Construction of an inner-city apartment development has been brought to a standstill afteran injunction was granted preventing a tower crane from oversailing the home of adjacent occupiers.

Hadyn Janney and Carol Foti voiced their safety concerns to developer Steller Pty Ltd immediately on receipt of its notification the crane would be operational for at least half of the 12 month project period.

They asked the developer of the four-storey complex to move them at its expense to alternative housing. Too expensive cried Steller, which countered a $3k airspace use licence fee offer.

In its view, because it would ensure the jib would only traverse the neighbouring Elwood residence empty of load, any interference to their airspace rights would be trivial.

Because though it proposed that out of construction hours, the boom be allowed to swing or “weathervane” according to the prevailing wind direction – to avoid wind stress on the crane’s gears and the tower frame – the family faced the prospect of the boom sitting atop their home overnight and on weekends.

They appointed lawyers to seek an injunction in Victoria’s Supreme Court which prompted the 27 unit developer to belatedly come up with $20k towards the rental and removal costs Hadyn and Carol had first asked for.

By now though, their demand had escalated to more than $100k and the dispute headed into court.

Steller contended before Justice Peter Riordan that “the common law should now recognise the practical reality of the need for cranes in commercial construction” and that the balance of convenience was markedly in its favour.

The court took a much different view. According to the judge, airspace trespass was neither a trifling nor a “de minimus” interruption of a landowner’s rights and created a strong prima facie entitlement to an injunction.

“Owners of property should not have to live with the fear that at any time the boom of the crane may be above their home,” observed the court “and the risk (however small) that it may crash down on their family”.

Neither did his honour consider the encroachment to be of trivial financial value that could be adequately compensated by a small monetary payment.

The judge refused to determine the appropriate compensation, preferring to leave that to the parties. He noted though that the licence sought may well have “precisely the value the power of veto upon its use creates,” clearly indicating that the $100k sum asked for by the adjoining owners was not unreasonable.

In Queensland and New South Wales the situation is slightly different. Developers may apply to the court for a statutory airspace licence for upon the payment of reasonable compensation determined by the court.

Even in those states, this judgement is a useful and relevant guide for owners who wish to argue the compensation payable by developers should far exceed nominal sums that are often offered.

Janney & Ors v Stellar Works Pty Ltd [2017] VSC 363, Riordan J, 9 June 2017