We are working on an inner city development. A neighbouring owner has frequently complained about noise, dust and vibration, and is now threatening us with legal action. The council has strict rules on working hours which we have been careful to comply with. Given that we have complied with the Council's rules, do we have anything to worry about?

There is a distinction between the rules enforced by the council, covering such matters as working hours, and the rights of an individual property owner. The statutory powers exercised by the council are designed to protect the environment and the local community generally, and are enforced by the council under criminal law: breach of these rules can result in a summons. However, if you have carefully complied with the rules, you should have nothing to fear on this front.

The rights of an individual property owner are based on the common law principle that a property owner is entitled to the use and enjoyment of his or her property, and interference with this right can entitle the property owner to bring a claim for damages and/or an injunction in the civil courts. As these rights are based on completely different legal principle, the fact that you have complied with all the council's rules does not mean that there is no possibility of the neighbour commencing proceedings.

Variety of claims

Building works can give rise to a variety of claims by neighbouring owners: for example, if any other property is physically damaged by the works, the owner of that property will clearly have a strong claim.

But physical damage is not always necessary: if a crane passes over the neighbour's property, this will be a trespass. Crane oversailing licences should always be negotiated before work starts: if this is not done, the neighbour will probably be entitled to an injunction preventing repeated trespasses.

Noise, smells, dust and vibration caused by building works can amount to "nuisance", which is an actionable tort, or civil wrong, and a neighbouring owner would then be able to commence a civil action, either for damages or for an injunction preventing continuation of the nuisance.

That's the bad news.

Common sense

The good news is that judges recognise that development is a good thing. There are many cases, going back to Victorian times, where judges have accepted that, if the law of nuisance was rigidly enforced, "the business of life could not be carried on". They adopt a common-sense approach to the problem. So, if building works are reasonably carried out and all reasonable and proper steps are taken to ensure that inconvenience to neighbours is kept to a minimum, the judiciary will not interfere: the prevailing view is that "the neighbours must put up with it".

Exactly what "the neighbours must put up with" will always depend on the facts of the individual development and the degree of inconvenience caused. But it is clear that a contractor must properly consider these issues and must take all reasonable steps to minimise inconvenience. This may involve time limitations on carrying out particularly disruptive work, limiting the amount of a particular type of work which is being done simultaneously in a particular area, using the best possible methods of working, and using the best available modern equipment.

This article originally appeared in the Professional Housebuilder & Property Developer in August 2014 and was written by David Johnson, a Partner in the Construction team.