We consider the action neighbouring owners can take to prevent unlawful oversailing, how developers can try to avoid the problem, and other situations in which overhanging structures and objects can amount to a trespass.
WolfBite – the key takeaways
· Landowners generally own the airspace above their property to the height necessary for the ordinary use and enjoyment of their land.
· Any intrusion by any part of a crane into a neighbour’s airspace without permission will be a trespass entitling the neighbour to seek an injunction, compensation or both.
· Entering into a crane oversailing licence will give a developer permission to swing into the neighbour’s airspace, subject to conditions.
· Seeking early advice is key for developers and neighbouring owners alike.
· The same principles apply to other objects that might project across the boundary and into a neighbour’s airspace, such as scaffolding.
Who owns the airspace above your property?
A landowner owns the airspace above their land, but the law no longer considers that this extends upwards indefinitely into outer space.
Rather, the courts have found that ownership of the airspace reaches to such height as is necessary for the ordinary use and enjoyment of the land and the structures on it.
A landowner cannot, therefore, complain about an aircraft flying hundreds of feet above their house. The Civil Aviation Act 1982 in any case now makes it clear that there will no claim for trespass or nuisance where aircraft fly over property at a reasonable height.
However, a landowner may well be able to bring a claim for trespass where something intrudes into their airspace at a lower height.
What is crane oversailing?
A crane often consists of a vertical tower with a long horizontal arm at the top comprising a jib at one end and a counterweight at the other.
When in operation, the jib and counterweight will rotate around the main tower as materials and equipment are lifted to and from the building under construction.
When not in use, crane jibs are sometimes allowed to swing freely (“free slew”) with the wind to avoid high loadings being place on the crane structure and foundations which can lead to a risk of failure or collapse.
If any part of the crane - usually the jib or the counterweight - swings, projects or otherwise protrudes beyond the boundary and into a neighbour’s airspace, this is called oversailing.
If the developing landowner and their contractors do not have the neighbour’s permission to oversail, the neighbour can bring a claim for trespass.
What if the developing landowner does not get permission to oversail?
If a crane oversails the neighbour’s airspace without permission, the neighbour can seek an injunction to prevent the trespass, damages (compensation) or both.
An injunction is a discretionary remedy, meaning that the court can decide whether to grant one or not.
Even where the court considers that the landowner is in principle entitled to an injunction, it has the power to grant damages in lieu (instead) of an injunction.
However, there is a long line of cases in which the courts have found that a landowner is ordinarily entitled to an injunction to restrain a trespass, whether or not the trespass has caused any harm, unless there are special circumstances to justify withholding one.
If an injunction is granted, this can have serious consequences for the developing landowner.
At best, being unable to use the crane would likely cause delays to the construction programme, and therefore additional costs and possibly financial penalties, whilst the developer either relocates the crane or finds alternative ways to move materials and equipment around the site.
At worst, it may scupper a development altogether, for example if there is simply no other way to load and unload materials given the constraints of a particular site.
What is a crane oversailing license?
To avoid the potential risks, a well-advised developing landowner will seek to obtain the neighbour’s permission to oversail in advance.
In this way, the developing landowner will approach the neighbour and invite them to enter into a crane oversailing licence. Such a licence gives the developer permission for the crane’s jib, and sometimes the counterweight as well, to swing into the neighbour’s airspace.
Neighbouring owners will often agree to enter into such a licence, but usually on the condition that the developer pays a licence fee and subject to the inclusion in the licence of various obligations designed to protect the neighbour’s position.
These protections can include:
· Evidence that adequate insurance has been put in place to guard against any damage.
· Provision of a method statement showing how the crane is to be erected, operated and dismantled.
· That all necessary consents will be obtained, and all health and safety requirements complied with.
· Preventing any loads from being carried over the neighbour’s property.
· Indemnifying the neighbour for injuries, death and property damage.
· Ensuring that the neighbour’s property is left in the same condition, making good any damage that might be caused.
· Provision of emergency contact numbers.
· The ability for the neighbour to terminate the licence in the event of a material breach.
· The payment of costs and professional fees associated with the licence.
It is common for both the developing owner and the neighbour to instruct surveyors to assist with the negotiation of the terms of the proposed licence, including the amount of the licence fee.
Crane oversailing licences are typically entered into for a fixed period of time. Terms are, however, sometimes included giving the developing owner the right to seek an extension if their construction programme slips.
One point that can be overlooked in practice is who should be a party to a crane oversailing licence. Commonly, the developing landowner and its contractor will both be parties, as will the neighbouring owner.
However, if the neighbour has tenants (whether residential or commercial), it is often wise to join those tenants as parties to the licence agreement even if it may not be clear whether they have rights to the airspace above the property.
It is important to recognise that a neighbour does not need to agree to enter into a crane oversailing licence.
However, if the neighbour does not agree, the court may take into account the developing owner’s offer to pay a licence fee, coupled with appropriate safeguards, when considering whether to grant an injunction. In one case, the court was persuaded to suspend the operation of an injunction for the period necessary for the developer to finish the work, although that decision has been criticised.
Importance of early advice
For developers, if you think that you will need to use a crane that might oversail the boundary of one or more neighbouring properties, you should obtain early professional advice from a surveyor, a solicitor or both.
A specialist surveyor will be able to produce drawings showing which properties may be oversailed and advise on the potential licence fees that may be payable. A solicitor will be able to help with the strategy for approaching the neighbours and how to minimise the risk of litigation.
For neighbouring owners, if you are invited to enter into a crane oversailing licence, get in touch with a surveyor or solicitor as soon as possible to discuss your options.
You should urgently instruct solicitors if you see crane equipment being brought to site without having given permission to oversail. We can advise you in connection with a possible claim for an injunction, and how to conduct any negotiations with the developer without inadvertently prejudicing your case.
Not just cranes
The risk of causing a trespass by oversailing is not restricted to cranes.
Overhanging scaffolding is another commonly encountered trespass. Trees, advertising hoardings, extractor fans, masts and wires are all other examples.
Potentially, anything that projects into a landowner’s airspace could amount to a trespass.
That does not, however, mean that an injunction will always be an appropriate remedy, or that threatening litigation will necessarily be the way to go.
Speak to a solicitor
Whether you are a developer looking to progress a scheme, or a homeowner facing an issue with building work next door, our development team is on hand to help. You can contact us at hello@hagenwolf.co.uk.