Campbell v Crane [2009] NSWSC 363

New South Wales Supreme Court

CITATION : Campbell v Crane [2009] NSWSC 363

HEARING DATE(S) : 16 and 17 December 2008

JUDGMENT DATE : 8 May 2009

JUDGMENT OF : Smart AJ

DECISION : See paragraph 56

CATCHWORDS : Encroachment on neighbouring property - claims for trespass - order for conveyance of narrow strip of land along boundary - damages and compensation

LEGISLATION CITED : Encroachment of Buildings Act 1922

CATEGORY : Principal judgment

David Campbell (1st Plaintiff) PARTIES : Margaret Campbell (2nd Plaintiff) Steven Crane (Defendant)

FILE NUMBER(S) : SC 12997/07

COUNSEL : M Lawson (Plaintiffs) M Holmes (Defendant)

SOLICITORS : Thomas Mitchell (Plaintiffs) Duncan Cotterill (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Smart AJ

Friday 8 May 2009

12997/07 David and Margaret Campbell v Steven Crane

JUDGMENT 1 The dispute between Mr and Mrs Campbell and Mr Crane, who respectively own 15 and 17 The Parade Belmont, concerns encroachments upon 15 The Parade. Both properties are in an older part of Belmont and have attractive views to the rear. Unfortunately, 15 The Parade is a narrow block with a street frontage of about 10.58 metres. By their Statement of Claim the plaintiffs sought damages including the costs to the plaintiff of removing some ten specified encroachments and restoring the plaintiffs' property to the condition it was allegedly in prior to the defendants completing the work resulting in encroachments, damages for trespass, aggravated and / or exemplary damages. By their Amended Statement of Claim the plaintiffs additionally sought an order under s 3(2)(c) of the Encroachment of Buildings Act 1922 (NSW) that the encroachments be removed, an order under s 3(2)(a) of that Act that the defendant pay the plaintiffs compensation and an injunction requiring the defendant to remove the encroachments and to make good the plaintiffs' property within a reasonable period, as determined by the Court. Additionally, and in the alternative, damages for trespass were claimed. 2 In his defence, the defendant says that he purchased 17 The Parade about 28 July 1989 and has remained the owner ever since. The Defence deals individually with each of the ten alleged encroachments. In broad terms, some of the encroachments are admitted but it is contended that they are of long standing, pre-date 1989 and are minor. The defendant admits that he caused certain work to be carried out along or close to the common boundary over the years. It is a theme of the defence that all encroachments are minor and do not interfere with or affect the use and enjoyment of the plaintiffs' land and for which the plaintiffs are not entitled to compensation or damages. The defendant contends that he did not intend to enter the plaintiff's property and did not do so negligently. 3 By his Cross-Claim, Mr Crane sought a declaration, pursuant to s 9 of the Encroachment of Buildings Act 1922, that the true boundary between the land owned by Mr and Mrs Campbell and that owned by Mr Crane was represented by the fence line between the two properties such that any encroachments which appear in the survey of David R Walpole of 13 May 2008 are wholly within the land owned by Mr Crane. Such a declaration should be refused. 4 Alternatively, Mr Crane sought an order pursuant to s 3(2)(b) of the Encroachment of Buildings Act 1922 for: