Trespass in the sky


Author: Karen Mitchell


Karen Mitchell, Senior Associate, Fladgate LLP (kmitchell@fladgate.com)


 

There is a basic principle in English land law that you own the airspace above your property and all of the ground below: ‘up to the heavens and down to the depths’.  As a result, anyone entering your airspace (or mining underneath your property) without consent will almost always be committing a trespass.

This is particularly relevant in urban areas where large amounts of high-rise developments are taking place on a small footprint requiring the use of tower cranes. The cranes are often so large that they will protrude over the development site’s neighbouring property (and in some cases a number of neighbouring properties).  Even if not continually protruding over neighbouring property, the cranes may need to repeatedly swing over adjacent land and each such occasion will constitute a trespass.

The situation may also arise where a neighbouring landowner erects scaffolding on its property but this overhangs the adjoining property not owned by it.

In such situations, the affected landowner can prevent the trespass by obtaining an injunction against the offending landowner. It is not necessary to show that the trespass has caused loss or damage to the affected landowner; it is the violation of their property right that entitles them to an injunction. This is, however, fact specific and all the circumstances will need to be considered.  For example, if the affected landowner has in any way indicated that it would be willing to allow the oversailing subject to receiving  payment, it may not succeed in obtaining an injunction.

Generally, these situations are resolved by the entering into of an oversailing licence but these can take some time to negotiate and finalise.  The licence will need to include terms about, amongst other things, its duration and the times and permitted heights at which the crane can oversail.  The affected landowner should seek an indemnity for any damage the crane may cause and require payment of its legal fees.  It might be worth requiring the trespassing landowner to obtain an insurance policy protecting any indemnity given.  The licence fee will also need to be considered, which is almost always the most contentious element.

Is there is no licence in place, it is very important, for both parties, to act quickly and seek legal advice.  This is to ensure that the ‘oversailer’s’ development is not delayed or prevented by an injunction and the ‘oversailed’s’ right to apply for an injunction is not prejudiced by delay or for any other reason.

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