Cranes, airspace rights, scaffolding and underpinning: when can adjoining owners refuse to grant a licence to use air or land?

We refer to our previous update on this topic.

One of the key factors the Court will consider when granting a right of use of adjoining land or airspace, is whether that land owner’s refusal is unreasonable.

In the recent case of Ward v Hull [2019] QSC 32, the Supreme Court of Queensland summarised the circumstances to be taken into account in considering whether an adjoining land owner’s refusal was ‘unreasonable.’ These included:

1. whether a dispute existed between the parties that is not relevant to the issues relating to the licence;
2. the (poor) attitude of the applicant for a licence to use towards the respondent;
3. whether the terms of the proposed licence were too broad or insufficiently detailed;
4. any lack of evidence regarding reasonable compensation;
5. the adequacy of the compensation offered;
6. whether the applicant purchased the land with knowledge of the usage difficulties;
7. the absence of any significant detriment, loss or harm to the adjoining owner;
8. the significant cost associated with establishing any alternative to the licence to use;
9. whether the refusal was motivated by ill-will, malice or acrimony; and
10. refusal of reasonable offers subject to appropriate conditions.

North J explained that these considerations are to be applied on a case by case basis and specifically noted that not all needed to necessarily apply in order to determine that a refusal was unreasonable.

Whilst this case concerned, in particular, an easement to allow an underground pipeline to cross through the adjoining land, the principles established by the case would still apply for cranes, underpinning, scaffolding or any other plant and equipment that could interfere with adjoining land or airspace.

Takeaway

Prior to applying to the Court to use adjoining airspace or land, the principles set out by North J and in our previous update need to be considered.

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.