More Than Driveways and Drains: When the Court Grants an Easement for a Crane to Swing Over Your Neighbour

Say the word “easement” to most property owners and they will picture a right of carriageway the shared driveway to a battle-axe block or an easement for drainage, sewer or electricity running under the backyard. These everyday easements are the ones that show up on title searches and in conveyancing files all the time. But easements can do much more than move cars and water across land. They can grant rights through the airspace above a property, and, as a recent decision of the Supreme Court of New South Wales shows, a court can force a reluctant neighbour to allow a construction crane to swing through the sky above their home.

Freecity Rockdale No.1 Pty Ltd v Amin [2026] NSWSC 640 is a short but instructive judgment. It is a useful reminder for developers, builders, and the neighbours of building sites alike that airspace has value, that the law has a mechanism to resolve crane disputes, and that ignoring the problem from either side is rarely a good idea.

Easements, airspace and section 88K

An easement is a right one parcel of land (the “dominant” land) enjoys over another parcel (the “servient” land) for example, a right to run a driveway, a pipe, or a cable across a neighbour’s property. Ordinarily an easement is created by agreement between the owners and registered on the titles. But what happens when a landowner genuinely needs an easement over a neighbour’s land and the neighbour won’t agree or can’t be found?

That is where section 88K of the Conveyancing Act 1919 (NSW) comes in. It gives the Supreme Court power to impose an easement over land — even without the servient owner’s consent — but only where strict conditions are met. The Court must be satisfied that:

• the easement is reasonably necessary for the effective use or development of the land that will benefit from it;
• the imposition is not inconsistent with the public interest;
• the owner of the burdened land (and anyone else entitled) can be adequately compensated for any loss or disadvantage; and
• the applicant has made reasonable attempts to obtain the easement by agreement.

Section 88K exists precisely because a single hold-out neighbour should not be able to bring a legitimate development to a complete halt but equally, it protects that neighbour by guaranteeing compensation and requiring genuine negotiation first.

A key legal point underpins all of this: at law, a landowner’s rights extend not just to the surface but to a reasonable amount of the airspace above it. That is why a tower crane whose jib swings over a neighbouring roof even hundreds of metres up and carrying nothing can amount to a trespass. Cranes routinely “oversail” (swing over) adjoining land, and when idle they are usually left to “weathervane” (rotate freely with the wind to reduce load on the structure). Both movements take the crane’s jib through the airspace of neighbouring properties. Without permission or a court-ordered easement, that intrusion is unlawful and a neighbour could, in theory, seek an injunction to stop the crane, and with it the entire project.

The facts: a Rockdale development and one unreachable neighbour

The plaintiff, Freecity Rockdale No.1 Pty Ltd, was developing a construction site on Frederick Street, Rockdale, in Sydney’s south. To build, it needed to use a tower crane and the crane’s swing radius would take its jib through the airspace above neighbouring properties.

Importantly, the crane was not going to carry or drop materials or equipment over anyone else’s land. The only intrusion was the oversail and weathervane movements of the jib passing through the airspace above the adjoining land. To regularise that intrusion, the developer sought easements for “airspace access for crane swing” over the neighbouring lots.

When the proceedings began, there were fifteen defendants a reflection of how many neighbouring interests a crane’s swing radius can touch. The developer negotiated and reached a commercial resolution with all of them but one. The lone hold-out was the second defendant, Mr Ahamed, the owner of an adjacent property. He did not agree; but nor did he engage at all. He had been served with the proceedings and later with the amended summons but never filed an appearance, never responded to correspondence, and showed no interest in the litigation. As the judge dryly observed, that was “unsurprising”.

With every other neighbour settled, the developer discontinued against them and pressed on against the one silent neighbour, seeking a court-imposed easement under section 88K.

The decision: the easement is imposed with compensation

Acting Justice Harrison was satisfied that the statutory tests were met and imposed the easement.

The evidence showed the crane easement was reasonably necessary for the effective development of the site and that the intrusion was carefully limited: the crane would not carry loads over the neighbour’s land; only the jib’s oversail and weathervane movements would traverse the airspace, and the easement terms spelled that out in detail. The Court found the easement was not inconsistent with the public interest, and crucially that the neighbour could be adequately compensated for the intrusion into his airspace.

On the requirement to negotiate, the developer had made reasonable attempts to reach agreement. The difficulty was not that Mr Ahamed had refused a deal on the merits; it was that he had simply not responded to the proceedings or to correspondence. The Court accepted that reasonable attempts had been made in the sense that the developer had genuinely tried, and the neighbour had chosen not to engage.

The Court therefore ordered that an easement for airspace access for crane swing be imposed over the neighbour’s land in favour of the development site and directed the Registrar General to register it. The developer was ordered to pay the neighbour compensation of $12,067.02. The orders also included practical machinery common in these cases: a direction that the neighbour do what was needed to enable registration, and in case he continued not to engage authority for a Registrar of the Court to execute the necessary documents on his behalf so the easement could be registered regardless.

In other words, the development could proceed, the neighbour’s rights were recognised and compensated, and one unresponsive owner was not permitted to stop the project.

The practical lessons

Although Freecity v Amin is a brief judgment, it carries real lessons for anyone involved in or living next to development.

Easements are far broader than driveways and drains. Airspace is property too. A right for a crane to swing over neighbouring land is just as much an easement as a right of carriageway. Developers and owners should think about all the rights a project needs, above and below ground, not just the obvious ones.

A crane over the boundary can be a trespass. Because a landowner’s rights extend into the airspace above their land, oversailing or weathervaning a crane across a neighbour’s property without permission is unlawful. A neighbour who is not consulted could seek an injunction that stops the crane and potentially the whole build until the position is regularised.

Section 88K is a powerful but conditional tool. Where a genuinely necessary easement cannot be obtained by agreement, section 88K allows the Court to impose one. But it is not a shortcut. The applicant must prove reasonable necessity, consistency with the public interest, that compensation is available, and importantly that real efforts were made to negotiate first. Skip the negotiation and the application can fail.

Engage early negotiation is almost always cheaper. The developer here settled with fourteen of fifteen neighbours commercially, and only needed the Court for the one who would not respond. Court proceedings cost far more than the $12,067 of compensation ultimately ordered. For developers, a proactive program of neighbour agreements (often called crane oversailing or licence agreements) before construction starts is the sensible, cost-effective path.

For neighbours of a building site: don’t ignore it. The silent neighbour in this case did not defeat the development; he simply lost the chance to have a say in the terms and, potentially, to negotiate a better commercial outcome than the compensation the Court fixed. If you are approached about a crane swinging over your property or served with court documents, get advice and engage. You have genuine rights, including to compensation and to have the terms of any easement properly defined, but those rights are best protected by participating, not by staying silent.

Get the easement terms and registration right. These easements are carefully drafted to define exactly what is permitted (here, oversail and weathervane movements, not carrying loads overhead) and are registered on title. Precise drafting protects both sides the developer gets certainty to build, and the neighbour’s land is not burdened by more than was agreed or ordered.

How Shire Legal can help

Whether you are a developer needing access rights to get a project off the ground or a homeowner whose neighbour’s building works are encroaching on your land or airspace, easements are a technical area where the right advice makes all the difference. At Shire Legal, we help clients across the Sutherland Shire and beyond to negotiate and draft easements and crane oversailing agreements, to bring or respond to section 88K applications, and to protect their property rights and secure fair compensation.

If you would like advice tailored to your situation, contact Shire Legal or book an appointment to speak with our team.

This blog provides general information and should not be construed as legal advice. Laws may have changed since the publication of this content. We recommend consulting with a qualified legal professional to ensure compliance with current legislation and to address specific circumstances.