The implications of oversailing
The sight of cranes towering above the city skyline is commonplace and are a positive sign of a buoyant economy. For property developers, the benefits of building up, rather than out are well-known. By purchasing comparatively small areas of land, developers can maximise the value in the footprint of their properties by building to a great height.
However, this form of development creates its own set of challenges. New construction techniques are required to meet the demands of the UK’s ever heightening skyline and there are complex legal challenges around building in such confined, built-up spaces.
The rise and rise of tower cranes
The use of a tower crane offers the most practical construction method for maximising the footprint of the building and the efficiency of its construction. They provide height and lifting capacity as well as being able to ‘sail’ above the densely populated city below. However, there are key issues that developers and contractors need to be aware of that can impact on the progress and cost of a project.
Using a tower crane means that the jib of the crane will oversail neighbouring land, especially as to ensure structural stability often requires that jib 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.
Under English law a landowner owns all the airspace above the land, to the heavens above. Legislation has given aircraft rights to pass without causing any trespass, but the basic principle holds good nearer the ground (unless it has been expressly excluded from the lease). It is, therefore, legally classed as trespass if a developer or its contractor allows a tower crane jib to swing across land owned by other parties. Any adjoining owner who feels aggrieved by this can obtain an injunction to prevent such trespass without needing to show that any damage has occurred. Given that the use of tower cranes is so prevalent in the construction industry, the implications of time and cost following an injunction should not be underestimated.
Securing an oversailing licence
Where there is a risk of a crane oversailing adjoining land, developers need to seek the landowner’s permission. This permission, if granted, is documented in an oversailing licence.
A well drafted licence should specify:
- The agreed location (and turning circle) of the crane
- What the landowner’s fee for the consent is
- The times of day (and/or night) the crane may oversail
- The heights the crane may operate at
- The duration of the permission
- How any damage caused by crane is to be rectified
- The way the crane is to be erected and dismantled
- Compliance with applicable laws and regulations
- The circumstances which give rise to termination of the licence
In our experience, the most negotiated part of the licence tends to be what the landowner’s fee is. Whilst fair and reasonable recompense is required, the courts have looked unfavourably upon landowners who have tried to force contractors into paying extortionate 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.
Our team has extensive experience of successfully negotiating oversailing licences to ensure a development gets underway quickly and without unnecessary cost. By making advance contact with adjoining landowners, and liaising with them or their representatives to negotiate a licence, we can often avoid disagreement and pre-empt any challenges. We also prepare and agree schedules of condition to supplement the licence and provide added protection in cases where allegations of damage could be made by the adjacent landowner.