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Property developers have long realised the potential of building vertically. By purchasing comparatively small areas of land developers can maximise the footprint of their properties by building to a great height. This creates challenges for developers as they adopt new building techniques to compete with Britain’s ever heightening skyline – it also creates complex legal challenges.
Tower cranes provide height and lifting capacity whilst occupying a modest footprint. Due to the densely populated nature of Britain’s cities the use of tower cranes is often the most practical construction method. However, using tower cranes often means that the jib of the crane will oversail neighbouring land, especially as structural stability often requires the jib of the crane to swing freely in the wind. Therefore, any property in close proximity to the crane is likely to be oversailed during the course of the construction.
Landowners own the airspace above their land. So, when a tower crane oversails this can amount to trespass and an aggrieved landowner can seek an injunction to prevent the use of the crane. Given that the use of tower cranes is so prevalent in the industry, the implications of time and cost following an injunction should not be underestimated. To obtain an injunction the landowner does not need to have necessarily suffered loss or damage.
Where there is a risk of crane oversailing, developers should seek the landowner’s permission. If granted, the permission will be documented in a crane oversail licence. A well drafted licence should specify:
Often the most negotiated aspect of the licence is what the landowner’s fee should be. However, it is important to note that the Courts have looked unfavourably upon landowners who have tried to force contractors into paying extortionate fees. Failure to act reasonably could result in a landowner’s injunction being suspended until the contractor has completed their construction. In such circumstances, the landowner’s legal rights are impinged without any financial recompense.
It is therefore extremely important to seek professional legal advice before using a tower crane as a developer or granting permission as a landowner. Many problems can be avoided by ensuring that the licence is carefully drafted at the outset.