Appearances Applicant Mr R A S Skiller, Barrister

This is an application brought by Mr Alex Anagnostou and his wife Mrs Eleferia Anagnostou under the Encroachment of Buildings Act 1922 ("the Act"). They seek relief consequent upon an alleged encroachment upon their property of a brick wall, a carport roof and garage footings.

The applicants live at 31 Cleland Street Mascot ("No 31") and have done so since 1972. The respondents have owned the adjoining property at 29 Cleland Street Mascot ("No 29") since 1975 but have only lived there themselves since 1982.

The boundary between No 31 and No 29 runs west to east from Cleland Street to the rear for a distance in excess of 30m. As it currently stands, the boundary has three components. First at the western end, adjacent to Cleland Street, there is a single brick wall which proceeds for a short distance and incorporates, at its eastern end, a brick archway, which rises from the brick wall across to the corner of the house erected upon No 29. Secondly, proceeding from the archway there is a metal or colourbond screen fence which runs along the major part of the common boundary. Thirdly, at the rear end of the boundary, there is no fence, but there are adjoining garages, a brick garage being erected on No 29 and a fibro garage upon No 31.

Prior to taking up residence at No 29 in 1982, the respondents carried out some works on that site. These included, amongst other things, the construction of the brick garage and the carport and an extension and "bricking" of the house which included the construction of the brick wall and archway.

The applicants claim that the wall upon which the archway rests, the roof of the carport and the footings of the garage all encroach on to No 31.

The current position of the structures on No 31 is set out in a survey dated 29 May 1995 carried out by Mr R W Young of K J Morrow and R W Young Pty Ltd. This survey was by way of an addendum to an earlier survey carried out by the same surveyor which was dated 21 July 1992 and which had accompanied the class 3 application. The difference between the two surveys is the identification of the footings of the garage on No 29, which had not appeared in the earlier survey.

The surveys when read together reveal the following encroachments:

the brick wall at the front of the two properties, the eastern end of which supports the brick archway, encroaches onto No 31 by 40mm at its western end and by 90mm at its eastern end;

the carport roof on No 29 overhangs No 31 by 20mm;

the concrete footings of the brick garage on No 29 encroach onto No 31 by 250mm at their western end and 150mm at their eastern end.

The fact and extent of these encroachments was not challenged by the respondents. Mr Confos, on their behalf, objected to the tender of the survey dated 29 May 1995 on the ground of its lateness, but I allowed it into evidence, and the hearing proceeded upon the basis that the encroachments I have listed form the foundation of the applicants' claim.

The building works which constitute the encroachment were carried out by the respondents in 1981 and 1982. The applicants were informed of these works. Mr Vinicio claimed that Mr Anagnostou actually assisted in carrying them out, in particular by preparing the frame required to construct the brick archway. Mr Anagnostou admitted that he assisted in some of the building work, but claimed it was internal work only. However that may be, what is clear is at the time neither party was aware that any of the building work would constitute an encroachment.

Sometime in 1991 or 1992, Mr Anagnostou and Mr Vinicio, who until that time had been friends, had a falling out and ceased talking to each other. The reasons for this are unclear and are, in any event, irrelevant. However, as was apparent from remarks made by each of them in the witness box, their current relationship is antagonistic, hostile and non-communicative.

At the time when the brick wall was erected, the remainder of the boundary between the two properties was divided by a paling fence which leaned slightly towards No 31. In mid 1992, Mr Young carried out his first survey of No 31. This survey revealed that the paling fence was built wholly on No 31.

By letter dated 10 December 1992, Mr Anagnostou's solicitors sought the construction of a fence to replace the existing paling fence and requested the respondents to bear one half of the cost of the construction of that fence. Correspondence was exchanged and a number of steps took place between the parties culminating in a Local Court hearing pursuant to the Dividing Fences Act 1991. On 5 May 1994, Magistrate Price ordered that the parties join in and contribute towards the construction of a colourbond dividing fence to replace the existing paling fence. This fence was built on the actual boundary and its construction made visible the encroachment of the brick wall and the archway.

In his report of 29 July 1992, Mr Young had stated that "[d]ue to the building materials stored between the southern face of the adjoining brick garage and the northern face of the subject fibro garage, the footings of the two buildings could not be determined". However, sometime between the commencement of these proceedings on 29 March 1995 and the hearing, the applicants, or a builder employed by them, dug holes in the space between the brick garage on No 29 and the fibro garage on No 31. The footings of the brick garage were then discovered to be on No 31. Mr Anagnostou dug away the soil which covered those footings and requested Mr Young to update his survey to take the footings into account. The evidence of Mr Anagnostou was that the footings of his fibro garage extend about 50mm below the surface of the soil and rest above the footings of the brick garage which are at a level approximately 200mm below the surface.

During cross examination of Mr Vinicio it appeared that the footings may have pre-dated the work which he carried out in 1981. Although unclear, it seemed from his evidence that the footings upon which the brick garage on No 29 was constructed may have been in existence prior to that construction of that brick garage. Mr Vinicio's evidence was that there was already a concrete slab in existence when he built the garage and that a layer of concrete was added to the existing slab to bring it up to the level of his driveway.

Section 3(3) of the Act relates to the power of the Court to grant or refuse relief, and it sets out the matters which may be taken into account. It is in the following terms:

"3(3) The court may grant or refuse the relief or any part thereof as it deems proper in the circumstances of the case, and in the exercise of this discretion may consider amongst other matters -

(a) the fact that the application is made by the adjacent owner or by the encroaching owner, as the case may be;

(b) the situation and value of the subject land, and the nature and extent of the encroachment;

(c) the character of the encroaching building and the purposes for which it may be used;

(d) the loss and damage which has been or will be incurred by the adjacent owner;

(e) the loss and damage which would be incurred by the encroaching owner if he were required to remove the encroachment;

(f) the circumstances in which the encroachment was made."

The expression "the subject land" in subs (3)(b) is defined in s 2 to mean "that part of the land over which an encroachment extends".

I turn to consider each of the three encroachments having regard to the circumstances of the case, and the matters listed in s 3(3).

In respect of the brick wall and archway a number of matters are relevant. The extent of the encroachment is trifling, being between 40mm and 90mm. The wall sits on the boundary of the two properties and forms part of a dividing fence between the properties. At the time at which the wall was constructed it was believed by both parties, due to the position of the paling fence, that the brick wall had been built on the common boundary. I infer from the evidence that the mistaken belief that the brick wall was on the boundary was a mutual mistake. There was no evidence that the existence of the encroachment diminishes the value of No 31 nor was there evidence, apart from assertions by Mr Anagnostou in the witness box, that the applicants would suffer any financial loss or any other damage by allowing the brick wall and archway to remain. The respondents, on the other hand, would be put to some expense (although, again, no evidence of the amount of that expense was provided) if required to demolish the whole of the wall and the archway and a new dividing fence for that part of the boundary would be required.

I should interpolate here that there was a complete paucity of evidence from both parties which could allow the Court properly to assess the matters set out in subss 3(b), 3(d), and 3(e) of s 3, that is, the value of the parts of No 31 over which the encroachments extend and the loss and damage which has been or will be incurred by both the applicants and the respondents. Mr Skiller, for the applicants, tendered a notice from the Valuer-General's office of the land value of No 31 as at the base date of 1 July 1993, which showed a figure of $145,000, but I find this of no assistance whatever in determining the value of the parts of No 31 over which the encroachments extend, nor in quantifying the loss or damage to No 31 which might be incurred by the applicants as a result of the encroachments. Similarly, no evidence was adduced to quantify the loss or damage which might be incurred by the respondents if they were ordered to remove the encroachments.

The 20mm encroachment of the carport roof is also trifling. As I have said, there was no evidence as to the effect which this encroachment has on the value of No 31 nor as to whether it would cause loss or damage to the applicants if allowed to remain. Indeed, this encroachment hardly figured at all in the hearing, since virtually no evidence was led from either Mr Anagnostou or Mr Vinicio about it, and Mr Skiller omitted to refer to it in his submissions.

The extent of the encroachment of the footings of the garage is slightly more substantial, being between 250mm and 150mm, but that encroachment is still insignificant. I note in this connection that these footings are 200mm under the ground. Further, it is possible that this encroachment pre-dates the involvement of either of the parties with the properties. Again no financial loss resulting from the encroachment has been proved by the applicants. When giving evidence, Mr Anagnostou claimed that the existence of the footings would prevent him from building his own brick garage, but despite this assertion, no expert evidence was led to establish whether this was actually the case. Similarly, Mr Anagnostou claimed that all of the encroachments would prevent him selling No 31, but no evidence, from a real estate agent or other suitably qualified person, was brought to substantiate such a claim.

For a reason which remains unclear to me, no cross-claim was filed by the respondents seeking a form of relief which would allow the encroachments to remain, but Mr Confos made it clear on their behalf that they sought an easement in respect of each of the encroachments and that they were willing to meet the costs of the creation of such easements but otherwise were not willing to pay compensation to the applicants.

The principal feature of this case is that the encroachments are trivial. They are very minor indeed, and I am left with the abiding feeling that these proceedings truly arose because of the antagonism and bad relations between the parties and not because the encroachments cause difficulty and problems for the applicants.

Since the hearing of the proceedings, Mr Justice Bignold delivered a judgment in relation to a claim and cross-claim between neighbours under the Act (Butland & Anor v Cole & Anor, 19 June 1995, unreported). That was also a case where the encroachments were trifling and the claims were made in circumstances where the parties had fallen out with one another. His Honour, in the exercise of his discretion, refused to grant relief.

It is a matter of some concern to me that proceedings are taken under the Act, seeking relief in respect of encroachments, where the real source of concern is not the encroachments themselves, but the personal differences between the parties. The Act, in my opinion, is designed to achieve a just settlement of rights where an encroachment exists; it is not designed, nor could it be, to settle the grievances of the parties when those grievances arise from causes quite independent of the actual encroachment. In an unreported judgment in the matter of Crawford & Anor v Nicholls which I delivered on 19 November 1993, I made some remarks which are apposite here. I said that "peace" is "... not in the province of this Court to give. It never is in the case of a neighbourhood dispute. The only 'peace' that will come in a neighbourhood dispute is the peace that comes from the two neighbours. Unless the two neighbours are prepared to live together and live in harmony and work towards that, then there is nothing that a third party, let alone a court, can do to effect harmony".

Section 3(3) of the Act empowers the Court to "grant or refuse relief ... as it deems proper in the circumstances of the case". I have concluded that, because the nature and extent of the encroachments is trifling, because they have been in existence since 1982 without any perceived ill-effects, and because there was no evidence of any adverse effect upon No 31, I should, in the exercise of my discretion, refuse relief.

I have also concluded that it is appropriate to award costs in favour of the respondents. It is normally the case that costs are payable by an unsuccessful party. Here the applicants have brought these proceedings and caused the respondents to incur the costs of the litigation. The order for costs is to compensate the respondents for that liability, not to punish the unsuccessful applicants (see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 567).

2. The applicants must pay the costs of the respondents.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.