Encroachment Remedy Showdown: When must an adjoining owner remove boundary-crossing structures instead of buying the affected land under the Encroachment of Buildings Act 1922?

Based on the authentic Australian judicial case [2025] NSWLEC 1482 (Land and Environment Court of New South Wales, Class 3), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing:

Land and Environment Court of New South Wales

Presiding Judge:

Commissioner

Cause of Action:

Application for relief in respect of alleged encroachments under the Encroachment of Buildings Act 1922

Judgment Date:

7 July 2025

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Encroachment of Buildings Act 1922
Keyword 3: Boundary-crossing structures
Keyword 4: Discretion to order removal or transfer
Keyword 5: Misrepresentation to council approvals
Keyword 6: Fixtures versus boundary traversal

Background

An Applicant purchased a large rural holding with dual road frontage. Next door, the Respondents had, over many years, improved an outbuilding described as a studio and installed supporting infrastructure for its use, including a composting toilet structure and a greywater tank connected to treatment works. When a survey later confirmed that parts of those structures were not where the Respondents believed them to be, the dispute stopped being neighbourly and became strictly legal: whose land was being occupied, what parts counted as an actionable encroachment, and what remedy the Court should impose.

This was not a simple quarrel about a fence line. The built elements were substantial, partly underground, and connected to a sewage management system. The Applicant wanted the Court to use a statutory power to restore the land to her exclusive possession. The Respondents, while accepting there was a problem, wanted a different kind of statutory solution: redraw the boundary by transferring the affected land, pay compensation, and keep the structures in place.

Core Disputes and Claims

The dispute distilled into two legal questions.

First, what precisely was the “encroachment” the Court had jurisdiction to deal with under the Encroachment of Buildings Act 1922, given that some structures were wholly on the Applicant’s land while others crossed the boundary?

Second, once jurisdiction was enlivened, which remedy was “just” in the exercise of discretion: removal of the encroachment, or transfer of the subject land with compensation?

The Applicant sought orders for removal of the encroaching parts of the studio and associated sewage management components. Alternatively, if removal were refused, the Applicant sought transfer of the affected land to the Respondents with compensation.

The Respondents did not file a cross-application. They supported the alternative remedy of transfer and compensation, but sought a larger parcel than the Applicant proposed, including extra land for setbacks and to encompass additional structures.

Chapter 2: Origin of the Case

The Respondents acquired their land in the early 1990s. An existing shed was present near the boundary line. Over time, the shed evolved. Its footprint increased substantially. Later, the Respondents fitted it out for studio use and installed connected works: paving, a roofed verandah area, and a sewage management arrangement involving a composting toilet structure and a greywater tank, with pipes and treatment components extending across the landscape.

Years later, the Applicant entered the picture as a purchaser of the neighbouring holding. Before completing her purchase, the Applicant received information suggesting there might be a boundary issue. After settlement, she obtained survey confirmation. The survey did not merely show a minor eave overhang. It showed significant intrusion: parts of the studio extended metres beyond the boundary, while other components sat wholly on the Applicant’s land. The matter became acute not only because of land title integrity, but because the Applicant’s plans for the creek-adjacent area and the second road frontage depended on undisturbed use and control.

The dispute escalated in a familiar pattern in rural boundary conflicts: informal approaches, then solicitors’ letters, then mediation and draft “boundary adjustment” concepts, followed by breakdown in negotiations. The Respondents’ proposals at times sought far more land than the minimal footprint of the encroaching structures, driven by their preference for buffers and functional setbacks. The Applicant’s position hardened into a landowner’s first principle: she did not buy a property to surrender pieces of it because someone else built in the wrong place, especially where she considered the affected area valuable for amenity and commercial use.

Litigation followed when private bargaining failed. By then, the conflict was no longer about goodwill. It was about statutory criteria, evidentiary credibility, and the Court’s discretionary response to long-standing, unauthorised works that turned out to sit on the wrong title.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Survey evidence identifying the boundary line and showing the extent of intrusion by the studio and the location of the composting toilet structure and greywater tank.
2. Affidavit evidence describing discovery timing, negotiations history, and the Applicant’s intended use of the creek-adjacent area and second road frontage for commercial and environmental endeavours.
3. Expert town planning evidence addressing the approval history and the practical consequences of either removing the structures or attempting to regularise them.
4. Valuation evidence addressing the value of the affected land and, if transfer were ordered, the appropriate compensation and whether a statutory multiplier should apply.
5. Documentary evidence from the local council file, including application forms, statements of environmental effects, plans, correspondence, approvals, and the building certificate materials, used to demonstrate that the Respondents’ approvals narrative did not equate to lawful construction and that critical documents misrepresented the studio’s siting as entirely on the Respondents’ land.

The Applicant’s legal framing was clear: the encroachment was substantial; it was created by the Respondents’ works over multiple periods; and the Respondents took insufficient steps to ascertain the true boundary. The Applicant also pressed that the approvals history was tainted by incorrect siting information, undermining any claim that the Respondents were innocent recipients of council endorsement.

Respondents’ Main Evidence and Arguments

1. Affidavit evidence describing the studio’s use as a family creative space over many years and asserting a belief that the works were within their boundaries.
2. Expert town planning evidence, including a joint expert report process, addressing approvals, what could be approved retrospectively, and practicalities of compliance.
3. Valuation evidence supporting a lower per-square-metre approach to compensation and the proposition that the affected land had no special value to the Applicant beyond market value.
4. Reliance arguments suggesting council processes did not demand a survey and did not raise concerns, and therefore their failure to obtain a survey was not unreasonable.
5. Remedy arguments contending transfer would be more practical than removal, including setbacks, maintainability, and avoidance of awkward boundaries.

The Respondents’ practical pitch was the common one in encroachment disputes: the area is small relative to the Applicant’s whole landholding; the encroaching structure is valuable to the encroaching owner; removal is costly; transfer rationalises the situation with compensation; and the Court should prefer that solution.

Core Dispute Points

1. Whether each item was a “building” of a substantial and permanent character.
2. Whether each item was an “encroachment” within the statutory definition, meaning an encroachment by a building that traverses the boundary.
3. Whether “connected” structures wholly on the Applicant’s land could be treated as part of the encroachment through the law of fixtures or functional annexation.
4. Whether, as a matter of discretion, removal or transfer best served justice given the extent, history, parties’ conduct, hardship evidence, and the nature of approvals and misrepresentations.
5. If transfer were ordered, whether compensation should be at the minimum statutory level or increased, including whether the encroachment was unintentional and not arising from negligence.

Chapter 4: Statements in Affidavits

Affidavits in encroachment litigation often do two jobs at once. They present facts, and they quietly build a moral narrative to position the Court’s discretion. This case was no exception.

The Applicant’s affidavit materials were structured around three persuasion pillars.

First, ownership and purpose. The Applicant framed the creek-adjacent area as an amenity-rich zone tied to planned eco-tourism and environmental conservation. That framing mattered because discretionary relief under the Act requires the Court to weigh the adjacent owner’s loss and damage, not merely count square metres.

Second, process history. The Applicant recounted negotiation attempts, including mediation and proposals, to demonstrate reasonableness and to show that removal was not a first reflex but a conclusion reached after the Respondents sought land far beyond what was strictly required. That evidence positioned removal as a proportionate response to entrenched demands rather than an opportunistic land grab.

Third, boundary integrity and conduct. The Applicant’s evidence was designed to show that the Respondents expanded and serviced the studio over years without adequate boundary verification, and that the council file contained misrepresentations about siting. That is not merely factual background: it goes directly to statutory considerations about the circumstances of the encroachment and whether the encroaching owner should be treated as careless, negligent, or worse.

The Respondents’ affidavit approach was materially different.

They emphasised longstanding use and a domestic, benign intention: a family creative space, not a commercial venture. They also leaned on a belief narrative, suggesting reliance on informal boundary understanding at purchase and later council processes where survey was not demanded.

The contrast is instructive for practitioners: the Applicant’s affidavit targeted the statutory discretion factors like a checklist, while the Respondents’ affidavit targeted sympathy and practicality. In a statute that expressly directs attention to the “circumstances” of how the encroachment was made and relative loss, the Court’s scrutiny of what was done to verify the boundary and what was presented to council becomes decisive.

Strategic Intent Behind Procedural Directions Regarding Affidavits

Encroachment disputes frequently generate sprawling factual contest about decades of works. Procedural directions that confine affidavits, enforce admissibility, and channel expert evidence into joint reports serve two strategic purposes.

First, they prevent the matter from becoming a character trial about neighbours. The Court needs admissible facts about construction timing, boundary location, approvals, and impacts.

Second, they sharpen the discretionary decision. When the Court must choose between removal and transfer, it must compare hardship, loss, and conduct. Affidavits are the vehicle for that comparison, but only if they are properly tethered to evidence rather than speculation.

Chapter 5: Court Orders

Prior to final determination, the matter required procedural arrangements typical of Land and Environment Court Class 3 proceedings, including:

1. Directions for the filing and service of affidavits and annexures.
2. Orders for the exchange of expert reports and preparation of a joint expert report on town planning issues.
3. Orders concerning valuation evidence and expert methodology.
4. Evidentiary rulings excluding or limiting portions of affidavits and expert reports not pressed or objected to successfully.
5. Case management steps ensuring the council file was in evidence and exhibits were properly tendered and managed.

These steps matter because the final outcome depended on reconciling technical evidence about what traversed the boundary with legal principles about what counts as an encroachment and how discretion should be exercised.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing operated like an engineering audit conducted through legal rules.

The Court was required to identify the physical reality first: what was built, where it sat relative to the boundary, and how it functioned. Only then could the Court apply the statutory definitions and discretionary framework.

Process Reconstruction: Live Restoration

Cross-examination in this kind of dispute typically turns on three friction points: memory gaps about historical works, the credibility of claimed boundary beliefs, and the integrity of documents lodged with council.

Here, the Court confronted a key asymmetry: one Respondent’s affidavit was silent on the true extent and timing of early works, while the other Respondent did not give evidence. Against that stood expert interpretation of aerial photographs and a structural engineer’s certificate that, when read carefully, implied a timeline inconsistent with the Respondents’ suggestions that major expansion pre-dated their ownership.

The Court’s fact-finding preference aligned with a practical judicial instinct: where a witness remains vague about building works that expanded an outbuilding from a minor footprint to a significant structure, and where objective materials show the transformation occurred during the witness’s ownership era, the Court is likely to prefer the objective record.

Core Evidence Confrontation

The most decisive confrontation concerned not only the survey showing encroachment but the council file showing how the studio was represented.

Plans and statements presented the studio as wholly within the Respondents’ lot, and as compliant with setbacks. That portrayal was central because it was used to obtain development consent, an approval related to sewage management, and a building certificate. The Court treated that as significant, not because council approval automatically determines private rights, but because misrepresentation to public authorities speaks to the circumstances in which the encroachment was made and whether the encroaching owners took reasonable steps to get things right.

The second decisive confrontation concerned the legal characterisation of structures wholly on the Applicant’s land but functionally linked to the studio. Both parties attempted to solve that problem by invoking the law of fixtures. The Court rejected that shortcut, insisting on fidelity to the Act’s concept of encroachment: a building traversing the boundary. The Court instead analysed whether the sewage management arrangement could itself be treated as a single “building” that traversed the boundary.

Judicial Reasoning

The Court’s reasoning proceeded in disciplined stages.

Stage 1: Identify jurisdiction. Without an “encroachment” as the Act defines it, there is no power to order removal or transfer.

Stage 2: Determine what constitutes the “encroaching building” within the statutory definition, resisting the temptation to treat every connected object as part of the encroachment.

Stage 3: Apply discretion. Even if there is an encroachment, the Court may grant or refuse relief and must weigh the statutory factors and broader justice.

The Court’s logic is best captured in two determinative statements.

“An ‘encroachment’ under the Act is an encroachment by a building that traverses the ‘boundary’ between the contiguous parcels of land.”

This statement was determinative because it set the non-negotiable gateway: the Act is not a general remedy for inconvenient structures on someone else’s land. It is a targeted mechanism for buildings that cross the boundary line. That framing controlled how the Court treated pipes, paving, and structures wholly on one side.

“In failing to take any steps to ensure that the work was within their property boundaries, the respondents had total disregard to the rights of the adjoining property owner…”

This statement was determinative because it anchored the discretionary outcome. The case was not decided on sympathy or relative acreage. It was decided on a pattern of unauthorised works, inadequate boundary diligence, and the use of documents that misrepresented siting, which together made it unjust to allow the Respondents to solve the problem by acquiring the Applicant’s land.

Chapter 7: Final Judgment of the Court

The Court ordered that, within 60 days, the Respondents remove at their expense the identified encroachments from the Applicant’s lot. The removal order covered:

1. The detached studio building to the extent it encroached, including the verandah component as marked on the survey annexure.
2. The detached building containing the waterless composting toilet and its components.
3. The greywater tank and associated pipework as marked on the survey annexure.

The Court also made directions concerning exhibits, including return of one exhibit and retention of others.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This chapter follows the mandatory internal order: Special Analysis → Judgment Points → Legal Basis → Evidence Chain → Judicial Original Quotation → Analysis of the Losing Party’s Failure.

Special Analysis

This decision is a high-utility authority for two recurring problems in rural and peri-urban boundary disputes.

First, it shows the Court’s unwillingness to let parties expand the Act’s reach through broad “connectedness” arguments. The statutory concept of “encroachment” remains boundary-centric. Functional links like pipes and conduits do not automatically convert separate structures on the neighbour’s land into an “encroachment” if they do not traverse the boundary as a building.

Second, it illustrates a sophisticated pathway for dealing with systems rather than standalone objects. Instead of treating the composting toilet structure and the greywater tank as fixtures of the studio in a property law sense, the Court treated them as components of a single sewage management system that could be characterised as a substantial, permanent structure traversing the boundary. That approach fits the statutory language without distorting it.

Third, the decision is a reminder that council approvals and building certificates have limited, specific effects. They may immunise against certain enforcement actions or authorise prospective use, but they do not rewrite private title boundaries or legitimise trespass onto neighbouring land. Where approvals were obtained on inaccurate site plans, the moral force of “council said it was fine” collapses.

Judgment Points

1. Gateway discipline: jurisdiction depends on a boundary-traversing building, not mere inconvenience.
   The Court began with first principles: the Act is enlivened only by an encroachment as defined. This prevents opportunistic expansion of statutory power to resolve every neighbour conflict about objects on land. For the public, the lesson is simple: not every over-the-line item triggers the same legal tools. For practitioners, it means plead and prove the statutory definition with precision.

2. Rejecting fixtures as a shortcut for the boundary traversal requirement.
   Both sides attempted to use fixtures logic to pull wholly-on-one-side structures into the “encroachment” label. The Court held that approach was inconsistent with established authority. The practical meaning is powerful: annexation arguments that work in ownership disputes do not necessarily work in statutory encroachment proceedings. If you are advising a client, you must identify the proper doctrinal vehicle rather than forcing a familiar doctrine into the wrong statute.

3. System thinking: a sewage management system can be a single substantial, permanent structure.
   The Court treated the composting toilet and greywater tank, combined with treatment elements, as a system capable of constituting a substantial and permanent “building” that traversed the boundary. This is the decision’s most jurisprudentially interesting move. It shows that “building” is interpreted broadly, but not carelessly. The Court anchored breadth in physical reality: in-ground components, concrete encasing, permanence, and cross-boundary spatial distribution.

4. Discretion punishes boundary indifference more than it rewards long usage.
   The Respondents had long used the studio and associated works. That did not carry the day. The Court wanted evidence of reasonable boundary diligence at the time of building. The absence of surveying steps, combined with repeated works over multiple periods, made the equities unfavourable to a transfer remedy. This is a crucial counselling point: “we have used it for years” is not the same as “we built innocently with reasonable care”.

5. Misrepresentation to council corrodes the moral legitimacy of a transfer remedy.
   The Court treated inaccurate siting representations in council documents as highly significant. Even if not deliberately deceitful, they were advanced without adequate verification. In discretionary statutory relief, that matters. The Act asks the Court to consider the circumstances in which the encroachment was made; misrepresentation is part of those circumstances.

6. Hardship evidence must be real, not assumed.
   The cost of removal was proved. Broader hardship was not. The Court was not prepared to infer personal devastation merely because a building is useful. Practically, if you want to resist removal, you must lead evidence: replacement feasibility, planning constraints, personal or financial impacts, and why compensation is the fairer solution.

7. Area comparisons do not decide justice when land has contextual value.
   The Respondents argued the affected land was small relative to the Applicant’s holding. The Court accepted the remoteness point but also accepted amenity and business potential: proximity to a creek and attractive aspect. The principle is that land’s value is not only arithmetic; it is contextual and purposive.

8. Transfer is not a reward when the transfer area must be far larger than the statutory subject land.
   The Court regarded it as important that resolving the encroachment by transfer would require land more than double or triple the land directly under the encroachment, driven by the building’s siting and practical space around it. Where the encroachment arose from unauthorised works and boundary disregard, the Court considered it unjust to grant a remedy that effectively gives the encroaching owner a windfall.

Legal Basis

The legal basis can be expressed as “Conclusion = Evidence + Statutory Provisions”.

1. Statutory power and discretion
   The Court’s power arises under the Encroachment of Buildings Act 1922, which permits orders for compensation, transfer or lease, or removal, and gives a broad discretion to grant or refuse relief as the Court deems proper.

2. Definition constraints
   The statute defines “encroachment” as encroachment by a building, including overhang and intrusion into the soil. “Building” means a substantial building of a permanent character. The Court treated these as real constraints, not flexible labels.

3. High authority boundary-traversal requirement
   The Court applied High Court authority establishing that the Act is concerned with buildings that traverse the boundary between contiguous parcels, rather than buildings wholly on one parcel, even if connected by pipes.

4. Discretionary factors
   The Court weighed factors including the nature and extent of encroachment, loss and damage to the adjacent owner, loss to the encroaching owner if removal is ordered, and the circumstances of creation. The factual findings about unauthorised works, boundary indifference, and misrepresentation were decisive.

5. Approvals and legality
   The Court analysed the legal effect of development consent, approvals under local government legislation, and a building certificate, and concluded these did not legitimise structures erected without proper authorisation and did not excuse boundary-crossing occupation.

Evidence Chain

A reliable evidence chain in this decision looks like this:

1. Objective spatial proof: survey evidence showing boundary and intrusions, including encroachment depth measurements.
2. Objective historical proof: aerial photograph analysis and engineering certificate dating supporting the conclusion that expansion works occurred during the Respondents’ ownership.
3. Regulatory record proof: council file documents showing absence of earlier approvals, correspondence requiring demolition or retrospective processes, and later applications supported by site plans depicting the studio as wholly on the Respondents’ lot.
4. Function and permanence proof: physical characteristics of the sewage management components, including in-ground and concrete elements, establishing a substantial and permanent structure.
5. Hardship proof: quantified removal cost, with limited additional hardship evidence.

This chain supported two outcomes: jurisdiction was enlivened for the studio and sewage management system components, and discretion favoured removal.

Judicial Original Quotation

“Based on the established case law, I consider that a connection by a pipe or electrical conduit to the studio is not sufficient to render a building wholly located on the applicant’s land an encroachment.”

This was determinative because it closed the door on the Respondents’ attempt to treat every connected structure as within the Act. It reinforces that the Act is not a “connected infrastructure” statute. It is a boundary-crossing building statute.

“Whilst this comes at a cost to the respondents, that cost does not justify an alternative order in circumstances where the encroachment was created by works carried out without development consent or approval … and where all approvals … involved a misrepresentation … as to the location of the structures.”

This was determinative because it links remedy selection to conduct and legality. The Court did not treat removal as punitive for its own sake, but as the just response to a pattern that made a transfer remedy unjust.

Reference to Comparable Authorities

1. Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471
   Ratio: The Act concerns horizontal encroachment by a building traversing the boundary between contiguous parcels; pipes crossing a boundary do not, without a boundary-traversing building, enliven the power to order transfer.

2. Cuthbert v Hardie (1989) 17 NSWLR 321
   Ratio: Clarifies limits on what counts as a “building” and rejects over-expansive inclusion of minor structures such as certain paving, reinforcing that “substantial” and “permanent” are meaningful constraints.

3. Cantamessa v Sanderson (1993) 6 BPR 13,127
   Ratio: Illustrates that courtyard paving may not qualify as a substantial building for the purposes of encroachment relief, supporting careful classification rather than assumption.

4. Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177
   Ratio: Development consent cannot authorise development already carried out, reinforcing the distinction between prospective authorisation and retrospective regularisation narratives.

5. Ireland v Cessnock City Council [1999] NSWLEC 153
   Ratio: A building certificate is not the same as approval making an unlawfully erected building lawful; it creates limited immunities, not a legal transformation.

6. Healam v Hunter (1991) NSW Conv R 55-569
   Ratio: Raises questions about the extent of land that may be transferred beyond the strict “subject land”, relevant to disputes where practical transfer boundaries are contested.

Analysis of the Losing Party’s Failure

The Respondents lost not because transfer is never available, but because their evidentiary and conduct posture made transfer unjust.

1. They could not supply persuasive boundary diligence evidence.
   The Court looked for basic steps: survey, boundary marking, or equivalent reasonable precaution. The Respondents did not provide a credible account of such steps. Longstanding belief was not enough.

2. They relied on council processes that were built on incorrect siting information.
   The Respondents’ “regularisation” narrative collapsed because documents lodged with council depicted the studio as wholly within their land. The Court treated that as a misrepresentation advanced without adequate verification.

3. They did not prove hardship beyond cost.
   Removal cost is relevant, but discretionary justice compares both sides. Without detailed evidence of consequences, the Court was not persuaded that removal was disproportionate.

4. They sought more land than the minimum necessary.
   Seeking extra land for setbacks and additional structures can be practically understandable, but in a statutory discretion context, it invites a fairness question: why should an adjacent owner be compelled to give up a larger parcel because the encroaching owner built extensively in the wrong place?

5. They leaned on an incorrect legal theory for connected structures.
   Attempting to use fixtures or connection logic to enlarge the encroachment concept ran into higher authority and doctrinal limits. The Court’s rejection of that theory weakened their overall remedy case.

Implications

1. If you are building near a boundary, the cheapest step is often the most important: confirm the boundary properly before you pour concrete, lay services, or expand a structure. In boundary disputes, the Court weighs what you did to avoid the problem, not only what it costs to fix it.

2. Council documents are not just paperwork. Site plans and statements become evidence. If they are wrong, even through carelessness, they can undermine your credibility and the Court’s willingness to grant you a discretionary remedy.

3. The law is not impressed by arithmetic alone. Even if the disputed land is a small fraction of a large property, the Court can treat it as valuable because of amenity, access, or the owner’s intended use.

4. If you want the Court to prefer transfer over removal, you must prove real hardship and practical impossibility, not merely preference. Evidence matters more than assumption.

5. Litigation outcomes often turn on disciplined legal characterisation. A pipe crossing a boundary might feel like a “connection”, but the Act may require a boundary-traversing building. Choosing the right legal tool is the first act of self-protection.

Q&A Session

Q1: If a structure is wholly on the neighbour’s land but connected by pipes or power to my building, can I argue it is part of an encroachment?

Not automatically. A functional connection is not the same as a statutory encroachment. Courts focus on whether there is a substantial, permanent building that traverses the boundary, and whether the item in question fits within that concept. Systems may sometimes be treated as a single structure if they are substantial, permanent, and physically distributed across the boundary, but mere connection alone is usually insufficient.

Q2: Does a council development consent or building certificate make the encroachment lawful?

Not in the sense of rewriting title boundaries or authorising occupation of a neighbour’s land. Development consent generally authorises development prospectively, not retrospectively, and a building certificate may create limited immunities from council enforcement rather than making an unlawful building lawful. Private land rights between neighbours remain governed by property law and, in this context, the specific encroachment statute.

Q3: Why would a Court order removal instead of just transferring the land with compensation?

Because removal versus transfer is discretionary and depends on justice in the circumstances. Where the encroachment arose from unauthorised works, inadequate boundary diligence, and inaccurate representations in official documents, the Court may regard it as unjust to compel the adjacent owner to surrender land. If hardship evidence is weak and the transfer area would be much larger than the encroachment footprint, the case for removal strengthens.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype:

Boundary Encroachment — Multi-structure encroachment and associated services under the Encroachment of Buildings Act 1922

Judgment Nature Definition:

Final Judgment

2. Self-examination of Core Statutory Elements

Execution Instruction Applied

This case most closely sits within Property, Construction and Planning Law for practical analysis. The following test standards are provided as rigorous reference points only. Outcomes can vary materially depending on jurisdictional facts, evidence quality, and statutory context.

Core Test 1: Statutory Warranties

Was the work performed in a proper and workmanlike manner?
Were the materials supplied good and suitable for the purpose?

Practical detail to apply:
1. Identify the scope of “work” in dispute. In boundary matters, “workmanlike” includes not only construction quality but also competent siting where siting is part of the professional standard.
2. Determine who performed or directed the work. Owners who commission works without professional siting checks may face increased risk that the Court views the circumstances as careless.
3. Gather objective materials: contracts, invoices, survey pegs, set-out certifications, builder communications, and any “as-built” plans.
4. Compare the physical works with approvals and plans. If plans misstate location, treat that as a red flag requiring deeper investigation.

Core Test 2: Defects Classification

Is it a Major Defect or a Minor Defect?
Does the defect render the building uninhabitable or cause the destruction of the building?

Practical detail to apply:
1. In boundary disputes, the “defect” is often legal-spatial rather than structural. However, remediation can still involve structural alterations.
2. If removal is ordered, assess whether removal creates secondary structural risks. This may require engineering evidence.
3. If arguing for transfer as an alternative to removal, quantify what makes remediation “major” in practical terms: cost, feasibility, safety, compliance, and time.

Core Test 3: Planning Compliance

Have the conditions of the Development Application or Complying Development Certificate been breached?

Practical detail to apply:
1. Identify the consent scope. Many approvals authorise use, not the physical works already undertaken.
2. Check whether consent assumed compliance with setbacks and boundary location. If consent was granted on incorrect siting information, its persuasive force in private litigation tends to be weak.
3. Collect the planning instrument controls relevant to setbacks and permissible uses. If a building is not permitted as a dwelling, evidence of residential use can create further compliance problems.

3. Equitable Remedies and Alternative Claims

Promissory or Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation?
Did you act in detrimental reliance on that promise?
Would it be unconscionable for the other party to resile from that promise?

Result reference: Even without a written contract, equity may prevent a party from going back on their word where the reliance and unconscionability thresholds are met.

Practical application in boundary contexts:
1. Identify any express assurances about boundaries or use of land, including written emails, text messages, or mediation heads.
2. Prove reliance actions: building works, improvements, expenditure, or changed position based on the assurance.
3. Prove detriment: money spent, opportunities forgone, or irreversible alterations.
4. Anticipate evidentiary risk: informal neighbour statements are often disputed, so corroboration is critical.

Unjust Enrichment or Constructive Trust

Has the other party received a benefit at your expense?
Is it against conscience for them to retain that benefit without payment?

Result reference: The Court may order restitution of the benefit or declare a beneficial interest via constructive trust in appropriate circumstances.

Practical application:
1. Identify the measurable benefit. In encroachment matters, benefit may be use of land or increased utility of a building.
2. Establish the expense. This could be loss of exclusive possession, lost commercial opportunity, or costs incurred due to the encroachment.
3. Evaluate whether statutory remedies displace equitable ones. In many contexts, equity may still assist where statute does not provide a complete solution.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Encroachment statute threshold: the encroachment must be by a substantial building of a permanent character that traverses the boundary between contiguous parcels.
2. Evidentiary threshold: survey or equivalent reliable proof of boundary and intrusion is typically necessary.
3. Discretion threshold: even if encroachment exists, relief is not automatic; the Court weighs circumstances, hardship, and justice.

Exceptional Channels

1. Where the object is not a “building” for statutory purposes, alternative relief may arise under property law, trespass, nuisance, or orders for removal of fixtures.
2. Where approvals exist but were granted on incorrect information, arguments may arise about validity or limited legal effect.
3. Where removal would create disproportionate harm and the encroachment was demonstrably accidental despite reasonable precautions, transfer with compensation may be more likely, depending on the evidence.

Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against any statutory and equitable alternatives, as they are often the key to a viable pathway.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:
1. The boundary-traversal requirement for jurisdiction under the Encroachment of Buildings Act 1922.
2. The limits of “connectedness” arguments involving pipes, conduits, and ancillary structures.
3. Discretionary analysis favouring removal where works were unauthorised and boundary diligence was absent.
4. The limited effect of planning approvals and building certificates in private encroachment disputes, particularly where documents misrepresented siting.

Citation Method

As Positive Support: When your matter involves substantial encroachment and evidence of inadequate boundary verification, citing this authority can strengthen an argument that removal is the just outcome.
As a Distinguishing Reference: If the opposing party cites this case, you should emphasise factual uniqueness such as careful surveying steps taken before construction, immediate remedial conduct, transparent dealings with council, or disproportionate hardship evidence supporting transfer.

Anonymisation Rule

Do not use the real names of the parties; strictly use procedural titles such as Applicant and Respondents.

Conclusion

Encroachment disputes are decided by more than geometry. They are decided by the disciplined fit between statutory definitions and physical reality, and by whether the Court can trust the story told by the evidence. Where a party builds first and verifies boundaries later, discretionary mercy becomes relatively difficult to secure.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Land and Environment Court of New South Wales ([2025] NSWLEC 1482), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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