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A Quick Guide to Nuisance Claims

Friday, 5 July 2013

The tort of nuisance is designed to protect the occupier of land from unreasonable interference with enjoyment of their land.

There are two types of nuisance claims: ‘private nuisance’ and ‘public nuisance’.

Private Nuisance

A nuisance is ‘an unlawful interference with a person’s use and enjoyment of land’. For it to be ‘interference’, the nuisance must encroach onto the land, cause direct physical injury to land or cause loss of amenity.

It can cover complaints like dust, noise, pollution, encroachment by trees and even cricket balls.

Who Can Sue for Private Nuisance?

The claimant must have a proprietary interest in the land affected such as an owner-occupier or a tenant. A Landlord may sue but only if the interference is likely to cause permanent damage to their property.

The claim can be brought against:

  • The creator of the nuisance (who remains liable for the nuisance even if the land is occupied by someone else).
  • The current occupier of the land even if they did not create it (they can also be liable for nuisance created by employees, independent contractors and can even be liable for visitors, predecessors in title, or a nuisance arising from natural occurrence provided they have adopted and continued the nuisance).
  • The landlord where they have expressly or impliedly authorised the nuisance or where the nuisance existed at the start of the letting or came about by the landlord failing to make repairs where they had a duty to.

Is it a nuisance?

To decide this the courts must balance the competing rights of the land owner to use the land as they choose and the right of the neighbour not to have their use or enjoyment of land interfered with. Whether or not the interference is unlawful will depend on the following factors:

  • Duration and frequency of the nuisance
  • Excessiveness of the conduct and extent of the harm
  • The character of the neighbourhood
  • Malice
  • Public benefit
  • Whether or not the claimant had any abnormal sensitivity

Remedies for Nuisance

  • Damages (i.e. compensation)
  • For physical damage to the land itself and interference to their quiet enjoyment of their land
  • Not for personal injury or damage to personal property (this would be a separate claim)
  • Injunction (e.g. a court order to stop the nuisance)
  • Will not be awarded where damages are adequate

Defences to a Claim

  • Prescription: the nuisance has been carried on for over 20 years
  • Statutory authority to carry out the activity (doesn’t include planning permission)
  • Consent: the claimant has specifically agreed to accept the interference

Difference Between Private Nuisance and Public Nuisance 

A public nuisance is ‘an unreasonable interference with a right common to the general public.’  Usually conduct that unreasonably interferes with the public health, safety, welfare, or morals (e.g. keeping diseased cattle, detonating explosives or operating an unlicensed casino).  

Usually a public nuisance action is brought by a city or other governmental entity. Public nuisance is a crime but becomes actionable in tort law if the claimant suffers 'particular damage' over and above the damage suffered by the public generally.

Conclusion

If you or your business are faced with any form of nuisance or if your activities have the potential to cause an actionable nuisance, you should seek expert legal advice before a nuisance claim is made. For more information please contact Peter Gourri in our litigation team on 0207 611 4848.

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