In the following case, the court had to determine (amongst other things) whether to grant injunctive relief to the claimants in relation to vibration resulting from demolition works at a site in the City.
The demolition works in question were the first stage in what (the judge understood) was proposed to be the largest tower office building in Europe. The claimants were the lessees and occupiers of an adjoining property.
Hiscox Syndicates Limited & anor v The Pinnacle Limited & ors  EWHC 145 (Ch)
The court first considered the approach it should adopt. It proceeded as follows:
- It was not possible for the court to adopt the American Cyanamid approach of asking whether there was a serious question to be tried;
- This was because a full trial of the action could not take place until after the demolition works adjoining the claimant’s property were scheduled to have been completed;
- It was relevant for the court to assess the claimant’s chances of success and to weigh up the risk that injustice might result from the judge deciding the application one way or the other;
- This was because, if the court granted an interim injunction, the injunction would, in effect, dispose of the action. The harm which would already have been caused to the defendants would be complete and of a kind which money could not adequately compensate;
- The court was not able to undertake a trial of the claim;
- There had been no disclosure of documents or cross examination of witnesses (including experts). There were disputed issues of fact which the judge would therefore not be able to resolve;
- The court had to consider the balance of convenience. What would be the impact on the claimants if an injunction was refused as compared with the impact upon the defendants (who included the owners of the site) if the injunction was granted?
Nuisance from building operations
The court set out the applicable law in relation to nuisance and building operations, as follows:
- The law took a common sense view of the matter of noise, dust and vibration which substantially interfered with the adjoining owners’ enjoyment of their property. If the court granted an injunction as a result of ordinary building operations, the business of pulling down old buildings and constructing new ones in their place could not be carried on. Provided that the building operations were reasonably carried on and all proper and reasonable steps were taken to ensure that no undue inconvenience was caused to neighbours, whether from noise dust or other reasons, the neighbours would have to put up with it. (The judge took the above from a passage in Keating on Construction Contracts (8th edition) para 10-041.);
- If a neighbouring occupier suffered undue inconvenience or discomfort as a result of building operations, the onus was on the person who undertook those works to show that it had taken all proper and reasonable steps to avoid such inconvenience to avoid liability for the tort of nuisance;
- The taking of proper and reasonable steps might require the party carrying out the works to do so at the least inconvenient time of day for the adjoining owner. What was reasonable was a question of fact and degree and cost was a relevant consideration. However, establishing that works would have to be carried out more slowly or more expensively in order to avoid or minimise the discomfort or convenience to an adjoining owner was not, of itself, a sufficient defence;
- Statutory controls might impose limits on noise, including vibration and, where they were imposed, non-compliance could constitute a criminal offence. Statutory controls were a relevant and important factor to be taken into account whether determining whether there had been a nuisance and, if so, whether it justified an injunction;
- When determining whether to grant an injunction on the basis of a balance of convenience and the adequacy of damages, the relevant question was whether it was just to confine either party to their remedy in damages. Difficulty in assessing damages was a relevant factor in answering that question.
Applying the legal principles
The injunction sought by the claimants in relation to vibration required vibration to be avoided between 8.30 am and 6.00 pm on weekdays in excess of levels (which had been set out in a ‘standstill agreement’ between the parties), as measured by apparatus within the claimant’s premises. (The standstill agreement had expired.)
The judge found:
- On the facts, the owners had not demonstrated that they had taken all proper and reasonable steps to avoid the vibration levels exceeding the standstill agreement on previous occasions;
- The vibration levels in the standstill agreement struck an appropriate balance between the competing interests of the parties and were at a level at which, if exceeded, resulted in a prima facie case of nuisance (subject to the defence of having taken all proper and reasonable care to avoid the levels being exceeded);
- The owners’ undertaking to enter into a further standstill agreement was inadequate, in the absence of an undertaking to the court to comply with such agreement. Purely contractual remedies had not operated to prevent vibration levels from being exceeded in the past;
- The court had a real concern that the prima facie nuisance resulting from the exceeding of vibration levels would be repeated if the claimants were not protected by the grant of interim injunctive relief;
- It was not just in the circumstances to confine the claimants to their remedy in damages. Whilst there would be difficulties in assessing and quantifying the losses which the owners would suffer if the injunction was granted (which may extend to differences in the rents obtained and consequential impact on the capital values of future letting and sale of the building), such difficulties were less acute than they would be in seeking to assess the damages that would be suffered by the claimants if interim injunction relief was refused;
- If the injunction was refused the claimants would have no adequate protection against vibration (which could be severe) for the next few months. The balance of convenience therefore favoured the grant of injunctive relief, and the claimants had a sufficiently strong case to justify that.