Western Australian Current Acts Western Australian Current Acts (1) Where (whether
before or after the coming into operation of this Act) a person who has or had
an estate or interest in any piece of land (in this section referred to as the
original piece of land) has, while he had that estate or interest, erected a
building on any other piece of land (that other piece together with any land
reasonably required as curtilage and for access to the building being in this
section referred to as the piece of land wrongly built upon), if the building
has been so erected because of a mistake as to any boundary or as to the
identity of the original piece of land, that person, or any other person for
the time being in possession of the building or having an estate or interest
in either the original piece of land or the piece of land wrongly built upon,
or any other person mentioned in subsection (6), may apply to the Court,
whether in any action or proceeding then pending or in progress and relating
to the piece of land wrongly built upon or by an originating summons, to make
an order in accordance with this section.
(2) If in the opinion
of the Court it is just and equitable in the circumstances that relief should
be granted to the applicant or any other person, the Court may if it thinks
fit make an order —
(a)
vesting the piece of land wrongly built upon in the person or persons
specified in the order;
(b)
allowing any person or persons specified in the order to remove the building
and any chattels and fixtures or any of them from the piece of land wrongly
built upon;
(c)
where it allows possession of the building to any person or persons having an
estate or interest in the piece of land wrongly built upon, requiring all or
any of the persons having an estate or interest in that piece of land to pay
compensation in respect of the building and other improvements to the piece of
land wrongly built upon to such person or persons as the Court may specify in
the order;
(d)
giving the person who erected the building or any person or persons claiming
through him the right to possession of the piece of land wrongly built upon
for such period and on such terms and conditions as the Court may specify in
the order.
(3) Where appropriate,
the Court may make any such order without ordering the applicant or any other
person to give up possession of the piece of land wrongly built upon, or to
pay damages, and without granting an injunction.
(4) Where the Court
makes any order under this section, the Court may, in the order, declare any
estate or interest in the piece of land wrongly built upon to be free from any
mortgage, lease, easement, or other encumbrance affecting that piece of land,
or vary, to such extent as it considers necessary in the circumstances, any
mortgage, lease, easement, contract, or other instrument affecting or relating
to that piece of land.
(5) Any 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 any person of any sum or sums of money, or the execution by any person of
any mortgage, lease, easement, contract, or other instrument, or otherwise.
(6) Every person for
the time being in possession of the building or having any estate or interest
in the piece of land wrongly built upon or in the original piece of land, or
claiming to be a party to or to be entitled to any benefit under any mortgage,
lease, easement, contract, or other instrument affecting or relating to any
such land, and the local government concerned, 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.
(7) For the purposes
of subsection (6) the Court may, if in its opinion notice of the application
or proposal should be given to any person, whether referred to in that
subsection or not, direct that such notice as it thinks fit be so given by
such persons as the Court directs.
(8) The Court shall
not make an order under this section, other than an order under subsection
(2)(b), 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.
[Section 123 amended: No. 84 of 1994 s. 46(11);
No. 14 of 1996 s. 4; No. 38 of 2005 s. 15.]