Private Nuisance

What is meant by Private Nuisance?

Private Nuisance is a continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with land.

It is developed through the law of tort meaning it is a claim between two individual parties and will be dealt with by a civil court.

The main aspect to be aware of from the outset is that private nuisance is concerned with effects over someone’s land and not simply harm to that person. If someone were to spill a cup of coffee on you for example that may well be a nuisance but would not be actionable under the tort of private nuisance.

Requirements

Private nuisance has been developed purely by case law and requires the following things to be present for a claim to be brought:

  • Continuous Interference

  • Unlawful Interference – also called unreasonableness

  • Interference of the use or enjoyment of land or some right over it

Continuous Interference

For the interference to be continuous it must be done over a certain period of time. This does not however have to be throughout the entire day. In one case, for example, noisy and dusty pile driving machinery was held to be a nuisance when it was operated at night.

This specific period of time for it to be held as continuous can even be a very short period of time. An example of this being a firework display constituting a nuisance when it was inevitable that for 15 to 20 minutes debris of a flammable nature would fall on nearby property, thereby damaging the property in the ensuing fire.

Unlawful Interference

Someone claiming the tort of private nuisance against their land must show that the behaviour from the defendant was unreasonable thereby making the interference with their land unlawful. People therefore using their property so as not to injure their neighbours will be said to be using it lawfully.

The following factors will be taken into account when assessing the reasonableness of the conduct:

  • The locality

  • The sensitivity of the claimant

  • The utility of the defendants conduct

  • The state of the defendants land

The Locality

One of the most famous quotes from a judge when looking at the law of nuisance is that what would be regarded as a nuisance in Belgravia square would not necessarily be regarded as a nuisance in Bermondsey.

This means that the location of the property is a key issues to examine looking specifically at what would reasonably be expected to occur in that area.

Sensitivity of the Claimant

When looking at the claimant the standard to use is that of a tolerable neighbour. This means that if a particular neighbour is extremely sensitive this will not be considered. If the act of the defendant is said to be regarded as a nuisance by a tolerable neighbour who’s property is of a normal nature then it is likely to be found to be nuisance.

An example of this is where fumes from the defendants factory damaged delicate orchids in a garden nearby. As the fumes from the factory would have damaged flowers of ordinary sensitivity then there was a nuisance. If they would not have then there would be no nuisance.

Utility of Defendants Conduct

If an activity is said to be for the community as a whole then it is unlikely that it will be found to be a nuisance. An example of this is where building work carried out at reasonable times of the day or roadworks being carried out a reasonable time of the day. As the benefit of this is for the community at large or other people then this conduct is said to be reasonable.

If however, the work was carried out at night then it would be a different story as seen previously.

State of the Defendants Land

This is particularly important when concerned with hazards on the defendants land. The rule here is that the defendant must take such steps as is reasonable to prevent or minimise dangers to adjoining land caused by natural hazards on his own land.

The best example of this is where the defendant owned land containing a large mound of earth which was gradually being eroded by the weather and sliding on to the adjoining land. The defendant was therefore required to take reasonable steps to prevent the mound sliding on to his neighbour’s land.

Interference of the use or enjoyment of land or some right over it

In order for there to be a valid claim for nuisance the claimant must prove that there was damage caused. This can be in the following scenarios:

  • Physical damage to the land itself

  • Damage to health which impairs the use or enjoyment of the land – such as headaches caused by noise which prevents that person enjoying their land

Examples of damage caused

The following are examples from the case law of where damage has been found to have been caused:

  • Smells and fumes from candle making preventing enjoyment of neighbouring land

  • Preventing neighbours’ from sleeping due to noise and vibrations

  • Damage to neighbours’ clothes from use of acid smuts

  • Smell emanating from the neighbours pig farm

  • Tree roots sucking moisture from adjoining soil which eventually caused subsistence

However, interruption of television reception due to a tall building has been held not to amount to a private nuisance.

Can I make a claim for Private Nuisance?

You can only make a claim for private nuisance if the land which you have a proprietary interest in has been affected. This occurs in the following circumstances:

  • If you are the owner of the land

  • If you have exclusive possession over the land

  • If you occupy the land as either a tenant or under a licence to occupy

What about the case of a wife?

In one case it was held that a wife could not sue in relation to nuisance when a toilet cistern fell on her head due to the vibrations from the adjoining property. It was held as she was the wife of a mere licensee as her husband did not own the land then she could not bring the claim. She can however bring a claim using the tort of negligence.

However, if it is concerning the wife of someone who owns the home then she will said to have a beneficial interest in the matrimonial home and will therefore be able to bring a claim.

Can I be held liable for Private Nuisance?

The following people can be subject to a claim of private nuisance:

  • Creator of the nuisance

  • Occupiers

  • Landlords

Creator of the Nuisance

If anyone has created a nuisance on a property which has caused damage to an adjoining property then they can be sued regardless of whether they have a proprietary interest in that property.

Occupiers

The person who occupies the land may be held liable for private nuisance. If the nuisance were created by a previous occupier but the new occupier has continued to let it happen then they can still be held liable.

Landlords

A landlord will be liable along with the tenant in the following circumstances:

  • Where the nuisance was part of the normal use for which the premises were let

  • Where the nuisance existed prior to the tenancy and the landlord knew or ought reasonably to have known of it – even if he obtained the tenant’s agreement to remove it

  • Where the landlord has reserved the right to enter and repair as this amounts to retention of control of the land by the landlord regardless of whether he knew or ought reasonably to have known of the nuisance

Defences

What are the defences for a claim of private nuisance?

The following are defences which can be used against a claim of private nuisance:

  • Prescription

  • Statutory Authority 

Prescription

Continuation as a nuisance for an uninterrupted period of 20 years gives rise to a prescriptive right to commit it.

Statutory Authority

If the defendant has the express or implied right under a statute to carry on the activity causing the nuisance then there can be no claim for private nuisance. The defendant must prove, however, that the nuisance was inevitable and could not have been avoided by the exercise of reasonable care.

Coming to the Nuisance no defence

It is no defence to claim that the claimant came to the nuisance, for example by moving next door to a specific kind of property.

Remedies

The following remedies are available for a successful claim of private nuisance:

  • Damages – quantified by the damage done

  • Injunction – in order to stop the nuisance

  • Abatement – self help – the victim takes steps himself to stop the nuisance