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RICS Company No. 002973
Tower cranes and trespass
Tower cranes and trespass
It was an ancient principle of English law that your rights over your land stretch from the centre of the planet all the way to the stars. Consequently if a contractor intends to use a tower crane or scaffold in such a manner that it oversails a neighbouring property, the owner of this property may feel aggrieved, and rightly so.
An examination of the title deeds should tell the owner of the development site, whether he does have the right to oversail neighbouring airspace.
Assuming that no such right exists the contractor may be committing a trespass, and his neighbour may have the right to obtain an injunction to stop this. In Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd (1987) the boom of
Similar to a breach of the Party Wall Act, you do not have 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. However, in the case of Woollerton and Wilson v Richard Costain (1970) the courts adopted a different approach. An injunction was granted to the Claimant whose airspace had been oversailed by the jib of Costain's tower crane. The court decided that it was no defence to a claim for an injunction that Woollerton and Wilson had not suffered damage, though rather controversially 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. It ought to be noted that in this case, Woollerton and Wilson refused to grant a licence despite Costain offering a substantial amount of cash.
It is important to note that an injunction will 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.
A well advised landowner will probably want both an indemnity against any damage and a fee for a licence to oversail. However, Woollerton and Wilson were offered a substantial sum by Costain, which they refused, and ended up obtaining only a suspended injunction. By holding a contractor to ransom, a landowner may be prejudicing his rights to an injunction.
The fee for the Oversail Licence would typically be a percentage of what that additional cost would be, together with surveying and legal costs. In addition, his insurance cover will need to be increased to cover for any damage his crane may cause the neighbouring land.
If it proves difficult to obtain a licence, then a crane with a retractable jib may well make sense.