Articles

By Lovegrove & Cotton – Construction and Planning Lawyers

‘In my opinion it could… be said that the prevalence of cranes makes it all the more important that the Courts enforce the rights of owners to protect their properties from such incursions.’

– Janney & Ors v Steller Works Pty Ltd [2017] VSC 363, at page 12 [32], per Riordan J.

Australian city skylines have been significantly populated with cranes for some years now. As noted by the ABC, in 2016 Australia’s eastern coast was host to more cranes than the entirety of North America [1]. Cranes are integral apparatuses for high-rise construction, yet they can pose dangers to site personnel and adjoining properties. Legal cases pertaining to air rights and crane ‘weathervaning’ and ‘oversailing’ have been increasingly subject to media coverage and scrutiny. It is profoundly clear that in this era of prolific crane use, crane safety must be of paramount importance.

In August 2016, the Canberra Times reported the death of a 62 year old man caused by a mobile crane that toppled over at a Canberra hospital work site [2]. Between 2007 and 2013 Cranes accounted for three deaths in Western Australia, and crane deaths apparently account for eight percent of deaths on building sites in America [3].

Cranes have also been known to damage adjoining property. In February 2016 the arm of a crane crashed on to a road in St Kilda damaging cars [4].

Again, in 2017, there were two high-profile catastrophic crane failures in Sydney. As reported by the ABC, on the 7th of August, a tower crane operating on a high-rise apartment block at Wolli Creek collapsed due to a mechanical/engineering fault [5]. Worryingly, the crane fell onto an adjoining high-rise residential building. Similarly, in late August, a crane in Sydney Harbour toppled, flinging a section of wire hundreds of meters onto the famous Luna Park entrance [6]. Given incidents such as these, it is evident that crane failures have a very real possibility of damaging adjoining property and the potential to harm residents and the public.

In light of the dangers that cranes can pose, Australian Standard 2550 is dedicated to inspection protocols for cranes.

Little wonder then that there has emerged an astute practice where adjoining or neighbouring property owners negotiate and execute crane oversail agreements with developers and or contractors whom are intent on using cranes that are left to weathervane whilst not in use. Cranes can cause a degree of danger and the use of cranes requires a fair measure of safety dexterity and rigor.

As cranes can have a deleterious impact upon adjoining property, it is very important that neighbours satisfy themselves that risks of crane-inspired surprises are removed. As neighbouring property owners by law own air rights proximate to and above their land holdings, they can leverage of those rights by ensuring that licence agreements are fashioned to document crane handling procedures that minimise the threat of adverse impacts to surrounding properties. It follows that crane oversail licences are paramount legal instruments that can be utilised to minimise said risks.

Air Rights and trespass

The law of trespass dictates that property owners are entitled to enjoy exclusive dominion over their properties and are likewise entitled to determine who may set foot on their properties. There is an assumption in that prerogative that the explicit or implicit permission of the property owner must be forthcoming before a visitor sets foot or intrudes into the owner’s realm. Those who choose to venture into another’s property, or cause an object in their control to venture into another’s property, absent requisite permission commit an act of trespass, regardless of whether the intrusion occurs on the land, the building above the land or the air above the building or the land.

It follows that developers and builders must have regard to the property rights of neighbours and consistent with this regard is an understanding that they must obtain the permission of the neighbours to operate a crane in circumstances where crane apparatus such as the those where a jib is likely to aerially rotate or manoeuvre above neighbouring property.

The requirement to obtain permission to enter another’s domain is a well-established common law doctrine, known as the Cuius Est Solum Doctrine. Some acts of Parliament have, in more recent times, promulgated regulations that enshrine that right.

His Lordship, Scott J in Anchor Brewhouse Developments v Berkeley House (Docklands Development) Ltd (1987) 284 EG 625 had this to say about such rights: ‘If an adjoining owner places a structure on his (the adjoining owner’s) land that overhangs his neighbour’s land, he thereby takes into his possession air space to which his neighbour is entitled. That, in my judgment, is trespass.’

Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 further amplifies the application of the Cuius Est Solum Doctrine. In this case, a crane jib on a number of occasions intruded into a neighbouring property’s airspace. His Honour WB Campbell determined that trespass was evident and his Honour found that the defendant had interfered with that part of the airspace above her land and this impacted upon her use, enjoyment and value of that land.

The case law thus establishes that if a developer fails to obtain the permission of neighbours to operate a crane in circumstances that will involve aerial trespass, the neighbour(s) can seek injunctive relief from a court of law to compel the developer to refrain from operating the crane until permission is forthcoming. However, the success of such injunctions is contingent upon ‘reasonableness’.

In Woolerton and Wilson Ltd v. Richard Costain Ltd [1970] 1 WLR 411, trespass was claimed as a result of the crane in the adjoining property weathervaning and over-sailing the plaintiff’s property. Despite the defendant admitting trespass and offering substantial compensation, the plaintiff refused to grant an oversail licence. The plaintiffs sought and obtained an injunction that was subsequently suspended by the court. A consideration as part of the suspension was whether contractor had acted reasonably in offering payment.

It follows that developers and neighbours alike should, at the earliest opportunity, parley with the view to documenting the basis of an agreement which will take the form of a crane oversail license.

Key matters to consider and incorporate into an crane oversail licence

Safety is the primary concern; hence, neighbours would be well advised to engage the services of a suitable safety consultant to examine the crane machinery, safety integrity, oversail radius drawings and so forth.

The consultant will also need to be satisfied that severe winds will not generate any deleterious impact upon adjoining property on account of jib movement or rotation.

Equally, regard must be had to the matter of how the crane is maintained and whether the crane has been regularly inspected in accordance with AS 2550. The lawyers negotiating a crane oversail agreement should as, part of their due diligence, obtain assurances that the crane is in pristine condition.

The developers and the contractor should also sign indemnities that indemnify the adjoining property holders for any liabilities or damage that may emanate from crane use. Insurance too must
be obtained, and a lawyer should consult with an insurance broker to ensure that the developer obtains the right amount of cover and the appropriate scope of cover.

A Recent Case in the Australian State of Victoria

Janney & Ors v Steller Works Pty Ltd [2017] VSC 363 is a reasonably recent Victorian case that sets a significant common law precedent for the rights of adjoining property owners to obtain an injunction in circumstances where crane oversail breaches the ‘Cuius est Solum Doctrine’.

To summarise the facts of Janney & Ors v Steller Works Pty Ltd, the Developer (defendant) served a Form 3 Protection Work Notice noting that an overhead crane would be used for the development. Immediately after receiving this notice, the plaintiffs voiced their concerns regarding the crane’s safety. After repeated discussions with the Developer, the plaintiffs wrote to the Developer requesting that they pay compensation costs for relocation due to safety concerns and the loss of amenity. Otherwise, the crane was not to be installed. The relevant section of the letter dated 20th April 2017 is as follows:

“Our preference is not to live under a crane boom so we believe that it is fair and reasonable that Steller compensate us to relocate our family to a similar home within Elwood for the duration of the build to ensure our safety and not negatively impact our amenity and our quality of life. The alternative would be that a tower crane is not erected on the site; other large developments in Elwood have been built without the need for a tower crane.”

His Honour, Judge Riordan did not make a determination of an amount of compensation, leaving this as a matter for the parties to negotiate themselves. His Honour at paragraph 34 of the decision stated:

“Neither in money terms is the encroachment insignificant. As Lord Selbourne pointed out in Goodson v Richarson (1874) 9 LR Ch App 221, 224, an interest in land may have ‘precisely the value which that power of veto upon its use creates’.”

It is also important to note that His Honour, in considering the ‘good working rule’ principle established in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, 322, stated: ‘the prospects of the defendant resisting the plaintiffs’ claim for an injunction on this basis are negligible’. Reflecting on the aforementioned case, His Honour, Judge Riordan did not consider that:

• the infringement of the plaintiffs’ legal rights was small;
• the plaintiffs’ safety concerns could be adequately compensated by a small money payment; or
• the granting of an injunction would be oppressive for the Developer.

In paragraph 33 of the decision, His Honour made a topical statement regarding the risk of a crane collapse:-

‘Collapses of cranes are not unknown. I accept the plaintiffs’ evidence that the plaintiffs and their children may be well justified on leaving their home if very strong winds were forecast, particularly if from a north-easterly direction. Owners of property should not have to live with the fear that at any time the boom of a crane may be above their home and the risk (however small) that it may crash down on their family.’

Thus, developers that intend to use cranes that oversail adjoining properties can expect to be called upon to enter into an arrangement with an adjoining owner prior to starting the Building Works. Suitable and reasonable compensation should be provided for access to adjoining owners’ airspace. In circumstances where no agreement is established, entry may be refused and the adjoining owner will have the ability to obtain an injunction.

Conclusion

As cranes can pose dangers not only to operators, but also those who come within proximity of a weathervaning crane’s jib, it is very important that adjoining property owners have input into crane risk management and risk minimisation. The deployment of lawyers to negotiate and finalise crane oversail agreements is an integral part of that risk minimisation process along with the input of an experienced safety consultant who can work in cohorts with the lawyer to deliver an optimum risk mitigation outcome.

Works Cited

[1] Letts, S 2016, Apartment glut warning: More cranes on Australian east coast than in North America, ABC, accessed at <http://www.abc.net.au/news/2016-10-21/real-estate-warning-more-cranes-in-australia-than-us/7954108>

[2] Clare Sibthorpe, Construction worker’s death at University of Canberra hospital worksite sparks safety calls, The Canberra Times, accessed at http://www.canberratimes.com.au/act-news/construction-workers-death-at-university-of-canberra-hospital-worksite-sparks-safety-calls-20160804-gqlkif.html

[3] Beavers, J, Moore, J, Rinehart, R and Schriver, W 2006, ‘Crane-Related Fatalities in the Construction Industry’, Journal of Construction Engineering and Management, vol. 132, no. 9, pp.901-10.

[4] Craig Butt, Crane catches fire, collapses on St Kilda Road worksite, The Age, accessed at http://www.theage.com.au/victoria/crane-catches-fire-collapses-on-st-kilda-road-worksite-20160223-gn1iz0.html

[5] ABC, 2017, Crane collapses onto apartment block at Wolli Creek; residents unable to return home, accessed at <http://www.abc.net.au/news/2017-08-06/crane-falls-onto-unit-block-at-wolli-creek-sydney/8779014>

[6] Stuart, R 2017, Crane topples into Sydney Harbour after wire rope snaps and lands in Luna Park, accessed at <http://www.abc.net.au/news/2017-08-29/crane-topples-into-sydney-harbour/8852658>

Adrian J Bradbrook, 1988, The Relevance Of The Cuius Est Solum Doctrine to the Surface Landowner’s Claims to Natural Resources Located Above and Beneath the Land, p. 476.

Janney & Ors v Steller Works Pty Ltd [2017] VSC 363, accessed at <http://aucc.sirsidynix.net.au//Judgments/VSC/2017/T0363.pdf>