Wirth v Will [2022] NSWLEC 118

Land and Environment Court New South Wales

Medium Neutral Citation: Wirth v Will [2022] NSWLEC 118 Hearing dates: 14 and 15 June, 6 and 7 September 2022 Date of orders: 15 September 2022 Decision date: 15 September 2022 Jurisdiction: Class 3 Before: Moore J Decision: See orders at [154] Catchwords: ENCROACHMENT - application pursuant to the Encroachment of Buildings Act 1922 (the Act) for order to remove encroaching structure - cross-claim seeking grant of easements to retain and use structure - whether there is a single structure or two separate structures built at different times - only evidence is photographic - examination of photographs reveals, on the balance of probabilities, two structures not one - finding necessitates rejection of cross-claim - consideration of whether encroachment satisfies definition of a "building" in the Act - encroachment satisfies the definition giving power to order its removal - removal ordered COSTS - costs follow the event - Respondents ordered to pay Applicant's costs of the application and the cross-claim - earlier limited costs order in Respondents' favour preserved Legislation Cited: Civil Procedure Act 2005, ss 56 and 98(1) Encroachment of Buildings Act 1922, ss 2, 3 and 4 Land and Environment Court Act 1979, ss 16(1A), 19 and 22 Land and Environment Court Rules 2007, r 3.7 State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development, cl 4(1)(a)(ii) Uniform Procedure Rules 2005, r 42.1 Waverley Local Environmental Plan 2012 Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Barton Securities Limited v Warringah Council & Others (2009) 170 LGERA 223; [2009] NSWLEC 179 Browne v Dunn (1893) 6 R. 67 Kotselas v Doualetas (unreported, NSWLEC, 12 October 1993) Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Olivia Ross v Patrick Lane (No 2) [2021] NSWLEC 121 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Category: Principal judgment Parties: Michael Wirth (Applicant/Cross‑Respondent) Aharon Will (First Respondent/Cross‑Claimant) Clare Will (Second Respondent/Cross‑Claimant) Representation: Counsel: Mr J Lazarus SC (Applicant/Cross-respondent) Mr T Robertson SC (Respondents/Cross‑Claimants)