The legal issues relating to cranes20 October, 2009
If a contractor is thinking of bringing a crane on to a development site, any need to oversail into neighbouring land should be identified at the outset as should the potential cost of licences to oversail. If a contractor has not negotiated the right to oversail with all the neighbours concerned, then it may face an injunction restraining further work. Landowners on the other hand, must be wary of naming too high a price for the licence; holding a contractor to ransom may backfire.
It was an ancient principle of English law that a landowner’s rights stretch from the centre of the planet all the way to the stars. So when a contractor swings a tower crane into motion, there is a real risk that oversailing neighbouring airspace will amount to trespass.
If a contractor does not have the legal right to oversail, the landowner has two remedies available if negotiation fails: (1) obtaining an injunction to prevent further trespass; and/or (2) seeking payment of a reasonable licence fee through court proceedings. An examination of the office copy entries at the land registry should tell the landowner whether a previous landowner granted a permanent right of access over the airspace concerned.
Let us assume that the neighbouring landowner does not give the contractor its blessing to oversail but the contractor continues to do so. From the contractor’s point of view, to do otherwise would require a complete re-think of access, the types of cranes, the work method and effect on programme. Unauthorised crane oversailing is a trespass. In Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd (1987), for example, the boom of Berkeley’s crane oversailed Anchor Brewhouse’s land and was held to constitute a trespass. It is not necessary 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.
At this point, landowners may be rubbing their hands together with glee at the prospect of holding the contractor to ransom. However, where a neighbour rejected a contractor’s substantial offer the neighbour ended up obtaining only a suspended injunction. This was the case of Woollerton and Wilson v Richard Costain (1970). The Claimant’s airspace had been oversailed by the jib of Costain’s tower crane, but the Claimant 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 claimant obtained an injunction, but there was a sting in the tail: rather controversially, the court 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! By holding a contractor to ransom, a land owner may be prejudicing his rights to an injunction.
It is also important to note that an injunction may 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.
So, how much should a contractor pay out for a licence to oversail? If a contractor does not manage to negotiate a licence and is restrained from trespassing, it may be able to complete the works by a different method. The licence fee would typically represent a percentage of the additional cost associated with alternative methods available. The percentage depends on the circumstances of each case.
Although not a case of trespass involving cranes, Sinclair v Gavaghan (2007) 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 or ‘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. If they do then a contractor should obtain a licence to oversail.
A licence 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 land owner 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.
Reviewed in 2015