Are Developers required to seek consent before operating a crane over adjoining properties? The short answer is YES. In most circumstances, individual landowners and owners corporations will own the airspace above their property and a Developer will require your consent to swing a crane through that airspace.
Should you consent?
Prior to consenting to operating a crane over an adjoining property, you should ensure that there is a licence agreement in place with the Developer. Among other things, the agreement should provide that the Developer bears the responsibility for any damage caused by the operation of the crane over your property.
Often, we hear of Developers knocking on doors of the adjoining properties and presenting a very simple consent document that doesn’t cover the important elements of a properly drafted licence agreement. If this happens, you should seek immediate legal advice to understand your rights.
Can you negotiate a licence fee?
Yes – Developers are required to make ‘a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work’ prior to seeking a neighbouring land access order. This includes by way of compensation in the form of a licence fee.
When negotiating a licence fee with the Developer, the following factors should be considered:
- The proximity of the development to the affected land;
- Other construction methods that may be available instead of the proposed use of cranes;
- The height and arm swing of the crane and how it impacts the ordinary use of the land;
- Amenity issues such as loss of privacy, peaceful and quiet enjoyment of the land;
- Impact of value of the land, including property prices and rentability of leased properties; and
- Any other inconveniences such as traffic flow, temporary roadblocks, noise etc.
It is important to note that you cannot use the Developer’s commercial benefit from the development as leverage to negotiate a licence fee.
What should be included in the Licence Agreement?
The following key elements should be addressed in the licence agreement:
- Compensation to the landowner/owners corporation by way of licence fee and/or reimbursement of legal costs at the very minimum;
- Length of the access required;
- Indemnities in favour of landowner / owners corporation;
- Insurance – ensuring that the Developer has sufficient insurance coverage in the event of any damage or consequential loss;
- Crane Safety – for example, it may be prudent to engage a safety consultant to examine the crane and ensure it is inspected regularly in accordance with Australian Standard 2550;
- Crane Specification and amenity issues, including:
- the type, size and relevant specifications of the crane;
- its operating hours;
- its allowable loads;
- the method of installation and removal;
- engineering certification that the crane footing and foundations have been designed in accordance with the relevant standard (AS1418);
- the maintenance and repair of the crane; and
- procedural or operational issues such as likely noise from the crane’s operation, including communication by radio or whistle between the crane operator and dogman.
What if I do not provide consent?
The Developer can make an application to the Local Court for an access order to your land under the Access to Neighbouring Lands Act 2000. However, the Developer should exhaust all negotiations in relation to a licence agreement before taking this step.
If you are a landowner or owners corporation and a Developer has requested your consent to operate a crane in the airspace of your property, you should seek immediate legal advice in relation to your rights, and ensure that a properly drafted licence agreement is in place.
Likewise, if you are a Developer needing consent before operating a crane, we can assist with drafting your licence agreement before approaching the adjoining properties for consent, so as to avoid the costs and delays from having to seek an access order in the Local Court.
If you have any questions or concerns about this, please do not hesitate to contact Marcus Carbone from Southern Waters Legal on 9523 5535. We are here to assist you with all your strata enquiries.
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Disclaimer: The information contained in this article is provided as general information only. It is not intended to be legal advice and it should not be used or relied on as legal or professional advice.