Holz v McMahon [2024] NSWLEC 1245

Land and Environment Court New South Wales

Medium Neutral Citation: Holz v McMahon [2024] NSWLEC 1245 Hearing dates: Conciliation conference on 18 March, 4 April, 19 April, 2 May 2024 Date of orders: 14 May 2024 Decision date: 14 May 2024 Jurisdiction: Class 3 Before: Gray C Decision: The Court orders that: (1) Within 60 days of these orders: (a) the dividing fence (Fence) between 45 Reynolds Street, Balmain (Lot 1 in DP 216914) (Applicants' Land) and 81 Mullens Street, Balmain (Lot 2 in DP 514778) (Respondents' Land) is to be demolished by the applicants (the respondents to provide access for this purpose) in accordance with the quotation prepared by Jera Leishman Masonry dated 27 March 2024 and the quotation prepared by Master Strip Outs Pty Ltd dated 26 March 2024 in Annexure A and the parties are to equally contribute to the costs associated with that demolition. (b) the respondents shall remove the flashing, the concrete slab and disconnect the Fence adjacent to the shed (Shed) at a point 130mm in from the boundary at their cost so that the full length of the dividing fence can be demolished without causing structural damage to the shed. (2) Within 60 days of these orders, and upon the removal of the Fence per Order (1) above, the boundary line is to be marked by a registered surveyor in accordance with the quotation prepared by NSW Surveys Pty Ltd dated 24 March 2024 in Annexure B with the parties equally contributing to the costs. (3) Within 60 days of these orders, and upon the boundary line being marked per Order (2) above, the applicants (the respondents to provide access for this purpose) are to erect a new fence on the boundary line between the Applicants' Land and the Respondents' Land, which is to: (a) stand 1.8m tall with a tolerance of +/- 70mm when measured from the RL 17.34 point of the existing ground level of the applicants' side of the land at the boundary line located at the commencement of the Fence and then the top of the fence is to maintain a level height across the length of the parties' boundary; (b) as far as practicable, ensure that the brickwork sits within 130mm of each side of the boundary; and (c) otherwise be constructed in accordance with the Detailed Survey prepared by Benchmark Surveys NSW Pty Ltd dated 3 August 2021 in Annexure C and the quotation prepared by Jera Leishman Masonry dated 24 March 2024 in Annexure D, with the parties equally contributing to the costs of complying with this order. (4) The proceedings are otherwise dismissed with no orders as to costs. Catchwords: APPLICATION – encroachment – conciliation conference – agreement reached – encroachment to be removed Legislation Cited: Encroachment of Buildings Act 1922, ss 3, 14 Land and Environment Court Act 1979, s 34 Category: Principal judgment Parties: Susan Ann Holz (First Applicant) Peter John Holz (Second Applicant) Catherine Marie McMahon (First Respondent) Neil Benjamin Bryant (Second Respondent) Representation: Counsel: C Koikas (Applicants) C Ireland (Respondents)