Property Law Act 1969

Where any building on land encroaches on a part of adjoining land, whether the building was erected by the owner of the first mentioned land (in this section referred to as the encroaching owner) or by any of his predecessors in title, either the encroaching owner or the owner of the adjoining land may apply to the Court, whether in an action or proceeding then pending or in progress and relating to the land encroached upon or by an originating summons, to make an order in accordance with this section.

If it is proved to the satisfaction of the Court that the encroachment was not intentional and did not arise from gross negligence, or, where the building was not erected by the encroaching owner, if in the opinion of the Court it is just and equitable in the circumstances that relief should be granted to the encroaching owner or any other person, the Court, without ordering the encroaching owner or any other person to give up possession of the piece of land encroached upon or to pay damages, and without granting an injunction, may if it thinks fit make an order —

vesting in the encroaching owner or any other person any estate or interest in any part of the adjoining land; or

creating in favour of the encroaching owner or any other person any easement over any part of the adjoining land; or

giving the encroaching owner or any other person the right to retain possession of any part of the adjoining land.

Where the Court makes an order under this section the Court may, in the order, declare any estate or interest so vested to be free from any mortgage or other encumbrance affecting the adjoining land, or vary, to such extent as it considers necessary in the circumstances, any mortgage, lease, or contract affecting or relating to that piece of land.

An order under this section, or any provision of the order, may be made upon, and subject to such terms and conditions, as the Court thinks fit, whether as to the payment by the encroaching owner or any other person of any sum or sums of money, or the execution by the encroaching owner or any other person of any mortgage, lease, easement, contract or other instrument, or otherwise.

Every person having any estate or interest in the adjoining land or in the adjoining land of the encroaching owner, or claiming to be a party to or to be entitled to any benefit under any mortgage, lease, contract, or easement affecting or relating to any such land, is entitled to apply for an order in accordance with this section or to be heard in relation to any application for or proposal to make any order under this section.

For the purposes of subsection (5A), the Court may, if in its opinion notice of the application or proposal should be given to any person referred to in subsection (5A), direct that such notice, as it thinks fit, shall be so given by such person as the Court directs.

The Court shall not make an order under this section without the prior consent of the Western Australian Planning Commission established under the Planning and Development Act 2005 and the local government of the district in which the land to which the order will relate, lies.

For the purposes of this section building includes any structure and “land” includes the surface and the subsurface of and the airspace above the land.