An increasingly stable commercial property market has prompted development activity across the South West to return to pre-recession levels. But is this good news for everyone? Warren Reid, Head of Commercial Property at Thrings, discusses the law of nuisance, and explains why minimising the impact on those in the vicinity of developments is the best approach for developers to take.
The South West commercial property market has undergone something of a resurgence in the past 12 months. Take a tour around any major town or city in the region and increasingly you will see teams of highly-skilled builders and engineers working on busy construction sites, operating cranes and laying the foundations for the latest development project.
Improving economic conditions have created a more dynamic market, as the appetite for development projects among investors, lenders and funders grows. This has resulted in a rise in the number of regional commercial property transactions and corporate occupier enquiries, prompting more commercial property firms and specialist law firms to recruit new staff as they look to reaffirm their commitment to regional markets.
But while many members of the business community will consider greater levels of activity as a positive sign, developers need to take a considered and strategic approach with those people and businesses who live or trade adjacent to buildings and sites which are being developed.
Anyone who has an interest in land is entitled to enjoy their land without unreasonable interruption. But consequences of development work – noise, dust, vibration, damp and smell – could impact on the adjoining landowner if the activities are not properly orchestrated, controlled or confined. Any developer or property owner looking to undertake a development project needs to understand the point at which their actions could become a private nuisance and where they could be liable to adjoining landowners.
The law of nuisance is something that needs to be considered before development work gets underway. Can developers demonstrate they have used the best and most appropriate practices? Who is going to be impacted by the work, and to what extent can the impact be minimised?
When it comes to nuisance law, the crucial term is ‘reasonableness’. Courts understand that there will come a time when land needs to be regenerated and developed, and that buildings have a natural life cycle and need to come down. But, if challenged, a developer would have to prove the building practices they have adopted are reasonable; the courts would expect the developer to consider ways of working which could reduce the impact on neighbouring landowners. Voluntary Considerate Constructor Schemes enable developers to demonstrate the people they have employed are doing everything they can to minimise disruption.
Perhaps unsurprisingly, the issue of what is reasonable can be difficult to determine. Evidence will be used where disputes occur, with experts looking at how well the project has been managed and whether it could have been managed in a different or better way. Developers often look to their contractors and project managers for advice on this.
In extreme cases, if a property owner’s rights are infringed and they are not able to occupy the land as they are entitled to, they can take the case to court and apply for an injunction to stop the work. An example of this might be vibrations caused by piling work leading to a risk of structural damage. If the levels of nuisance are not quite as extreme (e.g. occasional dust and noise) the courts may decide that work could have been carried out in a more considerate way and order the developer to pay damages, and, potentially, costs.
Communication with occupiers adjacent to the development site is key, particularly as they may not know much about the planned work until the developer moves on site. A plan for the work will show at which stages the different elements of the project are done; early dialogue with the neighbours is essential so the nature of the project can be explained and any concerns neighbouring landowners may have can be addressed.
Thrings has advised on a number of nuisance claims and the need to get communications right, highlighting the importance of informing occupiers in the vicinity about the timetable for work. Doing so enables the neighbouring occupiers to assess the likely impact of the work on their own activities, consider when disruption could be of greater concern, make contingency plans and warn customers if work takes place during key or peak trading times.
Nuisance law cases are rarely brought before the courts, but the potential risk for the developer is liability to pay damages or monetary compensation, and at worst, an injunction. Developers need to take as much care as possible to ensure that the neighbouring landowners can continue to occupy their land as they are entitled to. Early discussions with neighbours about the nature of the development and its likely impact might just help avoid nuisance situations in the long run.
