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CRANES OVERSAILING NEIGHBOURING LAND ISSUES

Rights to oversailing land with cranes is far from plain sailing

Reader may be intersested in this 2003 article by Jane Ryland Partner and Head of construction at law firm Cripps Harris Hall LLP

The article is posted on Lifting World forum which contains much useful information on a wide range of matters relating to lifting operations and plant.

It’s Crane Sailing – Construction Law – February 2003

“If a contractor is thinking of bringing cranes on to a development site, he should be aware from the outset that they may need to oversail neighbouring land. If he hasn’t negotiated the rights to do this with all the neighbours involved, then he may be faced with a raft of injunctions. However, landowners beware, holding the contractor to ransom may backfire. It was an ancient principle of English law that your rights over your land stretch from the centre of the planet all the way to the stars.

So when someone develops the adjacent plot of land and the contractor swings his tower cranes in to motion, there is a real risk that they will need to oversail the neighbouring airspace. If the contractor does not have the legal right to oversail, it is highly likely he will be greeted with polite requests from his neighbour along the lines of “Ger orrrf moy laaaaand”. Many more requests, in less polite terms, will be received if the development is in a built up area. An examination of the deeds should tell the owner of the development site, whether he does have the right to oversail neighbouring airspace.

Let us assume that the contractor has not been granted the blessing of his neighbours to oversail their land but he continues to do so, as to do otherwise would require a complete re-think of the drawings, the types of cranes and work method. The contractor may be committing a trespass, and his neighbour may have the right to obtain an injunction to stop this. In Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd (1987) the boom of Berkeley’s cranes oversailed Anchor Brewhouse’s land and was held to constitute a trespass. You do not have to show damage to obtain an injunction for trespass. Anchor Brewhouse succeeded in obtaining the injunction they were looking for as the court found no “special circumstances” to prevent the injunction.

However, in the case of Woollerton and Wilson v Richard Costain (1970) the courts adopted a different approach. An injunction was granted to the Claimant whose airspace had been oversailed by the jib of Costain’s tower crane. The court decided that it was no defence to a claim for an injunction that Woollerton and Wilson had not suffered damage, though rather controversially decided that in appropriate cases, it would use its discretion to suspend the injunction. This is precisely what it did – the injunction was suspended until Costain’s works were complete. It ought to be noted that in this case, Woollerton and Wilson refused to grant a licence despite Costain offering a substantial amount of cash. It is also important to note that an injunction will only be granted if damages are not appropriate.

In deciding whether damages are appropriate or not, the court will consider a wide range of issues including how much prejudice and inconvenience the neighbour will suffer and whether or not the contractor has acted reasonably in offering payment. The point for contractors and owners of neighbouring land is this – don’t rely on the courts, in particular contractors should not rely on the rather vague “special circumstances” defence.

During the design stage, surveyors and contractors should carefully assess whether their cranes will need to oversail neighbouring land. If they do, and other types of crane are unsuitable, then ask the owners of the land for the legal right to oversail i.e. obtain an Oversail Licence. The licence would cover issues such as the times of day (and night) the cranes may oversail the neighbouring airspace, the heights at which they may do so, and the duration of the licence. A well advised landowner will probably also want an indemnity against any damage that the crane may cause. 

At this point, landowners may be rubbing their hands together with glee at the prospect of holding the contractor to ransom for a shed load of cash. However, remember that Woollerton and Wilson were offered a substantial sum by Costain, which they refused, and ended up obtaining only a suspended injunction. By holding a contractor to ransom, a landowner may be prejudicing his rights to an injunction.

So how much should the contractor fork out for the Oversail Licence? If the contractor does not manage to negotiate a licence he will need to change his cranes and work method. This is going to cost him money. The fee for the Oversail Licence would typically be a percentage of what that additional cost would be, together with surveying and legal costs. In addition, his insurance cover will need to be increased to cover for any damage his crane may cause the neighbouring land. This can all be costly for the contractor, especially if the area is built up and a large number of landowners are involved, who would all need to grant separate licences if the crane oversailed their respective space. Innovatively however, a few contractors have managed to off-set some of this cost by using the jib as advertising space, though note that this use may be restricted by both legislation and the title deeds.

As well as heavy loads, cranes are also good at raising a plethora of health and safety issues. In one case, during high winds, the contractor’s crane accidentally oversailed the neighbouring land. Desperate to avoid having to dig into his pockets to pay off his neighbours, he decided to tie the crane down. This course of action backfired in that tying it down caused the entire crane to collapse in the winds, resulting in a significant amount of damage to both the development plot and the neighbouring land. Love Thy Neighbour If it really does prove to be nigh on impossible to obtain a licence, then technology may save the day. Recent developments have utilised computerised cranes that can be programmed not to oversail neighbouring airspace. Also, currently being marketed is a crane with a retractable jib. If you wish to copy this article please do so, but also acknowledge its source.

If it really does prove to be nigh on impossible to obtain a licence, then technology may save the day.”

For further information contact: Jane Ryland T: 01892 506345 hjr@crippslaw.com

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