International Construction Law Review
CONSTRUCTION AND NEIGHBOUR RISK IN ENGLISH LAW
PHILIP BRITTON1
Director of the Centre of Construction Law, King’s College London
“The general principle is that at common law anyone may build whatever he likes upon his land.” LORD HOFFMANN2
1. Introduction
Despite the robust and unqualified tone of this opening quotation, new construction works are in fact often designed—or built—in such a way that they infringe the rights of adjoining (or nearby) owners or occupiers of land or buildings. The plans may call for a building which will block or reduce the light to a neighbour’s windows, be bigger than is allowed for the site or is designed for purposes not permitted; as built, the structure or its foundations may encroach on neighbouring land, or at least the materials or temporary works may; or a drum of transmission fluid kept on site for the JCB may leak and contaminate neighbouring gardens. In any of these scenarios, an unhappy neighbour may threaten legal action in the civil courts; in some situations he or she may even have a right of self-help. If litigation follows, the neighbour will often aim to get an injunction to prevent, stop or reverse the unwelcome construction project, or change the way it is being undertaken; and may also, or instead, seek damages for invasion of property rights.3
“Neighbour” is used here just to identify those affected by a construction project: it has no precise meaning as a legal term, except as the gateway to rights and remedies described more fully below.
How does English private law deal with such conflicts? Where does it strike the balance between development and neighbours, and how? These are the themes of this article, which explores the interface between land
1 Philip Britton, LL B, BCL, is Director of the Centre of Construction Law, King’s College London (e-mail philip.britton@kcl.ac.uk). He is also a Chief Examiner and Moderator for the Fellowship examinations of the CIArb. The article is a revised and updated version of the first prize essay in the SCL’s Hudson competition 2005 (original title: “Right Building—Wrong Place? Wrong Building—Right Place?”), published here with kind permission of the joint copyright holders, the Society of Construction Law.
2 In Hunter
(n. 4, below) [1997] AC 655 at p. 709A. Lord Hoffmann goes on to amplify, then to qualify, these forthright words: see the linked main text to n. 13, below.
3 As a result, the article does not discuss the violation of public
rights (e.g., public rights of way, registered commons, etc.) by construction, nor the law of public nuisance
—but for the relevance of this to construction, see Westminster City Council
v. Ocean Leisure Ltd
[2004] BLR 393 (CA); nor does it consider forms of protection of neighbours via public law
, e.g., against excessive noise via local authorities; nor violation of intellectual property rights
held by individuals or legal entities (e.g., design right, copyright, etc.) by construction operations.
[2006
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480