Written by An easement is a legally enforceable right that allows someone else to use part of your land, like a neighbour’s right to use your driveway, or a utility company’s authority to access buried infrastructure. While often perfectly legitimate, easements can severely restrict what you do with your property. Encroachments, on the other hand, involve a physical intrusion, where someone builds onto land they do not own. This might be a fence line that creeps across a boundary, or in more serious cases, a structure like a retaining wall that sits stubbornly and unlawfully on someone else’s title.
These issues have the potential to derail property sales and expose parties to unanticipated court-imposed obligations. The decision in Hickey v The Owners Strata Plan 78825 [2022] NSWLEC 135 is a prime example of this. In this case, a dispute erupted over a retaining wall that had been built by a strata complex years earlier but which extended onto the neighbouring land owned by Ms Hickey. This was a permanent, substantial, historically unchallenged encroachment which served a functional structural purpose for the strata development. When it came to light, Ms Hickey took legal action under the Encroachment of Buildings Act 1922 (NSW), a statute that gives courts the power to decide whether an encroaching building must be removed or whether compensation, and sometimes an easement, should be granted instead. The court questioned whether the encroachment had been innocent or deliberate, and assessed whether tearing down the wall would cause disproportionate damage to the strata owners.
Ultimately, the court found that the encroachment did exist and that it wasn’t merely technical. However, it declined to order the wall’s demolition, recognising the broader harm such a remedy would cause. Instead, the court granted an easement in favour of the strata complex and ordered compensation to Ms Hickey.