Let it be plain sailing: oversailing with cranes and/or scaffolding during construction in the UK

What is oversailing?

Under UK law, the basic legal position is that ownership of a property encompasses the airspace above it (as is necessary for ordinary use and enjoyment). Oversailing is where cranes and/or scaffolding (or indeed permanent constructs, although not the focus of this article) extend into the airspace beyond the boundaries of one’s own property. To enter and remain, however temporarily, in that airspace requires appropriate permission to be secured.  

That the base of a crane and/or scaffolding may remain on your own property is not relevant if the jib and/or counterweight (of a crane), or any part of the scaffolding, is projecting over land owned by another – this is oversailing, and consent will be needed. 

Separate considerations apply where cranes and/or scaffolding will be oversailing a public highway; doing so without the authorisation of the relevant highway authority is a statutory offence.

So, how might that consent be sought (and what if it isn’t)? 

Private land

Where oversailing private land to enable a new development, the general position (subject to limited exceptions) is that (i) there is no formal application process governing oversailing and (ii) a private land owner is not required to agree to such request. If, though, they are amenable to such oversailing, an oversail licence/agreement can be put in place to govern that arrangement.

Failure to obtain the necessary oversailing permissions from private land owners may have time and cost implications. Unauthorised oversailing amounts to trespass and an aggrieved owner of neighbouring property could look to obtain damages or an injunction. 

An oversailing licence/agreement will typically include some or all of the following details:

• permission to oversail (subject to agreed requirements and/or limitations); 
• details of the area over which oversailing is permissible; 
• a fee (if there is one);
• the permitted period for oversailing;
• obligations prior to oversailing (e.g. obtaining all other required consents, providing details of insurance, and there may be a requirement to prepare a method statement);
• conditions of use (e.g. health and safety requirements, working hours, height restrictions, obligations with regard to erecting and dismantling cranes/scaffolding);
• insurance requirements (e.g. third party liability insurance); and 
• an indemnity, in respect of any damage/loss caused by the oversailing. 

Public highways 

Under statute, permission is needed from the relevant highway authority in order to oversail a public highway with cranes or scaffolding. This will need to be sought from the relevant council, and the process for doing so may differ as between councils. A licence from the highway authority may contain such terms as the issuing authority thinks fit, but which are likely to be similar to those for private land.

Failure to obtain permission from the relevant highway authority is an offence, and a fine may be payable. 

Key takeaways

Don’t get caught out – consider oversailing (and the likely time and cost implications) as early as possible when planning construction work. Determine whether the works can be carried out without oversailing and,  if not, ensure that necessary approvals are obtained in good time, to minimise impact on your project timeline. 

Authored by Laura Scarisbrick.