Private Nuisance

Private Nuisance is often described as an unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it. It is normally used to describe conflicts arising between neighbours to do as they wish on their own land. However, sometimes one neighbour’s ordinary exercise of rights can create problems with their neighbour’s enjoyment of their rights.

The nuisance caused may be trivial or serious. They are usually an ongoing problem caused over an extended period of time. The purpose of the law on nuisance is to try to balance the competing interests of all parties. For that reason, not all cases involving the enjoyment of land will be classed as a nuisance in law, only those that would be seen as unreasonable.

The litigants involved in a nuisance case are referred to as the claimant (the one bringing the case) and the defendant (the one who has caused the nuisance deemed as unreasonable). The claimant is often the owner of the land where the nuisance occurs, but sometimes they may be an occupier, in landlord and tenant disputes, for example.

The defendant is usually the party accused of causing the nuisance. However, sometimes they may not have caused the nuisance, but should be held responsible for dealing with it. The cause of the nuisance could be as a result of human actions, or natural causes such as the weather. In the case of Sedleigh Denfield v O’Callaghan, a group of strangers had blocked a pipe on the defendant’s land. This then led to flooding on the claimant’s land. Clearly the defendant did not cause the nuisance, but they were responsible for dealing with it, as it occurred on their land. In Leakey v National Trust, the defendant failed to deal with a potential landslide that they had identified. After heavy rainfall, the land fro a natural mound slipped and caused damage to the claimant’s cottage. The defendant’s failure to prevent a forseeable problem rendered them liable.

In order to prove the existence of a nuisance, the claimant must prove three key elements: unreasonable use of land, indirect interference and reduction in the claimant’s use or enjoyment of that land. Courts are flexible in their approach to what is classed as “unreasonable” and take it on a case by case basis. For example, in Solloway v Hampshire County Council, the council was not liable for trees that damaged the claimant’s property, because they lacked the resources to do anything about it. Had they had the resources to do something about it, as other council’s might have had, then they may well have been liable.

A nuisance can also be classified relative to the local area. As stated in Sturges v Bridgman, “what would be a nuisance in Belgrave Square would not necessarily be a nuisance in Bermondsey”. The nuisance often depends on what is deemed acceptable in that particular area. For example, opening a sex shop in a residential area would be seen as more of a nuisance than if the same shop had been opened in a remote industrial estate.

The nuisance in question might also result in a compromise between the two parties. For example in Dunton v Dover District Council, a playground caused a nuisance to a local care home for the elderly. Rather than closing down the playground, the council decided to reduce the opening hours, thus reducing the level of nuisance whilst maintaining the interests of the local children who needed somewhere to play.

The duration of the interference should be continuous. This doesn’t necessarily mean non-stop. It could be the case that there is a nuisance caused between certain hours each night by a resident playing loud music which upsets his neighbour. The nuisance isn’t negated simply because the music gets switched off each night for a few hours before it resumes.

Additionally, in some cases, it has been shown that the duration of the interference may only last 15 or 20 minutes! This was the case in Crown River Cruises Ltd v Kimbolton Fireworks Ltd, where flammable debris from a fireworks display lasting only 20 minutes set a barge alight.

With regards to the seriousness of the interference, the law distinguishes between an inconvenience and physical damage. The law regards an inconvenience as something which materially interferes with the ordinary comfort of physical existence… according to plain and sober and simple notions among the English people”. This was decided in Walter v Selfe in 1851 and stands to this day as the basic test for inconvenience. Conversely, there may not just be inconvenience, but damage as well. Where damage occurs as the result of interference, that will be enough to class the nuisance as unreasonable. This can be illustrated by Halsey v Esso Petroleum Co Ltd. Here the claimant sued not only for noise pollution, but also for the damage caused to the washing, by smuts from the defendant’s property.

However, if the damage caused is in the public’s interest, then liability for nuisance may not be so straightforward. For example, in the case of Stephens v Anglian Water, the defendant had an absolute right to appropriate water, regardless of the subsidence it caused in the claimant’s property. Also, if the damage caused is foreseeable by the claimant and they do not take reasonable steps to avoid the damage, then it is difficult for a court to find in favour of the claimant.

The interference must also be indirect. If it is direct, then the law would fall under the category of Trespass rather than Nuisance. Examples of indirect interference, which can be classed as nuisance include: loud noises such as gunfire, pollution of rivers, vibrations from machinery, fumes drifting over neighbouring land and continuous interference from cricket balls.

Finally, the use and enjoyment of land is often assessed on the balance of competing interests. This means that some activities, whilst legal, may still be beyond the protection of the law. In Hunter v Canary Wharf, local residents argued that poor TV reception, caused by the erection of a tower was a nuisance. However, the court decided that it could not be classed as a nuisance, as the landowner had every right to build on that land. The same rule applies equally to obstruction of a view, the passage of light or radio signals.

Finally, in defence to a nuisance complaint, a defendant can cite lawful justification in some cases. These can include local authority planning permission, e.g. to build an extension on a home. Also, if the nuisance had continued for 20 years without complaint, then the right to take action in nuisance has lapsed. Furthermore, the concept of volenti non fit injuria means that a claimant may consent to nuisance. For example if a tenant rented a house where the gutters had become blocked, causing flooding to his property, as was the case in Kiddle v City Business Properties. Here, the damage caused was not the result of the landlord’s negligence, so they could not be found to be liable.

Private nuisance is often described as an unlawful ______ with a person’s use or enjoyment of land?: Interference
True or false: The nuisance must be “serious”?: False
True or false, weather can cause a nuisance?: True
In Dunton v Dover District Council, what caused a nuisance to a local care home for the elderly?: No
In Stephens v Anglian Water, what did the defendant cause to the claimant’s property?: Subsidence
How many years without a complaint would render a nuisance complaint unenforceable?: 20