Berry v The Owners Strata Plan 1621 [2022] NSWLEC 1507

Land and Environment Court New South Wales

Medium Neutral Citation: Berry v The Owners Strata Plan 1621 [2022] NSWLEC 1507 Hearing dates: Conciliation conference on 7 September 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Class 3 Before: Peatman AC Decision: See orders below in [11] Catchwords: ENCROACHMENT OF WALL AND FOOTING – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 s 88B Encroachment of Buildings Act 1922 ss 2, 3 Land and Environment Court Act 1979 ss 16, 19, 34 Real Property Act 1900 Category: Principal judgment Parties: Catherine Deanne Berry (First Applicant) James Gregory Berry (Second Applicant) The Owners Strata Plan 1621 (Respondent) Representation: Counsel:

T Sattler (Solicitor) (Applicant) J Hones (Solicitor) (Respondent)

Solicitors:

Sattler & Associates Pty Limited (Applicant) Hones Lawyers (Respondent) File Number(s): 2022/171965 Publication restriction: No

Judgment 1. COMMISSIONER: These proceedings are brought by the Applicants seeking an order for the Respondent (Strata Plan 1621) to remove part of a brick wall and the supporting footings on the land owned by the Applicants and known as 3A Stanley Street, Randwick NSW being the whole of the land in Lot 1 Deposited plan 365385 (Applicants' Land). The encroachment is more particularly described in the Partial Identification Survey (western fence and wall) over the Respondent's land at 5-7 Stanley Street, Randwick showing the encroachment as a Face of Brick Wall (FOB) FOB-BDY(0.08), (0.21) and (0.21) by RGM Property Surveys (ABN 37 145 495 825) dated 15 March 2022 being CAD Drawing File No.220267-001 (Annexure A). 2. The proceedings have been brought before the Court pursuant to ss3(1) and (2)(c )of the Encroachment of Buildings Act 1922 (EB Act), and fall within the Court's jurisdiction pursuant to ss 16 and 19(c1) of the Land and Environment Court Act 1979 (LEC Act). 3. The Court shall exercise its statutory power or function pursuant to ss 2, 3(1)-(3) of the EB Act, and ss 16(1), (1A) and 34(3)(a), (b) of the LEC Act, which state as follows: