Learn the Secrets to Turning Your Raw Undeveloped Site into Cash in the Bank

In this FREE guide, you’ll discover…

✓ How to Take Your Site From Raw Potential to Cash in the Bank

✓ The Process of Rezoning and How Long it Usually Takes

✓ What to Do Before Rezoning or Developing Your Land

✓ How to Get From Zoning to Development Approval

✓ What Steps You Need to Take Once You Have Your Team

✓ What to Do After Securing Development Consent

✓ Plus MORE Inside This Informative Guide

Lets Talk

We hope that our free downloadable guide will help you in reaping the most value from your raw undeveloped land. But if you would like to get expert legal advice specifically tailored to your situation, book an initial consultation with Whiteacre.

Call (02) 9145 0900

Book a Consultation

Need expert advice?

Whiteacre Legal are committed to achieving solutions for clients.

Book an initial consultation today so we can assist you further.

BOOK AN INITIAL CONSULTATION

A white background with a few lines on it

Whiteacre is a boutique property law firm specialising in planning and environment law. We bring more than 20 years of experience acting for private developers, private equity funds and local councils, giving us a unique insight into the significant challenges that each side faces for development applications, planning agreements or support for complex litigation matters.

Get In Touch

Phone:

02 9145 0900

Head Office

Wollongong

Suite 3, 129 Crown Street,

Wollongong NSW 2500

LinkedIn Page

Mark evans gave practice and sound advice .

News and Insights

Existing Use Rights in New South Wales: What Four Decisions Tell Landowners

By Mark Evans • October 15, 2026

Existing use rights allow a use that was lawful before a planning prohibition took effect to continue despite it. This article reviews four NSW decisions, from the Court of Appeal and the Land and Environment Court, that show how these rights are established, how they are described, and how they can be lost

Who is the "Applicant" in a Class 1 LEC Appeal?

By Mark Evans • August 7, 2026

Who is the correct applicant in an NSW Class 1 LEC appeal? This article explores key cases and the rules on agents, principals, substitutions and subsequent purchasers.

Encroachments in New South Wales

By Mark Evans • May 22, 2026

Introduction An encroachment arises where a building or structure built on one parcel of land extends into an adjoining owner's land — whether above ground, at ground level, or even below the surface. The intrusion may be minor — a fence post, a roof eave, or a retaining wall footing — or it may involve a substantial part of a permanent structure. The principal legislation governing encroachments in New South Wales is the Encroachment of Buildings Act 1922 (NSW) (the Act ). The Act gives the NSW Land and Environment Court (the Court ) a broad discretionary jurisdiction to deal with encroachments in a way that is just and equitable in all the circumstances. This reflects a pragmatic recognition that removal or demolition of an encroachment is not always a proportionate response, particularly where the encroachment has stood unchallenged for many years. Two recent decisions of the Court — Gabriel v Billett [2023] NSWLEC 85 and Johnston v Cutbus h [2025] NSWLEC 1482 — illustrate the way in which these principles are applied in practice and offer valuable guidance for property owners confronted with encroachment issues. The Legal Framework: Encroachment of Buildings Act 1922 (NSW) Who Can Apply? Under section 3(1) of the Act, either the Encroaching Owner or the Adjacent Owner may apply to the Court for relief. The Act defines these terms as: Encroaching Owner — the owner of the land from which the encroaching building or structure originates. Adjacent Owner — the owner of the land into which the encroachment extends. This dual standing is important. An adjacent owner who feels their land is encroached upon may wish to apply to the Court for a remedy to deal with the encroachment. An encroaching owner may wish to apply for an easement or other formal entitlement to recognize an existing encroachment. Remedies Available to the Court Section 3 of the Act provides a number of remedies to deal with an encroachment. The range of orders the Court may make include: compensation to the Adjacent Owner for the encroachment and any loss suffered; the conveyance, transfer, or lease of the encroached-upon land to the Encroaching Owner; the grant of an easement, right, or privilege in favour of the Encroaching Owner; or removal of the encroachment. Crucially, the Court is not limited to a binary choice between removing the encroachment and doing nothing. It may, and frequently does, grant an easement over the affected portion of the neighbouring land — a remedy that allows the encroaching structure to remain, while providing the Adjacent Owner with legally recognized compensation and formal protection. Factors the Court Considers In determining which of the remedies is appropriate, section 3(3) of the Act directs the Court to have regard to several factors, including: whether the applicant is the Encroaching Owner or the Adjacent Owner. the situation and value of the land in question, and the nature and extent of the encroachment. the character and purpose of the encroaching building or structure. the loss and damage that has been or will be caused — both to the Adjacent Owner by the encroachment, and to the Encroaching Owner if removal were ordered. the circumstances in which the encroachment was made, including whether it was intentional, negligent, or the result of an innocent mistake. This multi-factorial assessment means that outcomes are highly specific to each case. The Court must weigh these competing interests and arrive at a solution that is, on balance, just and equitable. Compensation Section 4 of the Act deals with compensation. Where the Encroaching Owner can prove the encroachment was neither intentional nor the result of negligence, the minimum compensation payable is the value of the subject land. In any other case, compensation of up to three times the value of the land can be awarded. In assessing compensation above the minimum, the Court has regard to the improved or unimproved value of the land to the Adjacent Owner, the loss suffered, and the circumstances in which the encroachment was made. Case law Recent cases are illustrative of how the Court deals with encroachments under the Act. Gabriel v Billett [2023] NSWLEC 85 Decision Decided 15 August 2023 before Robson J (Class 3 application). The Court ordered removal of the encroaching portion of a shed within four months at the Adjacent Owner's cost. Facts Gabriel owned a property on which a small timber and metal shed (18m² in total) had been built. 11m² of the shed crossed onto the neighbouring property owned by Billett. The encroachment predated both owners. Gabriel had been aware of the encroachment since purchasing his property in 1996. Gabriel commenced proceedings seeking a transfer of 34.5m² of Billett's land at unimproved land value. Billett opposed this and sought removal of the 11m² encroachment. The cost of removal was quoted at $925. Decision Robson J refused Gabriel's application and ordered removal of the encroaching 11m² of the shed within four months, with Billett bearing the removal costs by way of indemnity. Reasoning Three factors were decisive. First, the Court had no jurisdiction to transfer the 34.5m² sought — the Act limits any transfer to the 'subject land' directly beneath the encroachment (11m²), and no broader buffer zone can be transferred. Second, Gabriel had known about the encroachment since 1996 and continued using his neighbour's land for storage throughout, which weighed heavily against him under section 3(3)(f) (the circumstances in which the encroachment was made). Third, removal of the encroachment would cost only $925 — a trivial sum. The shed was dilapidated with no meaningful heritage value, and the encroachment constrained Billett's plans to develop the rear of her small allotment. With hardship to the Encroaching Owner (Gabriel) minimal and hardship to the Adjacent Owner (Billet) real, removal was the just outcome. Johnston v Cutbush [2025] NSWLEC 1482 Decided 7 July 2025 before Commissioner Gray (Class 3 application). The Court ordered removal of a studio, composting toilet building and grey water tank within 60 days at the Encroaching Owners' expense. Facts Johnston (Adjacent Owner) purchased a 40.68-hectare rural property in 2016. A survey confirmed that three structures built by her neighbours — Cutbush (Encroaching Owner) — encroached onto Johnston’s land: a detached studio (encroaching by up to 5.57 metres), a waterless composting toilet building (wholly on Johnston's land but part of the studio's sewage system), and a grey water tank and pipework. The Encroaching Owner had owned their adjoining 6-hectare property since 1992 and over three separate periods between 1992 and 2008 had progressively enlarged an existing shed into a studio and installed a sewage management system — each time without development consent or building approval, and each time without commissioning any survey to verify the boundary. When the Encroaching Owner later sought to regularise the structures through council applications in 2008, those applications were accompanied by plans that misrepresented the studio as being wholly within their title. The 2008 approvals and building certificate did not authorise works already carried out, and did not authorise any structures on Johnston's land. Decision Commissioner Gray ordered removal of the studio, composting toilet building and grey water tank within 60 days at the Encroaching Owner’s expense. The alternative of a land transfer — which the Encroaching Owner supported — was refused. Reasoning The Commissioner's reasoning centered on the circumstances of the encroachment. The respondents had carried out three rounds of unauthorised works over two decades without taking any steps to verify the boundary — no survey, no pegging, no professional advice. They then misrepresented the location of the structures in council applications. Whether deliberate or careless, this demonstrated sustained disregard for the adjoining owner's property rights. Beyond the $65,900 removal cost, no evidence of concrete hardship to the respondents was led. By contrast, Johnston gave detailed evidence of plans to use an area of her property for ecotourism and glamping — plans directly frustrated by the encroachments. The land transfer was also refused because the area required to be transferred (177m²) was more than three times the subject land as defined by the Act (approximately 50m²); it was inappropriate to compel the Adjacent Owner to surrender significantly more land than that directly beneath the encroachment in circumstances where the Encroaching Owners had acted without authorisation or care. Key Takeaways Removal is a live remedy. Courts do not default to allowing encroachments to remain. Where the Encroaching Owner bears responsibility for creating the encroachment and it is shown that the encroachment arose out of negligence, removal is a likely outcome. The circumstances of the encroachment are decisive. Knowing, long-standing use of a neighbour's land and unauthorised construction without boundary verification both may attract removal orders. Council approvals do not defeat private encroachment claims. A building certificate prevents council enforcement only — it does not legalise works already carried out or bar an Adjacent Owner's claim under the Act. Transfers are limited to the subject land. The Act cannot be used to transfer a buffer zone beyond the encroachment footprint. Landowners should commission a survey before building near a boundary. Both cases arose from failure to verify the boundary location before construction began. Negotiate early and in good faith. Entrenched positions and unreasonable demands were noted adversely by the Court in both cases. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.

Get In Touch

Phone

02 9145 0900

Head Office

Wollongong

Suite 3, 129 Crown Street, Wollongong NSW 2500

Other Locations

LinkedIn Page

News and Insights

Existing Use Rights in New South Wales: What Four Decisions Tell Landowners

By Mark Evans • October 15, 2026

Existing use rights allow a use that was lawful before a planning prohibition took effect to continue despite it. This article reviews four NSW decisions, from the Court of Appeal and the Land and Environment Court, that show how these rights are established, how they are described, and how they can be lost

Who is the "Applicant" in a Class 1 LEC Appeal?

By Mark Evans • August 7, 2026

Who is the correct applicant in an NSW Class 1 LEC appeal? This article explores key cases and the rules on agents, principals, substitutions and subsequent purchasers.

Encroachments in New South Wales

By Mark Evans • May 22, 2026

Introduction An encroachment arises where a building or structure built on one parcel of land extends into an adjoining owner's land — whether above ground, at ground level, or even below the surface. The intrusion may be minor — a fence post, a roof eave, or a retaining wall footing — or it may involve a substantial part of a permanent structure. The principal legislation governing encroachments in New South Wales is the Encroachment of Buildings Act 1922 (NSW) (the Act ). The Act gives the NSW Land and Environment Court (the Court ) a broad discretionary jurisdiction to deal with encroachments in a way that is just and equitable in all the circumstances. This reflects a pragmatic recognition that removal or demolition of an encroachment is not always a proportionate response, particularly where the encroachment has stood unchallenged for many years. Two recent decisions of the Court — Gabriel v Billett [2023] NSWLEC 85 and Johnston v Cutbus h [2025] NSWLEC 1482 — illustrate the way in which these principles are applied in practice and offer valuable guidance for property owners confronted with encroachment issues. The Legal Framework: Encroachment of Buildings Act 1922 (NSW) Who Can Apply? Under section 3(1) of the Act, either the Encroaching Owner or the Adjacent Owner may apply to the Court for relief. The Act defines these terms as: Encroaching Owner — the owner of the land from which the encroaching building or structure originates. Adjacent Owner — the owner of the land into which the encroachment extends. This dual standing is important. An adjacent owner who feels their land is encroached upon may wish to apply to the Court for a remedy to deal with the encroachment. An encroaching owner may wish to apply for an easement or other formal entitlement to recognize an existing encroachment. Remedies Available to the Court Section 3 of the Act provides a number of remedies to deal with an encroachment. The range of orders the Court may make include: compensation to the Adjacent Owner for the encroachment and any loss suffered; the conveyance, transfer, or lease of the encroached-upon land to the Encroaching Owner; the grant of an easement, right, or privilege in favour of the Encroaching Owner; or removal of the encroachment. Crucially, the Court is not limited to a binary choice between removing the encroachment and doing nothing. It may, and frequently does, grant an easement over the affected portion of the neighbouring land — a remedy that allows the encroaching structure to remain, while providing the Adjacent Owner with legally recognized compensation and formal protection. Factors the Court Considers In determining which of the remedies is appropriate, section 3(3) of the Act directs the Court to have regard to several factors, including: whether the applicant is the Encroaching Owner or the Adjacent Owner. the situation and value of the land in question, and the nature and extent of the encroachment. the character and purpose of the encroaching building or structure. the loss and damage that has been or will be caused — both to the Adjacent Owner by the encroachment, and to the Encroaching Owner if removal were ordered. the circumstances in which the encroachment was made, including whether it was intentional, negligent, or the result of an innocent mistake. This multi-factorial assessment means that outcomes are highly specific to each case. The Court must weigh these competing interests and arrive at a solution that is, on balance, just and equitable. Compensation Section 4 of the Act deals with compensation. Where the Encroaching Owner can prove the encroachment was neither intentional nor the result of negligence, the minimum compensation payable is the value of the subject land. In any other case, compensation of up to three times the value of the land can be awarded. In assessing compensation above the minimum, the Court has regard to the improved or unimproved value of the land to the Adjacent Owner, the loss suffered, and the circumstances in which the encroachment was made. Case law Recent cases are illustrative of how the Court deals with encroachments under the Act. Gabriel v Billett [2023] NSWLEC 85 Decision Decided 15 August 2023 before Robson J (Class 3 application). The Court ordered removal of the encroaching portion of a shed within four months at the Adjacent Owner's cost. Facts Gabriel owned a property on which a small timber and metal shed (18m² in total) had been built. 11m² of the shed crossed onto the neighbouring property owned by Billett. The encroachment predated both owners. Gabriel had been aware of the encroachment since purchasing his property in 1996. Gabriel commenced proceedings seeking a transfer of 34.5m² of Billett's land at unimproved land value. Billett opposed this and sought removal of the 11m² encroachment. The cost of removal was quoted at $925. Decision Robson J refused Gabriel's application and ordered removal of the encroaching 11m² of the shed within four months, with Billett bearing the removal costs by way of indemnity. Reasoning Three factors were decisive. First, the Court had no jurisdiction to transfer the 34.5m² sought — the Act limits any transfer to the 'subject land' directly beneath the encroachment (11m²), and no broader buffer zone can be transferred. Second, Gabriel had known about the encroachment since 1996 and continued using his neighbour's land for storage throughout, which weighed heavily against him under section 3(3)(f) (the circumstances in which the encroachment was made). Third, removal of the encroachment would cost only $925 — a trivial sum. The shed was dilapidated with no meaningful heritage value, and the encroachment constrained Billett's plans to develop the rear of her small allotment. With hardship to the Encroaching Owner (Gabriel) minimal and hardship to the Adjacent Owner (Billet) real, removal was the just outcome. Johnston v Cutbush [2025] NSWLEC 1482 Decided 7 July 2025 before Commissioner Gray (Class 3 application). The Court ordered removal of a studio, composting toilet building and grey water tank within 60 days at the Encroaching Owners' expense. Facts Johnston (Adjacent Owner) purchased a 40.68-hectare rural property in 2016. A survey confirmed that three structures built by her neighbours — Cutbush (Encroaching Owner) — encroached onto Johnston’s land: a detached studio (encroaching by up to 5.57 metres), a waterless composting toilet building (wholly on Johnston's land but part of the studio's sewage system), and a grey water tank and pipework. The Encroaching Owner had owned their adjoining 6-hectare property since 1992 and over three separate periods between 1992 and 2008 had progressively enlarged an existing shed into a studio and installed a sewage management system — each time without development consent or building approval, and each time without commissioning any survey to verify the boundary. When the Encroaching Owner later sought to regularise the structures through council applications in 2008, those applications were accompanied by plans that misrepresented the studio as being wholly within their title. The 2008 approvals and building certificate did not authorise works already carried out, and did not authorise any structures on Johnston's land. Decision Commissioner Gray ordered removal of the studio, composting toilet building and grey water tank within 60 days at the Encroaching Owner’s expense. The alternative of a land transfer — which the Encroaching Owner supported — was refused. Reasoning The Commissioner's reasoning centered on the circumstances of the encroachment. The respondents had carried out three rounds of unauthorised works over two decades without taking any steps to verify the boundary — no survey, no pegging, no professional advice. They then misrepresented the location of the structures in council applications. Whether deliberate or careless, this demonstrated sustained disregard for the adjoining owner's property rights. Beyond the $65,900 removal cost, no evidence of concrete hardship to the respondents was led. By contrast, Johnston gave detailed evidence of plans to use an area of her property for ecotourism and glamping — plans directly frustrated by the encroachments. The land transfer was also refused because the area required to be transferred (177m²) was more than three times the subject land as defined by the Act (approximately 50m²); it was inappropriate to compel the Adjacent Owner to surrender significantly more land than that directly beneath the encroachment in circumstances where the Encroaching Owners had acted without authorisation or care. Key Takeaways Removal is a live remedy. Courts do not default to allowing encroachments to remain. Where the Encroaching Owner bears responsibility for creating the encroachment and it is shown that the encroachment arose out of negligence, removal is a likely outcome. The circumstances of the encroachment are decisive. Knowing, long-standing use of a neighbour's land and unauthorised construction without boundary verification both may attract removal orders. Council approvals do not defeat private encroachment claims. A building certificate prevents council enforcement only — it does not legalise works already carried out or bar an Adjacent Owner's claim under the Act. Transfers are limited to the subject land. The Act cannot be used to transfer a buffer zone beyond the encroachment footprint. Landowners should commission a survey before building near a boundary. Both cases arose from failure to verify the boundary location before construction began. Negotiate early and in good faith. Entrenched positions and unreasonable demands were noted adversely by the Court in both cases. The contents of this article are a general guide and intended for educational purposes only. Determination of issues of the kind discussed in this article is often complex and varies greatly from case to case. Each individual case is different and requires a detailed understanding of matters of fact and degree upon which reasonable minds may differ. DO NOT RELY ON THIS ARTICLE AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE.