Airspace Rights and Crane Oversail - What you need to know

Due to schemes often being in high density residential zones, it is common for the Committees to be approached by developers of neighbouring land seeking rights for cranes to pass over the common property to facilitate a development.

Can a Committee just refuse?

The Property Law 1974 empowers the Supreme Court to impose rights of use in respect of land including oversail rights if satisfied the owner of the land over which the rights would be imposed can be adequately compensated.  The Act also empowers the Court to order costs be paid by the owner of the land over which the rights would be imposed in “special circumstances” which could be expected to include where a request for oversail rights was not considered or refused without good reason.

Good reasons may include a refusal by the developer to pay fair compensation, or to pay the Body Corporate’s costs of negotiating the requested rights and costs of putting the request to Lot owners to vote on, as required by legislation.

Does the Committee have power to grant the rights?

No.  Oversail rights are in nature of a licence over the common property and the Body Corporate and Community Management Act 1997 mandates that such rights must only be granted in the way authorised under the regulation module applying to the scheme.  Usually that means a special resolution is required for the Body Corporate to grant oversail rights.

Can the Developer be asked to pay costs as well as compensation?

Yes.  The Body Corporate can reasonably require payment of all costs incurred in granting the rights, including legal and extraordinary general meeting costs, in addition to compensation for the grant of the rights.  In additional to compensation, we have also assisted bodies corporate to obtain benefits such as the cost of a building wash down and new fences.

Are there risks?

Though rare, accidents happen.

In 2012 the motor of a crane on a construction site at the University of Technology Sydney caught fire resulting in the collapse of the boom into the construction site.

In 2016 the motor of another crane on a construction site in St Kilda Road, Melbourne caught fire similarly resulting in the collapse of the boom of the crane.

An incident in August 2017 at Wolli Creek, New South Wales underscored the need for bodies corporate to ensure a grant of oversail rights does not exclude entitlement to insurance and that the body corporate’s cover extends to the cost of providing alternate accommodation, as well as building repairs.

In that incident a crane collapsed into a neighbouring apartment block extensively damaging the penthouse and causing the occupants of the building's 88 apartments to be evacuated and accommodated elsewhere until the building was deemed safe weeks later.

In the same month the boom of a crane located on a barge at Milsons Point, Sydney collapsed into the harbour when a metal wire cable supporting the boom snapped.

The cable, which was connected to a metal hook weighing around half a tonne, was flung coming to rest on the historic Luna Park face.  Fortunately, no one was injured.

Though rare, crane failures present a very real possibility of injury, damage to property, and financial loss against which bodies corporate must take to steps to ensure they will be indemnified and adequately insured.

Don't be bullied

A developer’s delay in seeking required over sail rights is not reason for Committees to truncate negotiations to suit the developer’s deadlines.  As required by the Code of conduct for committee voting members, each member must act in the best interests of the Body Corporate.  Necessarily that means ensuring the developer pays fair compensation, give necessary protections and agree terms by which the Body Corporate will not be left out of pocket.

We have extensive experience in supporting Committees with advice on crane oversail rights and in negotiations for the terms of oversail agreements.  Please contact us at 07 3160 0000 or email us at reception@activelaw.com.au for advice or assistance with crane oversail rights and agreements.

Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.