In Owners Corporation SP023744S v Scarlett [2015] VCAT 99 the Tribunal refused to grant an injunction to stop a lot owner building a second floor that would encroach into the common property. The encroachment was into common property airspace by half a brick width, and by footings constructed under ground level on the common property.
Section 12(2) of the Subdivision Act 1988 provides for implied easements in circumstances where the easement is necessary for the reasonable use and enjoyment of a lot or common property. Implied easements allow for things such as building footings, sewerage and water pipes and other services, uninterrupted access to light and maintenance of eaves etc. even though they might need to be on common property instead of contained within the boundaries of a lot.
By contrast, an order for removal of a garage that encroached onto common property by half to one metre was made in Owners Corporation 11672 v Moore [2014] VCAT 1538 largely because the OC would bear the risk of injury to persons on the common property that may result from the door of the garage.
