Crane Oversail

26 Aug 2016

Crane Oversail: The Balance of Trespass and Development

Building development, especially in densely populated cities, has led to the growing use and need for the deployment of tower cranes.

Such cranes, in many cases, provide cost effective advantages in the course of construction.

Tower cranes are typically erected on the land being developed and have a long boom or jib which, when angled out from the cabin of the crane, is used to lift and deliver materials from ground level to higher levels. Tower cranes can also have a counterweight which may also extend horizontally to balance the boom.

The nature of operation of tower crane means that in some cases and at certain times in the course of such operation, the boom or counterweight may due to the physical title boundaries of the developed land, necessarily extend over adjoining land. In some cases, the crane may be programmed so as not to traverse over the boundary line of an adjoining property, but this is not always a practical outcome to achieve the desired utility from the crane in the course of construction.

This projection of the boom or counterweight over the boundary line of an adjoining property gives rise to legal issues and practical problems for developers, builder and adjoining owners / residents.

The Historical Recognition of Legal Title

From the earliest times, common law has recognised the sanctity of landowners’ rights. A landowner is entitled to the exclusive use and enjoyment of his or her land. The voluntary and affirmative act that results in a physical transgression onto, over or under another’s land by a person, an animate or inanimate object will constitute an actionable trespass.

Trespass as a matter of law has been recognised as extending below the surface of the ground (e.g. mining / drilling under another’s land). Property rights of the owner or occupier above the surface have been held to extend to the use of airspace above the ground as is necessary for the proper enjoyment of the surface in cases such as Kelson v. Imperial Tobacco Co Ltd [1957] 2 QB 334 and ACQ Pty Ltd v. Cook [2008] NSWCA 161.

Subject to regulatory controls, an owner of land has the right to erect structures to any height and for any purpose.

There is no legal entitlement to construct structures overhanging or passing over the top of a neighbouring property, whether there is any actual damage or not thereby occasioned.

There is a clear authority that the direct invasion over land by artificial projections such as a swinging crane constitutes trespass and proof of damage is not required to justify a valid claim warranting the granting of a mandatory injunction to compel removal (Anchor Brewhouse Developments v. Berkeley House [1987] 2EGLR 173; Graham v. Morris [1974] Qd R1.)

Legislative Intervention through the Courts

In New South Wales by virtue of the Access to Neighbouring Land Act 2000, in Queensland by virtue of the Property Law Act 1974 (s.180) and in the New Zealand Property Law Act 2007 (ss. 319 and 320) legislative provisions allow for a builder or developer to make application to a Court to obtain an order facilitating the oversail of a crane onto neighbouring / adjoining land. On one level, this may be viewed as legislative interference with a landowner’s legal rights to exclusive possession of their land free from unauthorised entry.

However, the legislation seeks to strike a balance between the landowner and an adjoining developer and / or builder by facilitating the intrusion of adjoining land space with the egress of overhanging crane booms/jibs, whilst ensuring that there is a reasonable level of protection and comfort afforded to the adjoining land owner.

The legislation provides a practical solution and balances the interests of all parties. It does abrogate the common law position so long as an application is made to the appropriate Court for an order granting entry onto or over neighbouring land.

It is likely that other Australian states and territories will in time follow the legislative reforms of New South Wales, Queensland and New Zealand.

The current position

Although the historical position of trespass exists at common law by the unauthorized oversailing of a crane boom/jib onto adjoining land remains the law, there has been some development of that strict position.

In Woolerton and Wilson Ltd v. Richard Costain Ltd [1970] QB 479, the Plaintiff’s airspace had been oversailed by the jib of Costain’s tower crane, but the plaintiff refused to grant a licence despite Costain offering a substantial amount of cash. The claimant had not suffered damage as a result of the trespass. The plaintiff obtained an injunction but significantly the Court decided that in appropriate cases, it would use its discretion to suspend the coming into effect of the injunction. This is precisely what the Court did – remarkably the injunction was suspended until Costain’s works were complete.

This decision considered the rule that an injunction should not be granted where damages are an adequate remedy. In considering whether damages constituted an adequate remedy, the Court considered 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.

By holding a contractor to ransom, a land owner may be prejudicing his rights to an injunction.

Although not a case of trespass involving cranes, Sinclair v. Gavaghan [2007] EWHC 2256 illustrates how a reasonable licence fee may be quantified. Here, the claimant’s trespass gave it a more convenient access route to take materials to site, but the claimant had not gained any substantial benefit in speed or cost saving. Nevertheless, the court held a reasonable licence fee negotiated before the trespass began would have been £5,000. The case suggests a starting point of ‘nominal damages’ of £5,000 for trespass alone before damage to land or the benefit to a developer is taken into account. Had access over the land been essential to the developer, the licence fee might have reflected the cost saving and therefore amounted to several times more.

The point for contractors and owners of neighbouring land is this – contractors should not rely on the rather vague “special circumstances” defence and neighbours should think twice about rejecting the offer of a reasonable licence fee.

During the design stage, surveyors and contractors should carefully assess whether their cranes will need to oversail neighbouring land.

A licence or permit should 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 require an indemnity against any damage that the crane may cause and reimbursement of their legal costs of obtaining the licence.

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 be granted 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.

With the advent of legislative intervention and the ever-increasing development of land, particularly vertically, requiring the use of cranes dictates a need for the law to accommodate crane oversail while balancing the rights of adjoining owners.

In almost all jurisdictions, there now exists legislative or other authorised empowerment of an authorised person or body to grant crane oversail where a trespass is legally authorised over adjoining land, but with the caveat of safeguard mechanisms prescribed to ensure minimal risk and interference whilst facilitating timely and effective construction.