Oversailing, scaffolding and access agreements

When carrying out construction work, or maintaining or repairing a property, it is common to require access to a neighbouring site. There is no general right of access, so you should proceed cautiously to avoid committing trespass. Consent to the work could be granted by the adjoining landowner or it might be necessary to apply to the court for an access order under the Access to Neighbouring Land Act 1992.

It is important to organise access arrangements before starting work, to avoid costly disputes and delays. Ideally, you should obtain a written agreement or licence to minimise the chance of future misunderstandings.

If your property has been encroached upon without your consent, you might be able to obtain an injunction to halt the work and possibly bring a claim for trespass.

Access for construction

Oversailing occurs when construction equipment, such as cranes or scaffolding, enter the airspace above a neighbouring property. The airspace above a property belongs to that property, so oversailing without consent is trespass and there is a possibility that the landowner could obtain an injunction to halt the work.

Developers should negotiate with the neighbouring property owner as soon as possible when planning any development so that alternative arrangements can be made if they refuse to agree or if they demand too high a price for the access. If they are willing to sign an access licence, you should have this drawn up by a specialist property lawyer to ensure that it is legally effective.

Repairs and maintenance

There is legislation in place which allows you to carry out repairs and maintenance to your property, provided you follow the correct procedure.

The Party Walls etc. Act 1996 covers building along a boundary between two properties, excavation near a shared boundary and work on a shared wall or other boundary structure. This Act provides for access for such works to take place under certain circumstances but you must comply with the Act’s requirements carefully, t, which includes serving a valid notice on your neighbour at least two months before you start work.

If the work is not along the boundary line, then it might be possible to obtain access under the Access to Neighbouring Land Act 1992, which allows access for works that are reasonably required to repair or preserve land or property. An application can be made to the court under this Act to ask for an access order. This will include details of when and how the works can be carried out, as well as a timescale and the amount of any compensation. Access under this Act is permitted for repairs and preservation only and not new construction or property improvements.

Access agreements

It is always advisable to try and maintain a good relationship with your neighbours before and during construction work, as it could make things very difficult if communications break down and they object. 

At Lincoln & Rowe we are able to negotiate on your behalf if needed, to agree the details of access, such as the length of a  licence; conditions that may terminate the licence; the amount of compensation; details of what machinery or equipment is permitted and to what extent; safety issues; and provision of insurance details and liability for damage.

We can draw up the necessary agreements or notices and represent you in court, if required, to obtain an access order. 

We are also experienced in bringing claims where trespass has occurred or the terms of an order or agreement have been breached.

Who we can help

Our property litigation solicitors at Lincoln & Rowe have two decades of experience advising on high-value and complex property litigation. We advise on a wide range of commercial and residential property litigation matters and contentious property issues, including trust and probate disputes where property is involved.

Where can you find us?

Lincoln & Rowe Solicitors are based in the heart of London and just a few minutes’ walk from the Royal Courts of Justice. Our full address is 81 Chancery Lane, London WC2A 1DD.

Make an online enquiry, send an email to enquiries@lincolnandrowe.com or call us on +44 (0)20 3968 6030.

Man in a black suit and a blue tie posing for a photo
James Beat
James specialises in a broad spectrum of property disputes across the UK, assisting clients in reaching a resolution to their problems in his trademark approachable, pragmatic style. James has significant expertise in resolving complex property disputes and has been involved in several of the leading modern cases involving party walls and rights of light.