Can a developer oversail my property with a tower crane?
22nd January 2018
This week’s Ask the Expert in the Times Property Bricks & Mortar section, written by Mark Loveday, is about oversailing cranes. The reader asks whether a developer needs the express permission of neighbours to swing a crane boom over their property?
There is a principle of Roman law that cuius est solum eius esse usque ad coelum et ad infernos (“whoever owns the soil, it is theirs up to heaven and down to the depths”). Although the phrase has been described by modern judges are “hyperbolic”, the basic principle still applies in English law today. A neighbour who goes into the airspace above a person’s land without permission almost always commits a trespass.
If a contractor erects a crane without permission, the landowner has two remedies open to it. The first is to obtain an injunction to prevent further trespass the second is seeking payment of a licence fee through court proceedings.
The leading case on the subject is the 1987 High Court decision in Anchor Brewhouse (Docklands Developments) v Berkley House Ltd  EGLR 172. The boom of Berkeley’s cranes oversailed land owned by three adjoining landowners on the banks of the Thames near Tower Bridge. The judge decided any projection into the airspace above a neighbour’s property by something fixed to the ground would be a trespass, although different considerations would apply to aircraft and other things flying overhead. It was not necessary to show the interference caused any loss or damage to the landowner and the adjoining landowners were granted an injunction to stop oversailing by the cranes.
Although this means the building contractor needs a licence from the adjoining owners to use a crane over their land, the landowners cannot simply name any price they want a hold the contractor to ransom. In Woolerton & Wilson v Richard Costain Ltd  1 WLR 411, a court granted landowners an injunction to stop a crane from oversailing their land, but suspended it because the contractor had offered £250 for a crane licence and promised to insure against any damage it might cause, which the landowner had refused. The court will therefore have discretion to suspend an injunction if appropriate, and will look at a wide range of issues including whether or not the contractor has acted reasonably in offering payment for a licence fee.
The terms of the licence
The licence should specify for what duration it applies. It should also regulate issues such as the times where the cranes may oversail your airspace and the heights that the crane is permitted to be when oversailing. The landowner should also require an indemnity against any damage that the crane may cause and it may also provide for reimbursement of the landowners legal costs of obtaining the licence.
One of the most difficult issues will of course be the licence fee. A typical fee would usually represent a percentage of the additional costs associated with the developer having to use an alternative method to access the site. The percentage will differ depending on the circumstances of each case. Although not a case specifically involving trespass by cranes, Sinclair v Gavaghan  EWHC 2256 (Ch) gives some guidance on how a reasonable licence fee might be quantified. In that case, the Claimant owned a small triangle of land which gave the Defendant a more convenient access route to its building site. The judge rejected the Claimant’s argument that it should be awarded £125,000 in damages for the use of the triangle of land for construction vehicles. Nevertheless, he held that a reasonable licence fee would have been £5,000 for access over a 3-4 month period. The case is now over 10 years old, but it would suggest that £5,000 is the starting point for trespass alone, before any damage to land or the benefit of the developer is taken into account.
The short answer to the reader’s question was that developers cannot use a tower crane above their neighbours’ land without permission. But if the developer makes a reasonable offer for a licence, the adjoining landowners will not be able to stop the use of a crane to oversail their properties.