19. Private nuisance

What is private nuisance?

Private nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over it. There are three main kinds: physical damage to land (such as fumes killing crops), interference with comfort and enjoyment (such as noise or smells), and interference with rights such as a right of way or light.

Who can sue and who is liable?

Claimant: Only someone with an interest in the land, such as an owner or tenant in possession, can sue: Hunter v Canary Wharf. Family members or lodgers without an interest must sue in negligence or another tort.

Defendant: The person who created the nuisance is liable. So is an occupier who 'continues' or 'adopts' a nuisance created by someone else, or by nature, by failing to take reasonable steps to end it once he knows of it: Sedleigh-Denfield v O'Callaghan; Leakey v National Trust. A landlord may be liable if he authorised the nuisance.

Is the interference unreasonable?

Not every annoyance is a nuisance. Neighbours must put up with ordinary noise and inconvenience. The court weighs several factors.

Locality: What is reasonable depends on the area. In Sturges v Bridgman it was said that what is a nuisance in a quiet residential area may not be one in an industrial area. But locality does not matter where there is physical damage: St Helen's Smelting v Tipping.

Duration and frequency: Short or one-off events are less likely to be a nuisance than continuing ones, though a single dangerous state of affairs can be.

Sensitivity: A claimant cannot complain of harm caused only because his use is unusually sensitive: Robinson v Kilvert.

Malice: Acts done out of spite to annoy a neighbour are likely to be unreasonable: Christie v Davey; Hollywood Silver Fox Farm v Emmett. Compare Bradford Corporation v Pickles, where malice did not matter because there was no legal right to the water.

Example: Smells, noise and smuts from an oil depot were a nuisance in Halsey v Esso Petroleum.

Defences

Prescription: A right to commit what would otherwise be a nuisance can be gained by 20 years' continuous use, but only from the time the activity became an actionable nuisance (Sturges v Bridgman).

Statutory authority: Some activities are authorised by statute; if the nuisance is the inevitable result of what the statute allows, there is no liability.

Not defences: These are NOT defences: that the claimant came to the nuisance (Sturges v Bridgman; Coventry v Lawrence); that the activity is useful to the public; or that planning permission was given.

Remedies

Damages, and an injunction to stop the nuisance. Courts may award damages instead of an injunction in suitable cases: in Miller v Jackson a cricket club paid damages rather than being shut down. A person affected may also 'abate' (remove) the nuisance himself, for example by cutting overhanging branches, so long as he acts reasonably.