Nuisance and the builder

Wherever there is construction activity, hand in hand there is the risk of nuisance - a fact the courts have been cognisant of for 300 years.

The law recognises three types of nuisance, all of which regularly occur in some shape or form during construction activities. Statutory nuisance (which as its name suggests, is the creature of statute), private nuisance (affecting individuals and neighbours, which cause special ‘damage’ to particular persons, whilst not amounting to trespass) and public nuisance (affecting a class of Her Majesty’s subjects) e.g. those using the Mile End road.

The central to the law of nuisance is the interference with reasonable use and enjoyment of land. Nuisance can be broken down into straightforward factors. The three most important are that:-

1. 1. the interference must be substantial.
2. the nature of locality and the duration of the interference.
3. the question of what is reasonable "in nuisance" as opposed to what might be reasonable in other legal spheres.

There are all matters which a prospective litigant must address and satisfy if is to have any chance of a remedy before our courts.

Statutory Nuisances

Statutory nuisance, essentially a sub-division of public nuisance has proliferated as a result of EC legislation, particularly in the environmental and waste regulation fields. There are now a very wide range of offences created by statute, many carrying very heavy fines and triable either way, i.e. in the Magistrates’ Court, or in the Crown Court, in suitable circumstances.

Private Nuisance

Private Nuisance is a civil wrong, arising from unlawful interference with a party’s use or enjoyment of land where the person suffering the harm is the owner or occupier1. For example, in the case of Spicer v. Smee (1946) the plaintiff’s bungalow was destroyed through defective wiring in the defendant’s adjoining bungalow. It was held the plaintiff could succeed in nuisance as the Judge said, "Private nuisance arises out of a state of things on one man’s land whereby his neighbour’s property is exposed to danger".

Interference will be unlawful only if it is unreasonable. A balance must be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. Yet, interference will not be found unreasonable unless it is substantial. This is because the common law has always insisted that reasonableness must be the key-note of the law of neighbours. The Victorian judge Vice-Chancellor Knight-Bruce said in Walter v. Selfe (1851) that the interference must be unreasonable but "not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people".

One who takes reasonable (or even extreme) care may nevertheless commit nuisance if, despite his care, another’s use or enjoyment of his land is adversely affected. Thus, the reasonableness of an act is sometimes a question of fact to be determined in accordance with the circumstances, e.g. time, place and manner of commission, the presence or absence of malice, and whether the effects are transitory or permanent. A commonly misheld belief is that abnormal sensitivity of person or property is such that the wrongdoer must take the plaintiff as he finds him. Whereas in fact this concept is immaterial in connection with the law of nuisance. However, it is important to distinguish the effect of abnormal sensitivity before and after nuisance has been established. Although abnormal sensitivity is not taken into account in deciding whether the interference was substantial, once the nuisance has been established the remedy of damages and/or injunction will extend to address abnormally delicate or sensitive operations.

Public Nuisance

The most common examples are obstruction of the highway, polluting water supplies and keeping a brothel. All of which are crimes triable ultimately in the Crown Court unlike private nuisance, which generally does not amount to a crime. A nuisance will not be public unless the number of persons affected is sufficiently large to constitute a class. Again this is a question of fact - which may be decided by enquiring whether the nuisance was so widespread in its range or indiscriminate in its effects that it would not be reasonable to expect one person to take steps to put a stop to it.

In the course of this century many such nuisances have been forbidden by statute, e.g. under the Clean Air Act of 1956, Control of Pollution Act 1974 and the Noise and Statutory Nuisance Act 1993. One of the most common instances of public nuisance concerns noise from building works, which is controlled by Section 60 of the 1974 Control of Pollution Act. This Act gives local authorities extensive powers to control the hours within which building work can take place. The Act, interestingly, does not, however, apply to small works operations undertaken in the domestic sector. Many public nuisances are strict liability offences, i.e. liability can be established without fault and may be punishable by imprisonment, e.g. under the Water Resources Act 1991, Section 85. This means the corporate veil in many public nuisances can be lifted so that directors and other officers are liable to prosecution personally.

What this means in the construction context

The law takes a common-sense view to the construction industries actively recognising that if the creation of a "nuisance" were completely prohibited at all times, the ordinary business of building simply could not go on. So long as building operations are "reasonably carried on and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours whether from noise, dust or other reasons, the neighbours must put up with it, so said Sir Wilfred Green M.R. in the leading case of Andreae v. Selfridge & Co. Limited (1958). However, remember the words of Thesiger L.J. in the case of Sturges v. Bridgeman (1879) who made the famous remark, "What may be a nuisance in Belgravia Square would not necessarily be one in Bermondsey".

In a nutshell, the duty to minimise inconvenience requires the use of reasonable skill and care and the taking of steps and precautions - to be judged as a matter of common sense and degree. Such steps include restricting hours of noisy work, canvassing the local community by mail-shots and similar to advise what operations are going to be undertaken, and the steps being taken to ameliorate nuisance, particularly by using dust-sheets, debris nettings, restricting noisy working to particular hours. Washing down vehicles and shop-fronts is a popular but insufficiently used device which main contractors can and should employ to keep the risk of prosecution down. Many contractors have been held liable for damages when such steps to minimise inconvenience have not been taken. Worse still, a successful prosecution in nuisance, usually results in court imposed restrictions on the contractors’ activities, which are not "Relevant Events" for extending time under most, if not all standard form contracts!

Endnotes
1. See Hunter & Others v Canary Wharf (1997)