Encroachment of Buildings Act 1922 (NSW)

Encroachment of Buildings Act 1922 No 23

An Act to make provision for the adjustment of boundaries where buildings encroach on adjoining land; to facilitate the determination of boundaries; and for purposes connected therewith.

1 Name of Act This Act may be cited as the Encroachment of Buildings Act 1922.

2 Definitions In this Act, unless the context or subject-matter otherwise indicates or requires: Adjacent owner means the owner of land over which an encroachment extends. Boundary means the boundary line between contiguous parcels of land. Building means a substantial building of a permanent character and includes a wall. Court means the Land and Environment Court. 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. Owner means any person entitled to an estate of freehold in possession: (a) whether in fee simple or for life or otherwise, (b) whether at law or in equity, (c) whether absolutely or by way of mortgage, and includes a mortgagee under a registered mortgage of a freehold estate in possession in land under the Real Property Act 1900. Subject land means that part of the land over which an encroachment extends.

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) The Court may refer any question involved in proceedings on the application to: (a) any registered land surveyor (within the meaning of the Surveying and Spatial Information Act 2002), or (b) any valuer. (5) This section applies to encroachments made either before or after the commencement of this Act.