NORTHERN TERRITORY OF AUSTRALIA
ENCROACHMENT OF BUILDINGS ACT 1982
As in force at 1 May 2016
Table of provisions
Part I Preliminary
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Interpretation ................................................................................... 1
4 Application to Crown ........................................................................ 2
Part II Encroachment of buildings
5 Application for relief in respect of encroachments ........................... 2
6 Powers of Court on application for relief .......................................... 2
7 Compensation ................................................................................. 3
8 Charge on land ................................................................................ 4
9 Determination by Court .................................................................... 4
10 Vesting order ................................................................................... 4
11 Boundaries ...................................................................................... 5
12 Persons interested........................................................................... 5
Part III Buildings erected under mistake of title
13 Relief in case of buildings erected under mistake............................ 5
14 Nature of relief ................................................................................. 5
15 Application for relief ......................................................................... 7
Part IV General
16 Exercise of powers by Court in other proceedings, &c. ................... 7
17 Costs ............................................................................................... 8
ENDNOTES
NORTHERN TERRITORY OF AUSTRALIA
As in force at 1 May 2016
ENCROACHMENT OF BUILDINGS ACT 1982
An Act to provide for relief in respect of encroachments and
improvements made under mistake of title
Part I Preliminary
1 Short title
This Act may be cited as the Encroachment of Buildings Act 1982.
2 Commencement
This Act shall come into operation on a date to be fixed by the
Administrator by notice in the Gazette.
3 Interpretation
In this Act, unless the contrary intention appears:
adjacent owner means the owner of land over which an
encroachment extends.
boundary means the boundary line between contiguous parcels of
land.
building means a substantial building of a permanent character
and includes a wall.
Court means the Supreme Court.
encroaching owner means the owner of land contiguous to the
boundary beyond which an encroachment extends.
encroachment means encroachment by a building, including
encroachment by overhang of any part as well as encroachment by
intrusion of any part in, under or upon the soil.
owner means:
(a) a registered proprietor under the Land Title Act 2000;
Part II Encroachment of buildings
Encroachment of Buildings Act 1982 2
(b) a mortgagee in possession of land under a mortgage
registered under the Land Title Act 2000 of a freehold estate;
(c) where the land is held by the Crown in right of the Territory, or
forms part of a road as defined in the Control of Roads
Act 1953, the Territory; or
(d) where land is held by the Crown in right of the
Commonwealth, the Commonwealth.
subject land means that part of the land over which an
encroachment extends.
unimproved capital value, in relation to land, means the
unimproved capital value of that land ascertained in accordance
with section 9 of the Valuation of Land Act 1963.
4 Application to Crown
This Act binds the Crown in the right of the Territory and, so far as
the legislative power of the Legislative Assembly permits, the
Crown in right of the Commonwealth.
Part II Encroachment of buildings
5 Application for relief in respect of encroachments
(1) Either an adjacent owner or an encroaching owner may apply to the
Court for relief under this Part in respect of an encroachment.
(2) This section applies to an encroachment whether made before or
after the commencement of this Act.
6 Powers of Court on application for relief
(1) On an application under section 5, the Court may make such order
as it thinks fit with respect to:
(a) the payment of compensation to the adjacent owner;
(b) the conveyance, transfer, or lease of the subject land to the
encroaching owner, or the grant to him of any estate or
interest therein or of an easement, right, or privilege in relation
thereto; or
(c) the removal of the encroachment.
Part II Encroachment of buildings
Encroachment of Buildings Act 1982 3
(2) The Court may grant or refuse the relief or any part thereof as it
thinks fit and in the exercise of this discretion may consider
amongst other matters:
(a) whether the application is made by the adjacent owner or by
the encroaching owner;
(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; and
(f) the circumstances in which the encroachment was made.
7 Compensation
(1) The minimum compensation to be paid to the adjacent owner in
respect of a conveyance, transfer, lease or grant under section 6 to
the encroaching owner shall be:
(a) if the encroaching owner satisfies the Court that the
encroachment was not intentional and did not arise from
negligence, the unimproved capital value of the subject land;
and
(b) in any other case, 3 times the unimproved capital value of the
subject land.
(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
order proposed to be made in favour of the encroaching
owner; and
(c) the circumstances in which the encroachment was made.
Part II Encroachment of buildings
Encroachment of Buildings Act 1982 4
8 Charge on land
(1) An order under section 6 for payment of compensation may be
lodged with the Registrar-General and, on the Registrar-General
receiving the order, it operates, except so far as the Court
otherwise directs, as an overriding statutory charge within the
meaning of the Land Title Act 2000 on the land of the encroaching
owner.
(2) In this section land of the encroaching owner means the parcel of
land contiguous to the boundary beyond which the encroachment
extends.
9 Determination by Court
The Court may determine:
(a) in appropriate cases, and in particular where the encroaching
owner is not an owner beneficially entitled to the fee simple
free from encumbrances:
(i) by whom and in what proportions the compensation is to
be paid in the first instance, and is to be borne
ultimately; and
(ii) to whom, for whose benefit and upon what limitations the
conveyance, transfer or lease of the subject land or
grant of a type referred to in section 6(1)(b) in respect of
the subject land is to be made; and
(b) in appropriate cases and in particular where the adjacent
owner is not an owner beneficially entitled to the fee simple
free from encumbrances:
(i) to whom, for whose benefit, and in what proportions the
compensation is to be paid or applied; and
(ii) by whom the conveyance, transfer or lease of the
subject land or grant of a type referred to in
section 6(1)(b) in respect of the subject land is to be
made.
10 Vesting order
Where the Court may make or has made an order under this Part
with respect to subject land, it may make such vesting order as it
thinks fit in place of, in addition to, or in default of compliance with,
that order.
Part III Buildings erected under mistake of title
Encroachment of Buildings Act 1982 5
11 Boundaries
(1) Where any question arises as to whether an existing building
encroaches or a proposed building will encroach beyond a
boundary, either of the owners of the contiguous parcels of land
may apply to the Court for the determination under this section of
the true boundary.
(2) On an application under subsection (1) the Court may make such
orders as it thinks fit for determining, marking, and recording the
true boundary.
(3) This section applies to buildings erected either before or after the
commencement of this Act.
12 Persons interested
In an application under this Part the Court may require:
(a) notice of the application to be given to any person who is, or
appears to be, interested; or
(b) that a person who is, or appears to be, interested be made a
party to the application.
Part III Buildings erected under mistake of title
13 Relief in case of buildings erected under mistake
Where a person erects a building on land owned by another in the
genuine but mistaken belief that:
(a) such land is his property; or
(b) such land is the property of a person on whose behalf the
building is erected or intended to be erected,
application may be made to the Court for relief under this Part.
14 Nature of relief
(1) If, in the opinion of the Court, relief should be granted to the
applicant or to any other person, it may make an order:
(a) vesting in a person or persons specified in the order the whole
or any part of the land on which the building or any part
thereof has been erected either with or without any
surrounding or contiguous or other land;
Part III Buildings erected under mistake of title
Encroachment of Buildings Act 1982 6
(b) that a person or persons specified in the order shall or may
remove the building or any part thereof from the land or any
part of it;
(c) that a person or persons specified in the order pay
compensation in respect of:
(i) any land or part thereof;
(ii) any building or part thereof; or
(iii) any damage or diminution in value caused or likely to be
caused by or to result from the erection of a building or
the making of an order under this Part;
(d) that a person or persons specified in the order have or give
possession of the land or building or part thereof for such
period and upon such terms and conditions as the Court
specifies,
or any combination of those things.
(2) An order under this Part, and any provision of the order, may:
(a) include or be made upon and subject to such terms and
conditions as the Court thinks fit, whether as to payment by a
person of an amount of money, including costs, or the
execution by a person of a mortgage, lease, easement,
contract or other instrument, or otherwise;
(b) declare that an estate or interest in the land or any part thereof
on which the building has been erected to be free of any
mortgage, lease, easement or other encumbrance, or may
vary, to such extent as the Court thinks fit, a mortgage, lease,
easement, contract, or other instrument affecting or relating to
such land or any part thereof;
(c) direct that any person or persons execute any instrument in
registrable or other form necessary to give effect to the
declaration or order of the Court;
(d) order a person to produce to a person specified in the order a
title deed or other instrument or document relating to any land;
or
(e) direct a survey to be made of any land and a plan of survey to
be prepared.
Part IV General
Encroachment of Buildings Act 1982 7
15 Application for relief
(1) An application for relief under this Part may be made by:
(a) a person who made or who is for the time being in possession
of a building referred to in section 13; or
(b) the Territory or a person having an estate or interest in the
land or any part thereof upon which such building has been
erected; or
(c) a person claiming to be a party to or to be entitled to a benefit
under a mortgage, lease, easement, contract or other
instrument relating to such land or building; or
(d) the successor in title to, or mortgagee or lessee of, a person
upon whose land the building or any part thereof was intended
to be erected; or
(e) the consent authority within the meaning of the Planning
Act 1999 in relation to the land on which the building is
situated; or
(f) the local government council within whose area the land or
building or any part thereof is situated.
(2) In an application under this Part the Court may require:
(a) that notice of the application be given to any of the persons
referred to in subsection (1) and to any other person who is or
appears to be interested in or likely to be affected by an order
made under this Part; and
(b) that any such person be made a party to the application.
Part IV General
16 Exercise of powers by Court in other proceedings, &c.
(1) In any proceeding before the Court, however originated, the Court
may, if it thinks fit, exercise any of the powers conferred by this Act,
and may stay the proceeding on such terms as it thinks fit.
(2) Where an action or proceeding is taken or is about to be taken at
law by a person, and the Court is of the opinion that the matter
could more conveniently be dealt with by an application under this
Act, the Court may grant an injunction, on such terms as it thinks fit,
restraining the person from taking or continuing the action or
proceeding at law.
Part IV General
Encroachment of Buildings Act 1982 8
(3) In an action or proceeding at law the Court may, if it is of the
opinion that the matter could more conveniently be dealt with by an
application under this Act, stay the action or proceeding on such
terms as the Court thinks fit.
17 Costs
In an application under this Act the Court may make such order as
to payment of costs, charges and expenses as it thinks fit and may
take into consideration any offer of settlement made by either party.
ENDNOTES
Encroachment of Buildings Act 1982 9
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Encroachment of Buildings Act 1982 (Act No. 66, 1982)
Assent date 8 October 1982
Commenced 10 December 1982 (Gaz G49, 10 December 1982, p 5)
Statute Law Revision Act 1989 (Act No. 60, 1989)
Assent date 2 October 1989
Commenced 2 October 1989
Local Government (Consequential Amendments) Act 1993 (Act No. 84, 1993)
Assent date 13 December 1993
Commenced 1 June 1994 (s 2, s 2 Local Government Act 1993 (Act
No. 83, 1993) and Gaz S35, 20 May 1994)
Planning (Consequential Amendments) Act 1999 (Act No. 56, 1999)
Assent date 14 December 1999
Commenced 12 April 2000 (s 2, s 2 Planning Act 1999 (Act No. 55, 1999)
and Gaz S15, 12 April 1999)
Land Title (Consequential Amendments) Act 2000 (Act No. 45, 2000)
Assent date 12 September 2000
Commenced 1 December 2000 (s 2, s 2 Land Title Act 2000 (Act No. 2,
2000) and Gaz G38, 27 September 2000, p 2)
Local Government (Consequential Amendments) Act 2008 (Act No. 28, 2008)
Assent date 14 November 2008
Commenced 1 July 2008 (s 2)
Local Government Amendment Act 2014 (Act No. 19, 2014)
Assent date 2 June 2014
Commenced s 16: 1 July 2014; s 18: 1 December 2014; rem: 2 June 2014,
(s 2)
ENDNOTES
Encroachment of Buildings Act 1982 10
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
Assent date 6 April 2016
Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related
Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34,
29 April 2016)
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22, 2018) to: ss 1, 3, 8, and 15.
4 LIST OF AMENDMENTS
s 3 amd No. 60, 1989, s 6; No. 84, 1993, s 6; No. 45, 2000, s 4; No. 28, 2008, s 3
s 8 amd No. 60, 1989, s 6; No. 45, 2000, s 4
s 15 amd No. 56, 1999, s 3; No. 19, 2014, s 26
s 16 amd No. 8, 2016, s 45