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The case of Property 1 concerned whether or not the work being carried out is causing statutory nuisance.
The Environmental Protection Act 1990 (EPA 1990) provides for what constitutes statutory nuisance:
i. if any dust arises on a business premises and is prejudicial to health or is a nuisance, as per Section 79(1)(d).
ii. if the noise emitted from premises is prejudicial to health or is a nuisance, as per Section 79(1)(g).
The current case involves nuisance in the form of significant noise and dust within the local environment.
A. Private nuisance. Nuisance also constitutes interference with someone’s enjoyment or exercise of their rights arising from their ownership or occupation of easements, land or any other such rights relating to the land (Haar, Laney, & Levine, 2016, p. 66).
Nuisances are caused by encroachment on neighbours’ land; by directly causing physical injury to the land for example damage cause by piling; or by interfering with their quiet enjoyment for example excessive dust or excessive noise (Haar, Laney, & Levine, 2016, p. 66).
In this case, problem related to getting their piling equipment disturbing the ground constitutes direct physical injury to the land.
Where building works cause dust that disrupts rightful use and enjoyment of land, it will be nuisance if such nuisance was foreseeable. (Matania v National Provincial Bank Ltd , 1936).
In this case, the dust and noise due to the works also disrupted the quite enjoyment of the land in the locality. It is a nuisance (Andrea v Selfridge & Co Ltd , 1938).
Some of the relevant cases are listed in the paragraphs below to highlight the core aspects of private nuisance.
i. Unreasonableness. Nuisance to constitute statutory nuisance must be unreasonableness. The building operations must thus be carried out reasonably with proper and reasonable steps so that no undue inconvenience is caused (Andreae v Selfridge and Co Ltd, 1938 ).
The degree of interference to neighbours should not be an unreasonable extent that interferes with the neighbour’s right to enjoy their property. Further, if the works are continuously for a relatively short period, they could be tolerated as a reasonable necessity (Jones & Anor v Ruth & Anor , 2010).
ii. Compatibility with neighbours’ right. Building works should be compatible with neighbours’ right to reasonably enjoy their property (Jones & Anor v Ruth & Anor , 2010). So, nuisance is created when a pile driver used by the defendant caused structural damage to the complainant’s building (Dodd Properties v Canterbury City Council , 1980).
Similar nuisance may be created in the current case if rest of the equipment is lifted over the area. A future risk that would cause immediate interference with rightful enjoyment will be a nuisance, and there is no need to proof actual physical damage (Network Rail Infrastructure Ltd v Williams and Waistell , 2018).
B. Public nuisance. Nuisance constitutes interference with someone’s enjoyment or exercise of their rights in their capacity as members of the public (Haar, Laney, & Levine, 2016, p. 66). It is a criminal offence when the act is not warranted by law or there is a failure to discharge a duty. The effect of this act or failure must endanger the health, life, comfort or property of the public. It must obstruct the public in their exercise of common rights (R V Rinnington, 2005).
Under the Control of Pollution Act 1974, s60(2), the local authority can serve notice that imposes requirements as to the manner the works must be carried out and appropriate steps to be carried out.
As per Section 60(3), the requirements may provide the manner of how the works should be carried out in order to minimise the noise and nuisance.
Section 60(3), these may include the permitted working hours, permitted level of noise, or permitted point on the premises where noise can be emitted.
Relevant consent, under Section 61, must be taken from the authority.
The Section 61 guidance by Environmental Health Officers can help in controlling noise and vibration from construction activities (Environmental Health Officers).
The case involves the determination of contributory negligence on the part of the tenant and of liability for negligence on the part of the contractor and the Ms Dowd.
The Defective Premises Act 1972, s4 imposes the landlord a duty of reasonable care to maintain or repair the premises towards anybody who is reasonably expected to be affected by defective premises. As such, the landlord will be liable in case the defect caused personal injury or damage to property.
There are situation where the damage could also be caused by the contributory negligence of the claimant. It may arise where the claimant failed to mitigate the loss or damage or was careless and have caused the loss (Beale, p. 1805).
In this case, it is the duty of Ms Dowd as the landlord to repair the boiler. However, the insertion of the screwdriver by the tenant in casing of the boiler might not have mitigated the damage, but instead could be considered careless to have done so. As such, there is also a contributory negligence on the part of the tenant towards the explosion.
An employer will be liable for a tort committed by an independent contractor if the employer was negligent in selecting the contractor and the negligence caused the tort (Mulheron, 2020, p. 1004).
It is negligent on the part of the employer: i) if they selected the contractor who does not have insufficient experience and training to undertake the activity; or ii) if they do not have any public liability insurance for injuries to the public during the course of the activity (Mulheron, 2020, p. 1004). In this case, the friend who Ms. Dowd hired does not have insufficient experience and training. Ms. Dowd was negligent on this part.
Common law required an employer to conduct checks or assessment of the competency of the contractor. In case of failure to exercise reasonable care in this regard, an injured party can claim damages. The liability is direct and the employer and the contractor will be treated joint tortfeasors (Mulheron, 2020, p. 1004). The duty to care could be met by checking whether the contractor was license or checking with the previous clients who engaged with the contractor (Naylor (t/a Mainstreet) v Payling, 2004; Glaister v Appleby-in-Westmorland TC, 2010). The requirement of insurance is not mandatory (Mulheron, 2020, p. 625). However, the more hazardous the task where the contractor will be engaged, the greater the care the occupier must exercise while selecting the contractor. (2004, pp. 55-59)
In the current matter, proper checks and assessments were not done and the hiring was based on previous odd jobs done by the contractor on behalf of Ms. Dowd. As such, both of them will be treated joint tortfeasors.
Ms. Dowd failed the duty of the occupier to take reasonable care in selection of independent contractor is provided under the Occupiers Liability Act 1957. She did not ensured that the contractor was well equipped and experience or insured (Mulheron, 2020, p. 1004).
The Occupiers Liability Act 1957, s3(2) provides that the occupier must have all reasonable care. In such case, if there is any faulty execution of work by a contractor, the occupier cannot be made answerable. Further, Section 5(1) provides that any person entering or using the premise out of a contractual rights owes a common duty of care in respect of the dangers due to the state of premises.
Ms. Dowd’s duty would have been discharged if she hired a competent contractor, who could have carried out the work (Dua & Turner, 2019). Further, the facts show that the contractor might have failed common duty of care in respect of the dangers related to the boiler. As such, both of them will be liable.
In this case, neither the tenant nor the contractor had experience and training to repair the boiler. The conduct of the tenant was negligent that might have solely caused or contributed to the explosion.
The negligent part of Ms. Dowd was hiring somebody not trained and experienced. There was a breach of the reasonable and common duty of care on the part of Ms, Down and the contractor. As such, they will be liable for the damage caused to the building and the adjacent bakery.
In future, the liability from the breach of the duty to care in related to defects could be escaped by obtaining a covenant from the tenants, who can take up the responsibility for repair (Strong & Williams, 2011, p. 208).
An occupier possesses sufficient control of the premises (Wheat v E Lacon & Co Ltd, 1966). Whether or not there is a sufficient degree of control depends on whether there is a failure to use reasonable care that has caused the injury to a visitor (Harris v Birkenhead Corp). The property in question is owned by Ms. Dowd and is unoccupied. It is under the sufficient control of Ms. Dowd.
State of disrepair. The Housing Act 2004, s5 provides for Category 1 hazards where the local housing authority has the general duty to take appropriate enforcement action in relation to the hazard. Such action may include one or more of the courses: an improvement notice; a prohibition order; a hazard awareness notice; emergency remedial action; emergency prohibition order; or demolition order; declaring the area in which the premise is situated to be a clearance area.
In the current case, given the state of the premises, the local authority may take an enforcement action in the form or one or more of the courses given above.
Liability towards unlawful visitors. The Occupier’s Liability Act 1984, s1 provides that the occupier owes duty of care towards persons other than the visitors. Section 1 provides that duty arises only if the occupier knows about the danger or if the occupier has reasonable grounds to believe that the danger exists.
The occupier must know or has ground to believe that the visitors are in the vicinity of the danger. There is a reasonable expectation from the occupier to offer protection towards the occupier and the visitor (McBride & Bagshaw, 2018).
The danger resulting from the negligence of the landlord must arise from the state of the premises and not from the claimant's activity (Siddorn v Patel & Anor , 2007). The problem must have been reasonably foreseeable (Ryan v London Borough of Camden , 1982). A party is liable only for loss that was reasonably foreseeable (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No. 1), 1961).
Section 1(1) limits the risk to those arising out of the state of the premises. As per Section 1(3), the occupier is reasonably expected to provide some protection in all the circumstances. As per Section 1(4), they must take reasonable care to that effect and must ensure that visitors are safe from dangers. Section 1(5) provides that the duty is discharged by taking reasonable steps to warn the visitors of the danger concerned or to discourage visitors from incurring the risk.
The occupier owes less stringent duty of care towards a trespasser. They do not incur any liability if the danger was not hidden (Driver v The Painted House Trust, 2014).
Trespassers may have certain human rights that must be respected and protected. The aim of the Act of 1984 is protect persons entering land, whether trespassing or not, from dangers due to the condition of the premises (Ferris, 2015, p. 305).
In this case, Ms Dowd is aware that the property is in a state of despair. This serves as a reasonable ground to believe the danger exists. As such, Ms, Dowd owes a duty of reasonable care towards unlawful visitors as the danger could have been reasonably foreseeable.
The danger has resulted from the property’s state of despair. As Ms. Dowd must have had warned the visitors about the danger concerned or discouraged the visitors from incurring the risk. However, Ms Dowd as the occupier owes less stringent duty of care towards the trespassers. Given the condition of the property, it is apparent that the danger was not hidden. As such, Ms. Dowd may not be liable for the breach of care.
Contamination. In regard to the contamination caused to the neighbouring land, The Environmental Protection Act 1990, s791B, a land is contaminated if there are substances in, on or under the land that have caused harm or there is a possibility of such harm. In the current case, the oil was in an oil tank and therefore, the property is not a contaminated land. However, the neighbouring land is contaminated as the oil has seeped into the ground.
Direct interference in the form of trespass could occur with land, air or water. Thus, if any waste or chemicals escapes from land onto neighbouring land, there could be an action in trespass. This may constitute interference with the use of land (Wilkinson, 2005).
Section 78K provides that Ms. Dowd as the owner or occupier of the property will not be required to undertake any remediation as she did not cause or knowingly permitted the oil to be in, on or under the property even if the oil has escape to the neighbouring land, which she does not own.
Section 79 provides that in case of any matter declared by any enactment to be a statutory nuisance, the local authority may get Ms. Down’s property inspected from time to time to detect such nuisances.
Our Reference no. MD1234MD
Date: August 2020
Subject: Adaptation project – Dead End Drive – Ms Dowd
Dear Ms. Dowd,
Thank you for your email. We have read the requirements that you wish to know regarding Dead End Drive project.
In regard to the adaptation project to the terraced property, which will involve construction of a basement, there are few procedures and requirements provided by the Party Wall etc. Act 1996 to be met.
In regard to the basement extension, there are certain notification requirements.
i. Notice of Adjacent Excavation. Section 6 provides for this notice. If there is a neighbouring or shared structure within 3.00m of the proposed work and excavation to a greater depth than the foundation base to the structure, this notice must be served.
If the proposed work is particularly deep, the required distance is 6.00m. In such case, the notice is 1 month.
ii. Party Structure Notice. The property is terraced. If the work includes underpinning the party wall, this notice under Section 2 must be served. This notice also governs basement extension that includes trimming back projections or cutting in to the party wall in order to insert beams. The period is 2 months.
iii. Line of Junction Notice. Section 1 provides for this notice. If the extension is beyond the footprint of the original property up to a boundary, this notice must be served. This notice requirement governs formation of light wells or the extension is up to the rear garden. The notice is 1 month.
All necessary notices can be served together. Any disputes can be settled in a single award.
The interests of the adjoining owners are to be protected. As a building owner, you may be required to do the following in order to mitigate potential risks, including compensation as provided under the Party Wall etc. Act 1996, s7:
i. Seek express consent from adjoining owners in case special foundations. Special foundations when used in basement extensions allow slimmer underpinning slimmer and greater usable floor area
ii. Notify adjoining freehold owners of works directly to a party wall (under section 2, The Party Wall etc. Act 1996) and adjacent excavation (under section 6, The Party Wall etc. Act 1996).
iii. Pay them security for expenses under Section 12 of the Act if they exercise their right to request in case you abandon works or cause structural instability of their property due to the works.
iv. Make fair contribution under Section 11(11) of the Act if you subsequently make use of work paid for by the adjoining owners.
Adjoining owners must be notified between 2 months and a year before starting building works. They must inform you within 14 days whether or not they consent to the notice. In case there is a disagreement, you must appoint a surveyor. Adjoining owners can also appoint their own surveyor. The surveyors will agree on a ‘party wall award’ (GOV.UK, 2020).
We hope we are able to bring clarity on the process that may be involved in the adaptation project, including basement extension. If you have any questions, please feel free to contact us.
In regard to point 1 issue of asbestos: You are responsible for managing asbestos. You need to find an external accredited surveyor to conduct an asbestos survey. You need to analyse the material analysed and keep a record of the findings. Anything that contains the asbestos must be kept in good repair, sealed or removed (GOV.UK, 2020).
Part 2 of the Control of Asbestos Regulations 2012, Regulation 3 will require you conduct a suitable and sufficient assessment to determine whether or not asbestos is or is liable to be present. Regulation 5 will require you to get the presence of asbestos identified.
Regulation 6 will require you assess the risk of exposure of asbestos to employees before you start the work. Without a plan of work as required by Regulation 7, you will not be able to carry out any work with asbestos. Section 8 will require you to get a license to work with asbestos. A prior notification of 14 days to the concerned authority must also be provided, as required by Regulation 8.
The Construction (Design and Management) Regulations 2015 will also require you to determine any risk of the work that might disturb asbestos materials, which will involve refurbishment survey (Department for Education, 2020).
In regard to point 2 fire warning system: You will need to meet certain legislative requirements.
The Licensing and Management of Houses in Multiple Occupation and Other Houses (Miscellaneous Provisions) (England) Regulations 2006, Schedule 3 will require you to have appropriate fire precaution facilities and equipment as necessary.
The Housing Act 2004, s61 will require you to get the HMO licensed. Its Schedule 4(4) will require you to install smoke alarms.
The Regulatory Reform (Fire Safety) Order 2005, Article 8 will require you to take general fire precautions. You will need to make appropriate preventive and protective measures under Article 10.
The Management of Houses in Multiple Occupation (England) Regulations 2006, Regulation 4 requires that you maintain fire alarms in good working order.
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015, Regulation 4 will require you to install prescribed alarms on each storey of premises. You will be required to install smoke alarm and carbon monoxide alarm where there is living accommodation
In regard to point 3 disabled access. This 2014 edition of Approved Document M ‘Access to and use of Buildings’ provides for private stairs and changes of level within the dwelling. This is necessary to facilitate movement by ambulant disabled people between and within the storeys. You will be required to fit stair-lift to the stairs from the entrance storey to the storey above or the storey below. The width of the stair must be at least 850mm when measured at 450mm above the pitch line of the treads (GOV.UK, 2014).
You will be required to provide every bedroom a clear access route, which should be at least 750mm wide. Every bedroom must be provided a 1200 x 1200mm manoeuvring space inside the doorway (GOV.UK, 2014).
In regard to point 4 water ingress. You will be required to appoint a competent specialist to conduct all the necessary diagnostic investigations.
You will need to meet the requirements of the Building Regulations 2010, Schedule 1, Part C. It requires the wall, floors and roof of the building to protect the building and the people living in it from harmful effects of ground moisture, surface and interstitial condensation, or spillage of water from sanitary fittings or appliance.
You will need to give notice to the local authority under Section 12 to carry out relevant work.
In regard to point 5 damp. Section 11 of the Landlord and Tenant Act 1985 sets out repairing obligations for the landlord. It requires in working condition the structure and exterior of house, supply of water, gas and electricity, and heating and heating water.
The Homes (Fitness for Human Habitation) Act 2018 provides for properties to be fit for human habitation under Section 1.
The Housing Health and Safety Rating System makes it mandatory for you to treat damp.
You can appoint a surveyor to assess the problem and get a quality report.
You can secure a fix and get a quality warranty.
The current case appears to fall under the law regarding adverse possession.
Where land is unregistered, a squatter can acquire title by adverse possession by demonstrating factual possession of the land (HM Land Registry, 2020). It indicates an appropriate degree of physical control, which must be single and exclusive possession (J A Pye (Oxford) Ltd v. Graham, 2002). There must have been intent to possess, and not to own or acquire ownership (Buckinghamshire County Council v Moran , 1988). Such possession is without the owner’s consent. There is a minimum 12 years limitation period required to acquire the title (HM Land Registry, 2020).
Given the consideration that Mrs. Dowd has been maintaining the property for the past 11 years, she may meet the condition of being a squatter if the above conditions are in order. When Mrs. Dowd meets these conditions, she needs to demonstrate possession by providing information relating to the land such as a plan showing the extent of the land, evidence such as photos and documentation that she have been maintaining the property. In case of open land, fencing is strong evidence of factual possession (HM Land Registry, 2020).
A Statement of Truth or Statutory Declaration will be prepared with information evidencing Mrs. Dowd claim to ownership and also the documentary evidence. These documentation will be use to make an application to the Land Registry. Statements of truth or statutory declarations can also be from neighbours and other third parties to corroborate the evidence (HM Land Registry, 2020).
Mrs. Dowd must make the application on form FR1: rule 23 of the Land Registration Rules 2003. Mrs. Dowd must apply land charges search certificates in respect of the owner, the squatter, and any previous owners. A search of the index map can be carried out to check whether or not the land is registered. If the property could be a common land, town or village green, there must be a commons registration search (HM Land Registry, 2020).
A surveyor from Ordnance Survey can be appointed to inspect the property to see the report before registering the property under any class of title. Notices must be sent to any person who may have an interest (HM Land Registry, 2020).
If the application is successful, Land Registry will issue a “Possessory” title. If Mrs. Dowd as a squatter remains in possession for 12 years, the possessory title can be converted into absolute title, as per Section 62(4) of the Land Registration Act 2002 (HM Land Registry, 2020).
The current lease seems to fall under fixed-term tenancies, which run for a set amount of time. In this condition, Mrs. Dowd must provide the tenant a Section 21 notice, under Housing Act 1988, to take back the possession of property when the fixed term ends (GOV.UK, 2020). Section 21(1B) provides that Mrs. Dowd give tenant not less than six months' notice in writing stating that she cannot grant another tenancy on expiry of the tenancy. Unless this is done, the court may not pass the order for possession.
Mrs. Dowd can apply to the court for a standard possession order in case the tenant does not leave by the notified date. Mrs. Dowd can apply for a warrant for possession if the tenant still does not leave (GOV.UK, 2020).
At the end of the lease, Mrs Dowd must enter into an agreement with the tenant so that she is able to annually increase the rent. This agreement will lay down the procedure for increasing rent such as review of rent or ending the tenancy (GOV.UK, 2020). .
If the agreement is not signed, the lease will become a rolling periodic tenancy with no specific end date. This lease can be ended with 1 month's notice. Rent can be increased agreement or by a notice on a special form.
Section 1 of the Landlord and Tenant Act 1730 entitles Mrs. Dowd to claim twice the current rent from the tenant if they remain in occupation after the lease expired.
Planning may not be required if the 2 storey extension is built under permitted development. For such, you will have permitted development rights.
You may research using the local authority's online database of planning applications in order to understand approved application in your area. This will enable better understanding of hwo to undertake the project (Planning Portal, 2020).
It is also useful to look at neighbouring properties as some extensions may have fallen under the permitted development rights. This will give you a good idea as to what is feasible or allowed. Remember though, this doesn't automatically mean you will have an application accepted or be able to build under the permitted development rules.
Planning permission will be needed if the extension cannot be within the development rights. The extensions and other buildings must not exceed 50% of the total area of land around the original property. The eaves and ridge height of extension must not be higher than the existing property. If the extension is within two metres of a boundary, the maximum eaves height should not be higher than three metres. The extension must not be extend beyond the rear wall of the original house by more than 3 metres or it must be within 7 metres of a boundary opposite the rear wall. The roof pitch of the extension must be higher than one storey to match that of the existing property. External materials must be similar in appearance to the existing house (Planning Portal, 2019).
The extension cannot include a veranda, raised platform, balcony, microwave antenna, flue or soil, chimney, and vent pipe or alterations to any part of the roof. If the property is in on Article 2(3) land, situated within a National Park, a Conservation Area, an Area of Outstanding Natural Beauty, an area designated under s41(3) of the Wildlife and Countryside Act 1981, a World Heritage Site, or the Norfolk Broads, the original or extended house cannot be clad in stone, artificial stone, render, pebble dash, timber, tiles or plastic (Planning Aid England).
If the property is a flat, maisonette or a type of building that does not have permitted development rights, extension needs full planning permission. If the property had undergone a change of use or was converted into a house, it needs planning permission .If the property is listed, the extension needs listed building consent and other relevant permission (Design for me).
Depending on the extension and how close it will be to the neighbouring properties, requirements of Party Wall etc. Act 1996 as applied to property 4 – Dead End Drive may be necessary. You may need a party wall agreement if you would be building or altering a wall or excavation on the boundary with an adjacent property.
You will need to get formal Building Regulations approval. You may need to make full plans application. Alternatively, you may need to serve a building notice 48 hours before you start work.
Before making an application, you may consult neighbours who might be affected by the work and also consult the local parish, town or community council. You need to comply with relevant provision of the Construction (Design and Management) Regulations 2015, and notify the Health and Safety Executive (HSE) (Planning Portal).
The planning applications are decided based on relevant local planning authority’s (LPA) development plan. You will have three years from the date the permission is granted to begin the development.
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