The outcome of a dispute between two canal property owners is a reminder of the “statutory right of user” powers available to acquire tenure over adjoining property. It also sets a nominal compensation precedent potentially applicable to similar scenarios.
The Property Law Act 1974 (Qld), s 180, s 184, s 185 considers the principles of statutory right of user and encroachment. This Supreme Court judgement states: “When considering an application for relief of this kind, the court is given a broad discretion, to grant or refuse relief “as it deems proper in the circumstances of the case” – Steer & Anor v Hemmings & Anor  QSC 460
It seems that discretion can have significant consequences.
The majority of homes in the canal estate were constructed with one side of the building very near to a side boundary. This “off centre” positioning of all buildings in a row, then allowed vehicle width access on the other side of the building from the street frontage through to the canal frontage.
For practical purposes, this meant that to maintain the boundary wall it was necessary to have access to the neighbours land. Whilst it may have been possible to carry out some maintenance from the roof, the Court noted: “Nevertheless, it seems to me to be relatively obvious that some work of this kind could be carried out more safely and effectively if the applicants were able to have access to the space between the two houses.”
In this case the boundary wall was within centimetres of the boundary but not over it. The fencing that ran from it did however encroach the boundary, albeit minor.
Both parties acquired their respective properties some years after they were constructed. The existing fencing and walls have virtually remained unchanged since.
Correspondence between the solicitors for the parties had previously resulted in agreement on a number of terms on which access might be permitted, but the negotiations did not reach a conclusion.
The Court found in this case that it was appropriate to impose a statutory right of user and invited further submissions from the parties on the precise terms of the order to be made.
It is understood that the parties subsequently reached agreement as directed by the Court with a view to registering the instrument on title. This property would then become the only one in the entire location to have such a notation.
In relation to compensation, the Court remarkably rejected the valuation evidence submitted by both parties preferring to adopt a much lower amount of $5,000 tendered by Counsel for the applicant during the proceedings. That equates to less than 1% of the impaired property’s market value.
This decision also considered two other authorities pertaining to statutory right of user:
(1) Tran & Anor v Cowan & Ors  QSC 136 where The Court awarded a shared driveway easement that was inadvertently omitted during the survey and consequent title registration of adjoining residential allotments, and
(2) Lang Parade Pty Ltd v Peluso & Ors  QSC 112 where a construction crane used in the development of a sizeable apartment project was ‘trespassing’ over the airspace of an adjoining property arguably raising safety issues for existing tenants. Negotiations to secure an agreement and compensation had been unsuccessful.
In this matter and the previous cases, there seems a consistent thread. “unreasonable refusal” will likely lead to a right of user being imposed and possibly compensation significantly less than what the parties had been previously negotiating.
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