The Uniting Church in Australia Property Trust (NSW) v Crowe

The Uniting Church in Australia Property Trust (NSW) filed a case against Crowe, asserting trespass to land and seeking equitable remedies, including an injunction to remove structures. Crowe had constructed a balcony, roof overhang, concrete slab, and deck on or projecting into the airspace of the plaintiff's land between 2009 and 2019, without the plaintiff's knowledge or consent. The plaintiff became aware of the construction works in 2019 and sought to have the structures removed. The case raised several key legal issues, including whether the defendant's construction works constituted an implied licence, the adequacy of damages as a remedy, and the applicability of estoppel by convention.

The court examined the nature of the trespass and the legal consequences of the defendant's actions. The balcony and roof overhang were found to give rise to a continuing trespass, while the deck and concrete slab did not. The plaintiff argued that an injunction was necessary to prevent ongoing trespass, while the defendant contended that damages would be sufficient. The court considered the "good working rule" from Shelfer v City of London Electric Lighting Company, which requires a court to weigh the adequacy of damages against the hardship of requiring the removal of structures. The court found that the hardship to the plaintiff outweighed the adequacy of damages, and granted a mandatory injunction to remove the structures. The court also examined the applicability of estoppel by convention in light of discussions concerning the purchase of the plaintiff's land by the defendant, but found that no estoppel arose.

The court considered the defendant's applications under the Encroachment of Buildings Act 1922 and the Conveyancing Act 1919, s 88K, for compulsory transfer of, or easement over, the plaintiff's land to accommodate the encroaching structures. The court found that the defendant's knowledge of the encroachment at the time of construction, and the resulting hardship, did not justify compulsory transfer or easement. The court also found that the alleged necessity for an easement resulted from the defendant's own conduct in building up to his boundary, and that the easement was not reasonably necessary for the effective use or development of the defendant's land.

The court made an order that Crowe remove the balcony, roof overhang, concrete slab, and deck from the plaintiff's land, and granted an injunction to that effect. The court also refused the defendant's applications for compulsory transfer of, or easement over, the plaintiff's land.