What are the criteria used for deciding whether damages should be granted in lieu of an injunction? The answer is that there are four principles (set out in Shelfer [1895]). The point to appreciate is that these four hurdles are cumulative – which means that a defendant has to meet all four of them to be able to convince a court that damages should be awarded instead of an injunction: 


Is a quantity surveyor liable merely for ‘quantities’, or are they also liable for ‘quality’? 


In a recent High Court case it was held that ‘a quantity surveyor is concerned with quantities, not the quality of work, and it is for the architect to notify the quantity surveyor if there are defects in the work which affected the valuation’. In practice, therefore, if a quantity surveyor does notice an obvious defect in construction works, which appear to have been overlooked by the architect, then that should be referred back to the architect for comment – rather than assessed by the quantity surveyor. 


Does a valuer acting for a lender owe a duty of care to the buy-to-let borrower? A recent case concludes that the surveyor does owe such a duty. In doing so, the court has dramatically extended the scope of liability in negligent surveyor cases. 


In Smith [1990] it was made clear that a valuer who was instructed by a lender owes a duty of care to the buyer of residential property at the lower end of the market (ie modest purchases for owner-occupation). Since then, there have been several cases that have confirmed that principle, and made it clear that such liability does not attach where there has been any hint of commerciality in the purchase arrangement. Surprisingly, it has now been held that this principle should also be extended to buy-to-let purchasers, of lower-end, properties – provided the property is not being bought by a professional property developer. 


The landowner’s duty of care under OLA 1957 extends only to those who use its land within the terms of the licence granted to them by the landowner. The key point to appreciate is that liability will not depend on whether the claimant’s conduct might reasonably have been foreseen by the landowner, but whether such conduct had been impliedly licensed.

As a rough and ready rule, it is worth remembering that in negligent valuation cases if a valuation is within a 10% margin of error, then a valuer will not have been negligent (even if the methodology used was incorrect).

The 2009 county court case of Selwyn-Smith suggested a ‘sliding duty of care’ imposed on landowners whose trees cause damage. Whilst it is only a county court case, it is generally regarded as good guidance and a useful summary of the legal position.

The case involved a 28-metre tall pine tree which fell on a neighbour, with the claim being based upon the landowner’s failure to inspect the trees. The judge set out the relevant standards of care applicable to the ‘reasonable prudent landowner’. In his view there was ‘no ground for holding that the owner is to become an insurer of nature, or that the fault is to be imputed to him until it appears or would appear upon proper inspection that nature can no longer be relied upon’, adding ‘he is not bound to call in an expert to examine the trees unless he has reason to believe that they may be unsafe’.

The classic definition of ‘nuisance’ was given in a 19th century case as ‘an inconvenience materially interfering with the ordinary physical discomfort of human existence’. So, for instance, an activity that causes excessive noise, dust or smoke might well be a nuisance.

‘Annoyance’ has no technical legal meaning, but it is clearly wider than ‘nuisance’. In another 19th century case it was described as anything which ‘really does bring an objection to the mind of a reasonable being’ or ‘reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but the ordinary sensible English inhabitants of a house’. Note that there need not be any ‘physical detriment to comfort’.

EPA 1990 gives LAs power to deal with statutory nuisances. Under s79(1)(g), noise from premises can be a statutory nuisance if it is either prejudicial to health, or a nuisance. If that is the case, then s80 requires the LA to serve an abatement notice.

What can be done about anti-social neighbours? The answer may well lie in the Protection from Harassment Act 1997.