Legal Scoop | Stop that drilling at my head! - Milton Arthurs v Tara Estates
I apologise to readers for the lull in the usual biweekly pace of the publication of this column.
Your queries were appreciated, the erstwhile project is almost at an end, and I am back, re-energised and with a renewed focus to keeping readers informed on the various legal happenings in our fair isle.
As I scrolled through the list of recent Supreme Court judgments published on its website, I came across one in particular that struck my fancy. Every so often we see construction sites creating a ruckus in residential communities with seemingly little recourse for residents.
It was, therefore, interesting to come across a case where a resident had actually challenged the owner of a construction site for creating a nuisance on its site.
In the case under discussion, the defendant, Tara Estates, had purchased a large lot of land in Reading Pen, St James, part of which adjoined land owned by Milton Arthurs and on which he resided.
Tara Estates had obtained parish council approval to subdivide and build on 22.616 acres of the land in question. The development approval, among other things, prohibited:
1. Garbage remaining or being burnt on the development site, otherwise than in accordance with the requirements of the Public Health Authority;
2. The use of building/property thereon for any unlawful purpose or any purpose which shall or might be or become a source of annoyance or objection ... and no nuisance shall be created or permitted on this premises;
3. Sullage (waste or effluent water) being discharged on to any road or adjoining lands;
4. Construction materials that generated fugitive dust not being covered during transportation or when stockpiled on the site;
5. Noise levels during construction exceeding 70 decibels at a distance of fifty metres from the property boundary.
In his claim before the court, Arthurs described Reading Pen as an "extremely peaceful, private, rustic, relaxing, sparsely populated place". He had only a few neighbours. However, all this seemed to change in 2015 when Tara Estates started construction. After months of wrangling between the parties about the alleged acts of nuisance, Arthurs took the issue to the Supreme Court.
It is important to note, however, that the judgment, the subject of this column, is not in relation to the substantive claim filed by Arthurs. As such, Tara Estates could well be vindicated at the actual trial of that claim.
The judgement under discussion is on the application by Arthurs for interlocutory orders to compel Tara Estates - essentially - to comply with the terms of the approvals granted by the parish council and the National Environment and Planning Agency (NEPA), pending the trial of the substantive claim.
Real prospect of success
To succeed in his claim for an interim injunction, it was necessary for Arthurs to establish, among other preconditions, that his substantive claim had a real prospect of success.
Having considered the evidence and submissions of both sides, including evidence adduced by Arthurs - albeit largely disputed by the defendant - to the effect that:
- Noise level on the adjoining site regularly exceeded 70 decibels
- Dust was allowed to emanate from trucks which carried uncovered material
- Refuse was burnt on the site
- There was some measure of settling of stagnant water which resulted in an increase in mosquitoes
- Vibrations resulting from the construction activity carried on at the site had caused cracks to his building
- His health had been negatively impacted by the construction activities next door.
Mr Justice Batts concluded that the claimant had an arguable claim, "or at any rate one with some real prospect of success".
"At this interlocutory stage," according to Justice Batts in the judgment, "I make no findings one way or the other. However, it is incumbent on me to consider whether the claim is credible, and it certainly is."
Having considered all the evidence and submissions from both sides, Justice Batts was also satisfied that the damages that Arthurs would recover if he succeeded with his substantive claim would not be sufficient to preclude the need for interim orders, given the extent of the toll alleged by Arthurs on his health, household and business.
Christopher Kelman, counsel for Arthurs, also made the point, which resonated with the judge, that insofar as Arthurs was not seeking to end construction activity but merely to uphold the standards imposed by the planning authorities, it was unlikely that damage could flow to Tara Estates as a result of an interlocutory injunction.
"In other words if, as the defendant contends, it has complied with the standards set forth by the planning authorities, the injunctive relief claimed will not have any impact on its construction activity."
In all the circumstances, Justice Batts, therefore, concluded that the fair thing to do was to order that the defendant be restrained, whether by itself, its servants and/or agents or otherwise, until the trial of the action or further order of the court from doing the acts listed below, or any or all of them on its property:
(a) Burning waste or debris
(b) Causing or permitting noise levels which exceed 70 decibels from the boundary of the defendant's property
(c) Causing or permitting excessive dust, smoke or fumes to enter the claimant's property
(d) Conducting works of construction before 7 a.m. or after 6 p.m. on weekdays and before 8 a.m. or after 6 p.m. on Saturdays
(e) Conducting works of construction on Sundays
(f) Causing or permitting an accumulation of stagnant water
The defendant was also granted leave to apply, that is, in the event a particular activity became necessary which could temporarily breach the order, the parties could approach the court for a suspension of the order to permit the activity.
- Shena Stubbs-Gibson is an attorney-at-law and legal commentator
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