With the explosion in the number of unit blocks under construction, we have been assisting many of our clients with developments occurring next door that need a crane to undertake their construction.

Owners (or in the case of a strata, the owners corporation) own the airspace above their property.

Accordingly, developers need an airspace licence from their neighbours if they want their crane’s jib to be able to swing over their neighbours land (called ‘oversailing’). At law, it is actually a trespass if a developer allows a crane jib to swing across land owned by the adjoining owner without consent. Technically, it also is actually possible for an adjoining owner can actually obtain an injunction to prevent such trespass without needing to show that any damage has occurred.

Commonly, developers ask their neighbouring owners (or owners corporation) to quickly sign a crane airspace licence deed, oversailing licence or similar (often in return for a case of beer or a bottle of scotch) and suggest the owner (or owners corporation) does not need to get legal advice on the document claiming it is a standard document. However, those allegedly ‘standard documents’ frequently these documents are inadequate from the perspective of the neighbouring owners.

The key considerations for owners (and owners corporation) when considering crane airspace licence include:

• How long does the licence last for (the term of the licence) and in what events can the licence be terminated such as termination for material breach of the licence terms and conditions, insolvency of the developer, etc.
• Whether compensation is appropriate and if so, whether the arrangement properly compensates the owners (or owners corporation) for agreeing to provide the licence.
• If the arrangement properly addresses in writing issues relating to amenity such as the type and size of crane, the operating hours of the crane, the allowable loads of the crane, the method of installation, maintenance, repair and removal of the crane, allowable levels of dust and debris from the crane, if the crane will be permitted freely swing in the wind after hours and allowable levels of noise generated by the cranes operation including mechanical noise, wind noise (whistling and cable rattling) and noise generated by signalling eg will the crane operator use radio or by whistle or radio.
• Whether the arrangement properly addresses in writing safety issues. This may include the developer reimbursing the owners (or owners corporation) the cost of engaging a safety consultant to carry out a risk audit to identify safety issues and recommend appropriate precautions
• If the developer needs to provide the neighbouring owner evidence of an appropriate licence, insurance and a record of safe work in relation to the operator of the crane and when do they need to provide this.
• Whether the developer needs to comply with the owner (or owners corporation) directions for the purpose of ensuring safety on the owner’s (or owners corporation’s) property. All property owners have duties and liabilities under the Work Health and Safety Act 2011 and Work Health and Safety Regulation 2011 and owners (owners corporations) needs to ensure that they are in a position to comply with those duties.
• Whether the arrangement properly addresses in writing the developer’s liability for any damage done to the owner’s (or owners corporation’s) property and indemnify the owner (or owners corporation) in relation to claims that may be made against the owner (or owners corporation) such for damage to property or personal injury or death arising from the oversailing – such indemnity should be backed up with an appropriate level of public liability insurance.
• Whether the owner (or owners corporation) is to be reimbursed for any legal fees, managing agents fees and fees payable to safety consultants in connection with the licence.

Naturally, we recommend that owners (and owners corporations) obtain legal advice before entering into any arrangement with the developer, in order to ensure that these key considerations and other issues are properly addressed.

It is worth keeping in mind that it is not appropriate for the owner (or owners corporation) to use the developers need for crane airspace licence as a way to seek to stop a development occurring as developers can seek right to use another person’s airpace for cranes under various acts. This includes via the Local Court under the Access to Neighbouring Land Act or the Supreme Court or Land and Environment Court under section 88K of the Conveyancing Act 1919.

Accordingly, we usually suggest seeking to negotiate with the developer first. In our experience, mutually agreeable arrangements can generally be made. However, be aware that owners (and owners corporations) are under no obligation to grant a crane airspace licence unless ordered to do so by the Court. If the developer has not properly addressed compensation, costs, safety and amenity issues and the owner (and owners corporations) have asked them to, Courts generally will not make such an order.

Also be aware developers may withdraw from negotiations after the owner (and owners corporations) has incurred substantial legal and other costs. Accordingly, we often suggest the owner (and owners corporations) require the developer to lodge a security deposit before commencing such negations to cover the owner’s (or owners corporation’s) costs in the event negotiations break down.

As an interesting aside, various clients have asked us why, if a crane needs an airspace licence to oversail, why can an aircraft fly over your land. Technically, intrusions into airspace may amount to a trespass to land if the intrusion is at a height potentially necessary for the ordinary use and enjoyment of the occupier (which may include the height of a low crane jib). Legislation actually also exists to give aircraft rights to through your air-space without causing any trespass. However, the basic principle that the owner of land owns its airspace, applies nearer the ground. For example, s 72(1) of the Civil Liability Act 2002 (NSW) provides that ‘no action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with’. These provisions were originally enacted in in the 1950s to protect the then young commercial airline industry. However, they were probably not directed at the sort of technological intrusions possible today, such as low-flying drones, which is an area where the law will need to change to keep up with technology.

This article is for general information only and not legal advice. Legal advice should be obtained before taking  any action or otherwise rely upon the content of this article in any way.

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