Chapters

Neighbour's Rights: easements and other rights

Sometimes neighbours will have disputes because one disagrees with something that the other is doing entirely on his or her own land and which involves no actual crossing of the boundary. For example, an occupier may object to a neighbour who seems always to be looking over the fence at what the occupier is doing. Most people like to have a certain amount of privacy, and some may feel that a neighbour is interfering with their privacy by looking across, or listening to what is happening.

As far as the law is concerned, there are generally no rights of privacy between neighbours. If the occupier wishes to prevent the neighbour from being able to interfere, then a higher fence, a tree or a hedge, curtains, a closed door or sound-proofing are possible solutions. Any alterations such as fencing or sound proofing may need to be approved by the local council. With boundary fences – anything above 2.1 metres in height must have planning approval.

Sometimes a person will object either to the use a neighbour is making of the land or to the type of building, painting or decoration that the neighbour wants to have. In some circumstances, the neighbour will not legally be able to use the land, or build on it, in this way. In other situations he or she will be perfectly free to do so. In other situations it may constitute a nuisance as an unsightly article or rubbish. Sometimes the land-use or the building will produce effects that cross the boundary such as noise or air pollution, and these have their own remedies, through either the EPA or local council.

The usual reasons an occupier will object to a neighbour's land-use or building include the following:

  • it may be out of character with the area, or different in some other way;
  • it may lower land values, cause more traffic or parking problems;
  • the building may be too tall, block the sun, obstruct the view, be too close (even though on the other side of the boundary); or
  • the building work may cause physical damage to the occupier's land.

In some situations, what the neighbour is doing or proposing to do is contrary to some private right of the adjoining owner. These rights usually arise in the form of easements and covenants that appear on the land title documents. Thus, although under local planning and building controls it may sometimes be a relevant consideration, the simple fact that someone has had the benefit of uninterrupted sunlight to a particular part of their land for many years is not enough to give a right to prevent a neighbour from building so as to block the light. If, for example, there is an agreement between a number of land-owners not to build a building above two storeys height (a restrictive covenant), one adjoining owner will have a private right against another.

Similarly, if there is a private agreement (as there normally is between owners of terrace houses) mutually to support one another's walls (an cross easement of support) there will be a private right. There may be an agreement which ensures open access to light and air, or an agreement which prevents a person building on a certain part of a block of land.

If these types of private rights are infringed, a person may go to court to seek compensation or an order to stop the offending activity.

Objections

What can an occupier or owner do if he or she objects to something a neighbour has done or proposes to do? The broad possibilities are set out below.

  • Talk to the neighbour directly.
  • Perhaps the neighbour has not absolutely decided to do the thing objected to, or can be persuaded not to do so.
  • Contact the local council.
    Most changes in the use of land, and all building work (including alterations), require the approval of the local council. If that approval is not obtained the neighbour cannot go ahead with the use, erection or alteration of the building. Councils may sometimes invite adjoining owners to make comments on proposals, but not always. The council is not obliged to follow the opinion or wishes of an adjoining owner, but will take some notice of them. The more reasonable the submission, the more likely it is to be taken into account. Complaints about traffic, overshadowing, loss of local character and so on are likely to be relevant. If the use of the land, or the construction of the building is being done without the necessary approval, or in breach of conditions of approval, the council can take action to stop it.
  • Take court action.
    Where private rights are infringed, a person may go to court to seek compensation or an order to stop the offending activity.

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