For the efficient operation of construction projects access over or under adjoining property is often required for underpinning rock anchors beneath that land or erecting tower cranes which may cause the jib to pass through the air of an adjoining property.
Statutory right of user
While adjoining landowners are entitled to the exclusive right to use and enjoy their land, they do not own the areas above or below their land. The rights of a registered owner of freehold land in Queensland are subject to potential statutory interference by the operation of section 180 of the Property Law Act 1974 (Qld). This section provides for the imposition of a statutory right of user, over or under adjoining land, where it is reasonably necessary in the interests of effective use in any reasonable manner of the land. The statutory right of user may take the form of an easement, licence or another form.
In Queensland the principles applicable to whether a statutory right of user should be imposed by a court for the use of airspace to an adjoining property were considered by the Supreme Court in Lang Parade Pty Ltd v Peluso [2005] QSC 112. Lang Parade Pty Ltd (Lang Parade) was constructing two apartment blocks on a parcel of land in Auchenflower. To reduce stress on the tower structure, each crane was manufactured so that the jib could rotate freely (without load) with the wind when not in use. The cranes encroached on the adjoining properties by between 5 metres and 9 metres, at a height of more than 25 metres above the ground.
After lengthy negotiation, Lang Parade made an application under section 180 for a licence to allow the jib to oversail into the airspace of the adjoining properties without load, on the grounds that such an encroachment was reasonably necessary for effective operation of the cranes.
A licence or easement will not normally be granted unless the court is satisfied that it is consistent with the public interest, the owner of the adjoining land can be adequately recompensed for any loss or disadvantage which the owner may suffer and either that the owner of the adjoining land has unreasonably refused to accept the imposition of such an obligation or no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.
Reasonably necessary
The requirement of reasonable necessity to support an application for a licence or an easement is to be decided by a court in light of the circumstances of the particular access arrangement. What is reasonably necessary is the use of the land itself, not the enjoyment of the land by any present owners. In Lang Parade, the court held that when determining whether it was reasonably necessary to grant such a licence that:
- a court should not interfere readily with the proprietary rights of an owner of land;
- the requirement of “reasonably necessary” does not mean absolute necessity;
- necessary means something more than mere desirability or preferability over the alternative means; it is a question of degree; and
- regard must be had to the implications or consequences on the other land of imposing a licence.
Public interest
An application for a licence or an easement must also address public interest. It is not necessary for developers or builders to show that public interest will be advanced, but to prove that the proposed use of the adjoining land will not be inconsistent with public interest.
In Lang Parade, the court awarded an airspace licence (the same principles that apply to underpinning) and held that the tower cranes:
- could not be positioned on the site so as to avoid encroachments into the airspace of neighbouring properties, with other means of constructing the buildings impracticable or unsuitable;
- were not used to carry loads over neighbouring properties;
- were well maintained and covered by an insurance policy with significant general liability;
- were known about for a significant time, whilst the applicants stood by, with the practical effect of their operation obvious at a reasonably early stage; and
- were being used in the development of land which was consistent with the public interest. Development approval was obtained after an assessment from the Brisbane City Council, and where there were no submissions made opposing the development.
Compensation
Compensation is discretionary and turns on the facts of, and risks associated with a particular access arrangement. A reasonable offer of compensation should consider the benefit that the developer or builder may receive from the right of access and the disadvantage that an adjoining owner may suffer as a result of granting access. However, adjoining land owners are not permitted to hold developers or builders to ransom by making requests for unreasonable compensation.
In Lang Parade, the court held that the reference to ‘adequately recompensed’ in section 180 was not a means for the adjoining owner to hold the developer/builder to ransom. The court found that the adjoining owners refusal to grant a licence to Lang Parade for use of the airspace above their properties was unreasonable. Accordingly, the court found in favour of Lang Parade and ordered a statutory right of user by way of a licence permitting the continued use of the two tower cranes subject to certain terms including insurance.
What this means for builders and developers
- Where cranes trespass on the airspace of other properties or underpinning is required, builders and developers should be proactive in protecting their position by informing and negotiating with affected property owners and should be prepared to offer some compensation (and legal expenses) to affected property owners.
- Before making an application for a statutory licence or easement developers and builders need to ensure that all reasonable steps have been taken to come to an amicable agreement with adjoining land owners. This can be done by ensuring that the owner has been provided with all relevant information regarding the required access, insurance and construction program in a timely manner.
- If a developer fails to negotiate and offer compensation, an affected property owner may apply to the court to obtain an injunction preventing the use of area above and below their property.
- Where the developer can establish that the adjoining landowners’ refusal to allow access through their property has reached the point of ‘unreasonableness’ they can apply to the court to obtain a statutory licence or easement pursuant to section 180.
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