Neighbour has left trench unsecured

jr5678

My next door neighbour has dug a trench in between our houses to get Building Control advice on foundations for their extension. It's been open for over 3 weeks and is not secured. There is no fence between the houses and I have a 2 and 5 year old that I am worried will end up falling down it. I have asked how long they expect it to be this way and they will not tell me. I have no idea what I can do to sort this out. I have attached an image.

AskAsk

Best not to have a dispute with the neighbor, but have you told them that it is dangerous and your kids can fall into it and there could be all sorts of legal implications if that happened?

unforeseen

Have you thought of securing YOUR boundary to protect YOUR children?
The trench is totally on their property. 

jr5678

unforeseen said:

Have you thought of securing YOUR boundary to protect YOUR children?
The trench is totally on their property. 

Thanks. I am in the process of getting quotes.

DiddyDavies

Why not get something like this:
https://www.screwfix.com/p/apollo-50mm-plastic-coated-chain-link-fencing-1-2-x-10m/52027
and put it up yourself?

unforeseen

AskAsk said:

Best not to have a dispute with the neighbor, but have you told them that it is dangerous and your kids can fall into it and there could be all sorts of legal implications if that happened?

As the op is already aware of the danger not on their land then the onus is on them to mitigate the danger by preventing their children accessing it

DiddyDavies

unforeseen said:

As the op is already aware of the danger not on their land then the onus is on them to mitigate the danger by preventing their children accessing it

The owner or user of the land has a legal obligation to ensure that the land in question is reasonably safe for anyone who has access to that land and this applies whether or not permission for access has been granted. They can't just turn around and say that it's not their responsibility.
https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/section/2

Extent of occupier’s ordinary duty

(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

adonis

DiddyDavies said:

Why not get something like this:
https://www.screwfix.com/p/apollo-50mm-plastic-coated-chain-link-fencing-1-2-x-10m/52027
and put it up yourself?

Screwfix and Toolstation also do this cheaper, I used rope instead of pins to support it to make an area safer.

jr5678

That's a good idea. My kids charge like bulls though, so they may even see that as some kind of challenge! 

ic

Can't you block off access further back towards your garden as the hole is clearly in an alleyway between the houses?  A few wheelie bins or other garden furniture?

unforeseen

DiddyDavies said:

unforeseen said:

As the op is already aware of the danger not on their land then the onus is on them to mitigate the danger by preventing their children accessing it

The owner or user of the land has a legal obligation to ensure that the land in question is reasonably safe for anyone who has access to that land and this applies whether or not permission for access has been granted. They can't just turn around and say that it's not their responsibility.
https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/section/2

Extent of occupier’s ordinary duty

(1) An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than adults; and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

The neighbour has put a fence up though. How substantial it needs to be is a moot point.
Is it so hard for the OP, being aware of the problem to prevent the children going up the alley. They've already admitted that the normal orange plastic fencing, which is something that would easily meet the requirements of your quote, would be a target for the kids.