Easement). 1. The Easement is to be lodged by the Respondents with the NSW Land Registry Services for registration within 28 days of the Respondents receiving the Easement in registrable form including having received all necessary documents and mortgagee consents required to be obtained by the Applicants and the Respondent to give effect to the registration of the Easement. 2. Parties to do all acts and things necessary to achieve registration of the Easement and recording of the Easement in the folio of the Register of NSW, including but not limited to being participants and providing the necessary consents in any PEXA workspace which is required to effect registration and/or agreeing to the Registrar General amending the Easement as required by the Registrar General. 3. Respondents to pay the Applicants $50,500 inclusive of all costs within 28 days of the date of these orders. 4. Proceedings are otherwise dismissed with no other order as to costs. NOTE: The Court notes that subject to Order (1), each party to pay their own costs in relation to the preparation, lodgement and registration of the Easement, obtaining their registered mortgagee's consent to the Easement, PEXA fees relating to the easement, and the finalisation of the proceedings. ………………………… M Peatman Acting Commissioner of the Court Annexure A (208209, pdf) Annexure B (228192, pdf) ********** Amendments 02 March 2021 - Correction to cover sheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2021