Legal Issues that May Arise
A number or legal matters marred the encroachment into Alis land. One of the issues was that he was not consulted when the developers decided to swing part of the crane over his property. According to Kulish (2015), there should be an agreement between Ali and his neighbor that involves negotiations to come up with a reasonable agreement, which may include addressing safety concerns and other issues that Ali may have. Another problem is that Ali should have been served with a license that granted access to his land by the developers. Additionally, another legal issue that may suffice is how much air rights Ali has over his property. The rights may be regarding feet from the ground level.
Relevant Laws that Apply
Under the Australian constitution, three laws apply to Ali's case. One of the laws is the Conveyancing Act of 1919. The law describes the power of courts to create easements where a court can make an order that imposes an easement over land should the easement be reasonably required for the use or the development of another piece of land (New South Wales Consolidated Acts, n.d.). Another law that applies to the case is the Access to Neighboring Land Act of 2000, which provides landowners and developers with short-term access to adjacent land when carrying out construction works. The law provides a significant restriction to actual owners on their right to access and control their property (Access to Neighboring Land Act 2000, n.d.). The developer must however first make an application to the local court citing the act. The third law that applies to the action is the Land and Environmental Court Act of 1979, which allows a developer or the landowner to make an application to the court to seek easement over land (Land and Environment Court Act 1979, n.d).
Specific Cases or Legislation that would Assist Ali or not
In an example of a land easement case that is similar to that of Alis, Hanny v Lewis, the judge ruled for the owner of the property. According to Webster (2008), the basis for his decision was that the term reasonably necessary as stated by the Conveyance Act required that there be no other options that the developer can explore thus requiring access to the adjacent land. If there indeed no other options, the developer can be granted the right to easement. For this case, the developer had other choice. The ruling would assist Alis case in case the developer had other options he could explore.
In another case, Becton Group Pty Ltd v The Minister & Anor, the judge ruled in favor of the developer. The presiding judge was in reference to the Land and Environmental Court Act citing that an applicant can apply for easement to allow proposed development to proceed. An example of an issue the easement will seek to satisfy is drainage purposes. The form of judgment would work against Ali's case.
Additionally, in the of case Marshall v The Council of the City of Wollongong, which the complainant sought to protect public interests in a case where an applicant sought easement, the judge ruled in favor of the defendant. Webster (2008) states that the judge said that granting an easement would not negatively affect any activity in which a member of the public would undertake.
What Ali should do to engage any particular legislative provisions or common law remedies to assist him in any claim
In seeking to make a complaint for his case, Ali should seek the services of a property layer. An estate lawyer would take him through legislative provisions that he may use in making his case within any court of law. The property lawyer would also take Ali through a common law remedy, which is a formal litigation process in which with the help of a lawyer he will be able to make a claim while following the due process of the law.
Ali commences an action against his neighbor by filling summons at a court. The warrant identifies that parties in the case and include statements that detail the reason for the action and the relief sought by the complainant. The court then imprints a seal on the summons and serves the defendants with the writ. The summons is then served to the respondent within a period of 12 months. Upon receipt of the summons, the defendant must write to the court that he or she intends to defend the action. Failure to do so may make the court make a default judgment for Ali. If the developers respond to the summons with intent to defend, a trial date will be sent, and the complaints and the defendants will be invited to argue the matter raise by the complainant.
Ali and his legal representative can make a claim during the litigation process that states that his neighbor and the developer had no reasonable necessity to have the crane suspended over his property, particularly over his house. Ali and his team may claim that there could have been other options explored such as the neighbors front and back yard thus eliminating the need of having the care encroach his air space particularly 10 meters above the peak of his house.
Another legal option that the complainant may use to state his case is the fact that suspending part of the crane directly above his house is an impediment against public interests. It is the right of citizens to be protected against any sources of injury and harm thus swinging the part of the crane above his property my subject him and his property to harm and destruction in case of an accident. However, since the complainant has not yet been subjected to any physical loss or disadvantage, he may not be subject to compensation.
However, Ali may fail to have the courts stop the crane's encroachment over his property if the defendants prove beyond reasonable doubt that there is no other way they could swing the crane when it is not in use. For instance, they may cite that the front yard of the house is adjacent to a road which may pose a safety threat motorists and great height vehicles thus impeding the security of the public. The defendants may argue that failure to grant easement will guarantee the inability to proceed to build the development. Additionally, the judge may rule in the favor of the accused if they prove that the Ali will be adequately compensated for any loss or disadvantages that occur due to the positioning of the crane on his property.
Access to Neighboring Land Act 2000. (n.d.). Retrieved May 09, 2017, from http://www.austlii.edu.au/au/legis/nsw/consol_act/laeca1979274/
Kulish, T. (2015). What to Do When Neighbours Want Access To Your Land. Retrieved May 09, 2017, from http://www.bannermans.com.au/strata/articles/strata/334-what-to-do-when-neighbours-want-access-to-your-land
Land and Environment Court Act 1979. (n.d.). Retrieved May 09, 2017, from http://www.austlii.edu.au/au/legis/nsw/consol_act/laeca1979274/
New South Wales Consolidated Acts. (n.d.). CONVEYANCING ACT 1919 - SECT 88K. Retrieved May 09, 2017, from http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s88k.html
Webster , J. (2008). Easements - How to Obtain the Use of Your Neighbor's Land Without Consent. Retrieved May 09, 2017, from http://www.tved.net.au/index.cfm?SimpleDisplay=PaperDisplay.cfm&PaperDisplay=http%3A%2F%2Fwww.tved.net.au%2FPublicPapers%2FOctober_2008%2C_Sound_Education_in_Law%2C_Easements___How_to_Obtain_the_Use_of_Your_Neighbor_s_Land_Without_Consent.html
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