Janney v Steller Works Pty Ltd
[2017] VSC 363
•9 JUNE 2017 (ex tempore)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2017 02170
| HAYDN CHRISTOPHER JANNEY and CAROL SUZANNE FOTI | Plaintiffs |
| v | |
| STELLER WORKS PTY LTD (ACN 611 246 032) | Defendant |
---
JUDGE: | RIORDAN J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 9 JUNE 2017 |
DATE OF JUDGMENT: | 9 JUNE 2017 (ex tempore) |
CASE MAY BE CITED AS: | JANNEY & ORS v STELLER WORKS PTY LTD |
MEDIUM NEUTRAL CITATION: | [2017] VSC 363 |
---
PROPERTY LAW – Nature of freehold interest in land – Power of registered proprietor to control entry onto land – Extent of ‘land’ – Interference with right of possession by incursion into airspace over land – Bernstein v Skyviews and General Ltd [1978] 1 QB 479 considered.
TORT – Trespass to land – Trespass to airspace – Extent of right to possession of airspace over land – Residential property – Development of neighbouring land – Cranes – Oversailing – Weathervaning – Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987] 2 EGLR 173; LJP Investments Pty Ltd v Howard Chia InvestmentsPty Ltd (1989) 24 NSWLR 490; Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1 applied.
REMEDIES – Injunction – Relevant discretionary considerations for refusing grant of injunction – Adequacy of damages – Reckless disregard for plaintiff’s rights – Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 considered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr A Woods | Best Hooper |
| For the Defendant | Mr S R Horgan QC with Mr B J Murphy | Michael Trumble Legal |
HIS HONOUR:
By summons filed 5 June 2017, the plaintiffs seek an interlocutory injunction restraining the defendant from:
(a) entering upon the plaintiffs’ land;
(b) conducting works which intrude onto, into or over the plaintiffs’ land; or
(c)using a crane which intrudes into the airspace forming part of the plaintiffs’ land.
Background facts
The plaintiffs are the owners and occupiers of 31 Foam Street, Elwood and have been since they purchased it in 2011.
On 14 June 2016, the Victorian Civil and Administrative Tribunal granted a permit for the construction of a four-storey building comprising 27 dwellings above a basement car park on neighbouring properties at 29 Foam Street and 164-168 Ormond Road, Elwood, which are contiguous and north-east of the plaintiffs’ property.
On 11 February 2017, the defendant served on the plaintiffs a Form 3 Protection Work Notice which included the following:
(a)A new 4 storey residential apartment building with basement car parking is to be constructed that is situated over the 4 properties of 164-168 Ormond Road & 29 Foam St, Elwood.
(b)Construction works are due to commence in March 2017 and will take approximately 11 months to complete;
(c)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 attached plan shows the areas of “No lifting zones”.
The Protection Work Notice was purportedly served pursuant to reg 602 of the Building Regulations 2006, which is intended to be used prior to the commencement of protection works under s 84 of the Building Act 1993, in respect of an adjoining property, such as underpinning. It is now accepted that the installation of a crane in these circumstances is not building work within the meaning of s 84 of the Building Act 1993. Nonetheless, on 24 February 2017 the plaintiffs returned a Protection Work Response Notice, under the Building Regulations 2006 which stated, among other things:
We are very concerned about the safety of our family if/when the crane boom is over our property.
On 3 April 2017, the following emails were exchanged between the plaintiffs and the defendant:
(a)The defendant advised the plaintiffs, among others, that the defendant was installing a tower crane in approximately 8 weeks’ time. The defendant explained:
The crane will be programmed so that all neighbouring properties are “No Go Zones” so basically it means that if the crane driver tries to swing a heavy load over your house it will cut out on him and make it impossible to go over your property. All deliveries will be taken from Ormond rd so that it won’t be lifting anywhere near your property anyway.
(b) The first plaintiff replied stating:
From the information that was sent to me it would appear that whilst you are not lifting over my house the crane boom will go over my house and my airspace and this will certainly occur assuming that the brake is left off and the crane boom is allowed to move freely in the wind. I would appreciate clarification on this.
(c) The defendant replied stating:
Yes that is correct, the crane must swing freely in the wind when not in operation because if the brake is left on a gust of wind will cause massive damage to the gears.
By letter dated 20 April 2017, the first plaintiff sent a letter to the defendant stating as follows:
It is our understanding that there is a plan to erect a tower crane on the above development. We received documents nearly 2 months ago which were recently reported by Paul Gibcus to have been incorrectly sent to us (this has not been confirmed in writing). These documents outline that at times during the lifting and delivery of material the crane boom will swing over the entire width and length of our property located at 31 Foam St. Furthermore when the crane’s brake is left off, the boom of the crane could overhang our house by up to 100% of the time when the crane is not being operated during construction times. As outlined in our objection sent to Shannon Hill & Paul Gibcus eight weeks ago we are extremely concerned about the safety and wellbeing of our family and young children. We believe that having a boom above our property for potentially over 76% of the week will 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.
In addition to our concerns outlined above, we believe that we own the airspace above our property and hence any overhang without prior approval is deemed to be illegal trespass. It would appear that there is provision for the developer to offer compensation in exchange for leasing our airspace from us for the duration of the building works.
Our preference is not to live under a crane boom so we believe that it is fair and reasonable that Steller compensate us to relocate our family to a similar home within Elwood for the duration of the build to ensure our safety and not negatively impact our amenity and our quality of life. The alternative would be that a tower crane is not erected on the site; other large developments in Elwood have been built without the need for a tower crane.
We look forward to hearing from you.[1]
[1]Emphasis added.
On 2 May 2017, the defendant replied to the plaintiffs’ offer as follows:
Unfortunately Steller will not entertain relocating yourself and your family. Whilst I agree that the build can be done without the use of a tower crane, the alternative will add an additional 3 months to the build time and significant interruption to the traffic within the area due to road closured [sic] and mobile crane use.
By letter dated 15 May 2017 to the defendant, Hicks Oakley Chessell Williams (at that time, the solicitors for the plaintiffs), stated among other things:
It is established law that the airspace above a person’s property is within the scope of their ownership. A temporary or permanent encroachment or intrusion of that airspace without consent, agreement or otherwise, is a trespass onto the person’s property.
…
In the event that the crane is erected and trespasses the airspace above our clients’ property, we are instructed to issue proceedings seeking injunctions and damages against you without further notice or delay.
For the avoidance of doubt, any trespass into or on our clients’ property, including airspace, will result in legal proceedings being issued for enforcement of our clients’ rights, the costs of which will be sought against you with reliance upon this letter.
On 16 May 2017, the defendant erected the crane.
On 17 May 2017, the first plaintiff had a conversation with the crane driver and the defendant’s site manager in which he told them that they were trespassing and they needed to move their crane. They told the first plaintiff that their lawyer said it was not a trespass. The first plaintiff then asked: ‘Are you refusing to move the crane away from our property?’ to which they answered that they were refusing to move the crane.
By letter dated 24 May 2017 to Hicks Oakley Chessell Williams, Michael Trumble Legal stated that they acted for the defendant and, among other things, explained the need for the erection and operation of the crane. In particular, they said that ‘no loss or damage to your clients has occurred or is likely to occur in the responsible operation of the Tower Crane in accordance with the relevant OH&S legislation’. The letter continued:
Despite this, and having regard to your clients’ concerns my client is prepared to offer to pay to your clients a licence fee of $3,000.00 for the use of the air space above their property and will pay this amount immediately upon your confirmation that this amount is acceptable to your clients.
We note that you have instructions to issue proceedings seeking injunctions and damages against my client without further notice or delay. I am instructed that any proceedings of this nature will be vigorously defended.
By letter dated 30 May 2017 to Michael Trumble Legal, Best Hooper stated that they were now instructed to act for the plaintiffs and alleged that the defendant was trespassing into the airspace of the plaintiffs’ property. They stated that if an undertaking that the defendant would not permit any part of the crane to enter the airspace above the property was not received by 4:00 pm on 1 June 2017, they were instructed to apply to this Court for an injunction.
By letter dated 2 June 2017 to Best Hooper, Michael Trumble Legal noted that there had been no response to their previous letter of 24 May 2017 and reiterated that any proceedings would be defended.
By letter dated 5 June 2017 to Michael Trumble Legal, Best Hooper stated that the defendant’s contentions, being that the jib of the crane had entered into the airspace above the plaintiffs’ property on only a handful of occasions and the impact was minimal on the plaintiffs, were not a defence to trespass. The letter confirms that it was proposed to make an application to the Practice Court on 7 June 2017.
On 7 June 2017, the application came on before me and, on the defendant’s application, I adjourned it to 9 June 2017.
At 5:13 pm on 7 June 2017, the defendant made an offer to relocate the plaintiffs to reasonably comparable accommodation for the period the tower crane was erected (expected to be 5–6 months) and for the defendant to pay reasonable rental and reasonable removal costs and legal costs fixed at $20,000.
On 8 June 2017, the plaintiffs rejected the defendant’s offer made the previous day but offered to accept a total sum of $106,500 to cover the costs and expenses identified in the letter in consideration of which they would ‘provide a licence to permit the boom of the crane to enter the airspace over their property (including over the land and the building) between 9:00 am and 4:00 pm on Mondays to Fridays only’. The letter further stated that:
We wish to make it clear that the boom does enter into our client’s air space during its operation moving materials close to our boundary (not only when it is weathervaning).
Defendant’s submission
Mr Horgan QC who appeared as senior counsel for the defendant submitted as follows.
The incursion by the crane into the airspace above the plaintiffs’ property only occurred when the crane was not operating. He explained that the reason for the occasional incursions was that, during the periods when the crane does not operate, it operates in ‘weathervane’ mode. In ‘weathervane’ mode, as a safety measure, the crane’s position is allowed to rotate freely if blown by the wind so as to avoid stresses to the tower structure that would occur were the boom fixed into position. Accordingly, as the plaintiffs’ property is south-west of the crane, the crane will only enter the plaintiffs’ property’s airspace when the wind is generally from a north-easterly direction and is not otherwise operating. He contended this did not constitute a trespass for the following reasons:
(a)A trespass only occurs where the incursion into the air space is of a nature and at a height that may interfere with ordinary uses of the land which the occupier may see fit to undertake.[2]
(b)A court should decline to interfere by way of an injunction with respect to a trespass that is trifling or de minimus.
[2]LJP Investments Pty Ltd v Howard Chia InvestmentsPty Ltd (1989) 24 NSWLR 490, 495.
The balance of convenience favoured the defendant for the following reasons:
(a)There would be substantial costs in taking down the crane and then reconstructing it if the defendant were ultimately successful at trial.
(b)The plaintiffs had failed to establish that they had sufficient assets to satisfy any damages that may be awarded, pursuant to the undertaking that they had proffered, should the defendant ultimately be successful.
(c)The defendant’s offer of 7 June 2017 was reasonable and in substance was an acceptance of the proposal put by the plaintiffs on 20 April 2017.
(d)There was little or no damage or inconvenience to the plaintiffs and therefore damages would be an adequate remedy.
As to the authorities with respect to a trespass affected by a crane in weathervaning mode (to which I refer below), the defendant submitted as follows:
(a)In Bendal Pty Ltd v Mirvac Project Pty Ltd,[3] Bryson J granted an injunction restraining encroachments on a crane weathervaning and said as follows:
Another encroachment related to the crane is referred to as weathervaning. When the crane is not under load it is allowed to act as a weathervane, and it moves with the wind with the jib at an elevation of 45 degrees at which it has a radius expressed horizontally of about 23 metres. The free movement of the crane would carry it from time to time, in an uncontrolled way, over the plaintiff's building.
I do not take a very grave view of the encroachment constituted by allowing the crane to weathervane. Any encroachment has, I suppose, some discernible risk but the free movement of the crane has relatively small discernible risk, particularly when compared with the use of the crane to pass loads over the plaintiff's building. There is a good practical reason for allowing the crane to weathervane, as this minimises the stresses produced on the tower and the crane structure generally by wind.[4]
[3](1991) 23 NSWLR 464.
[4]Ibid 467.
It was submitted that I should infer that Bryson J would not have considered the weathervaning to be a trespass; or alternatively he would not have granted an injunction but for the other incursions by the defendant.
The other decisions with respect to weathervaning were referable to circumstances at a time when cranes were uncommon; and the common law should now recognise the practical reality of the need for cranes in commercial construction.
Plaintiffs’ submission
Mr Woods, who appeared for the plaintiffs, submitted that, other than when the crane was weathervaning, the crane also trespassed into the airspace over the plaintiffs’ property whenever it operated in a generally southerly to a west-south-westerly direction. He submitted that although loads were not transported over the plaintiffs’ property, because the carriage was withdrawn along the boom so that it was positioned over the defendant’s property, the balance of the boom extension was not variable.
The plaintiffs said that the Court should apply the authorities and that under no circumstances should the trespass be considered to be not interfering with use or de minimus.
Decision
The principles to be applied on interlocutory injunctions are well established. In Bradto Pty Ltd v Victoria,[5] the Court of Appeal formulated the relevant test as follows:
whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’, in the sense of granting an injunction to a party who fails to establish his right at the trial, or in failing to grant an injunction to a party who succeeds at trial.[6]
[5](2006) 15 VR 65.
[6]Ibid 73 [35] (Maxwell P and Charles JA).
The fact that the plaintiffs’ rights as the owner of land extends into airspace is trite. On one view, the owner’s rights extend to protecting not only the land but the sky space above the land stretching the limits of the atmosphere and the soil beneath the surface down to the centre of the earth.[7] The issue of whether such rights are limited to the prevention of incursions that ‘[interfere] with that part of the airspace above [the] land which is requisite for the proper use and enjoyment of that land’[8] (such that, for example, claims in trespass cannot prevent aircraft flying over property), has been said to await a definitive ruling from the High Court.[9]
[7]The Latin maxim: cujus est solum, equs est usque ad coelom et ad inferos. See Bernstein v Skyviews & General Ltd [1978] 1 QB 479, 485.
[8]Graham v K D Morris & Sons Pty Ltd [1974] Qd R 1, 4.
[9]Anthony P Moore, Scott Grattan, Lynden Griggs, Bradbrook, MacCallum and Moore’s Australian Real Property Law (Thomson Reuters, 6th ed, 2016) 812 [16.140].
However, even applying the more restricted view, I consider that the incursions of the crane, while in weathervaning mode, constitute an actionable trespass for the following reasons.
The following authorities are compelling in support of the plaintiffs’ claim:
(a)Graham v K D Morris & Sons Pty Ltd[10] was a case concerning the jib of a crane, which operated in weathervane mode when not in use. The facts were as follows:
[10][1974] Qd R 1.
(i)The crane was assisting in the construction of a building that was to be about 90 metres high (300 feet). The jib was able to be move up and down, as well as circularly around the tower.
(ii)The plaintiff wrote to the defendants demanding that the trespass be brought to an end. The defendants asserted in reply that they were unable to stop the crane swinging. The plaintiff then sought an injunction to restrain the trespass.
WB Campbell J granted the injunction against trespass by the crane on the following bases:
(i)He was satisfied that ‘the invasion of the plaintiff’s airspace by the projection of the crane jib is a trespass by the defendant’.[11] His Honour was persuaded that the overhanging crane ‘interferes with that part of the airspace above her land which is requisite for the proper use and enjoyment of that land.’[12]
[11]Ibid 4.
[12]Ibid.
(ii)His Honour observed that ‘any hardship which the defendant will suffer [as a result of the injunction] has been brought about by its own negligence and its cavalier attitude.’[13] He described the attitude of the crane operator as ‘high-handed’ and said that:
[13]Ibid 5.
Were I to refuse an injunction on the ground that the plaintiff could be adequately compensated in damages I would in effect be permitting a deliberate act of trespass to continue not for a short time but for about another eighteen months upon payment to the plaintiff of an uncertain sum to be calculated at some future time.[14]
[14]Ibid.
(iii)He rejected the defendant’s request that the injunction not be granted because negotiations could resolve the licence by payment of a reasonable sum stating:
It is not for me at this stage to act as an arbitrator or to conduct some form of negotiations between the parties with a view to obtaining the plaintiff’s permission to the tort on the basis of the interests of the public, fairness to the defendant or otherwise. Why should I bring pressure upon the plaintiff to hamper her legal rights for monetary compensation of any amount?[15]
[15]Ibid 7.
(b)In Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Pty Ltd,[16] the defendant was the owner and developer of a site south of Tower Bridge in London. The plaintiffs each owned property to the north and west of that site. The defendant carried out construction works using a tower crane. When not in use, the boom operated in weathervane mode. The plaintiffs called upon the defendant to desist, but to no avail. They sought injunctive relief simply on the basis that they were owners and a trespass has been committed and it was threatened to be continued. Scott J granted a permanent injunction for the following reasons:
[16][1987] 2 EGLR 173.
(i) He rejected the defendant’s argument that there was no trespass and said:
What is complained of in the present case is infringement of air space by a structure positioned upon a neighbour’s land. The defendant has erected tower cranes on its land. Attached to each tower crane is a boom which swings over the plaintiffs’ land. The booms invade the air space over the plaintiffs’ land. Each boom is part of the structure on the defendant’s land. The tort of trespass represents an interference with possession or with the right to possession. A landowner is entitled, as an attribute of his ownership of the land, to place structures on his land and thereby to reduce into actual possession the air space above his land. lf an adjoining owner places a structure on his (the adjoining owner’s) land that overhangs his neighbour’s land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass. It does not depend upon any balancing of rights.[17]
[17]Ibid 175.
(ii) He rejected the defendant’s argument that there was no harm to the plaintiffs and said:
I do not think [the defendant’s] point that the trespass is causing no harm is a sound one except in the sense that the oversailing booms are causing no physical harm or interference with present plans. One of the rights of an owner of property is the right to allow others on terms acceptable to the owner to use the property; another right is the right to prevent others from using the property. The use by the defendant of the oversailing cranes deprives the plaintiffs of these rights. It deprives the plaintiffs of the right to bargain as they wish for the grant of rights over their property. It is not, in my view, accurate to say that no harm is being done to the plaintiffs by the trespassing cranes.[18]
[18]Ibid 177–8.
(iii) He accepted that, as a matter of fact, the oversailing booms did not interfere with any ordinary use of the plaintiffs’ properties, but he did not consider that it was a ground to refuse the grant of an injunction.
(iv)He rejected, on the facts, that the trespassing was ‘through inadvertence and not culpably’
(c)In London & Manchester Assurance Co Ltd v O & H Construction Ltd,[19] Harman J also considered a swinging crane, in that case over the Albion Wharf on the Thames. His Honour said:
It is, in my view, beyond any possible question on the authorities and the law that a party is not entitled to swing his crane over neighbouring land without the consent of the neighbouring owner.[20]
[19][1989] 2 EGLR 185.
[20]Ibid 186.
I do not consider that Bryson J’s statement in Bendal Pty Ltd v Mirvac Project Pty Ltd[21] that he did not ‘take a very grave view of the encroachment constituted by allowing the crane to weathervane’ should be understood as contended for by the defendant. I accept the plaintiffs’ submission that the fact that Bryson J ultimately granted the plaintiff relief as it claimed,[22] allows for the interpretation that his Honour did not need to consider whether the encroachment of the weathervaning encroachment would itself have been a trespass or required an injunction.
[21](1991) 23 NSWLR 464.
[22]Ibid 478.
Neither do I accept the defendant’s submission that I should disregard the authorities establishing that weathervaning encroachments constitute a trespass on the ground that cranes are now more commonly used for commercial construction. In my opinion, it could equally be said that the prevalence of cranes makes it all the more important that the courts enforce the rights of owners to protect their properties from such incursions. As with the legislative amendments to permit incursions by aircraft, it is for the legislature to balance the rights of owners of property against the commercial demands of the construction industry. By legislative amendments, New South Wales, the Northern Territory, Queensland and Tasmania have provided for the statutory imposition of an easement by the courts to promote land development.[23]
[23]Conveyancing Act 1919 (NSW) s 88K; Law of Property Act 2000 (NT) ss 163–5; Property Law Act 1974 (Qld) s 180(1); Conveyancing and Law of Property Act 1884 (Tas) s 84J.
Even without the authorities, I would conclude that the weathervaning was neither a trifling nor de minimus interruption of the plaintiffs’ rights. The evidence established that the plaintiffs live on the property with their two children. This is not a case, as it seems Bryson J considered, where the property is used purely for commercial purposes.[24] Collapses of cranes are not unknown. I accept the plaintiffs’ evidence that the plaintiffs and their children may be well justified on leaving their home if very strong winds were forecast, particularly if from a north-easterly direction. Owners of property should not have to live with the fear that at any time the boom of a crane may be above their home and the risk (however small) that it may crash down on their family.
[24]In Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464, 465, Bryson J refers to the plaintiff as ‘the owner of a seven-storey office building’.
Neither in money terms is the encroachment insignificant. As Lord Selbourne pointed out in Goodson v Richardson,[25] an interest in land may have ‘precisely the value which that power of veto upon its use creates’.
[25](1874) 9 LR Ch App 221, 224.
An encroachment into airspace raises a strong prima facie entitlement to an injunction.[26] As AL Smith LJ said in Shelfer v City of London Electric Lighting Co:[27]
Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act … is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.
In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff’s legal right has been invaded, and he is prima facie entitled to an injunction.
[26]PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 [62] (Smith J). Approved on appeal inBreak Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, 316 [25], 319 [36].
[27][1895] 1 Ch 287, 322.
The defendant further submitted that at trial it was proposed to contend that the court should refuse an injunction on the basis of the exception to the above principles established in Shelfer v City of London Electric Lighting Co.[28] In that case AL Smith LJ stated the principle of the ‘good working rule’ as follows:
[28]Ibid.
In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out.
In my opinion, it may be stated as a good working rule that—
(1) If the injury to the plaintiff’s legal rights is small,
(2)And is one which is capable of being estimated in money,
(3)And is one which can be adequately compensated by a small money payment,
(4)And the case is one in which it would be oppressive to the defendant to grant an injunction:—
then damages in substitution for an injunction may be given.
There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.[29]
[29]Ibid 322–3.
Having regard to these principles, and for the reasons substantially similar to those set out by Campbell J in Graham v K D Morris & Sons Pty Ltd,[30] I consider that the plaintiffs are entitled to an injunction in this case.
[30][1974] Qd R 1.
In my opinion, the prospects of the defendant resisting the plaintiffs’ claim for an injunction on this basis are negligible. I do not consider that:
(a)the injury to the plaintiffs’ legal rights, in circumstances where the boom of a crane will continue from time to time to hover over the plaintiffs’ home, to be small;
(b)the plaintiffs’ concerns about the risks to their safety posed by an overhanging crane over a period of about six months can be adequately compensated by a small money payment; or
(c) it is oppressive in this case to grant an injunction.
In fact, I consider that the defendant has acted in ‘reckless disregard to the plaintiffs’ rights’ for the following reasons:
(a)The defendant has at all relevant times known that the operation of the crane would intrude, from time to time, into the plaintiffs’ air space.
(b)The plaintiffs made it clear at all times that they objected to such an intrusion.
(c)The defendant proceeded and constructed the crane despite being aware of the above facts, in complete disregard to the plaintiffs’ rights. There is no evidence that, prior to the construction of the crane, the defendant had sought legal advice or was acting otherwise than on the basis that it could bully the plaintiffs into not pursuing their rights.
(d)Prior to the construction of the crane, the plaintiffs made a request, which I consider to be modest, that would have enabled them to move out of their own home during the period of the crane’s operation; but this request was refused until after they filed proceedings.
I propose to grant an injunction in the terms proposed by the plaintiffs. I consider that, as this is a case where the defendant has deliberately violated the plaintiffs’ rights, it is appropriate that the defendant indemnify the plaintiffs for the costs incurred to vindicate their rights in this proceeding.[31]
[31]LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1990) 24 NSWLR 499, 509 (Hodgson J).
---
4
2
0