Developers take care– agreements, vibrations and the pinnacle

The fight to erect the tallest office building in Europe is set to continue after developers, Arab Investments, confirmed on Friday that they have appealed against the interim injunction against them. The 300 metre high Kohn Pedersen Fox tower has been the focus of interest since the initial High Court hearing in December 2007. The dispute began in September when Arab Investments’ commenced the demolition of the existing buildings on the Pinnacle site. Hiscox, their neighbour, suffered significant noise and disruption and, more significantly, vibration to its building so much so that many of its staff reportedly suffered from motion sickness.

An agreement was reached between the neighbours in November 2007 whereby the developer stopped demolition using a “pecker” and started using a slower, but less intrusive, diamond saw method instead. In addition, the parties agreed acceptable levels of vibration. By December this agreement had been breached and Hiscox sought an interim injunction. At the hearing in January 2008 the High Court granted the interim injunction against the developer restraining it from causing excessive vibration.

Although demolition or building operations often interfere with a neighbour’s enjoyment of its property, they do not necessarily amount to an actionable nuisance where the interference results from ordinary building operations, provided that all reasonable and proper steps are taken to avoid “undue inconvenience and discomfort”. If there is “undue inconvenience and discomfort” it is up to the developer to show that it has taken all reasonable steps.

In this case the court concluded that the vibration levels agreed were generous and so exceeding them gave rise to a prima facie case of nuisance. The question was whether the developer had taken reasonable steps to avoid it. The court concluded that it had not. It considered also that the practical difficulties in assessing the potential damage to the developer in terms of additional cost and delay were outweighed by the impact on the occupier if relief were not given. The full trial would not take place until after the demolition of the building was completed. There was a serious case to be tried, and the balance of convenience lay with granting the injunction.

This case serves as a reminder that demolition and construction in a built-up environment remains a balancing act fraught with difficulties. The courts have made it clear that, if necessary, they will intervene if they believe the balance is not right. Developers should not underestimate the importance of communication and consultation at all stages, but particularly before construction works start. Occupiers need not suffer in silence. If they do not get a reasonable response from their neighbour, the courts will intervene if necessary.

We await the outcome of the appeal. As the construction programme is due to continue for a few more years, we suspect it is not the last we will hear.

Hiscox Syndicates Ltd & Another –v- The Pinnacle Ltd & Others[2008] All ER (D) 193.