Date: Fri, 27 Jan 2006 10:06:44 +1100

From: Neil Foster

Subject: Wrotham Park Estate in the PC

Dear Jason et al;

Thanks for this - very interesting to see the analysis of what damages should be assessed here. Colleagues may be interested to know that in NSW at least (I gather there is something similar in Western Australia, Queensland and South Australia) we have a helpful Act called the Encroachment of Buildings Act 1922 which would have applied in this sort of case (a swimming pool no doubt counting as a "building" though there is some discussion in Cuthbert v Hardie (1989) 17 NSWLR 321 about whether a swimming pool "pump" alone would count). The criteria which the court has to take into account in determining compensation (it can also order demolition or a compulsory easement or other options in appropriate cases) are set out in s 4:

4 Compensation

(1) The minimum compensation to be paid to the adjacent owner in respect of any conveyance, transfer, lease, or grant to the encroaching owner shall, if the encroaching owner satisfies the Court that the encroachment was not intentional and did not arise from negligence, be the land value of the subject land, and in any other case three times such land value.

(2) In determining whether the compensation shall exceed the minimum, and if so by what amount, the Court shall have regard to:

(a) the value, whether improved or unimproved, of the subject land to the adjacent owner,

(b) the loss and damage which has been or will be incurred by the adjacent owner through the encroachment and through the orders proposed to be made in favour of the encroaching owner,

(c) the circumstances in which the encroachment was made.

In other words, there is a "minimum" amount based on land value, but if there is an "intentional" or "negligent" encroachment then a minimum of 3 times land value. The matters that go to whether even more can be awarded above the minimum are set out in s 4(2) which seems similar to the way that their Lordships approached the matter in Horsford.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> Jason Neyers 26/01/06 8:39 >>>

Dear Colleagues:

For an interesting case dealing with a boundary fence, mesne profits and Wrotham Park Estate see Joseph W Horsford v. Lester B Bird and others (Appeal No. 43 of 2004) which was released on 17th January 2006. The court decided, in a nutshell, that the value of the land need not be measured by its assessed market value but rather what the other side would be willing to pay for it.

<<<< Previous Message  ~  Index   ~  Next Message >>>>>