Published on 18 Nov 2008 under category: article
James Brenan, Solicitor
These notes are a guide to the questions and answers that typically arise when one party needs another’s permission for erecting scaffolding.
These notes have been written by James Brenan of Cubism Law as general guidance. They are not a substitute for proper advice on the specific facts of any situation. No responsibility is accepted for decisions taken without first obtaining specific advice from retained solicitors.
The first thing to establish, through the usual searches and enquiries, is the ownership of the land and space in which you wish to erect scaffolding and any surrounding rights - such as rights of light or air. Broadly, the answer will be one of either: the local authority, your lessor (if you own a lease), or a neighbouring private owner. Where proposed scaffolding crosses land or space of different ownerships you may need several licences. These notes now deal with each of those types of consent.
2 Highway Authority Consent
If you are erecting scaffolding over a public pavement or road you should first find out which authority controls it. Highways of course include pavements as well as roads. Before erecting scaffolding over a highway it is necessary to obtain the authority’s licence in writing pursuant to section 169 of the Highways Act 1980. On receiving a proper application, supported by whatever particulars in connection with the proposed structure the authority may reasonably demand, the authority must issue a licence unless it can show one of the available grounds of refusal. Those grounds are, first, that the structure could cause unreasonable obstruction and, secondly, that an alternative design of structure that would cause less obstruction could conveniently be used for the work in question. There is an application fee payable (that has to be no more than reasonable - typically this is around £250) and there is a right of appeal to the magistrates court in case of a refusal.
Highway authorities have been reminded by central government (DOE Circular 9/77 and WO Circular 8/77) not to impose conditions upon the grant of a licence which conflict with or duplicate existing legal requirements - such as those under health and safety legislation.
You should be vigilant to ensure that your contractor complies with terms of such a licence and with health and safety laws (for example requiring adequate lighting) because as owner you can be liable under a civil claim for breach of statutory duty as well as for criminal law sanctions.
Section 171A of the Highways Act 1980 will enable charges to be levied by highways authorities when scaffolding remains in place for longer than a reasonable period, but this provision is not yet in force.
3 Planning Permission
Scaffolding qualifies as operational development under the planning legislation and so as something for which planning permission may be required. If you have planning permission for a new permanent structure it is usually assumed that you can erect the necessary temporary scaffolding for building it. A temporary structure, being one in place for no more than 28 days, anyway does not require planning permission.
Where the scaffolding is not ancillary to a new building with planning consent and the scaffolding will be in place for more than 28 days it is - strictly speaking - necessary to obtain a planning consent for it. An alternative would be to obtain a comfort letter from the planning authority stating that no enforcement action will be taken in respect of your proposed scaffolding. Enforcement of planning law is a matter that requires a finding on the part of the planning authority that it is expedient to issue an enforcement notice having regard to the provisions of the relevant public plan and to any other material considerations.
Many councils though take the view that they need only exercise their above regulatory power under the Highways Act and so do not regulate scaffolding under planning law. This is a point worth checking if you think that your scaffolding will be in place for over 28 days and you do not have a planning consent. Any enforcement notice cannot require action to be taken within 28 days, and so there is in effect a further period of grace. (The planning authority will not in every case be the highways authority, of course.) A stop notice could be issued though, which would require action after only 3 days. Stop notices are rare because councils have to pay compensation if they are wrongly issued.
4 Lessor’s Consent
This will be subject to the terms of the governing lease and, if your premises are commercial and you are making improvements to them, also the Landlord and Tenant Act 1927. A landlord will have a greater ability to impose its preferred terms and restrictions when you are seeking its favour rather than exercising a right or carrying out your repairing duty.
5 Neighbouring Owner’s Consent
This can arise in four possible situations as follows:-
(i) You are exercising a right of access for carrying out repairs or renewal works to your property and giving notice under the Access to Neighbouring Land Act 1992 - note that this Act also helps where you are making incidental adjustments, alterations or improvements or doing demolition works; or
(ii) You are exercising such a right under some express easement that benefits your land; or
(iii) You are following a procedure laid down in the Party Walls Act 1996 and exercising your right of entry over land of an adjoining owner – for it is an often-overlooked benefit from using that Act that you have a right to enter your neighbour’s land for the purpose of carrying out works (see James Brenan’s notes on “Party Walls”); or
(iv) You have no legal entitlement to enter and so you have to persuade your neighbour to grant a licence voluntarily.
In the first three situations you do not really need a licence at all because your right already exists. In these situations you can (if necessary) threaten your neighbour with litigation – for the appropriate declaratory relief and arguably for damages as well – and the detailed arrangements can be covered in correspondence.
However, the boot will only be on your neighbour’s foot in scenario (iv) above. If you invade his space without his permission you can be stopped by an injunction or at least made to pay damages based on the resulting gain in value of your property. In other words, you can be held to ransom. This “boot/foot factor” means that you will be required to pay the licensing party’s costs.
6 Choice of Scaffolder
You would be well advised only to employ a member of the National Association of Scaffolding Contractors (or “NASC”) whose website is at www.nasc.org.uk or a member of the Work at Height Safety Association (or “WAHSA”).
Any scaffolding licence granted to you may refer to a particular scaffolder or require that the scaffolder must belong to one of the above associations.
Some owners require the scaffolder to be a party to the licence, thereby giving direct covenants. This is understandable, given that the scaffolder and not you as the employer would be directly liable for any negligence causing damage.
7 The Construction (Design and Management) Regulations 2007
These regulations will require you to ensure that detailed records are kept as to site-safety issues and the methods and steps of work carried out. It may well be a term of any licence that you must make your CDM records available to the licensing party on demand. You should take specialist advice to ensure that you and all others involved under your responsibility comply with duties under these regulations. The Health and Safety Executive can call for proof of such compliance and take action to enforce the regulations. Breach of the regulations would be seen as tantamount to negligence if it results in an accident.
8 Method Statement
Any licence will typically embody your scaffolders’ proposed method statement in a schedule. The detailed contents of this statement may well be the subject of negotiations between your architect, your scaffolder and the consenting party.
The licence may also stipulate that the scaffolder must comply with the NASC’s Guide to Safe Access Scaffolding.
Roofing and sheeting over the scaffolding will often be an issue, as well as the obscuring of neighbour’s windows, alarms and other security measures.
9 Minimising Damage and Inconvenience
There is no civil wrong-doing or “tort”, whether of negligence or nuisance, arising from building works which are reasonably and responsibly carried out – regardless that a certain amount of obstruction, dust, vibrations and noise may arise. The general legal position is always to ask whether you (and your builders) have acted responsibly so as to confine any disturbance to others to its reasonable and unavoidable level.
A licence may however seek to burden you with a greater liability than the above. It may burden you with a strict duty to do “everything possible”, as opposed to just “taking all reasonable steps”, to minimise inconvenience to the neighbour. It may burden you with a duty of compensation for economic loss of a neighbour, such as a retail business that might lose passing trade, or for burglaries committed via crossing the scaffolding. It is here that the above “boot/foot factor” will be most relevant in negotiations over any licence.
10 Time Limits
Time stipulations in a specifically negotiated contract or licence, especially where the parties are each engaged in some investment or commercial activity as typically is the case in property development, are deemed to be of the essence. Moreover, the parties will often remove any debate from this point by expressing time to be of the essence. This means that the licence only applies for the specific period that it states and that to keep scaffolding in place for any longer would amount to trespass.
Trespass can be abated by the owner/victim exercising self-help, although it would be unusual and risky for new contractors to remove your scaffolding. A more usual and advisable course would be for the licensing owner to sue you for a mandatory injunction, requiring immediate removal of the offending scaffolding and damages. Such damages could well be computed with regard to your gain, rather than only the claimant’s loss and inconvenience.
This goes to underlines the importance of reaching agreement in writing over any time extension which you may need.
11 Buildings and Contents Insurance
You should always obtain an up-to-date copy of the relevant policies for your property and follow any rules there laid down for notifying scaffolding to insurers. Otherwise you will jeopardise cover. As a separate matter you should insure your scaffolding and the building work in progress, or be satisfied that your contractor is doing so.
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