Janney v Steller Works Pty Ltd - [2017] VSC 363

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

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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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 363
Decision Date: 9 JUNE 2017 (ex tempore)

CaseChat Overview and Summary

Janney v Steller Works Pty Ltd involved a dispute between the plaintiff, Janney, and the defendant, Steller Works Pty Ltd, regarding the construction of a building on adjacent land. Janney alleged that Steller Works' construction activities, including the use of cranes, oversailing, and weathervaning, encroached into the airspace above Janney's property, thereby interfering with Janney's right to possession. The matter was heard in the Supreme Court of Queensland.

The primary legal issues before the court were whether Janney had a property interest in the airspace over their land and whether the construction activities constituted a trespass. The court needed to determine the extent of the right to possession of airspace over land and whether the construction activities of Steller Works constituted a trespass to airspace. The court also had to consider the discretionary factors relevant to the grant of an injunction, particularly the adequacy of damages as an alternative remedy.

The court found that Janney had a property interest in the airspace over their land, based on the precedent set in Bernstein v Skyviews and General Ltd and subsequent cases. The court acknowledged that the right to airspace over land is not unlimited but extends to a reasonable height for the ordinary use and enjoyment of the land. The court held that the construction activities of Steller Works constituted a trespass to airspace as they interfered with Janney's right to possess the airspace over their property. However, the court refused to grant an injunction and instead ordered damages. The court reasoned that the trespass was not reckless and that damages would be an adequate remedy for Janney's loss.

The court ordered Steller Works to pay damages to Janney for the trespass to airspace. The court did not consider it appropriate to grant an injunction as the trespass was not reckless and damages would adequately compensate Janney. The court also noted that an injunction would not be an effective remedy in this case, given the nature of the construction activities and the difficulty of enforcing such an order.

Orders