Last edited 01 Nov 2016

Nuisance in construction

Contents

[edit] Introduction

Nuisance is unresaonable interference with another party’s use of land. Nuisance can be public, private or statutory.

[edit] Public nuisance

Public nuisance affects classes of people and can constitute a criminal offence. For example obstructing the highway or pollution of water supplies.

[edit] Private nuisance

Private nuisance affects a specific person’s right to use or enjoy land. A person does not have to have a proprietary interest in land to suffer nuisance (Ref Khorasandjian v Bush 1993).

Private nuisance might be caused by:

  • Encroachment onto land, for example by trees.
  • Damage to land or buildings.
  • Interference with a party’s enjoyment of the land, for example by generating excessive noise or smells.

For nuisance to be actionable, there must be actual or prospective damage, although this damage need not be physical, and might be demonstrated by encroachment or unreasonable material interference.

This is a matter of balance and degree, depending on how unreasonable the infringement is, the duration of the nuisance and the timing or repetition of the nuisance. This in turn can depend on circumstance, such as the character of a particular location and the types of activities that are carried out there. Activities that constitute nuisance in one location might be acceptable in another.

In Sturges v Bridgman (1879) Thesiger LJ stated, ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’.

The courts will also consider the intention of the defendant and whether there was any malice. Liability for nuisance requires that damage is foreseeable, although this does not necessarily constitute negligence.

Action may result in damages, abatement or injunctions.

[edit] Statutory nuisance

Under Part III of the Environmental Protection Act 1990 certain matters may constitute statutory nuisances:

  • Noise.
  • Artificial light.
  • Odour.
  • Insects.
  • Smoke.
  • Dust.
  • Premises.
  • Fumes or gases.
  • Accumulation or deposit.
  • Animals kept in such a place or manner as to be prejudicial to health or a nuisance.
  • Any other matter declared by any enactment to be a statutory nuisance.

Where a local authority establishes any one of these issues constitutes a nuisance (ie is unreasonably interfering with the use or enjoyment of someone’s premises) or is prejudicial to health they must generally serve an abatement notice on the person responsible. Failure to comply with the notice could result prosecution.

[edit] Construction

Clearly construction works are a potential cause of nuisance. However, construction is a necessary activity and in the case of Andreae v. Selfridge & Co. Limited (1958) Sir Wilfred Green MR suggested that ‘...in respect of operations of this character, such as demolition and building, if they 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.’

Reasonable precautions that might be taken to reduce or avoid nuisance in construction might include:

  • Keep neighbours informed.
  • Providing a help line so that problems can be reported.
  • Only working at reasonable times and restricting noisy activities to particular periods.
  • Storing fine materials under cover.
  • Damping fine materials and roadways.
  • Minimising demolition or crushing dust.
  • Washing down vehicles.
  • Taking care when deciding transport routes.
  • Providing hard-surfaced roadways.
  • Proper waste management and avoiding burning waste materials.
  • Limiting vibration.
  • Use well-maintained, quiet machinery.
  • Careful sub-contractor management.

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