A housebuilder starts construction at a new development, only to discover that a neighbouring landowner is diverting rainwater from their own land onto part of the site, causing flooding. Can the housebuilder force the neighbour to stop?
The answer to this question lies in the law of nuisance, which protects property owners and occupiers when their use and enjoyment of their land is compromised. For housebuilders - who often operate close to existing residential, commercial or agricultural land - understanding what constitutes a nuisance and how it may affect development activity is essential.
What is a nuisance?
In Scotland, nuisance arises where an interference with land becomes more than reasonably tolerable. An interference in this context could include the diversion of water from one property to another, such as in the situation described above, or other emissions such as noise or odours.
The test of what is reasonably tolerable is highly context‑dependent. In deciding whether or not an interference amounts to a nuisance, a court will take account all of the surrounding circumstances, including the nature of the locality, the purpose of the activity giving rise to the interference and the severity and duration of the interference.
When might housebuilding amount to a nuisance?
The construction of new homes inevitably generates a degree of disruption for neighbouring landowners, including noise, dust and vibrations. For the most part, construction activities are not likely to amount to a nuisance. However, where the disruption created by a development is particularly severe, a housebuilder could find itself facing nuisance claims from the owners and occupiers of land neighbouring the development.
Whether the disruption and emissions created by development are reasonably tolerable or not will depend on the circumstances. The location of the site may be important: activities typical in a busy urban redevelopment zone may be unreasonable in a quieter environment; conversely, the emission of dust from a construction site in the countryside may be less problematic than from an urban site with many close neighbours. In deciding whether a housebuilder has committed a nuisance, a court would give some weight to the utility of the housebuilder’s actions in meeting the demand for new homes. However, the existence of planning permission alone would not protect the housebuilder against a claim for nuisance.
To minimise exposure to nuisance claims, housebuilders should adopt proportionate mitigation measures, including noise control (particularly outside of working hours) and effective communication with neighbours.
When might housebuilders have a claim in nuisance?
Nuisance can also hinder construction rather than being caused by it. Interference from neighbouring land - including noise, flooding and vibration – has the potential to disrupt site preparation and construction works.
Where such interference makes it unreasonably difficult to carry out construction activities, housebuilders may themselves have a claim in nuisance against the neighbouring landowner. The ability to raise nuisance proceedings therefore provides important protection for programme certainty and overall project delivery.
Remedies
Regardless of whether a housebuilder is accused of nuisance or is a victim of it, two main remedies are available:
Interdict (the equivalent of an injunction in England) is a court order requiring the person causing the nuisance to stop doing so. Such orders can be obtained on an interim basis at short notice, or on a permanent basis to prevent further nuisance in the future.
In order to obtain an interdict, the victim of the interference need only show that the interference is more than reasonably tolerable. The court does not need to be persuaded that the defender is in some way at fault for the interference. Interdict is particularly useful where swift action is needed to stop the nuisance, so it will usually be the primary remedy for housebuilders seeking to protect their developments and allow construction to continue.
Damages are available (in addition to interdict) where the defender has acted intentionally, recklessly or negligently in causing the nuisance. A housebuilder who has lost time on site because of a nuisance may have a significant claim for damages if it can show that the defender has acted in this way.
Conclusion
The nature of development means that housebuilders can easily find themselves on either side of a nuisance claim. Developers should be mindful of the potential impact on neighbouring land when planning and executing construction activities, to minimise the risk that a neighbour could obtain interdict bringing development to a halt. On the other hand, housebuilders should keep in mind that the law of nuisance may give them a remedy where the activities of a neighbour impede site preparation or construction.
For specific advice on the law of nuisance or any other aspect of development, developers can get in touch with our Real Estate Litigation team or their usual contact in the Brodies Living team.
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