Hypotheticals by Manny Wood. Published in the Coffs Coast Advocate on 14 May 2016.
Keeping the Property Law theme alive from last week, today’s instalment turns from easements to encroachments.
John lives in a high density residential area. The hardwood supports for his roof, rest upon a brick wall that is constructed on Jane’s land.
Jane plans to commence a substantial building program on her property and when she becomes aware of the encroachment on her property, she asks John to demolish part of his roof.
Jane discusses her plans with her builder and is informed that building work will not commence for 14 months. Jane discusses this with John and offers to allow the encroachment upon her property to continue until building commences, provided John pays her a “license fee” in the sum of $4,000.
John refuses to pay, and Jane commences proceedings against him, seeking compensation under the Encroachment of Buildings Act and substantial damages at common law, in “nuisance” and “trespass”.
These types of matters need to be heard in the Supreme Court of New South Wales and barristers are retained.
The court notes that compensation is payable under the statute for the “loss of land” and “disturbance”.
The court hears that the encroachment was due to the previous owner of both blocks who did not pay “particular regard” to the boundary line and although the encroachment was not of John’s doing, Jane is entitled to prevent the continued use of her land.
In the circumstances, the court states that Jane will only suffer a minor “inconvenience” and awards $500 by way of compensation for disturbance together with an order that John pay Jane the $4,000 license fee.
The court denies Jane’s claim in nuisance and trespass.
The court decides that, although Jane was successful with part of her claim, because a large part of her claim failed, she was not entitled to a costs order against John and the parties were ordered to pay their own substantial legal costs.
