Construction: When does inconvenience qualify for compensation?

27 June 2014

Those of us who chose to work in a thriving bustling city, such as London, will be more than aware of the constant development and building works that such a city demands. In fact if you have visited Kerman & Co’s offices recently, you may have noticed that we are neighbours to a significant construction site. It seems that there is currently no place in central London where one is not either located immediately next to a development site, or at least in hearing distance of construction works. New buildings are being constructed, office buildings are converted into residential developments and Crossrail builds its network across the city. You may have asked yourself, whether we have to live with the constant annoyance of construction noise, dust, smells or tremors? Unquestionably, everyone is entitled to develop their land – but where does it leave the right of the neighbour to quietly enjoy his own?

Common law has for centuries developed the concept of private nuisance. This is caused when someone does something on his land, which he is lawfully entitled to do, but which becomes a nuisance when the consequences extend to the neighbouring land. But how far does such nuisance have to go to entitle the owner to damages or request a termination of building works?

Private nuisance is only relevant if the interference with the neighbouring land is substantial and unreasonable. Every law student in England is familiar with the case of Ryland v Fletcher, which laid the foundations of today’s private nuisance law. In 1860, Rylands built a reservoir on their land which burst and flooded Fletcher’s mine, causing £937 worth of damage. Ryland was generally permitted to carry out the works but Fletcher still suffered a measurable loss. The House of Lords established that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”. In a nutshell, this means that despite an activity being lawful it can still lead to a successful damages claim by a neighbour.

It follows that the escape of dust, noise and vibration can represent a nuisance to the neighbouring properties and that the developer could be responsible if the neighbour suffers a loss. Needless to say that the criteria for claims are rather restricted and that most building works would not entitle neighbours to a claim. A claimant needs to show that there is an unreasonable interference with his property rights, causing loss of enjoyment of his property interest. The interest of the developer to work on his land needs to be carefully weighed against the interest of the neighbour to enjoy his property. The distinguishing factors are commonly the time that the works take to complete and the level of nuisance that has to be endured during the construction process. The locality of the area in which the site is located can also be relevant. There are varying degrees of nuisance from construction works, most of which will be regarded as mere annoyance, which has to be tolerated. Case law on this issue is manifold and the grounds for claims can be unusual.

As early as in the 1930s, the court commented that: “everybody has to put up with a certain amount of discomfort, because [demolition and re-building] cannot be carried on at all without a certain amount of noise and a certain amount of dust […].”

A few years ago , a builder who took four years to renovate his private terraced house, was held liable for causing private nuisance to his neighbours as a result of the length of time it took him to complete the works (Jones and another v Ruth and another). Therefore, if works continue for longer than reasonably necessary there may be actionable losses, which neighbours can recover.

Incidentally, earlier this year, the Supreme Court decided a landmark case which will result in considerable changes to the law of nuisance. The case, Coventry v Lawrence, considered whether the granting of planning permission to permit an activity would mean that noise originating from that activity could not constitute a nuisance. The court decided that the existence of planning permission does not mean that the activity is lawful. Therefore, a planning permission cannot be a defence to a nuisance claim. Having said that, the planning permission may stipulate restrictions on noise levels or other forms of nuisance and this could be relevant in assisting a claimant.

It should be noted, that throughout the years the courts have generally taken the view, that building works are necessary in the ordinary course of business and that if all steps are taken to ensure that there is no undue inconvenience to the neighbours, then such works have to be endured, even if they cause noise, dust or smells, which escape to neighbouring land. Examples of such steps could be: reducing the hours of noisy works, regular cleaning of access routes and the use of dust-sheets and debris netting. Central London developers regularly pass a positive obligation to their contractors to minimise disruption of neighbours and in central London a considerable effort is being made to make construction sites more acceptable to neighbours.  

It therefore seems that for we will need to continue to be tolerant neighbours, but can expect a certain level of consideration from those who operate construction sites.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article