Article 3

OVER THE LINE – PART 3: Court Applications

July 8, 2024

In the event that an adjoining owner refuses to consent to use of their airspace, a contractor may obtain the right to use a neighbour’s airspace by way of s180 of the Property Law Act 1974 (PLA).

What is the statutory right of use

Section 180 gives the court the discretionary power to order a statutory right of use for a contractor (Applicant) to use land owned by another person (Respondent). This ‘right’ can take the form of an easement or a licence and will be subject to certain conditions (i.e. when and how often it can be used and by who).

The Applicant will need to file, and subsequently serve:

  1. an originating application which seeks a statutory right of user in favour of the Applicant over land owned by the Respondents in the form of a licence pursuant to section 180 of the PLA; and
  2. an accompanying affidavit, often from the director of the contracting company and/or the project director (however this will depend on the specific circumstances of the matter).

What are the requirements

The courts have the discretionary power to impose a right of use over a property if it is satisfied that:

  1. the use of the property is reasonably necessary (s180(1));
  2. it is consistent with public interest (s180(3)(a));
  3. the adjoining owner can be properly recompensated (s180(3)(b)); and
  4. the adjoining owner has been unreasonable in its refusal (s180(3)(c)(i)).

Reasonably Necessary

The requirement of ‘reasonable necessity’ does not mean absolute necessity.[1] What is reasonably necessary is to be determined objectively and is a question of degree. ‘Necessary’ imports a stronger meaning than desirability or preferability over an alternative means. As such, it will not be enough to establish that the crane is merely the more efficient option to move material. The greater the imposition of the crane, the stronger the case needs to be to justify reasonable necessity.

Consistent with Public Interest

In establishing that the use is consistent with the public interest, the Applicant need not show that the public interest will be advanced by the use of the land. Rather, the onus is on the applicant to establish that the use of the land will not be inconsistent or contrary to the public interest.[2]

Adequate Compensation

Section s180(3)(b) of the PLA expressly contemplates that an order will include a provision for payment of compensation (except in special circumstances). While there is no definitive rule on what constitutes adequate compensation, the court has established that the fair compensation value should be determined by reference to the loss, damage or harm to the adjoining owner as opposed to the benefit derived by the contractor (i.e. how much they are able to save).[3] It is not to be used a means of holding the contractor “to ransom” in negotiations, in the sense that the adjoining owner should not be making unreasonable requests for compensation.

Like that of a deed, the quantum of compensation that may be ordered by the court will be specific to the circumstances, likely depending on the varying:

  1. duration of the overhang;
  2. extent of overhang;
  3. impact on the adjoining land;
  4. extent of imposition/disruption; and
  5. fees incurred.

Contractors need to be prepared to provide evidence of what they deem is adequate compensation to the adjoining owner, and be ready to pay that amount.

Unreasonable refusal

The court will largely adopt a case-by-case approach in assessing whether refusal by the adjoining owner is unreasonable. However in Re Roobottom & Anor[4], the court set out a series of guiding principles to make such a determination, including:

  1. poor attitude of the applicant towards the respondent;
  2. whether the terms are too broad or insufficiently detailed;
  3. lack of evidence regarding reasonable compensation;
  4. adequacy of compensation;
  5. absence of any significant detriment or loss to the respondent or their property;
  6. reasonableness of the applicant’s alternatives (including evidence of the difficulties of alternative approaches);
  7. historic usage (i.e. if the respondent has previously allowed usage of the land); or
  8. whether the refusal was motivated by malice or bitterness.

Historically, the courts have not lightly interfered with the property rights of the adjoining owner and tend to be unfavourable to the Applicant unless a strong case has been made. The court process is often not a quick one. Parties can potentially be waiting many months to receive a judgement which, often, contractors don’t have the time in their construction program to wait for. In light of this, contractors are strongly encouraged to (where possible) settle crane overhang disputes amicably with the adjoining owner by way of a deed. However, where this option has been frustrated, contractors can seek a right of use by section 180 of the PLA if the necessary requirements have been met.

Lamont Project & Construction Lawyers

The Lamont Project & Construction Lawyers team has extensive knowledge regarding the process for applying to the court for a statutory right of use under the s180 of the Property Law Act 1974. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advise on projects with respect to disputes arising from tower crane usage.

If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.

The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.

Contact: Peter Lamont or Kathryn Easton

Email: [email protected] or [email protected]

Phone: (07) 3248 8500

Address: Suite 2, Level 2, 349 Coronation Drive, Milton Qld 4064

Postal Address: PO Box 1133, Milton Qld 4064

[1] Lang Parade Pty Ltd v Peluso [2005] QSC 112, [23].

[2] Noyea Park Country Club Pty Ltd v Body Corporate for Noyea Riverside Village [2004] QSC 197 (Douglas J); Ex parte Edward Street Properties Pty Ltd [1997] Qd R 86,90.

[3] Lang Parade Pty Ltd v Peluso [2005] QSC 112, [33].

[4] [1998] QSC (unreported) at [26].

Leave a Reply