Oversailing: What Is It and Why Is It A Problem For Property Developers?

Emilene LucasLegal Assessment Team Supervisor

Updated on 18th August 2024

As a property developer, you’re likely familiar with the many challenges that come with construction projects. One issue that can easily be overlooked but has significant legal implications is oversailing—when your building work, such as scaffolding or cranes, extends over a neighbouring property without permission. While it might seem like a minor detail, oversailing can lead to serious disputes and delays if not properly managed.

In this article, we’ll explore what oversailing is, why it’s a problem for property developers, and how to avoid the pitfalls associated with it. We’ll discuss the legal aspects, the potential risks, and the steps you can take to ensure that your projects run smoothly without infringing on neighbouring properties.

Whether you’re planning a large-scale development or a smaller project, understanding and addressing the issue of oversailing is crucial. By the end of this article, you’ll have a clear understanding of how to protect your projects from unnecessary disputes and make sure that you stay on the right side of the law.

What is Oversailing?

Oversailing refers to the situation where construction work, such as scaffolding, cranes, or any part of a building (like a roof or gutter), extends over the boundary of your property and into the airspace above a neighbouring property without the neighbour’s permission.

This can happen during various stages of a construction project, particularly when working close to the boundary line, and it involves using or occupying the airspace that legally belongs to the adjacent property owner.

Why is oversailing a problem?

Oversailing can create legal issues because, under UK law, the airspace above a property is considered part of the property itself. Therefore, extending any part of your construction into this space without permission is technically an infringement on the neighbouring property owner’s rights.

If you oversail without obtaining permission, the neighbouring property owner has the right to take legal action to stop the work, potentially seek damages, or require the removal of any encroachments. This can delay your project, increase costs, and damage relationships with neighbours.

Common examples of oversailing

• When scaffolding is erected for building works and extends over the boundary line into a neighbour's airspace;

• When cranes swing over neighbouring properties without their agreement;

• When a building's roof or guttering extends beyond the property boundary.

Oversailing and UK law

The law in the UK recognises that property ownership includes not just the land but also the airspace above it, up to a reasonable height. This means that any intrusion into this airspace by another party—whether by scaffolding, crane jib, roof overhang, or other construction-related equipment—constitutes a trespass.

As such, the neighbour whose airspace has been infringed upon can seek an injunction from the court to stop the work immediately and, in some cases, they may seek damages for the trespass. This could include compensation for any inconvenience, disruption, or potential devaluation of their property caused by the oversailing.

To avoid legal disputes, property developers can enter into an oversailing agreement with the neighbouring property owner, where they consent to the temporary use of their airspace, often in exchange for compensation or other terms.

Key cases

There have been several cases where there have been legal implications of Oversailing.

Anchor Brewhouse (Docklands Developments) v Berkley House Ltd

This case in the 1980s dealt with the matter of Oversailing in construction. The case referred to Berkley House’s crane swinging over Anchor Brewhouse’s airspace.

The court found Berkley House had trespassed onto the land as it was in Anchor Brewhouse’s airspace without permission. This resulted in the court granting an injunction to stop Berkley House from using the crane.

Woollerton & Wilson v Richard Costain Ltd [1970]

This case was in the courts in the 1970s and referred to landowners who went to court to get an injunction to stop a crane from Oversailing their land.

However, the court suspended the injunction because they had been offered £250 for a crane oversail licence which would insure against any damage that might have been caused. It turned out the landowners had refused this.

Practical implications for property developers

Before starting any construction that could potentially oversail a neighbouring property, it’s important to seek consent early in the planning process.

If oversailing is necessary, negotiate the terms with the neighbouring property owner, including duration, compensation, and any conditions that must be met.

Consulting with a property solicitor is essential to ensure all legal aspects are covered and to draft any necessary agreements.

What is an oversail license?

An oversail license (sometimes referred to as an oversailing agreement) is a formal, legal document that grants a property developer or builder the right to temporarily use the airspace above a neighbouring property during construction.

This license is typically required when construction activities involve the use of cranes, scaffolding, or any part of the building that may extend beyond the developer’s property boundary and into the airspace of an adjacent property.

An oversail license is typically granted for a specific period, covering the duration of the construction project, and includes:

• The exact area of airspace that can be used;

• Restrictions on the height or type of equipment that can oversail;

• The duration of the oversail;

• Working hours during which the oversail is allowed;

• Any safety measures or precautions that must be in place.

The license often includes a financial component where the property developer pays compensation to the neighbouring property owner for the right to use their airspace. The amount is typically negotiated between the parties and may reflect the inconvenience or potential risk to the neighbouring property.

Usually, developers must also provide proof of insurance to indemnify the neighbouring property owner against any damage or loss that might result from the oversailing activities.

When do you need an oversail license?

An oversail license is needed whenever construction activities will cause any part of the work (like scaffolding, crane jibs, or roof overhangs) to extend into the airspace above a neighbouring property. This is common in urban developments where properties are close together and construction work often takes place right up to the boundary lines.

How to get an oversail license

1. Approach the neighbouring property owner and negotiate the terms of the oversail agreement;

2. Engage a solicitor to draft the agreement;

3. Determine the appropriate compensation for the use of the airspace, considering the duration and impact of the oversail;

4. Finalise and sign the agreement.

What is the role of the landowner, contractor, and developer?

The landowner is the person or entity that owns the land on which the construction is taking place. They may need to grant permission for construction activities on their land and give consent for any activities that might affect neighbouring properties, like oversailing.

The developer is the party responsible for planning, financing, and overseeing the construction project. They often initiate the project and manage it through to completion, working closely with contractors and other professionals.

The contractor is the party responsible for carrying out the actual construction work. They are hired by the developer to build according to the plans and specifications provided.

Best practices for managing oversailing

Managing oversailing effectively is crucial for the smooth progress of a construction project, particularly when working close to the boundary of neighbouring properties. Here are some best practices to help you manage oversailing and avoid potential legal disputes:

Early identification of potential oversailing

Conduct a thorough site assessment early in the planning stages to identify any areas where your construction activities might encroach on neighbouring airspace.

Incorporate oversailing considerations into your project planning. This includes identifying where cranes, scaffolding, or building extensions might extend beyond your property boundary.

Engage with neighbours early

Approach neighbours as early as possible to discuss your project and any potential oversailing issues. Share detailed plans and timelines with them so they understand the extent and duration of the oversailing.

Get an oversail license

Secure an oversail license or agreement with the neighbouring property owner that outlines the terms and conditions under which you are allowed to use their airspace.

Be prepared to negotiate fair terms, including compensation, duration, and any specific conditions your neighbour might require, such as limitations on working hours or safety measures.

Ensure legal compliance

Work with a solicitor who specialises in property law to make sure all legal requirements related to oversailing are met.

This includes drafting the oversail license and making sure it complies with local laws.

Implement safety and risk management measures

Ensure that all oversailing activities are conducted safely. This includes securing scaffolding, using crane safety protocols, and protecting the neighbouring property from potential damage.

You should also have appropriate insurance in place that covers any potential damages caused by oversailing. This is typically a requirement in the oversail license.

Respect the neighbour's property

Try to minimise disruption to your neighbour’s property.

This includes controlling noise, dust, and vibrations, as well as ensuring that oversailing equipment does not interfere with their daily activities.

If any damage occurs as a result of oversailing, address it promptly and professionally. This might include repairs, compensation, or other forms of remediation as outlined in the oversail license.

Common reasons oversailing disputes

Common types of oversailing disputes include:

• Lack of permission for oversailing;

• Disagreements over compensation;

• Oversailing beyond the agreed area, using the airspace for longer than agreed, or not following safety measures specified in the agreement;

• Damage to neighbouring property, such as structural issues, broken windows, or damage to landscaping;

• Noise and disturbance issues;

• Health and safety concerns;

• Impact on property value;

• Disputes over access rights;

• Third-party disputes involving other neighbouring property owners.

Oversailing disputes are common in construction projects, particularly in urban areas where properties are close together.

These disputes can range from issues of trespass and compensation to safety concerns and property damage. The best way to manage and prevent these disputes is through clear communication, securing proper legal agreements, and adhering to the terms of any oversail license.

By proactively addressing potential issues, developers and contractors can minimise the risk of disputes and ensure smoother project completion.

Legal remedies in oversailing disputes

In oversailing disputes, several legal remedies are available to the aggrieved party, typically the neighbouring property owner whose airspace has been encroached upon without permission. These remedies can range from seeking compensation to halting the offending activity. Here are the main legal remedies available in oversailing disputes:

Injunction

An injunction is a court order that requires the offending party (usually the developer or contractor) to stop the oversailing activity. This is one of the most powerful remedies available and can be sought if the neighbouring property owner wants to prevent or halt the encroachment.

Damages for trespass

If oversailing has occurred without permission, the neighbouring property owner may seek damages for trespass. This compensates the owner for the unauthorised use of their airspace.

Compensation (negotiated settlement)

In many cases, the parties may reach a negotiated settlement where the offending party agrees to compensate the neighbouring property owner for the oversailing. This can often avoid lengthy and costly court proceedings.

The amount can be negotiated based on the duration of the oversailing, the extent of the encroachment, and any inconvenience or loss suffered by the neighbour.

In some cases, compensation might also involve other considerations, such as improvements to the neighbour's property or future rights agreements.

Declaratory judgment

A declaratory judgment is a legal determination by the court regarding the rights and obligations of the parties involved. In an oversailing dispute, a declaratory judgment can establish whether the oversailing constitutes trespass and clarify the legal standing of the parties.

This remedy is useful in situations where there is uncertainty about property boundaries or airspace rights.

Specific performance

Specific performance is a remedy that compels a party to fulfill a contractual obligation. If an oversailing agreement or license was in place but the terms were not adhered to, the court might order the offending party to comply with the agreed terms.

This remedy ensures that the developer or contractor follows the specific terms outlined in an oversail license or agreement, such as limiting the area of oversail or compensating the neighbour.

Rectification of agreements

If there was an error or ambiguity in the original oversail agreement, the court might order rectification, which involves correcting the agreement to reflect the true intentions of the parties.

Self-help remedies

In some instances, the neighbouring property owner might resort to self-help remedies, such as removing scaffolding or equipment that is oversailing their property. However, this approach is risky and should be pursued with caution, as it may lead to further legal disputes or claims of damage.

Actions such as this can escalate the situation and might lead to counterclaims or additional legal challenges. It is generally advisable to seek a legal resolution through the courts rather than taking unilateral action.

Ethical considerations and avoiding unreasonable demands

The airspace above a property is part of the property owner's rights. Any intrusion into this space, even if temporary, should be approached with respect and sensitivity to their privacy and property rights.

When negotiating compensation for oversailing, ensure that the offer is fair and reflects the inconvenience or potential risk to the neighbour. Unreasonably low offers can lead to mistrust and prolonged disputes.

Negotiations should be conducted in good faith, without applying undue pressure or coercion. The neighbour should feel that they have a genuine choice in agreeing to the oversail, rather than feeling compelled due to power imbalances or threats of legal action.

If disagreements arise, consider using mediation or other forms of alternative dispute resolution to resolve issues amicably. This approach is often less adversarial and can lead to solutions that are acceptable to both parties.

While legal action may be necessary in some cases, it should be viewed as a last resort. Litigation can be costly, time-consuming, and damaging to relationships.

Can a landowner refuse permission for oversailing?

A landowner is within their rights to refuse permission for oversailing.

They might do this if:

• They feel that the presence of cranes or scaffolding into their airspace invades their privacy;

• They are concerned about the risk of damage to their property;

• They anticipate significant disruption, like noise, dust, or blocked sunlight;

• The compensation offered by the developer is deemed insufficient;

• They are worried that the oversailing, or construction activities, could negatively impact the value of their property.

If a landowner refuses permission, you can:

• Try to negotiate with the landowner;

• Explore alternative construction methods that don't require oversailing;

• Seek legal advice to explore whether there are grounds to challenge the refusal.

Conclusion

As we’ve explored, oversailing happens when construction work, such as scaffolding or cranes, extends over a neighbouring property without permission.

While it may seem like a minor detail, the legal implications are significant, and overlooking this issue can lead to serious consequences.

By securing the necessary permissions, negotiating fair compensation, and adhering to legal and ethical standards, developers can ensure their projects proceed smoothly. It’s also essential to engage with neighbours early, respect their property rights, and be prepared to explore alternative solutions if permission is refused.

If you’re facing challenges related to oversailing or need assistance with any aspect of property law, our network of experienced solicitors can provide the guidance and support you need.

Contact us today for expert advice on oversailing and all your property law needs.