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 a civil wrong that can give rise to a legal claim against the person committing the nuisance.

Private nuisance is concerned with the effect on someone else’s land, not personal harm; for instance, sewage leaking from land onto a neighbour’s land, or noisy neighbours causing a nuisance to others.

Requirements

The law relating to private nuisance has been developed by case law. To prove a private nuisance has occurred (or is occurring) the following must be present:

  • Continuous interference;
  • Unlawful or unreasonable interference;
  • Interference of the use or enjoyment of land or some right over it.

Continuous interference

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

The period of time required can be very short period. For example, a firework display constituted a nuisance when it was inevitable that for 15 to 20 minutes debris of a flammable nature would fall on nearby property, damaging the property in the ensuing fire.

Unlawful interference

The behaviour (or omission) causing the alleged nuisance must also have amounted to unlawful or unreasonable interference with the claimant’s land. 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 defendant’s conduct;
  • The state of the defendant’s land.
Locality

In a famous quote from a landmark nuisance case, the judge said: “What would be regarded as a nuisance in Belgravia Square would not necessarily be regarded as a nuisance in Bermondsey” (Sturges v Bridgman (1879) LR 11 Ch D 852). Location of the property is a key issue in considering what would reasonably be expected to occur in that area.

Sensitivity of the claimant

When looking at the claimant the standard applied is that of a tolerant neighbour, so an unusually sensitive neighbour is less likely to win a nuisance claim. However, if the act complained of would be regarded as a nuisance by a tolerant neighbour whose property is of a normal nature, then it is likely to be found to be nuisance.

Utility of defendant’s conduct

If an activity is said to be for the community as a whole, it is unlikely to amount to a nuisance; for example, where building work or road works are being carried out at reasonable times of the day. The benefit of these activities is for the community at large or other people, and cannot in law be treated as a private nuisance.

If, however, road works are carried out at night in an urban area when they could be done without major disruption during waking hours, it is likely they will be liable for a private nuisance.

State of the defendant’s land

This is particularly important when concerned with hazards on the defendant’s land. The defendant must take reasonable steps to prevent or minimise dangers to adjoining land caused by natural hazards on his own land.

For example, if someone owns land on which there is a large mound of earth that is being slowly eroded by the weather and sliding on to the adjoining land, they must 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

The claimant must prove:

  • 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 cases 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 neighbour’s 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 in which you have a proprietary interest has been affected. This means:

  • 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.

Can I be held liable for private nuisance?

You can be liable for a private nuisance if you are:

  • The creator of the nuisance;
  • The occupier of land who is allowing a nuisance to occur;
  • A landlord.

Landlords

A landlord will be liable for private nuisance (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.

What defences are available for a claim of private nuisance?

The following may be used to defend a claim of private nuisance:

  • Prescription;
  • Statutory Authority.

Prescription

This means the ‘nuisance’ has continued uninterrupted for at least 20 years – in which case the person causing the nuisance can continue. In certain cases, a nuisance that has continued for more than 20 years is capable of becoming an easement.

Statutory authority

If the defendant has the express or implied right under a statute to carry on the activity causing the nuisance, 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 is no defence

It is no defence to claim that the claimant ‘came to’ the nuisance; for example, they moved into the property knowing about the nuisance so they can’t now complain. This is not a defence to a claim of private nuisance.

What remedies are available?

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

  • Damages: quantified according to the damage done;
  • Injunction: ordering the nuisance to stop;
  • Abatement: the victim takes steps himself to stop the nuisance.

Note that the courts have a very wide discretion as to whether to award damages and/or an injunction.