Freehold ownership of land usually includes the air space above that land. When a contractor needs to bring a tower crane onto a site in order to carry out works, it needs to consider whether the jib (the horizontal arm) of its crane will need to swing over or ‘oversail’ any adjacent land that does not belong to the developer.
If so, the contractor will need to calculate the radius of the jib and negotiate an oversail licence with each of the affected adjacent landowners; otherwise, the oversailing of the jib will amount to a trespass over the adjacent land.
Entering into an oversail Licence
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.
Drafting an 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:
- Licence fees
- The duration of the licence
- Extensions of time if there is a delay in the development and consequential fees arising from this
- The description and number of cranes
- Designated days and hours of oversailing
- Rectification of damage caused by the oversailing
- Termination of the licence
If you have any more questions or would like more information regarding crane oversail licences, you can contact the Commercial Property Team at Myerson Solicitors.