James Bessey explains that a recent case showing  nuisance can be caused by omission as well as action has implications for cladding fires

james bessey bw 2018

When one thinks of construction and nuisance, it is usually in terms of noise, aggravation, access, skips and disruption: all issues on which the industry has worked hard to reduce and improve performance.

However, nuisance is also a concept in law with potentially wide application to construction activities.

A recent case (Williams vs Network Rail Infrastructure Ltd and Waistell vs Network Rail Infrastructure Ltd, hereafter “Waistell”) looked at the liability of a party for the presence of Japanese knotweed on land adjoining two residential properties.

The two decisions given, first instance and on appeal, reached the same conclusion but by different reasoning.

Much like in the case of Waistell and the Japanese knotweed, the presence of PE cladding may amount to an interference with the quiet enjoyment of neighbouring properties

One implication of this case relates to the wider application of nuisance to, for example, the risk caused by defective cladding of fire spreading from one building to another. The relevant regulations and guidelines specifically identify fire spread as an issue.

In the Waistell case the first decision was that Network Rail was liable. The claimants relied on the tort of private nuisance. The claimants argued, and established, that the knotweed had encroached onto their properties.

Moreover, the encroachment was not de minimis in so far as the knotweed had encroached not only up to the foundations but also under the properties themselves. However, the claimants could not show physical damage to the property.

There was no evidence of the knotweed damaging the properties or their foundations nor that the knotweed had affected the soil below; the claim of private nuisance was not made out under the encroachment ground. 

But the claimants also argued the effect of the knotweed was that its presence was an objective loss of amenity as it reduced the value of the properties to below market rate; this would still be the case, even if the knotweed was treated. The knotweed had, in law, “interfered with their quiet enjoyment or use and enjoyment” of their properties.

The claimants also had to show that the interference caused by the knotweed was reasonably foreseeable. Following guidance produced by the RICS and the Property Care Association in 2012/13 on the consequential damage of the spread of Japanese knotweed, the defendants would have had “constructive knowledge” of the risks of knotweed, and the reasonable foreseeability point was made out.

Further, the defendant had not acted on this knowledge appropriately, having inadequately sprayed the knotweed with pesticide (in one year no spraying had been carried out at all). 

On the defendant appealing to the Court of Appeal, the court found again for the claimants but with different reasoning. The court held that the judge in the first instance erred in finding the presence of knotweed was an actionable nuisance because it diminished the market value of the property.

This was because the tort of private nuisance does not operate in order to protect the value of financial assets but instead to protect the landowner/person in exclusive possession in their use and enjoyment of their land. 

However, the court held that, unlike in the first instance decision, the proposition that damage was always an essential requirement of the cause of action was not entirely correct. The concept of damage in this context was elastic. It was established in Hunter vs Canary Wharf Ltd, in the case of nuisance through interference with the amenity of land, that physical damage was not necessary to complete the cause of action.

The court found Network Rail’s knowledge of the presence of knotweed and failure to reasonably prevent its interference with the respondents’ quiet enjoyment of their land were sufficient to give rise to a cause of action in nuisance.

So, a private nuisance is the violation of property rights involving either an interference with the legal rights of a landowner, including a legal interest in land, or interference with the amenity of the land; the categories of nuisance, namely encroachment, interference and physical injury, are merely examples of violations of property rights.

Damage is not always an essential requirement of the cause of action. The concept of damage is elastic. Finally, nuisance can be caused by inaction or omission as well as by positive activity.

The application of this case to combustible or non-compliant cladding systems is of potential relevance to the building industry. If the cladding is defective and is a potential nuisance to a nearby property, there could be liability. 

Building Regulation B4(1) requires that “the external walls of a building shall adequately resist the spread of the fire over the walls and from one building to another having regard to the height, use and position of the building”.

Much like in the case of Waistell and the Japanese knotweed, the presence of PE cladding may amount to an interference with the quiet enjoyment of neighbouring properties.

It is reasonably foreseeable that a defendant’s knowledge of the presence of PE cladding, and their failure to reasonably prevent its interference with the quiet enjoyment of their neighbour’s land, may be sufficient to give rise to a cause of action in nuisance.It appears actual physical damage to the neighbouring land will not necessarily be required, insofar as a claimant could prove a loss of enjoyment of their land.