A recent case in the Technology and Construction Court provides a warning to businesses involved in residential property development. The court held that a builder, who had taken more than four years to renovate a terraced house, had taken too long carrying out the works and had a caused a private nuisance to neighbours living in the adjoining property. Improperly fixed scaffolding repeatedly banged against the wall of the neighbours property and workmen using the scaffolding were able to see into their bathroom and garden. The neighbours were awarded total damages of £96,800.

Developers must recognise that construction activity cannot be at any cost to the neighbour. Continuous building work for a relatively short period can be tolerated but sporadic, ad-hoc work that lasts for a longer period can become unbearable.

What is private nuisance?  

• Private nuisance is usually caused by an individual doing something on their own land, which they are lawfully entitled to do. It becomes a nuisance when the consequences of their actions have an impact on their neighbour’s land (for example, by causing physical damage).
• The damage or interference with the enjoyment of the neighbour's land must be substantial or unreasonable to be regarded as a nuisance.
• An occupier of land owes a duty of care to a neighbouring occupier for any hazard (natural or man-made) occurring on their land.
• The individual making the claim must have a direct interest in the land affected by the nuisance (for example, they own it).

Remedies

A claimant can take civil proceedings for either:

• Damages to compensate for their loss.
• An injunction to stop the continuing nuisance and prevent it reoccurring.

Types of loss

Two types of loss can be claimed for:

• Actual physical damage (for example, oil leaking from a neighbour's tank, contaminating the claimant's soil and requiring a clean-up).
• Interference with the enjoyment of land (for example, loss of enjoyment of a property due to the noise nuisance caused by an adjoining dog kennels).

Limitation

The limitation period for making a claim for nuisance is six years from when the event took place. If a nuisance continues over a long period of time, a claimant will be able to recover its loss for the preceding six years.

Key points

If you are intending to carry out development work on a residential property, any interference caused must be reasonable. You must consider how the work will impact on the neighbours’ enjoyment of their property, in particular:

• The nature and duration of the work.
• The time of day or week when the work is carried out.
• The level of noise or other interference generated by the work.
• Whether certain types of work need to be carried out after giving reasonable notice to a neighbour that is likely to be affected.

More information

If you have any questions about the content of this checklist, please contact

Stephen Firmin

Direct Dial: 01026 217 023

Email: sfirmin@tsplegal.com

Stephen has over 15 years’ experience in company and commercial law and has a particular expertise in commercial property. Stephen’s wide-ranging knowledge and experience mean that he is able to advise clients on achieving their objectives across a broad range of business activities. He has helped clients of differing sizes – from start-ups and family-businesses to large PLC’s – and from many and varied business sectors, to achieve their business goals.

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The content of this article is for general information only and does not constitute legal advice. We recommend that professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this update.