Property developers have long realised the potential of building vertically. By purchasing comparatively small areas of land, developers can maximise the footprint of their properties by building to a great height.
This creates challenges for developers as they adopt new building techniques to compete with Britain's ever-heightening skyline – it also creates complex legal challenges.
Tower cranes provide height and lifting capacity whilst occupying a modest footprint. Due to the densely populated nature of Britain's cities, the use of tower cranes is often the most practical construction method. However, using tower cranes often means that the jib of the crane will oversail neighbouring land, especially as structural stability often requires the jib of the crane to swing freely in the wind. Therefore, any property in close proximity to the crane is likely to be oversailed during the course of the construction.
Landowners own the airspace above their land. So, when a tower crane oversails, this can amount to trespass, and an aggrieved landowner can seek an injunction to prevent the use of the crane. Given that the use of tower cranes is so prevalent in the industry, the implications of time and cost following an injunction should not be underestimated. To obtain an injunction, the landowner does not need to have necessarily suffered loss or damage.
Where there is a risk of crane oversailing, developers should seek the landowner's permission. If granted, the permission will be documented in a crane oversail licence.
A developer should carefully map out and produce a plan at the outset showing the position and turning circle of the crane and all nearby land that will be affected. Contractors, developers and landowners should always seek legal advice if a crane oversail licence is required. Many problems can be avoided by ensuring that the licence is carefully drafted at the outset in relation to matters such as:
A well-drafted licence should specify:
Often the most negotiated aspect of the licence is what the landowner's fee should be. However, it is important to note that the Courts have looked unfavourably upon landowners who have tried to force contractors into paying unreasonable fees.
Failure to act reasonably could result in a landowner's injunction being suspended until the contractor has completed their construction. In such circumstances, the landowner's legal rights are impinged without any financial recompense.
It is therefore extremely important to seek professional legal advice before using a tower crane as a developer or granting permission as a landowner. Many problems can be avoided by ensuring that the licence is carefully drafted at the outset.
The oversail licence will usually be entered into between the contractor and the landowner, although the developer may sometimes obtain the licence instead of the contractor. If the crane needs to oversail public highways, a licence will also need to be entered into with the highway authority. If the land being oversailed is let to a tenant, the lease's terms must be reviewed to determine whether permission to oversail must also be sought from the tenant if the tenant's demise includes the airspace above the property.
If no oversail licence is put in place and the jib of the crane oversails a neighbour's land, this will often amount to a trespass because the jib will be invading the airspace belonging to that neighbour. Trespass is actionable by the person in possession of the land who can claim damages or an injunction, or both.
A landowner or tenant should not attempt to hold the contractor or developer to ransom when approached for permission to oversail their land. Case law shows that the courts have looked unfavourably upon landowners and tenants in such circumstances and are likely to permit the works to be completed without any fee being paid to the landowner or the tenant.
In the case of Woollerton & Wilson v Richard Costain Ltd [1970], a court granted landowners an injunction to stop a crane from oversailing their land but suspended the injunction because the contractor had offered £250 for a crane oversail licence and to insure against any damage it might cause, which the landowners had refused.
If you have any more questions or would like more information regarding crane oversailing or crane oversail licences, you can contact our Construction Team below.
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