Australia: Airspace encroachments in Victorian construction projects

Last Updated: 15 October 2017
Article by Richard Skopal and Nick McConnell

Most Read Contributor in Australia, September 2018

In Janney & Ors v Stellar Works Pty Ltd [2017] VSC 363 the Victorian Supreme Court (the Court) granted an injunction in favour of a land owner to stop a developer from overhanging part of a crane in the land owner's neighbouring property's airspace.

Background

On 14 June 2016, VCAT granted Stellar Works Pty Ltd (the Developer) a permit to construct a four-storey building comprising 27 dwellings above a basement car park in Elwood. Several months later, the Developer served a Form 3 Protection Notice under the provisions of the Building Regulations 2006 (Vic) on the owners of a neighbouring property, Haydn Janney and Carol Foti (the Land Owners). The notice set out details of the construction and relevantly provided the following:

As part of the method of construction, the builder will be using an overhead crane situated towards the centre of the new building. The jib or arm of the crane has a reach of 38m from centre and in part will overhang the neighbouring properties. The crane will not be lifting materials over the property line.

The Land Owners responded with a Protection Work Response Notice, citing safety concerns regarding the overhang of the crane.

The Developer and the Land Owners then traded a series of correspondence in which the Land Owners claimed that having part of the crane above their property would cause, 'significant and undue stress on the safety of our family and home as well as negatively impact on the amenity and enjoyment of our family home and time spent there'. The Land Owners proposed that the Developer compensate the Land Owners by relocating them to a similar home within the Elwood area for the period of construction or as an alternative, refrain from erecting the crane.

The Developer responded by rejecting the Land Owners request for compensation and on 16 May 2017 proceeded to erect the crane and commence the building works. The Land Owners then alleged the Developer was trespassing into the airspace of their property. Upon being met with this allegation, the Developer proposed to pay the Land Owners a $3,000.00 licence fee for use of the airspace.

The Land Owners' then sought an injunction from the Court. Prior to the hearing, the Developer offered to pay the Land Owners $20,000 in reasonable rental, legal and removal costs. The Land Owners rejected this offer and instead proposed that the Developer pay them $106,500 and in consideration, the Land Owners would grant the Developer a licence to permit the boom of the crane to enter the airspace of their property between 9.00am and 4.00pm on Mondays to Fridays only.

The Land Owners counter offer was rejected and the matter proceeded to the Court.

The Court's decision

The Court ruled in favour of the Land Owners and granted the injunction on the grounds that the encroachment of the crane, while in weathervaning mode (where the crane is not in use and allowed to move freely with the wind to minimise stress against the crane structure), constituted an actionable trespass.

Citing several Australian and English authorities, the Court rejected the Developer's submission that the trespass was 'trifling.' Instead, the Court held that the Developer had acted in 'reckless disregard to the [Land Owners'] rights' as:

  • the Developer had at all relevant times known the operation of the crane would intrude, from time to time, with the Land Owners airspace
  • the Land Owners had made it clear that they objected to this intrusion
  • the Developer proceeded to erect the crane despite being aware of the above facts
  • the Land Owners had originally made a 'modest' relocation request which would have allowed them to move out of their home during the crane's operation.

The Court also recognised that while legislative amendments in States such as New South Wales and Queensland have provided for the statutory impositions of easements to promote land development, no such statutory provision existed in Victoria.

The Court also awarded costs in favour of the Land Owner on the grounds that the Developer had 'deliberately violated the [Land Owners'] rights'.

Key takeaways:

The key takeaways from this case include:

  • developers need to be wary of air space encroachments to neighbouring properties when undertaking building works given that an encroachment into air space raises a prima facie entitlement to an injunction; and
  • if a developer becomes aware that an airspace encroachment will occur, the developer should attempt to reach a commercial arrangement with the neighbouring land owner prior to the construction project commencing.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Nick McConnell
 
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