Event and Time
Event Description
The case revolves around a dispute between Nicole-Anne Hickey and Glenn Mark Hickey (the Applicants) and The Owners Strata Plan 78825 (the Respondent) regarding the legality of a gabion retaining wall, built partially on the Applicants' property, under the Encroachment of Buildings Act 1922 (NSW).
Application and Claims
The Applicants filed an application seeking: 1. An easement for the gabion wall to remain registered over the land occupied by it, with the Respondent bearing the cost of preparation and registration. 2. Maintenance obligations for the gabion wall to be undertaken by the Respondent. 3. Compensation for the encroachment of the gabion wall on their property. 4. The Respondent to cover the Applicants' legal costs on an indemnity basis.
Judicial Decisions
The court found that the Applicants were the "Encroaching Owner" under the relevant laws, rendering them ineligible for the relief sought. Consequently, the application was dismissed.
Dispute Points and Legal Basis
Dispute Points
- Applicants’ Arguments:
- The gabion wall is a building that encroached onto their land. - They did not consent to its construction, and it provides vital support to their property. - They should be acknowledged as the "Adjacent Owner," eligible for relief under the Encroachment Act.
- Respondent’s Arguments:
- The majority of the gabion wall is located on the Applicants’ land, qualifying them as the "Encroaching Owner." - There was no wrongdoing on their part as they did not construct the wall; it was constructed by a developer without the Applicants' knowledge.
Ruling and Impact
Ruling Result
The court ruled in favor of the Respondent, determining that the Applicants are categorized as the "Encroaching Owner" and thus not entitled to the relief sought under the Encroachment Act. The application was dismissed.