Background
Bo Xiao and Wei Bo Diao owned 10 Highland Crescent, Earlwood. Janine Hoai Nha Trang Nguyen owned the adjoining 8 Highland Crescent. Although both properties benefited from a registered right of carriageway, the applicants’ concrete driveway extended outside that right of way and encroached onto the respondent’s land.
The respondent had also undertaken alterations to her dwelling, with some structures extending across the common boundary onto the applicants’ land. The applicants brought Class 3 proceedings under the Encroachment of Buildings Act 1922 (NSW), seeking relief concerning the encroachment.
At conciliation conferences, the parties agreed to regularise both encroachments through reciprocal easements and compensation.
The Court’s Holding
Acting Commissioner Peatman held that the parties’ agreed outcome was one the Court could make in the proper exercise of its functions. Under s 34(3) of the Land and Environment Court Act 1979 (NSW), the Court was therefore required to dispose of the proceedings in accordance with that agreement.
The Court upheld the appeal and ordered the applicants to grant the respondent an easement over Area A on the applicants’ land, allowing the respondent’s encroaching structures, other than a fence, to remain for their lifetime and allowing pedestrian access. It also ordered the respondent to grant the applicants an easement over Area B on her land, allowing the driveway to remain and permitting vehicular and pedestrian access.
The respondent was ordered to pay the applicants $24,000 compensation, due by the later of 31 January 2027 and registration of the easements.
Key Takeaways
- Reciprocal easements can regularise encroachments by both adjoining owners.
- A conciliated agreement must be adopted where it is an order the Court could properly make.
- The orders preserved the existing structures and driveway while providing compensation to the applicants.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated resolutions of building-encroachment disputes. Rather than requiring removal of the encroaching works or driveway, the orders converted the parties’ practical arrangement into registrable property rights.
The accompanying agreement also addressed access, structural safety, maintenance, registration costs and each party’s own legal costs.