The unprecedented high-rise residential boom has punctuated Australian city skylines with cranes for some years now.

Cranes are integral apparatus for high-rise construction, yet they can pose dangers to site personnel and adjoining properties. In August 2016, the Canberra Times reported the death of a 62-year-old man caused by a mobile crane that toppled over at a Canberra hospital work site. Between 2007 and 2013, cranes accounted for three deaths in Western Australia, and crane deaths apparently account for eight per cent of deaths on building sites in America.

Cranes have also been known to damage adjoining property. In February 2016 the arm of a crane crashed on to a road in St Kilda damaging cars.

In light of the dangers that cranes can pose, Australian Standard 2550 is dedicated to inspection protocols for cranes.

Little wonder then that there has emerged an astute practice where adjoining or neighbouring property owners negotiate and execute crane oversail agreements with developers and or contractors who are intent on using cranes. Cranes can cause a degree of danger and the use of cranes requires a fair measure of safety dexterity and rigour.

As cranes can, in worst case scenarios, have a deleterious impact upon the safety of adjoining property owners, it is very important that neighbours satisfy themselves that risks of crane-inspired surprises are eliminated. As neighbouring property owners by law own air rights proximate to and above their land holdings, they can take advantage of those rights  by ensuring that licence agreements are fashioned to document crane handling procedures that minimise the threat of adverse impacts to surrounding properties. It follows that crane oversail licences are paramount legal instruments that can be utilised to minimise said risks.

Air rights and trespass

The law of trespass dictates that property owners are entitled to enjoy exclusive dominion over their properties and are likewise entitled to determine who may set foot on their properties. There is an assumption in that prerogative that the permission of the property owner must be forthcoming before a visitor sets foot or intrudes into the owner’s realm. Those who choose to venture into an owners’ property absent requisite permission commit an act of trespass, regardless of whether the intrusion occurs on the land, the building above the land or the air above the building or the land.

It follows that developers and builders must have regard to the property rights of neighbours, and consistent with this regard is an understanding that they must obtain the permission of the neighbours to operate a crane in circumstances where crane apparatus such as the those where a jib is likely to aerially rotate or manoeuvre above neighbouring property.

The requirement to obtain permission to enter another’s domain is a well-established common law doctrine and some acts of Parliament have, in more recent times, promulgated regulations that enshrine that right.

His Lordship, Scott J in Anchor Brewhouse Developments v Berkeley House (Docklands Development) Ltd (1987) 284 EG 625 had this to say about such rights: “if an adjoining owner places a structure on his (the adjoining owner’s) land, he thereby takes into his possession air space to which his neighbour is entitled.”

Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1 further amplifies the application of the Cujus Est Solum Doctrine. In this case, a crane jib on a number of occasions utilised neighbouring property’s airspace. His Honour WB Campbell determined that trespass was evident and found that the defendant had interfered with that part of the airspace above her land and this impacted upon her use, enjoyment and value of that land.

The case law thus establishes that if a developer fails to obtain the permission of neighbours to operate a crane in circumstances that will involve aerial trespass, the neighbour(s) can seek injunctive relief from a court of law to compel the developer to refrain from operating the crane until permission is forthcoming.

In Woolerton and Wilson Ltd v. Richard Costain Ltd [1970] 1 WLR 411, trespass was claimed as a result of the crane in the adjoining property oversailing the plaintiff’s property. Despite the defendant admitting trespass and offering substantial compensation, the plaintiff refused to grant an oversail licence. The plaintiffs sought and obtained an injunction that was subsequently suspended by the court. A consideration as part of the suspension was whether the contractor had acted reasonably in offering payment.

It follows that developers and neighbours alike should at the earliest opportunity parley with the view to documenting the basis of an agreement which will take the form of an oversail license.

Key matters to consider and incorporate into an over sail licence

Safety is the primary concern; hence neighbours would be well advised to engage the services of a suitable safety consultant to examine the crane machinery, safety integrity, over sail radius drawings and so forth.

The consultant will also need to be satisfied that severe winds will not generate any deleterious impact upon adjoining property on account of jib movement or rotation.

Equally, regard must be had to the matter of how the crane is maintained and whether the crane has been regularly inspected in accordance with AS 2550. The lawyers negotiating a crane oversail agreement should as, part of their due diligence, obtain assurances that the crane is in ‘tip-top’ condition.

The developers and the contractor should also sign indemnities that indemnify the adjoining property holders for any liabilities or damage that may emanate from crane use. Insurance must also be obtained, and the lawyer should consult with an insurance broker to ensure that the developer obtains the right amount of cover and the appropriate scope of cover.

Cranes can, in certain circumstances, pose dangers to not only operators, but also to those who come within their radius or aerial ambit. It is crucial that adjoining property owners have input into crane risk management and risk minimisation. The deployment of lawyers to negotiate and finalise crane oversail agreements is an integral part of that risk minimisation process along with the input of an experienced safety consultant who can work in cohorts with the lawyer to deliver an optimum risk mitigation outcome.