Cinelli v Newcastle City Council [2022] NSWLEC 1666

Land and Environment Court New South Wales

Medium Neutral Citation: Cinelli v Newcastle City Council [2022] NSWLEC 1666 Hearing dates: Conciliation conference on 9 November 2022 Date of orders: 08 December 2022 Decision date: 08 December 2022 Jurisdiction: Class 3 Before: Peatman AC Decision: See orders at [8] below. Catchwords: ENCROACHMENT OF BUILDING – conciliation conference – agreement between the parties – orders Legislation Cited: Conveyancing Act 1919 s 88B Encroachment of Buildings Act 1922 ss 3, 4 Environmental Planning and Assessment Act 1979 Div 6 Part 6.7 Land and Environment Court Act 1979 ss 19, 34 Swimming Pools Act 1992 s 22D Category: Principal judgment Parties: Maurie Cinelli (First Applicant) Anna Cinelli (Second Applicant) Newcastle City Council (Respondent) Representation: Counsel: P Kilpatrick (Solicitor)(Applicant) N Eastman (Respondent)

Solicitors: Kilpatrick Hatton Lawyers (Applicant) Matthews Folbigg (Respondent) File Number(s): 2022/237412 Publication restriction: No

JUDGMENT 1. COMMISSIONER: The Applicants filed an application seeking orders that the Respondent allow encroaching structures in respect of a child resistant barrier and timber deck adjacent to a swimming pool (the Encroaching Structures) erected on land being Lot 23 Deposited Plan 838133 known as 4 Decora Crescent, Warabrook NSW (Applicants' land) and encroaching on Lot 49 Deposited Plan 845614 (the Respondent's land) to remain by granting them an easement pursuant to s 88B of the Conveyancing Act 1919 (Conveyancing Act) pursuant to s 3(2)(a) and (b) of the Encroachment of Buildings Act 1922 (EB Act) for structures built over the Respondent's land. 1. The proceedings have been commenced pursuant to s 3(1) of the EB Act. 2. The proceedings fall within Class 3 of the court's jurisdiction pursuant to s 19(c1) of the Land and Environment Court Act 1979 (LEC Act). 3. The statutory power or function to be exercised in determining the proceedings are s 34(3) of the LEC Act, s 2(a),(b) and 4(1) of the EB Act, and s 88B of the Conveyancing Act 1919. 4. The physical encroachment can be seen in Annexure B – Survey Plan dated 19/09/22 by Jason Lee Harman being reference 6431-DP: the encroachment is identified at "(A) Easement to permit encroachment structure to remain variable width".