What is an Encroachment

The material facts of the case were, in summary, as follows:

• the plaintiffs own a lot in a commercial building (which shares a boundary with the common property);
• at some time (the parties disagree as to when), a wall was erected that cut across the common property between the corner of the toilets and the internal side of the building’s exterior wall;
• the effect of constructing the wall was to enclose 29 square metres of common property for the sole use of the owner of the subject lot (which were now the plaintiffs);
• the current tenant of the plaintiffs’ lot uses the disputed area as a reception area and a meeting room; and
• the defendant’s contractor commenced work to remove what it says are trespassing structures from the common property.

The Supreme Court of Queensland summarised the law on this particular point, relevantly, as follows:

• an application under s 184 of the Property Law Act 1974 (Qld) may be made in respect of any encroachment. The provisions relating to encroachment are in Part 11 of the Property Law Act 1974 (Qld). Part 11 is based on, and the definitions are relevantly the same as, the provisions in the repealed Encroachment of Buildings Act 1955 (Qld). That Act was relevantly the same as the Encroachment of Buildings Act 1922 (NSW). Thus, decisions on the New South Wales statute will inform decisions on Part 11 of the Property Law Act 1974 (Qld); and
• the High Court held, in the decision of Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, that an ‘encroachment’ under the Encroachment of Buildings Act 1922 (NSW) is an encroachment by a building that traverses the ‘boundary’ between the contiguous parcels of land. Where a building is located entirely within the property of another (as was the case with the building erected by Googoorewon) there will be no encroachment.

The case advanced by the defendant was that:

• the wall is not an encroachment under Part 11 of the Property Law Act 1974 (Qld), because it does not traverse the boundary;
• the wall is constructed solely on the defendant’s common property; and
• the wall cannot be considered an encroachment.

The case advanced by the plaintiff was that:

• whilst the plaintiffs conceded that the wall cannot be considered an encroachment in line with the High Court case of Amatek, the plaintiffs nonetheless submitted that they are not merely claiming the wall assembly as an encroachment, but rather the entire 29 square metre disputed area which was enclosed by the wall assembly; and
• in the circumstances, the entire meeting room and reception area space was the encroachment.

The Supreme Court of Queensland summarised the law on this particular point, relevantly, as follows:

• under section 182 of the Property Law Act 1974 (Qld), a ‘building’ refers to a building of a substantial and permanent character, including a wall;
• guidance on the types of structures that will be considered ‘buildings’ can be found in the judgment of Carter J in Ex parte Van Achterberg [1984] 1 Qd R 160: “…the intention of the legislature is… to deal with an encroachment which is man-made with the building materials of the day, which is of a substantial and lasting character, which is brought into existence for domestic or industrial purposes and which is of such a kind that the legal rights of those affected by it may best be adjusted by permitting it to remain in place rather than by ordering its removal on the ground that it is merely a trespassing encroachment upon the land of another.”

The plaintiffs contended that the wall assembly and office walls were ‘buildings’ under Part 11 of the Property Law Act 1974 (Qld).

The defendants contended that they were not buildings.

As to the issue of the existence, or non-existence, of an ‘encroachment’, the Supreme Court of Queensland held, in essence, that:

• as the wall assembly is built entirely within the common property, it does not traverse any boundary between the common property and the subject lot;
• accordingly, it cannot be considered an encroachment;
• furthermore, the disputed area itself, as a combined ‘space’, cannot be described as an encroachment;
• the plaintiffs’ claim for the entire disputed area does not satisfy this requirement for ‘verticality’;
• the High Court in Amatek (at 477) described the requirement of ‘verticality’ of the encroachment as follows: “By the definition of ‘subject land’, the land of the ‘adjacent owner’ which the court may order to be conveyed, transferred or leased to the encroaching owner pursuant to s. 3(2)(b) is only ‘that part of the [adjacent owner’s] land over which an encroachment extends’. The subject land is thus identified as the land vertically under the encroachment.”;
• whilst it is true that the entire disputed space is being occupied by the plaintiffs’ tenant, it is buildings that encroach, not people;
• the highest the plaintiffs could sensibly put their claim is for the land vertically under the office walls; and
• accordingly, the plaintiffs did not establish a prima facie case that the wall assembly was an encroachment.

As to the issue of the existence, or non-existence, of a ‘building’, the Supreme Court of Queensland held, in essence, that:

• the wall assembly and office walls are not of a substantial and permanent character;
• they are not ‘buildings’ falling within the definition in Part 11 of the Property Law Act 1974 (Qld);
• the wall assembly is constructed of aluminium framing with two fixed glass panels. It is fixed to the two common property walls with bolts. It does not extend to the true ceiling. It is fixed to the suspended grid ceiling. It is like common internal office glass partitioning observed in numerous offices;
• the office walls are made of plasterboard with internal framing. They also only extend to the suspended grid ceiling, and they too are like common office fit out;
• the defendant has received a quotation to disassemble and relocate the wall assembly, and demolish the office walls, together for a modest sum. This work can be done within one day;
• the plaintiffs emphasised that the wall has been in existence for 25 years. This fact is contested. In any event, ‘substantial’ relates to the nature of the building. It has no temporal element in this context; and
• accordingly, the plaintiffs did not establish a prima facie case that the wall assembly and office walls were buildings.

If you need legal advice or assistance with retaining walls or encroachment disputes, please contact ADVIILAW today to speak to one of our experienced property dispute lawyers. Contact us on 07 3088 7937 or email us at [email protected].

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