Learning the Law – What is private nuisance?

Nuisance is usually caused when a landowner carries out an act on his own land which affects another person’s use or enjoyment of their own neighbouring land or of some right that is connected with that land.

This article focuses on private nuisance, rather than public nuisance or statutory nuisance as in practice; private nuisance is encountered more frequently. The most common acts associated with private nuisance are physical encroachment on land, physical damage or undue interference with the neighbouring landowner’s comfortable and convenient enjoyment of his land.

The causes of the nuisance may be physical (e.g. tree roots growing across land or an oil leak causing soil contamination), development works or even small acts such as hanging a sign over a neighbour’s property.

The causes of nuisance may also be intangible, such as noise or smells. Unlike trespass, it is not automatically actionable; there generally needs to be actual damage for the landowner to have a cause of action.

Requirements for a claim in nuisance

For a claim in nuisance to be successful, the damage or interference with the enjoyment of the land suffered by a landowner:

• must be substantial or unreasonable; and
• can arise from a single incident or a “state of affairs”.

The landowner must also have a direct proprietary interest in the land affected by the nuisance. In Hunter v Canary Wharf [1997], the House of Lords allowed only the legal occupiers in flats adjoining an alleged nuisance to be able to claim, but not their families or visitors.

The interference does not need to be physical, but it does generally need to be continuous or recurrent. An action for nuisance can be made in tort, which means that there does not need to be any contractual relationship between the parties; a party can start civil proceedings against an individual for either damages to compensate their loss, or injunctive relief (an injunction) to require the individual to stop the continuing nuisance.

When faced with a claim in nuisance, the court undertakes a balancing exercise and applies the overriding principle of reasonableness, taking into account a variety of factors including:

• Location – the famous phrase “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” (Sturges v Bridgman [1879]).

Naturally, odour arising from a food processing factory, such as a dairy, is less likely to be a nuisance if those processes have always been undertaken in that area and they are not noxious.

• Time – noise at night-time is likely to be considered more intrusive than daytime noise.
• Frequency – the more frequent the nuisance, the more likely it will amount to such.

Other relevant factors include: the extent of the harm, intensity, malice and/ or any hypersensitivity of the individual complaining of the nuisance or of the property suffering the damage.

The existence of planning permission to permit an activity causing the nuisance does not provide a defence.

However, the grant of planning permission, allowing a development of affordable housing for example, may lead to a change in the character of the location.

A one-off event, generally, is less likely to amount to a nuisance. The exception to this is an event, to which the rule of Rylands v Fletcher applies. This rule has been described as a species of private nuisance that imposes strict (i.e. automatic) liability on a defendant for damage caused by their non-natural use of land. The case concerned extensive damage caused when water from a reservoir located on the defendant’s land escaped and leaked through mine shafts, spreading to a working mine owned by the claimant. The rule usually applies where there is an escape of something, usually water or something toxic, which spreads onto neighbouring land, causing substantial damage in the process.

Duty of care

In nuisance, an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on the occupier’s land. The standard of the measured duty required is that the occupier should do what it is reasonable to expect of him in his individual circumstances. What is reasonable depends on the application of two concepts:

• Reasonableness between neighbours; and
• Reasonable foreseeability.

The application of these concepts has been subject to close scrutiny by the courts, with much depending on the specific facts of a case and the relationship between occupier and neighbour. When assessing the foreseeability of a nuisance, the court will consider how reasonable it was to expect that the act would cause such a nuisance.

A landlord’s position

Is a landlord affected when a tenant is causing a nuisance to a neighbour?

Generally speaking, no, he is not; it is only the occupier of land, who causes nuisance, who is liable. If the occupier is a tenant, only the tenant, and not the landlord is liable. The only exception is where the landlord has expressly or impliedly authorised the actions causing the nuisance. In these circumstances, the landlord can be liable as well as the tenant. It is not enough if the landlord is aware of the nuisance but takes no steps to prevent it. To be liable, the landlord must either participate directly in the commission of the nuisance or have authorised it by letting the property.

It is therefore critical that a landlord, whose tenant is causing a nuisance, does not in anyway authorise this act and takes steps to prevent the tenant from continuing the nuisance. A landlord may be able to achieve this by enforcing the terms of any written tenancy agreement.

Remedies available

There are a number of potential remedies available for nuisance, so it is important to consider which is the most appropriate.

Common law nuisance provides the remedies of an injunction, to stop the nuisance from continuing and damages for the claimant’s loss of enjoyment of their property rights.

The urgency of a particular situation should also be considered. If the nuisance has an immediate and significant impact on the neighbour’s enjoyment of his property, an interim injunction to restrain an ongoing nuisance can be sought in the civil courts.

Conclusion

The law of nuisance can be complex, with many cases turning on their facts and the relationship of the parties. Where a nuisance arises the earlier proper advice is sought the more likely the parties will be to reach a negotiated settlement, rather than become embroiled in expensive litigation.

For more information please contact Jake Rostron, Trainee Legal Executive on jake.rostron@michelmores.com or 0117 906 9305.