The office of the London insurer Hiscox is next to the site of the Pinnacle and the latter’s demolition works are causing no end of trouble between them. But can Hiscox make the work stop?
The earthquake at the end of February prompted the predictable headline: Did the Earth move for you? If anyone laughed at this it is a safe bet that Hiscox’s staff were not among them.
The insurer’s offices in the City are next to the Pinnacle, which will be the largest office tower in Europe. Demolition works on the project meant that the Earth had been moving for Hiscox staff for some time.
But it was far from pleasant. Many complained of motion sickness, visitors were said to be “petrified” and one director described the situation as “absolute hell”.
A temporary agreement on acceptable levels of vibration was reached with the developer, but Hiscox decided that something more should be done. It took the developer of the Pinnacle to court seeking an interim injunction that, among other things, would impose limits on permissible vibration.
Hiscox’s application was based on private nuisance, the standard basic definition of which is “unlawful interference with a person’s use or enjoyment of land they possess”.
It has been with us for a long time. A 1786 treatise on English law defined nuisance as “anything done to the hurt or annoyance of the lands, tenements, or hereditaments of another” and, by way of example, it explained that “if a person keeps his hogs, or other noisome animals, so near the house of another, that the stench of them incommodes him, this is an injurious nuisance”. And that is still the position today.
The law of nuisance is about striking a balance between the interests of neighbouring occupiers of land.
The law recognises that although construction works are often dirty and noisy they are also necessary. By 1938, the Court of Appeal had expressly identified a qualification to the law of nuisance when it came to construction operations, ruling that “in respect of operations … such as demolition and building, if they are reasonably carried on and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to neighbours, whether from noise, dust, or other reasons, the neighbours must put up with it”.
The court decided that the limits on acceptable vibration that Hiscox was seeking (which were those previously agreed between the parties) were reasonable, such that if they were exceeded it would, on the face of it, constitute nuisance.
The final hurdle to clear in obtaining an interim injunction
for nuisance is known as the ‘balance of convenience’
However, in line with the principles outlined, it confirmed that the developers would have a defence to a claim for that nuisance if it could prove that it had taken all proper and reasonable steps to avoid exceeding the levels.
In deciding whether to grant an interim injunction the court will consider a number of factors, but the final hurdle to clear is known as “the balance of convenience”. The court will look at the impact on the claimant if the injunction is refused and compare it with the impact on the defendant if it is granted.
The court decided that refusing an injunction would leave Hiscox with no sufficient protection against continued nuisance by vibration. On the other hand, if the injunction were granted it would simply mean that the developer would have to take proper and reasonable care and trouble to carry out the demolition works so as not to exceed the reasonable permitted limits.
The balance of convenience therefore lay with the granting of the injunction, and the court made the order.
The upshot is that if the developer fails to keep vibration within the stipulated limits it will be guilty of a criminal offence unless it can prove that it took all proper and reasonable steps to avoid the violation.
The project is now in delay, the developer has lodged an appeal against the injunction, and Hiscox is pursuing further avenues with the City of London.
This looks set to run and run, and we await the outcome with interest. In the meantime the case is a useful reminder that the courts have the power to limit vibration caused by construction works. Earthquakes are going to take a little longer.
James Fielden is a senior associate in the construction & engineering group at Mayer Brown International