Nuisance – Demolition works – Vibration – Claimants occupying office premises adjoining demolition site – Interim injunction – Balance of convenience – Whether adequate measurement of vibration possible for injunction purposes – Application granted
The claimant companies were the lessees and occupiers of office premises in London. The adjoining property, owned by the first defendant and let to the second defendant, was the site of demolition and redevelopment to erect a new office building. The third defendant was the contractor engaged in connection with those works, while the fourth defendant was the first defendant’s managing agent.
The demolition of the north building on the site was scheduled for completion in May 2008, with the remaining demolition to finish in October 2008. In November 2007, the second defendant had entered into an agreement with the claimants regarding the demolition works with a view to minimising inconvenience to the claimants; in particular, acceptable levels of vibration were agreed. However, in December 2007, the claimants applied for an injunction against the defendants on the grounds that the manner of conducting the works was causing them nuisance. The claimants complained of excessive vibration, obstruction of the access to their premises and water ingress caused by a water spray that was used in the course of the demolition works. Interim relief was granted in respect of the access, but not for the vibration and water ingress. On the return date, the claimant’s claim for interim injunctive relief was reconsidered by reference to the balance of convenience between the parties, against the background that the substantive hearing could not take place before May 2008.
Argument mainly centred upon the vibration issue. The defendants opposed the grant of interim relief on the grounds that, inter alia: (i) the equipment used to monitor vibrations was inadequate for injunction purposes, since it did not enable the defendants to ascertain the vibration levels until after the fact, thereby potentially exposing them to committal proceedings; and (ii) the damage that an injunction would cause to the defendants, in terms of additional development expenses and delay to the works, was difficult to assess such that it could not adequately be compensated by an award of damages.
Held: The application was granted.
In circumstances where the trial of the claim would not take place until after the demolition of the building, such that the decision on interim relief would effectively dispose of the matter, it was not sufficient simply to consider whether there was a serious question to be tried, but was instead necessary to examine the relative strengths and weaknesses of each party’s case.
Although temporary demolition or building operations would often interfere with adjoining owners’ enjoyment of their property, there would be no nuisance where that interference resulted from ordinary building operations, provided that all reasonable and proper steps were taken to avoid undue inconvenience and discomfort. The taking of such steps operated as a defence to a claim in nuisance; where undue inconvenience and discomfort had been caused, the burden of proof shifted to the defendant to show that it had taken all reasonable steps to avoid it: Andreae v Selfridge & Co Ltd [1938] Ch 1 considered. In considering whether the defendant had taken all reasonable and proper steps, cost could be a relevant factor. If the defendant would have to carry out the works more slowly, or incur extra expense, in order to avoid inconveniencing its neighbours, it would be a question of fact and degree whether that should be required of it.
The vibration levels laid down in the agreement between the parties were generous to the defendants and could give rise to a prima facie case of nuisance if exceeded, subject to the defence of all reasonable steps being taken. There was evidence that the defendants had initially adhered to the agreement without it unduly limiting their demolition activities. On the evidence, the claimants had a strong case in nuisance. It was possible to monitor vibration levels effectively for injunction purposes. Similar measures were applied successfully in relation to noise and vibration for the purposes of the Prevention of Pollution Act 1974. If the defendants did exceed the vibration levels, it would still be open to them to prove that they had taken all reasonable and proper steps to avoid doing so. Any practical difficulties in assessing damage to the defendants if an injunction were to be granted would be outweighed by the damage to the claimants if relief were to be refused; the claimants would be left with inadequate protection from the potentially severe effects of the works, since the agreement provided them with purely contractual remedies. On the balance of convenience, relief should be granted to the claimants in respect of all three items.
Timothy Fancourt QC (instructed by Allen & Overy) appeared for the claimants; Paul Darling QC and Piers Stansfield (instructed by Davies Arnold Cooper) appeared for the defendants.
Sally Dobson, barrister
