New BCLI Study Paper on a Current Issue in Construction and Property Law
January 27, 2026
BY Greg Blue
BCLI has issued a new publication dealing with a growing issue in urban development. The Study Paper on Access to Neighbouring Land and Airspace for Construction-Related Purposes released in January 2026 looks at options to avoid disputes over access by developers to land and airspace surrounding a building site during construction projects, and to resolve them when they do arise.
Building projects can be delayed or derailed and costs driven up when developers and neighbouring landowners don’t reach timely agreement on access needed to operate construction cranes and perform other essential construction operations. Delays prolong the disruption and inconvenience that construction activity may cause in a neighbourhood. Higher costs are ultimately passed on to purchasers and tenants of new buildings, contributing to the problem of lack of affordability.
When negotiations for access fail, developers have been known to trespass by forging ahead with crane and shoring operations without landowner consent, resulting in litigation. Injunctions against the trespass obtained by landowners can stall construction and force resort to costly workarounds. Where workarounds are not possible or would be too costly, building projects may not proceed at all.
The study paper explains why access to neighbouring land and airspace is often needed during construction. It reviews cases where failed negotiations or a failure to negotiate led to trespassing and injunctions and explains the legal concepts involved. Then it sets out a series of potential solutions for avoiding and resolving access-related disputes.
Typical reasons why builders need access to neighbouring land and airspace
The latticework, fixed-base construction cranes that are familiar sights in urban settings often need to swing over ground lying outside the boundaries of the building site. Their movement can’t be restricted by property boundaries because they must be capable of “weathervaning” (swinging 360 degrees) for safety reasons in high winds. It’s also a legal requirement.
A preferred method for reinforcing (“shoring”) the sides of excavations to prevent cave-ins is to insert anchor rods (also called “tiebacks”) at an angle into the ground behind a temporary shoring wall that may run close to or along a property boundary. Anchor rods may be left permanently in place after construction is completed.
Consent from neighbouring landowners is needed to allow cranes and shoring installations to encroach on their property. If neighbouring landowners refuse to grant access for these purposes, developers can sometimes use mobile cranes or drive piles to support a shoring wall. These workarounds are usually more expensive than the preferred methods and often take longer.
Potential Solutions for Avoiding and Resolving Access Disputes
The study paper presents a series of possible solutions to prevent or resolve construction-related access disputes. The continuum runs from potential solutions that require the least governmental involvement to ones requiring the most.
At one end of the continuum, there are strategies where there is little or no government involvement, except for municipal co-operation and support. These include public education campaigns, neighbourhood-level informational initiatives, and early contact with the landowners surrounding a proposed building site. These initiatives would cover matters like the safety standards that apply to construction cranes, reasons why builders need timely access to adjacent ground and airspace, and the importance of proper shoring for the stability of soil and structures surrounding an excavation.
Another initiative to prevent disputes could be a code of best practices in negotiating access, created by the development industry in collaboration with other stakeholder interests, principally landowners and municipalities. The best practices code would draw upon the collective well of experience in achieving successful outcomes.
Moving on to the middle range of the continuum, the study paper covers mediation and arbitration processes for resolving situations where access is in dispute between a developer and a landowner. As a landowner is not legally obligated to grant access to a developer, resort to voluntary mediation and arbitration could be unlikely. Mandatory mediation or arbitration, on the other hand, could play a significant role in resolving access disputes if a decision-making body were given the necessary authority and the process could be invoked by either the developer or landowner when initial negotiations fail.
Legislation would be needed to make mediation or arbitration mandatory to resolve disputes over construction-related access. The study paper suggests that the Surface Rights Board that now settles the terms of surface leases in the oil and gas and mining sectors, including the level of rent, could be given decision-making authority over construction access disputes as well. The Surface Rights Board uses a mediation-arbitration process. It first tries to mediate a dispute over entry and access between an oil and gas or mining operator and a surface landowner, and if mediation is unsuccessful, the process moves on to arbitration.
Another solution might be to give a court the power to decide whether a developer should be given access to neighbouring property and set the compensation the developer should pay to the landowner. Either party could apply to the court to decide these matters. Australian states, New Zealand, and the UK have legislation allowing similar court applications.
At the far end of the continuum where the most government involvement is to be found are potential solutions involving public policy choices requiring legislative changes to cut down the scope for access disputes. These include passing a law that a crane swinging through airspace is not a trespass. That would make it less likely that a non-consenting landowner could obtain an injunction preventing crane operation, but the landowner could still sue the developer for nuisance if the landowner could prove there was substantial interference with the use of the land below and the intrusion was not by consent.
Another policy choice could be passing a law that simply prevents an injunction from being awarded to a non-consenting landowner against trespass by crane overswing, leaving it still open to the landowner to sue for damages.
The requirement for strata corporations to pass a resolution by a ¾ vote to grant a developer a right of access to common property could be removed so that the resolution could pass with a simple majority of strata lot owners being in favour. This would make it easier for strata corporations to grant access on terms that are acceptable to the majority of owners.
The most drastic measure discussed in the study paper that was raised in stakeholder consultations would be to legislate an automatic right to access neighbouring land and airspace as needed for construction purposes. Landowners would not receive any compensation, except that they could take advantage of the same right of access if they redeveloped their own property in the future.
The study paper does not recommend any one of these potential solutions over another. It is meant to be a contribution to public discussion and assist stakeholders, policymakers and legislators in dealing with land and airspace access issues related to construction.
