In certain development situations the need to either oversail a crane jib or boom or the need to trespass with scaffolding onto a neighbours land is the only cost effective way to proceed.
We have extensive experience in progressing such negotiations to obtain approval to such situations, which is usually formalised by the signing of a ‘licence’, either under hand or as a deed.
TALUS are able to advise if such a licence is needed in the first instance and if a need is found to exist then progressing this service through to signature of the required licence/s.
Crane and scaffold oversail licences are essentially an agreement between two respective landowners, agreeing to the trespass of plant and equipment over or onto the dominant land. However, although simplistic in summary, this generates strong feelings amongst respective land owners and is a significant ‘risk’ to any construction project.
Trespass can be defined as the unlawful entry or interference on an Adjoining Owner’s land that restricts the proper use and enjoyment. It is widely acknowledged by the Courts that naivety does not act as a sufficient defence of trespass.
Trespass can occur in a number of ways including:
Intrusions on the surface of the land
Intrusions beneath the surface of the land
Intrusions above the surface of the land
There has been much debate in early case law on whether intrusion into airspace was an actual trespass or a legal nuisance. This distinction is particularly important, as a successful claim for nuisance requires proof that the Adjoining Owner has suffered damage as a result of the intruding object. It is therefore a wrong, arising from unreasonable or unlawful use of property to the annoyance or damage of another Adjoining Owner. An obvious example would be the damage of a neighbour’s landscaping caused by builder’s materials falling from the Contractor’s site.
It has been demonstrated that encroaching upon an adjoining owner’s land will result in an act of trespass in tort law. In order to legally avoid this breach, the building owner (or Contractor) is required to obtain consent via a vehicle known as a licence.
Cross Section of a Scaffold Oversail