Land and Environment Court New South Wales Medium Neutral Citation: Gabriel v Billett [2023] NSWLEC 85 Hearing dates: 17 July 2023 Date of orders: 15 August 2023 Decision date: 15 August 2023 Jurisdiction: Class 3 Before: Robson J Decision: See orders at [87] Catchwords: Encroachment — Application for transfer of land by encroaching owner — Exercise of discretion under Encroachment of Buildings Act 1922 (NSW), s 3(3) — Encroaching structure located in a heritage conservation area — Whether the encroachment should be removed Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Clarence Valley Local Environmental Plan 2011, Sch 5, Ptt 1, 2, cl 5.10 Clarence Valley Residential Zones Development Control Plan 2011 Dividing Fences Act 1991 (NSW) Encroachment of Buildings Act 1922 (NSW), ss 2, 3, 4, 14 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; [1993] HCA 16 Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 Category: Principal judgment Parties: Eric Stephen Gabriel (Applicant) Karen Billett (Respondent) Representation: Counsel: E S Gabriel, self-represented (Applicant) L Nurpuri (Respondent) Solicitors: Self-represented (Applicant) Daniel Butt & Co Solicitors (Respondent) File Number(s): 2023/00011710 Publication restriction: Nil Judgment 1. By Class 3 application filed 12 January 2023 (and subsequently amended 16 May and 17 July 2023), Eric Stephen Gabriel, the owner of land known as 10 Clyde Street, Maclean, seeks relief under the Encroachment of Buildings Act 1922 (NSW) ('Encroachment Act') against Karen Billett, the adjacent owner of land known as 7 Morven Street, Maclean. The encroaching structure the subject of these proceedings is an old timber and metal shed of approximatively 18m² of which 11m² is located on Ms Billett's property. The shed is exclusively accessible from Mr Gabriel's property. 2. Mr Gabriel seeks the transfer, presumably under s 3(2)(b) of the Encroachment Act, of an area of (approximatively) 34.5m² of Ms Billett's property, with the effect that the whole of the shed (and some further area adjacent thereto) would become part of his property. In exchange, he offers to pay Ms Billett compensation based on the unimproved land value of the parcel of land to be transferred. 3. Ms Billett opposes the transfer and seeks the removal (pursuant to s 3(2)(c) of the Encroachment Act) of that part of the shed which encroaches onto her property (being 11m²) at Mr Gabriel's cost. 4. As it is common ground between the parties that the shed encroaches onto Ms Billett's property, the primary issue for determination is whether Mr Gabriel is entitled to the transfer of the parcel of land the subject of these proceedings. 5. For the reasons that follow, I find that, subject to any necessary approvals, it is appropriate for an order to be made requiring the removal, at Ms Billett's expense (by way of indemnification, or other arrangements otherwise agreed between the parties), of that part of the shed which currently encroaches onto her property. Background 1. To provide context to the parties' detailed submissions, an understanding of the salient background facts relating to the creation, ownership, and use of the parcels of land upon which the encroaching shed is located is desirable. Other relevant facts will be dealt with in my consideration of the parties' evidence and submissions later in this judgment. 2. Mr Gabriel's property is an irregularly shaped allotment of about 861m² upon which various structures are erected, including a dwelling previously used as a restaurant, and a number of sheds. Ms Billett's property, on the other hand, is a regularly shaped narrow allotment of 432.1m² which contains a single dwelling. The properties were, until recently, effectively divided by a derelict wooden dividing fence which was located 3.4m inside Ms Billett's property and as such did not reflect the location of the common boundary. 3. The encroaching shed is a structure of about 6m long and 3m wide which occupies a total area of approximatively 18m². It encroaches 3.5m over the rear of Ms Billett's property, covering an area of approximately 11m² of her land. The position of the parties' respective land (and of the "old paling" fence which formerly delineated the common boundary), as well as the "timber [and] metal shed" thereon is shown in the survey being annexure "A" to this judgment. 4. Although not material to these proceedings, for reference, Ms Billett's property is zoned "R2 Low Density Residential" under the Clarence Valley Local Environmental Plan 2011 ('LEP'), and both properties are located within the Maclean Heritage Conservation Area mapped by the LEP. To the extent that Mr Gabriel raises "heritage" concerns in support of the retention of the encroaching shed, I note that the subject shed is not identified as a heritage item under the LEP. However, and despite the present condition of the shed, any relocation or alteration may require development consent in accordance with cl 5.10(2)(a)(iii) of the LEP. 5. Mr Gabriel and Ms Billett's properties were formerly contained within Lot A and Lot B in DP358291 respectively. In or around 1988, Lot B was subdivided to create two similarly sized regular shaped allotments, being Lot 21 in DP 771460 (now known as 7 Morven Street), and Lot 22 in DP 771460 (now known as 5 Morven Street, Maclean). 6. Although the circumstances under which the encroachment upon Ms Billett's land was made remain unclear, it is not in contest that it predates the parties' ownership of their respective properties. At the time Mr Gabriel purchased his land, in December 1996, there were two sheds erected on the property, each of which encroached over separate adjacent lands. The shed the subject of these proceedings encroached over the rear boundary onto 7 Morven Street (now Ms Billett's land), and the other shed encroached over the rear boundary of 5 Morven Street. 7. In March 2008, Mr Gabriel purchased the rear portion of 5 Morven Street, which included the parcel of land over which one of his sheds encroached. That part of the rear of 5 Morven Street was transferred to him by way of boundary adjustment. 8. At that time, Mr Gabriel sought to purchase the encroached parcel of 7 Morven Street but was unable to contact the then owner. He nevertheless proceeded to use the shed located on that parcel of land as well as some further area adjacent thereto (which was on the western side of the old paling fence and therefore on part of 7 Morven Street) for storage purposes associated with various activities previously undertaken on his property, including the operation of a restaurant in another building unironically named "The Shed". This combined area of approximatively 60m² is part of Ms Billett's land. 9. Ms Billett purchased her property in December 2015. The parties thereafter engaged in some discussion in relation to the encroachment. Their failure to reach an agreement resolving the encroachment resulted in proceedings being commenced by Mr Billett in the Maclean Local Court ('Local Court') pursuant to the Dividing Fences Act 1991 (NSW). The Local Court made orders in January 2023 requiring the construction of a "1.8m Colorbond steel fence" on the common boundary between the respective properties and the subsequent removal of the "dilapidated" timber fence until then situated on Ms Billett's land. In April 2023, Mr Gabriel unsuccessfully appealed the decision to the Coffs Harbour District Court ('District Court'). 10. The present condition of the subject area, including the recently constructed "Colorbond" fence and the encroaching part of the shed, is depicted in the photograph being annexure "B" to this judgment. 11. The hearing proceeded before me on 17 July 2023. Mr Gabriel presented his case without legal representation and Ms L Nurpuri, of counsel, appeared for Ms Billett. Relief sought 1. Conscious that Mr Gabriel appears without legal representation and noting that he has amended his Class 3 application on a number of occasions, it is appropriate to clarify the relief he now seeks in these proceedings. 2. In his original application filed 12 January 2023, Mr Gabriel sought relief comprising the grant of an easement in relation to both the encroaching part of the shed and the surrounding land on the western side of the "old paling" fence, as well as orders "stop[ping] a fence being built on the boundary which will allow the respondent to encroach onto [his] property". 3. By amended application filed 16 May 2023, Mr Gabriel reduced his claim to merely seeking an order that Ms Billett "transfer[s] to [Mr Gabriel]" an area "extending 5.5m from the current boundary", which is an area of approximately 60m². Mr Gabriel also sought an order that he pay compensation to Ms Billett based on the "unimproved land value of the transferred land". 4. Leave was again granted for Mr Gabriel to further amend his application at the commencement of the hearing on 17 July 2023, and he now seeks the transfer of an area "extending 3.15 metres from the current boundary" which, for clarity, amounts to a surface of approximatively 34.5m², including the 11m² occupied by the encroaching part of the shed and some further area adjacent thereto. This area roughly equates with the area west of the "old paling" fence which Mr Gabriel has been using since 1996. Evidence 1. In support of his claim, Mr Gabriel read his affidavits sworn 27 April, 30 June and 3 July 2023. Mr Gabriel's affidavit evidence dealt extensively with the history of his relationship with Ms Billett and her husband, Darren Billett (as well as a previous owner), his occupation of the property, and records the history of the subdivision that created the properties. In doing so, Mr Gabriel provided responses to the affidavits of Ms Billett and Mr Billett. 2. Mr Gabriel further detailed the history of the subdivision that created the properties and the previous land dealings regarding the subject properties including various surveys. He also deposed to the "maintenance" works that he has undertaken on the shed. 3. Mr Gabriel also tendered various historical material including photographs and newspaper extracts which were annexed to his written submissions filed 10 July 2023, and a letter from Clarence Valley Council dated 15 March 2023 providing additional information as to the historical significance and heritage value of the area in which the property is located. 4. He deposed that Ms Billett now occupies "additional land" on the western side of the recently constructed Colorbond fence which, although approved by the Local Court, he maintains was constructed without due consideration for the proper boundary alignment. In this regard, he stated that he was "unjustly denied" the opportunity to obtain a quote for the new fence and maintained that he should not be held responsible for any of the costs associated with the new Colorbond fence (as ordered by the Local Court) because the decision to carry out its construction laid with Ms Billett. He also noted that the construction of the new Colorbond fence resulted in the loss of certain goods and vegetation located on the western side of the "old paling" fence. 5. Mr Gabriel gave evidence that the "purchase" of the encroached land, which he effectively seeks, is necessary to ensure the "serviceability" of his "large southern building" insofar as it would assist the proper functioning and accessibility of his property. 6. Mr Gabriel also read the affidavit of Clement Francis Rhoden, a town planner, affirmed 30 June 2023. Mr Gabriel relied upon Mr Rhoden's evidence in reply to Ms Billett's evidence that she had been informed that plans that she had prepared for the construction of a garage and storage space on her property may not receive approval from Clarence Valley Council in circumstances where the encroaching part of the shed remains in place. Mr Rhoden's evidence (which was received despite concerns in relation to its form) was that the continuing existence of the encroachment (on the basis that Mr Gabriel is successful in seeking the combined area of 60m² being transferred to him) would not itself be an "impenetrable barrier to constructing the shed" and garage as desired by Ms Billett. 7. Ms Billett read her and Mr Billett's affidavits, each affirmed 18 May 2023. Their affidavit evidence was remarkably similar. Each detailed the background relating to Ms Billett's ownership of her property and provided copies of various deposited plans and photographic evidence of both the historical and the present physical relationship between her and Mr Gabriel's properties. 8. Each deposed that they engaged D J Brown Building Design, a building design company, to prepare plans for a garage on Ms Billett's property which were drawn to comply with certain restrictions imposed in relation to minimum landscaped areas required under the Clarence Valley Residential Zones Development Control Plan 2011 ('DCP'). Further, by reference to these plans and aerial and satellite images, each deposed that there is adequate area on Mr Gabriel's land to rebuild a shed of the same size as the encroaching shed (or larger). 9. Ms Billett further deposed to a quotation that she obtained from Big River Sheds Pty Ltd dated 16 March 2023 for three different courses of action available to rectify the encroachment, being first, the removal of only that part of the existing shed that encroaches on Ms Billett's property (and using the material to create a new rear shed wall), expected to amount to $925; second, the removal of the entire shed, expected to amount to $1,380; and third, the removal of the shed and the erection of a new (similar) shed on Mr Gabriel's property, expected to amount to $11,770. 10. Ms Billett and Mr Billett further deposed that Mr Gabriel altered the shed, including by fixing second-hand garage roller doors as cladding on the exterior walls of the shed sometime after he purchased the property and prior to 1 September 1998. 11. They further deposed that the shed is dilapidated and is of no heritage significance. In this regard, Mr Billett deposed to his attendances upon the head Building Inspector of Clarence Valley Council and that he was informed that development consent would not be required to remove or alter the shed if the work involved met the requirements of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ('SEPP Exempt Development'). 12. In addition, Ms Billett tendered copies of the orders made against Mr Gabriel in relation to a Dividing Fences Act application in the Local Court on 25 January 2023 and in the District Court on 12 April 2023. Ms Billett also tendered photographs depicting the encroaching part of the shed and of the new Colorbond fence that has been constructed on the boundary in accordance with those orders, one of which is annexed to this judgment and marked "B". Submissions Mr Gabriel's position 1. Mr Gabriel provided detailed written and oral submissions in relation to various matters, including, the removal of the "old paling" fence and alleged damage to some restaurant equipment which he had stored at or near the shed; Ms Billett's construction of the new Colorbond fence (albeit in accordance with the orders from the Local Court) and his concern that it may have been placed on the "wrong boundary line"; his concern that the landscaping requirements under the DCP raised by Ms Billett would not prevent the construction of a garage on her land; and the historical significance of the existing shed and efforts he has made in relation to the preservation thereof. 2. Mr Gabriel primarily submits that the historical value of the shed, and resulting heritage significance, militates against its removal. In this regard, he emphasises the age of the shed, its vernacular form, and architectural integrity with the other structures erected on his property, and its location within the Maclean Heritage Conservation Area. 3. In support of this claim, Mr Gabriel provided a copy of a letter from Clarence Valley Council dated 15 March 2023 in relation to the heritage value of the shed, which advised that the demolition of any structure located within a heritage conservation area would require development consent under the applicable local environmental plan. Further, he relied upon correspondence from the Maclean District Historical Society Inc. which, in his understanding, provides for the retention of the subject shed and emphasises in this regard that some of the structures in the Maclean Heritage Conservation Area were associated with one of the premier building families in Maclean. In light of these matters, he submits that the fact that the order he seeks would allow for the preservation of the shed should weigh in favour of his application. 4. In any event, Mr Gabriel contends that there are no compelling reasons to order the removal of the encroaching shed in circumstances where the DCP requirements relied upon by Ms Billett to justify the removal of the shed can in fact be varied by Clarence Valley Council and are not a complete bar to the development proposal for which she seeks consent. In this regard, he emphasises that the evidence of Mr Rhoden alleviates the concerns of Ms Billett regarding her ability to develop a garage and storeroom on her land. 5. Mr Gabriel maintains that, if the Court was minded to order the transfer of the 34.5m² that he now seeks, the Court should find that the 2015 land value is an appropriate basis for determining the value of the land to be transferred. 6. While not materially related to the issue for determination in the present proceedings, Mr Gabriel also expresses concerns over the removal of the old paling fence that for some time separated the properties, and its substitution with the new Colorbond fence. He submits that the construction was carried out by Mr Billett rather than by All Town & Country Fencing, as was required by the orders of the Local Court. Further, the destruction of the "old paling" fence, and on that occasion, the loss or removal of some of his restaurant equipment, caused him to incur financial loss. In addition, Mr Gabriel contends that the new Colorbond fence is not reflective of the common boundary as established by a survey conducted in 1996 and it has the effect of blocking serviceability and access to another larger shed located on his property. On this basis, he submits that it would be appropriate for the Court to order, at Ms Billett's cost, a further survey clarifying the location of the common boundary. 7. Throughout his submissions, Mr Gabriel also believes that, despite the orders of the Local Court, that it was not appropriate for Ms Billett and Mr Billett to proceed with the construction of a new Colorbond fence in circumstances where he had commenced proceedings in this Court and that it is a matter relevant to this Court's consideration of the encroachment. 8. Mr Gabriel refers to what he characterises as unfair actions and/or improper conduct of Ms Billett and Mr Billett. In particular, he deposes to having formerly engaged Mr Billett, a real estate agent, in relation to certain real estate transactions and, in that context, to having informed Mr Billett of the existence of the encroaching shed and to instructing him to approach the then owner of 7 Morven Street to enquire about the possibility of purchasing that property. Despite this relationship, Ms Billett proceeded to purchase the property. 9. In addition, Mr Gabriel repeated his concerns in relation to what he called "the removal and theft" of building materials and restaurant equipment for which he blames Ms Billett and Mr Billett as well as the loss of a certain "crop" which was located on the (now cleared) western side of the "old paling" fence (now on the eastern side of the new Colorbond fence). 10. If unsuccessful in obtaining the transfer of the encroaching parcel of land, and to the extent that the construction of the new Colorbond fence resulted in an encroachment over his property, Mr Gabriel seeks an order for a new survey establishing the location of the common boundary. He further seeks an order granting him access to service other structures located on the southern side of his property. Ms Billett's position 1. Ms Billett opposes the relief now sought by Mr Gabriel, being for the transfer of an area extending 3.15m from the current boundary, and primarily submits that even if the Court was minded to find in Mr Gabriel's favour, s 3(2) of the Encroachment Act limits the Court's power to transfer land to the "subject land", which in the present case comprises only the land (of 11m²) vertically under the encroachment. In circumstances where Mr Gabriel seeks the transfer of land beyond the encroaching part of the shed, the Court has no jurisdiction to entertain his claim. 2. Rather, Ms Billett submits that it is appropriate for this Court to order the removal of the encroaching portion of the shed, and in doing so emphasises that the shed encroaches upon 11m² of her property which is a modestly sized allotment of approximately 432m² significantly smaller that Mr Gabriel's property (which is approximately 861m²). She submits that Mr Gabriel has been aware of the encroachment since around 1996 and therefore that his use of the shed, and significant work to the shed, constitute trespass on her property. 3. Ms Billett submits that the existence of the encroachment hinders her ability to realise the potential of her land and points to evidence that she and her husband intend to develop the property by erecting a garage at the rear of the property and that Clarence Valley Council is unlikely to grant consent if the encroachment remains. 4. Ms Billett submits that removal of the encroachment is not controversial in circumstances where neither her property nor Mr Gabriel's contain items of heritage significance and it could not be considered on any view that the shed contributes to the Maclean Heritage Conservation Area. 5. Ms Billett further submits that the shed is used by Mr Gabriel for storage only and even if the shed is rendered smaller by the orders she seeks, the remaining part of the shed will continue to be available for storage; and further, that there is ample area on Mr Gabriel's property to expand the shed should that be appropriate. Moreover, even if the Court was minded to accept Mr Gabriel's evidence that he uses the shed as a part of his professional operations, there is nothing preventing Mr Gabriel from relocating the shed entirely onto his property. 6. Ms Billett also submits that the Court should reject any submission that Mr Gabriel would suffer any loss or damage if the encroachment was required to be removed and reminds the Court that the quote for removing the encroaching part of the shed amounts to $925 (and notes that the quote further provided for the total removal of the shed amounts to $1,380). Ms Billett submits that this quote provided by Big River Sheds Pty Ltd constitutes reasonable and cost-effective options to resolve the dispute between the parties. 7. With respect to Mr Gabriel's submissions regarding the new Colorbond fence, Ms Billett emphasises that its construction was undertaken in accordance with the orders of the Local Court. These proceedings constitute, in her view, an inappropriate attempt to reagitate matters the subject of orders of the Local Court (and on appeal by the District Court) and the relief sought should therefore not be granted. Consideration Relevant legislative provisions 1. The Encroachment Act contains in s 2 the following definitions: Adjacent owner means the owner of land over which an encroachment extends. … Building means a substantial building of a permanent character and includes a wall. … 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. … Subject land means that part of the land over which an encroachment extends. 1. Sections 3 and 4 of the Encroachment Act relevantly provide: 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 Compensation (1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, be the land value of the subject land, and in any other case three times such land value. (2) In determining whether the compensation shall exceed the minimum, and if so by what amount, the Court shall have regard to: (a) the value, whether improved or unimproved, of the subject land to the adjacent owner, (b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner, (c) the circumstances in which the encroachment was made. 1. To the extent that heritage concerns have been raised in relation to the shed, I note that cl 5.10 of the LEP provides as follows: 5.10 Heritage conservation (1) Objectives The objectives of this clause are as follows— (a) to conserve the environmental heritage of Clarence Valley, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … (2) Requirement for consent Development consent is required for any of the following— (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance)— … (iii) a building, work, relic or tree within a heritage conservation area, (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, (c) disturbing or excavating an archaeological site while knowing, or having reasonable cause to suspect, that the disturbance or excavation will or is likely to result in a relic being discovered, exposed, moved, damaged or destroyed, … (3) When consent not required However, development consent under this clause is not required if— (a) the applicant has notified the consent authority of the proposed development and the consent authority has advised the applicant in writing before any work is carried out that it is satisfied that the proposed development— (i) is of a minor nature or is for the maintenance of the heritage item, Aboriginal object, Aboriginal place of heritage significance or archaeological site or a building, work, relic, tree or place within the heritage conservation area, and (ii) would not adversely affect the heritage significance of the heritage item, Aboriginal object, Aboriginal place, archaeological site or heritage conservation area, or … (d) the development is exempt development. … Consideration 1. Bearing in mind Mr Gabriel's position as a litigant in person, it is appropriate to make three preliminary observations in relation to certain aspects of the evidence he seeks to rely upon and incidental claims he makes. 2. First, I note that Mr Gabriel was ordered to pay one half of the costs of the new Colorbond fence by orders of the Local Court and that he asserts in these proceedings that he should "not be held responsible" for those costs in circumstances where that fence was erected without his consent or consultation, and where its construction was carried out "hastily" and without due consideration. 3. I am concerned that Mr Gabriel's claim in this regard seeks to relitigate matters which have been determined by the Local Court (and on appeal by the District Court). There is no evidence before this Court that these orders and the subsequent construction of the new Colorbond boundary fence were not properly, in the sense of lawfully, obtained and implemented. It follows that, to the extent that Mr Gabriel now seeks the removal of the new Colorbond fence, which he submits has been placed incorrectly, I find that he is not entitled to that relief. While I have taken into account the existence of the new Colorbond fence (which I have assumed, absent evidence to the contrary, to be appropriately constructed on the common boundary), it is not determinative of my findings in this matter, although I consider the remaining situation (clear in the photograph at annexure "B" to this judgment) highlights what I consider to be a more than passing inconvenience of the encroachment. 4. Secondly, while I note that Mr Gabriel raises "safety" concerns due to the presence on Ms Billett's property of "the Billett's dogs", which he describes as "two dangerous dogs", causing "disturbances in the neighbourhood", there is no evidentiary basis for this claim, and it appears to be contrary to the evidence that Ms Billett does not reside on her property. I do not, in any event, consider these concerns to be either relevant to, or determinative of, a claim under the Encroachment Act. 5. Thirdly, in circumstances where a large portion of Mr Gabriel's affidavit evidence and his oral and written submissions were received over objection, I have sought to balance, in my reasons recorded later in this judgment, Ms Billett's concerns in relation to the relevance of the material provided and the vigilance that must be embraced in hearing a case presented by a litigant in person. In this regard, I am conscious of the comments made by Kirby P in Edwards v Allmen Engineering Pty Ltd [1995] NSWCA 138 at 2, where, albeit in a different context, his Honour cautioned that "concealed in the lay rhetoric and inefficient presentation may be a just case." 6. Apart from the above matters, I have considered the relief respectively sought by the parties and have formed the view that the appropriate order is for the encroaching part of the shed to be removed at Ms Billett's cost subject to Ms Billett obtaining any necessary approval from Clarence Valley Council. I record my reasons by reference to the relevant, but not exclusive, statutory considerations in s 3(3) of the Encroachment Act. (3)(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be 1. I accept that the Court is presently concerned with an application for relief filed by the encroaching owner, Mr Gabriel, against the adjacent owner, Ms Billett. 2. While there has been a history of interactions between the parties in relation to the encroachment, I do not consider the prior conduct of either party to be in any way disentitling to the relief respectively sought. Suffice it to say that I accept and take into account that there were attempts to reach a resolution of this matter prior to the commencement of these proceedings, and that Mr Gabriel has taken steps in the past in an attempt to "rectify" the encroachment issue, including attendances and correspondence with the former owners. (3)(b) the situation and value of the subject land, and the nature and extent of the encroachment 1. The extent of the encroachment is not in dispute and is shown in the survey annexed to this judgment and marked "A". I have taken into account the position of the encroachment as it now stands – that is, by reference to the position of the new Colorbond fence now erected on what I consider to be the boundary between the properties as shown in the photograph annexed to this judgment and marked "B". I consider the = nature and extent of that part of the shed that encroaches onto Ms Billett's land is obvious. In circumstances where Ms Billett's property is 432.1m², the encroachment is, in my view, not insubstantial. 2. Mr Gabriel is now seeking that an area of (approximately) 34.5m² be transferred from Ms Billett's property to become part of his property. This is despite the shed only covering a total area of 11m² on Ms Billett's land. In this regard, even if I had been minded to find in Mr Gabriel's favour, I would otherwise accept Ms Billett's submissions that the power to order the conveyance, lease or transfer of land is limited under s 3(2)(b) of the Encroachment Act to the "subject land", which is defined in s 2 of the Act as the land over which an encroachment extends and means the land which is situated vertically under the encroachment: Amatek Limited v Googoorewon Pty Ltd (1993) 176 CLR 471 at 477 (Mason CJ, Brennan, Dawson, Gaudron and McHugh JJ); [1993] HCA 16. 3. As such, and although not determinative of my ultimate findings considered later in this judgment, insofar as Mr Gabriel seeks the transfer of land extending well beyond the 11m² area (covered by the shed) which is accepted by the parties to be the area occupied by the encroachment the subject of these proceedings, this Court does not have jurisdiction to grant such relief. On this basis I only consider in the remainder of my reasons the issue of whether the transfer of 11m² should be granted in favour of Mr Gabriel. (3)(c) the character of the encroaching building, and the purposes for which it may be used 1. As noted earlier (at [8]), the encroaching structure is a shed originally constructed of a timber frame with sheet metal walls and roof, and which is accessible from an entrance located on Mr Gabriel's land. The shed is some 6m long and 3m wide. It has been significantly modified by the addition of external cladding. 2. On the evidence, the shed has been used by Mr Gabriel for storage purposes associated with the previous running of a restaurant. I take into account that Mr Gabriel has had use of that part of the shed (and presumably the land to the west of the old paling fence) for many years, such use being undertaken with the knowledge that the "old paling" fence and part of the shed was not on his land. 3. The parties have made conflicting submissions during the hearing about the condition of the shed, with Ms Billett emphasising its derelict state and Mr Gabriel refuting any such assertions of deterioration. 4. Mr Gabriel has also raised concerns over the potential heritage value of the shed and has tendered correspondence from a Clarence Valley Council officer titled "Heritage Advice 8-10 Clyde Street and 7 Morven Street, Maclean NSW" which emphasises the heritage value of the area. He also made submissions by reference to correspondence from a local resident that the "storage shed" has been in existence since the 1950s. I do not consider that this on its own, or combined with the other material, supports or substantiates any relevant historical or heritage importance of the shed in its present state. 5. Both properties are located within the Maclean Heritage Conservation Area. Despite this, any potential heritage value of the shed is qualified by the fact that neither property was included as an individual heritage item in Pt 1 of Sch 5 to the LEP. Further, the significant alterations to the shed including by the application of extended cladding (being second hand steel garage doors shown in the photograph annexed to this judgment and marked "B") which appears to have been undertaken without any development consent (see cl 5.10(2)(a) of the LEP) militates, in my view, against the shed having what may be persuasive heritage value. 6. I have considered Clarence Valley Council's letter of 15 March 2023 and note that some concerns were raised in relation to a failure to list 7 Morven Street as an individual heritage item in Pt 1 of Sch 5 to the LEP in circumstances where the dwelling formed part of a group of cottages located on Morven Street which has been so identified. I do not attribute significant weight to Council's informally worded concerns in light of the express provisions of the LEP and note, in any event, that I have not been provided with any persuasive expert evidence addressing any discrete heritage value of the shed. 7. Although not classified as heritage items, by virtue of the location of both properties in a heritage conservation area, cl 5.10(2)(a)(iii) of the LEP (at [52] above) may apply to require development consent for the demolition or removal of a building subject to the carve-out provided in cl 5.10(3)(a)(ii). I am also aware of the provisions of the SEPP Exempt Development, and in particular s 7.1, which provides that a shed located in a heritage conservation area can be demolished without consent in certain circumstances. Since the parties have not sought any findings from this Court as to the requirements that may apply for the removal of the shed, I do not purport to consider the application of these provisions any further. 8. Rather, I note that there is a limited prospect that the shed's removal may require development consent which would limit the extent to which Ms Billett may be entitled to the relief she seeks from this Court, being the removal of the encroaching part of the shed. In these circumstances, I consider that the relief sought by Ms Billett is able to be modified to ensure that any necessary approval is to be obtained before removal of the encroaching part of the shed is effected. (3)(d) the loss and damage which has been or will be incurred by the adjacent owner 1. Ms Billett contends that the presence of the shed is frustrating the development of her land, and specifically her ability to obtain development consent for the construction of a garage at the rear of her property. In this regard, Ms Billett emphasises the requirements in Item C19 in Pt C of the DCP that development on land zoned R2 Low Density Residential must have a minimum of 45% of site area as landscaped area. She submits that to meet this restriction, the total non-landscaped area of her property cannot exceed 237.7m². In circumstances where the encroaching part of the shed increases the hardstand surface area, she submits that she would not be able to meet the restriction imposed by the DPC and pursue the development contemplated unless the shed is removed from her property. 2. In support of her submission as noted at [28] above, Ms Billett provided a building design plan prepared by D J Brown Building Design for the proposed garage, which I have considered. 3. While I accept Ms Billett's concerns, I do not consider this plan authoritatively evidences the constraints imposed by the DCP or her inability to carry out the proposed development should the shed not be removed. 4. Be that as it may, as I have noted above, and without making any finding about the likelihood (or not) of development consent being required (a matter about which I have some doubt), I accept that the presence of the shed constrains to some extent Ms Billett's ability to deal with her property as she chooses. This appears to be especially so in circumstances where the encroachment occupies a not insignificant portion of the non-developed area of her property. (3)(e) the loss and damage which would be incurred by the encroaching owner if the encroaching owner were required to remove the encroachment 1. The parties made submissions on the issue of the amount of expenditure likely to be incurred if the encroachment was to be removed. 2. Mr Gabriel deposed that dismantling and relocating the shed would cost $12,760, which appears to be supported by a document dated 31 May 2023 annexed to his affidavit of 3 July 2023. As noted above, Ms Billett provided the Court with a quote from Big River Sheds Pty Ltd which anticipates that the removal of the encroaching part of the shed (and reinstatement of the eastern end) would cost around $925. Alternatively, the removal of the shed in its entirety would cost around $1,380. 3. Mr Gabriel made submissions about the practical difficulties of accessing and servicing another building (presumably the larger shed) in the south of his property if the transfer and ownership of the encroaching parcel of the land was not granted. However, in circumstances where no further evidence in relation to the serviceability and access concerns he raises was provided, I am unable to attribute any weight to this factor. 4. Finally, while Mr Gabriel appears to have been using the shed for storage purposes associated with the previous running of a restaurant, I accept that, to the extent that he continues to require storage for his activities, there is ample space on his land for alternative storage options. 5. In these circumstances, I find that the loss likely to be incurred by Mr Gabriel if I make the orders sought by Ms Billett is relatively modest, particularly as I consider that the costs of removing the encroaching part of the shed and reinstating the eastern wall thereof should be borne by Ms Billett. (3)(f) the circumstances in which the encroachment was made 1. The encroachment is agreed by both parties to have predated the purchase of their respective properties. Mr Gabriel has also conceded having been aware of its existence since 1996 and having used the land since its purchase. He has taken steps to rectify the other encroachment that affected his land, including through the purchase of the rear portion of 5 Morven Street. Although Mr Gabriel states that he has also attempted to purchase the rear portion of 7 Morven Street, I do not consider this to be material. 2. Ms Billett purchased her property in December 2015 and appears to have approached Mr Gabriel in or around 2021 to engage in discussion about the old paling fence located on the common boundary between their properties. I also take into account that Ms Billett has not brought these proceedings but only seeks the removal of the shed as a response to Mr Gabriel's application. However, despite a delay of at least six years in bringing a claim in relation to the encroachment, in circumstances where Mr Gabriel did not raise acquiescence to the continuance of the encroachment as a defence, I do not consider this aspect further. 3. In these circumstances, I consider that the just and proper form of relief is an order for the removal of the encroachment. Conclusion 1. In summary, while I accept that Mr Gabriel's concerns are genuinely held, I do not consider his submissions in relation to dangerous dogs, unresolvable heritage impact, and likely financial distress or disadvantage that may be caused by an order for the removal of the encroaching part of the shed to be determinative in this matter. Furthermore, I do not consider that there is sufficient evidence to make any finding, or to accept the evidence and submissions that "there has been removal and theft" of Mr Gabriel's "building materials and restaurant equipment", nor is there compelling evidence in relation to the "destruction of [Mr Gabriel's] crop", and, I therefore do not accept that Ms Billett's conduct demonstrates "malice, vexation, and a disregard for Mr Gabriel's rights". 2. Having had regard to the evidence provided and the submissions made by the parties and taking into account such of the matters specified in s 3(3) of the Encroachment Act as are relevant, I find that the proper exercise of my discretion in the circumstances is to refuse the relief sought by Mr Gabriel. Conversely, I find that Ms Billett is entitled to remove that part of the shed that encroaches onto her land by 11m² which I note can be achieved at a relatively modest cost, which she should bear. Costs 1. I have a wide discretion to determine costs of this further amended Class 3 application under s 98(1) of the Civil Procedure Act 2005 (NSW) and, in application of the presumption in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), to find that costs follow the event. Be that as it may, s 14 of the Encroachment Act empowers the Court, upon application by the parties, to take into account additional matters which it considers just in the circumstances. Ms Billett and Mr Gabriel should have the opportunity to address these matters and I therefore reserve the question of costs. In the circumstances, I direct the parties to file and serve any submissions in relation to costs (limited to four pages) on or before 28 August 2023 and any reply to the other party's submissions (limited to two pages) on or before 4 September 2023 with the intention that the question of costs will be determined on the papers. Orders 1. The orders of the Court are: 1. Eric Stephen Gabriel, as encroaching owner under the Encroachment of Buildings Act 1922 (NSW), is to remove from Karen Billett's land, being Lot 21 in Deposited Plan 771460 and known as 7 Morven Street, Maclean, the encroachment comprising of 11m² of a metal and timber shed ('shed') located at the rear of her property and emanating from Eric Stephen Gabriel's property, being Lot 1 in Deposited Plan 1122555 and known as 10 Clyde Street, Maclean. 2. The works referred to in Order (1) are to be carried out within 4 months (or such further period as may be required should development approval for the works be necessary). 3. Karen Billett is to indemnify Eric Stephen Gabriel in respect of the costs incurred in complying with Order (1), being confined to the removal of that part of the shed on 7 Morven Street, Maclean. Such indemnification may take the form of Karen Billett undertaking the requisite work on behalf of Eric Stephen Gabriel if satisfactory to both parties. 4. Costs are reserved. ********** Annexure A (620795, pdf) Annexure B (1562609, pdf) 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: 15 August 2023