A recent case in the Victorian Supreme Court discussed the extent of a landowner’s right to possession of airspace above their land.

The Case

The plaintiffs owned a property next to a development site on which there was a four storey apartment block being constructed by the developer.

The construction work required the use of an overhead crane. When not in operation the ‘arm jib’, or arm of the crane, was overhanging the plaintiff’s property as it needed to “weathervane” by swinging freely in the wind. No building material was to be lifted by the crane over the plaintiff’s property.

The plaintiff told the developer having the crane above their property would cause them undue stress and interfere with the amenity and enjoyment of their family home. The plaintiff’s claimed to own the airspace above their property and asked the developer provide them compensation for leasing the airspace. The compensation sought was to pay for the relocation of the plaintiff’s family during the period of the building works.

The developer refused to provide compensation and advised they would be continuing the works with the crane.

The plaintiffs threatened legal action and the developer made a number of small offers to licence the airspace from the plaintiff. The plaintiffs rejected these offers and sought an injunction from the Victorian Supreme Court to stop the building works. The plaintiff offered to resolve the matter for $106,000. This figure was to cover their legal costs and the expense of finding alternative accommodation.

The Decision  

The Court granted the plaintiff’s injunction on the basis the intrusion of the crane whilst “weathervaning” constituted an actionable trespass.

In reaching the decision the Court rejected the developer’s arguments that cranes are a practical reality in commercial construction. Instead the Court reasoned that the increased use of cranes makes it all the more important that the Courts enforce the rights of owners to protect their properties from such incursions.

The Court noted that the plaintiff’s property was residential rather than commercial, commenting that, “owners of property should not have to live with the fear that at any time to the boom of a crank may be above their home and the risk (however small) that it may crash down on their family”.

Also noted in the courts decision was that the small monetary amounts previously offered by the developer could not adequately compensate the plaintiff for their concern about the risks to their safety.

What does it mean for developers in NSW

The decision is a timely reminder to developers that “weathervaning” encroachments constitute a trespass.

In New South Wales, if a developer fails to reach a commercial arrangement with adjoining land owners over whose land they require access, the developer must apply to the Court for a statutory right of user.