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For construction lawyers, versed in claims for breach of contract and professional negligence, the law of nuisance hovers out there on the periphery, writes Kim Franklin.

When it does crop up it tends to be for disruptive or intrusive building works, or with the (literally) perennial damage caused by tree roots.

The essence of an actionable nuisance is an activity that interferes with the use of land, and there is a whole world of nuisances out there that can - and do - give rise to court action. So vast is the range of potential actionable nuisances that it is necessary to divide them into three groups: those causing an encroachment or trespass on to neighbours' land; those causing physical damage to neighbours' buildings; and those that interfere with neighbours' enjoyment of their land.

Nuisances of the last kind are particularly colourful and range from the commonplace, like causing smoke or noxious fumes, or making unreasonable noises or vibration; to the unusual, perhaps causing crowds to gather on the land or passing excessive heat through the building; and on to the frankly bizarre, such as reducing premises to arctic conditions by abstracting heat, and even building a hospital for infectious diseases so as to place the neighbours in perpetual fear of infection.

If you suspect that these cases have a distinctly 19thcentury ring to them, you are right. Legislation in the 20th century put paid to, or at least provided a statutory remedy for, many forms of Victorian nuisance. But this was little comfort to the residents of Drinkstone in Suffolk, in their protracted battle over the nasty smells emanating from Rookery Farm, where John Clarke boiled animal and vegetable waste to fatten his pigs. The local council took steps to limit this 'nuisance by smell' in 1976 and began court action in 1993.

After an inconclusive fiveday trial in 1999, Clarke agreed to carry out improvement works to the plant and, in the meantime, gave an undertaking to the court to cease the nuisance from May 2000.

Clarke installed his new cooking plant and resumed boiling on an industrial scale.

Breach of an undertaking is a serious matter punishable by fine or imprisonment.

When the council took Clarke back to court in 2005, he argued that the undertaking had been overtaken by new legislation, was too restrictive and ought to be limited in time or varied. The judge agreed that the obligation should expire in 2007.

In Mid-Suffolk District Council v Clarke (Judgment 15.02.06) the appeal court held that an undertaking is the same as an injunction: it creates an obligation to the court that can only be displaced by appeal. Clarke's obligation to stop causing a nuisance by smell was not too draconian, nor had it been overtaken by events. The judge ought not to have varied it. Clarke was obliged not to cause a nuisance of this third kind, 'whether by himself, his servants or agents or otherwise howsoever'.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.

crownofficechambers. com

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