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) Solicitors: Fortis Law (Applicants) Lion Legal (Respondents) File Number(s): 2023/364496 Publication restriction: Nil Judgment 1. COMMISSIONER: These proceedings are an application to the Court pursuant to the Encroachment of Buildings Act 1922. The application concerns a brick dividing fence and associated structures, which is along the common boundary between 45 Reynold Street and 81 Mullens Street in Balmain, and extends beyond the boundary and into 45 Reynold Street by between 0.115m and 0.325m. The applicants are the owners of 45 Reynold Street, and lodged a Class 3 Application against the respondents, the owners of 81 Mullens Street, seeking the removal of that part of the fence that encroaches into their land. The final orders in these proceedings, outlined in [8] below, are made as a result of an agreement between the parties that was reached at a conciliation conference. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 18 March 2024, and continued on 4 and 19 April 2024. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that was acceptable to the parties. The decision agreed upon is for the removal, by the applicants with the cost to be shared by both parties, of the existing structure and its rebuilding on the boundary line. The decision agreed upon also includes orders for there to be a contribution in equal terms to the costs of the removal of the fence and its placement on the boundary. 4. As the presiding Commissioner, I am satisfied that the decision to make orders to remove the encroachment is a decision that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act), for the reason that s 3(2)(c) of the Encroachment of Buildings Act empowers the Court to make orders for the removal of the encroachment. It provides that: 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. … 1. Consistent with the jurisdictional note provided by the parties, I consider that the power of the Court, in s 3(2)(c), to make "such orders as it may deem just" with respect to the removal of the encroachment, is not confined to the demolition of the encroaching fence but extends to the making of orders for its rebuilding in a manner that does not cause an encroachment. This therefore extends to orders that require a survey and other measures to be undertaken so that the rebuilding of the fence is on the boundary. 2. In addition, s 14 of the Encroachment of Buildings Act allows the Court to "make such order as to payment of costs charges and expenses as it may deem just in the circumstances". This power extends beyond orders for the payment of legal costs, and provides a specific power that allows orders to be made for the payment of the costs of removal of the encroachment. Accordingly, I am satisfied that the terms of the decision agreed upon by the parties, for the parties to contribute equally to the costs of the physical acts the subject of the orders, is within the scope of a decision that the Court can make in the exercise of its powers under the Encroachment of Buildings Act. 3. For the reasons above, I am satisfied that the decision agreed upon by the parties is one that the Court could make in the exercise of its functions. Having reached that state of satisfaction, s 34(3)(a) of the LEC Act requires me to "dispose of the proceedings in accordance with the decision". The LEC Act also requires me to "set out in writing the terms of the decision" (s 34(3)(b)). I therefore make orders in accordance with the agreement of the parties. Orders: 1. The Court orders that: 1. Within 60 days of these orders: 1. 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. 2. 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. 1. 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. 2. 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: 1. 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; 2. as far as practicable, ensure that the brickwork sits within 130mm of each side of the boundary; and 3. 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, 1. with the parties equally contributing to the costs of complying with this order. 2. The proceedings are otherwise dismissed with no orders as to costs. 1. The Court notes the parties' agreement that the respondents are to reconstruct the Shed at their own expense. ………………………. J Gray Commissioner of the Court Annexure A Annexure B Annexure C Annexure D ********** 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: 14 May 2024