There is a distinction between private and public law rights. This is something which non-lawyers do not always appreciate.
PUBLIC LAW RIGHTS
These are items such as the need to obtain planning permission to get relevant development, the ability of a Local Planning Authority to serve an Enforcement Notice where planning control has been breached, the ability of the Local Authority to serve a Dangerous Structure Notice or a Notice requiring works in order to benefit the amenity of the neighbourhood.
These are public law rights which any person can seek the assistance of the Local Authority whatever interest they may have in the land and whatever their status etc. There is a common misconception that if planning consent has been granted for a development, then this can be carried out – despite interference which may be caused to private law rights. This is not the case at all. It is quite possible for planning permission to be granted for significant development upon a site but which will interfere with the private law rights of individual landowners. The fact that planning permission has been granted would not affect in any way the ability of the landowners to enforce their private law rights.
PRIVATE LAW RIGHTS
These include matters such as rights of light, easements – rights of way, the benefit of restrictive covenants or other benefits of covenants relating to law and Leases. There is also a private law right of trespass to bring claims for trespass and for nuisance. Trespass is where there is an encroachment upon the land by a neighbouring owner or another third party. Nuisance is where there is an unreasonable interference with the use and occupation of land.
When neighbours come to us because they have a particular problem with neighbouring building works which may or may not have been completed, we provide advice about private law rights. We would always recommend the clients themselves to pursue the Local Authority and/or engage with specialist experts such as planning law consultants to assist them in relation to public law issues.
Private law rights, as stated, are not affected by the grant of planning consents or building law consents.
In appropriate circumstances, we would apply to Court for an injunction to prevent infringement of such rights. The ability to secure an Injunction from a Court is not automatic. This is a discretionary remedy, and the Court will exercise certain legal principles in deciding whether or not to grant an Injunction. Indeed the Court has power in relevant circumstances to make an award of damages in lieu of an Injunction. This will result in effect in the compulsory purchase of the private law rights by the infringing landowner. In an urgent situation, it is possible to obtain from the Court a pre-trial Injunction in order to hold the status quo pending a trial – usually a speedy trial in the case of urgent situations. To secure a pre-trial Injunction, the party applying for this would generally have to provide to the Court a cross-undertaking as to damages – in the event that the Judge should be of the view that the granting of the Injunction was unjustified. This cross-undertaking may be a particularly expensive liability where for instance the Injunction holds up a large development upon neighbouring land. However, it is not uncommon for developments to affect the rights of light. The rights of light are a very complicated subject, and every case will need detailed examination but generally, subject to any agreement to the contrary, rights of light will accrue after 20 years unobstructed access of light through a window. Rights of light can also be created by express grant.
Applications to prevent infringement of rights of light usually are quite expensive, and it is better to use a specialist rights of light surveyor to assist.
We have also mentioned infringement of easements such as rights of way or lease covenants or non-compete covenants. These are covenants which bind the land and which prevent certain things being carried out on the land such as specific usages etc. The law on restrictive covenants as to whether there is an enforceable covenant between the two relevant landowners is relatively complex and will require detailed examination. However, a starting point is to have a look at the Land Registry title documents to ascertain what covenants affect both parcels of land.
Nuisance is a claim where one landowner unreasonably interferes with a use or enjoyment of land by another landowner. In theory, the measure of damages is the reduction in the rentable value of the affected land, although the Court has discretion towards damages using different bases. An example of nuisance is where the works are carried out in an unreasonable manner such as not using dust sheets so that there is excessive dust or where the works are carried out during unsociable hours etc. Nuisance recognises the position of give and take between neighbours and situations over and above what is reasonable will give rise to a claim in nuisance.
In neighbour disputes, mediation is a very useful way of resolving matters without expensive litigation. This involves the appointment of an independent conciliator to try to negotiate a resolution of the dispute between the parties. We are very favourable towards mediation, and in our experience, it is very unusual for mediation to end without a settlement being agreed or being agreed relatively shortly after the mediation appointment. There may be reasons why it is not possible to sign off a settlement at the mediation meeting, such as the need for the parties to take their individual tax advice. Pre-action mediation is a useful method of resolving disputes without having to spend a large amount of money in litigation and should be followed by most litigants – save in exceptional circumstances.
If you are affected by any neighbour issues, then please contact us. We do not charge for initial telephone calls, or we can set up an initial fixed fee meeting. Our charges are very transparent and competitive and are set out on our website. Please contact Lawrence Rodkin, who is a partner of this firm.
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