Q&As

Will a section 177 of the Highways Act 1980 licence be valid where a building oversails land belonging to a third party and consent has not been obtained from the third party but the local authority has provided consent? Is there any restriction on how long a section 177 highways licence can be granted for?

read titleRead full title
Published on LexisPSL on 08/04/2021

The following Property Q&A provides comprehensive and up to date legal information covering:

  • Will a section 177 of the Highways Act 1980 licence be valid where a building oversails land belonging to a third party and consent has not been obtained from the third party but the local authority has provided consent? Is there any restriction on how long a section 177 highways licence can be granted for?
  • Consent of adjoining owner
  • Length of term of licence from highway
  • Flying freeholds

Consent of adjoining owner

Trespass is the unlawful presence of a person on land in the possession of another. The ownership of land includes the airspace above it. Therefore, an invasion of the airspace above it is a trespass. The adjoining landowner can claim damages and obtain an injunction. Trespass is actionable, and so an injunction and nominal damages can be obtained, without the landowner having to demonstrate damage. It is sufficient that its property rights are being interfered with. Therefore, it is no defence that the damage is trivial and the landowner’s ordinary business is not interfered with.

Oversailing issues crop up, commonly, in the case of development where a tower crane is used. If a crane will oversail other land or the highway, to avoid delay and expense, it is crucial for a developer to seek the adjoining landowner’s consent at a very early stage, ideally before development commences. If the land is owned by the highway authority, it will be a landowner for this purpose. The consent of tenants on the adjoining land may also be required. Therefore, it is essential that the developer undertakes appropriate searches and enquiries to ascertain whose consent is required.

An oversailing licence is not an easement. It does not create an interest in land. It is simply a personal non-proprietary permission to do some

Related documents:

Popular documents