Can building works constitute harassment?
In this unusual case the Court of Appeal handed down a decision in a dispute between neighbours concerning building works that overran by 4 years. What stands out about this case is that it included a claim for harassment.
Facts of the case
In 2002, the Claimants purchased No. 105, Lower Thrift Street. The property next door was owned by the Defendants, who, shortly after the Claimants moved in, began an extensive refurbishment. Although the works should have taken no more than a year, they went on for 5 years, during which time the Claimants suffered a catalogue of disturbances, damage to their property and harassment.
The Defendants displayed an aggressive attitude towards the Claimants, epitomised by an incident in which abusive notes on the subject of the Claimants’ same-sex relationship were left in the Claimants’ garden, refused to provide information about the progress of the works and ignored requests to reduce the noise coming from the site and make good damage caused to the Claimants’ property. The anxiety and distress caused by this behaviour left one of the Claimants with psychiatric harm and unable to work.
In addition to claims for nuisance and trespass, relating to issues such as the unreasonable prolongation of the works, excessive noise and vibration and damage to their property, the Claimants also brought a claim for personal injury and associated loss of earnings, asserting that the Defendants’ conduct amounted to harassment contrary to s.1 of the Protection from Harassment Act 1997 (“the Act”).
At first instance, whilst it was accepted that harassment had occurred and that this had caused the psychiatric injury complained of, the judge held that damages could not be awarded under the Act, as it had not been shown that harm was reasonably foreseeable. The Claimants appealed to the Court of Appeal, who held that there is no requirement to show reasonable foreseeability of harm when bringing a claim under the Act. If it can be shown that the conduct was deliberate and the defendant knew or ought to have known that it amounted to harassment, the defendant will be liable for injury and loss flowing from the conduct. Damages of £143,750 were awarded.
Usually a claim for disturbance caused by building works will be advanced on the basis of nuisance, which requires a claimant to show that it was reasonably foreseeable that harm would be caused, or trespass, which is limited to interference with property or land. The possibility of bringing a claim under the Act, which will not be constrained in either of these ways and may extend to aggravation more generally, will therefore be an attractive proposition for disgruntled neighbours.
Potential claimants will also be assisted by the lack of a statutory definition of harassment. In this case it was defined broadly, as being “persistent tormenting or irritation of the victim… deliberate conduct which its perpetrator either knows or certainly ought reasonably to be aware has this effect on the complainant.” Furthermore, and as evident from this definition, what constitutes harassment will depend on the impact on the complainant. What of the situation where a neighbour has sensitive hearing, works nightshifts or suffers from extreme allergies to dust? As the requirement is simply to show that the defendant knew that the act amounted to harassment, where such conditions are known to a builder then carrying out works that can be expected to cause distress will arguably constitute harassment.
That said, previous cases have defined harassment as conduct that is “oppressive and unreasonable”, that is “targeted at an individual and which is calculated” and that relates to interactions between individuals and which is intensely personal in character. These suggest that normal building works may fall outside the scope of harassment. The judgment at first instance also provides a degree of reassurance, stating that “continuous building work through a relatively short period can be tolerated as a reasonable necessity or alternatively avoided. Works which go on over a four year period on a sporadic or ad hoc basis without notice and at anytime can become unbearable.” One might also argue that the conduct complained of in this case took place within the context of building works but, largely speaking, did not arise out of the works themselves.
It may therefore be that this case provides less support for disgruntled neighbours than it at first appears. However, it seems probable that there will be claimants that seek to rely on it in the future.
This article first appeared in Law-Now, CMS Cameron McKenna's free online information service, and has been reproduced with their permission. For more information about Law-Now, click here.