The provision provides for a statutory adjustment of the rights of the parties so that the holder of the dominant tenement may no longer treat for whatever price it wishes in return for the grant of a licence to trespass.
Typical facts Consider the following.
A now seeks your advice. The defendant was constructing a new building, to house the Family Court of Australia, on an adjoining site which was fully occupied by the proposed Court. It followed that it was not possible to work on certain sides of the Court without the works intruding onto adjoining sites or the superincumbent airspace. There had been a modus vivendi of sorts contained in correspondence between the parties since each needed the other's broad co-operation to carry out contemplated works on their respective sites. Ultimately, however, the relationship deteriorated and the plaintiff alleged that a pipe on the plaintiff's building had been damaged.