Australia: Encroachment and adverse possession in Western Australia

Last Updated: 9 November 2018
Article by Brenton Oakley

It is timely to look at the principles of encroachment and adverse possession. These concepts and their relationship to each other are often confused and misunderstood.

What is Encroachment?

Encroachment usually refers to a form of development, for eg. a building, fence or retaining wall, that either wholly or more often partially encroaches on to neighbouring land.

It is an offence under section 76 of the Building Act 2011 (WA) (Building Act) to allow building work to encroach over neighbouring land including Crown Land.

There are a number of exceptions or defences to the offence. For eg.

  • You have the consent of the Owner; or
  • It is placed pursuant to a Court order under section 86 (2); or
  • The encroachment is prescribed as minor; or
  • It is over Crown Land and authorised under the Land Administration Act 1997 (WA)

Minor encroachment exceptions to the offence under section 76 are prescribed under Regulation 45A of the Building Regulations 2012 (WA) as follows:

  • an architectural feature attached to a building if the feature encroaches on a road or a public place by not more than 250mm;
  • a window or shutter that when open, encroaches on a road or a public place; at least 2.75m high;
  • a window shutter that, when fully open, encroaches on a road or a public place by not more than 50mm.

What happens if I encroach onto other land?

If Planning Approval for the structure was required and not obtained the Local Government with jurisdiction over the land may:

  • give a written direction to the owner of the encroaching structure to remove it or pull it down under section 214(3) of the Planning and Development Act 2005 (WA) or
  • prosecute the Owner under section 218 of this Act.

If the encroaching structure was constructed on or after 2 April 2012 and would have required a Building Permit but does not have one, then a Local Government could:

  • make and serve a building order on the owner requiring them to remove the encroaching structure pursuant to section 110 of the Building Act provided that a notice to do so is first issued under section 111 of the Building Act; or
  • prosecute the owner under section 133 of the Building Act.

If the encroaching structure was constructed prior to 2 April 2012 and would have required a Building Licence but did not have one, then a Local Government could rely on section 37 of the Interpretation Act 1984 (WA) and:

  • issue a pull down notice under section 401 of the Local Government Miscellaneous Provisions Act 1960 (WA)(LGMP Act); or
  • prosecute the Owner under section 374 of the LGMP Act.

Notwithstanding the encroaching structure is one that does not require either Planning Approval or a Building Permit, then provided that a breach of section 76 can be made out, a Local Government could still proceed with a building order under section 110 or prosecute under section 133 of the Building Act.

What is Adverse Possession?

Adverse Possession (or rights to possessory title) are Common Law rights that if established can extinguish the registered owner's title. A successful applicant can have their common law possessory rights recognised whereby they can become entitled to be registered as the Owner.

How do you establish Adverse Possession?

Time is very important. Generally speaking the period of adverse possession needs to be over twelve (12) continuous years. Where the land owner is under a legal disability it is thirty (30) years.

The possession must be by a single and exclusive possessor for the whole of the period. This means that you can't have several persons each coming on and using the land independently of each other at the same time. Although you can have a chain of single and exclusive possessors.

The claimant must demonstrate control of the land and the intention to control the land to the exclusion of all others. The nature of any improvements made to the land can have an impact on the control and intention element and fences generally, but not always, tend to suggest an intention to possess.

How do you make an Adverse Possession claim?

You can make an application to the Registrar of Titles. The process for doing this and the documentation and evidence required is comprehensively set out in Landgate's Land Title Registration Practice Manual.

Alternatively you can make an application directly to the Supreme Court of Western Australia.

Landgate is often favoured by claimants as it is perceived to be easier, administrative and less costly. However the Landgate process can take considerable time and extensive requests for documentation are often made. Further, if the matter is not consented to by the registered owner then the Registrar can refer the application to the Supreme Court in any event.

Are there exceptions or exclusions?

Due to section 36 of the Limitation Act 1935 (WA) and section 76 of the Limitation Act 2005 (WA) it is not possible to adversely possess Crown Land.

This exclusion does not, however, include land owned by Local Governments. There is nothing excluding the operation of adverse possession principles against Local Governments in Western Australia although there has been legislative intervention in other states.

Adverse Possession as an Encroachment Defence?

If an encroaching owner can establish adverse possession then there will be no encroachment and no offence under section 76 of the Building Act.

Notwithstanding an encroaching owner establishes adverse possession, the development may still be in breach of building and planning law to the extent that the development may not be located on the land according to planning and or building approvals.

In addition to adverse possession, section 122 of the Property law Act 1969 (WA) provides a statutory mechanism for seeking relief from the Court.

If you can prove that encroachment was not intentional, did not arise from gross negligence or where the building was not erected by the encroaching owner, if the Court thinks it is just and equitable it may:

  • Vest the land in the encroaching owner or other person;
  • Create an easement; or
  • Grant the right to retain possession.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kott Gunning is a proud member of

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions