Though in general term a nuisance can be anything that annoys us or causes inconvenience but in legal term a nuisance is a “unlawful interference with a person’s use or enjoyment of land”.
There are three types of nuisances which are private, public and Statutory nuisance. In a day to day life the most common tort of nuisance is the tort of private nuisance. And it is mainly due to the fact that we all live in a society and have neighbours. Cases of private nuisance therefore are disputes that arise between neighbours. A neighbour playing loud music, a tree hanging over your side of the garden, and smell from adjoining pig farm are examples of private nuisance. Private nuisance is a civil wrong and a claim can only be brought if you have ownership of land – or rights to be on that land i.e. a tenant.
What can be an actionable nuisance i.e., that you can sue in a court of law? A nuisance can only become actionable if it is excessive or unreasonable. A loud party music once in while may not constitute as a tort, but many in a row will. In a society we all have to put up with a nuisance here and there as part of life. However there are other factors that would influence if a nuisance is actionable.
Locality: When considering whether a nuisance is a tort, the court will consider the characteristics of the locality. Is it industrial, residential, quite countryside or a big city? The incidents of loud noise, smoke etc from a city neighbourhood would be less significant for a case of private nuisance as opposed to a case from a quite countryside. One important point to note here is that under no circumstances the court would accept damage to private property on the basis of locality.
Give and take basis: It is accepted that living in a society we all have to tolerate certain discomforts at various times as far as it is not excessive or unreasonable.
Sensitivity – is the claimant abnormally sensitive or the property is of very sensitive nature?. A claim in private nuisance can fail If it was due to too much sensitivity.
Duration – how many times has it occurred? Continuous and reoccurring incidents will give rise to actionability whereas a single incident may not.
Is there any public benefit? If defendant can prove there is a public benefit in the nuisance – he can escape liability. However, no damage can be caused just because it is for a public benefit.
Malice – was it due to malice? Has defendant caused the nuisance out of malice?
Natural hazards: Damage caused by nature can be difficult to put the blame on someone. However a defendant has to take every precaution not to cause damage to an innocent party’s property. Try to remove the threat as much as he can by his physical or financial ability. To determine that the defendant did everything in his power to minimise the risk of damage, the court will take into account In the cases of damage by natural hazards, the courts will take into account a subjective test from the defendant
In negligence claims: has the defendant been negligent in using his land? Even if the defendant’s act has been reasonable – if he has been negligent in using his land – will give rise to nuisance due to unreasonable use of land.
WHO CAN SUE IN PRIVATE NUISANCE?
Because claims of private nuisance can only be brought to courts by someone who has proprietary interest in land (landowner), or someone who has an exclusive possession of the land (tenant), can bring a claim Hunter v Canary Wharf (1997).
Anyone else who lives in property as a lodger, visitor (sometimes known as licensees) or without having any legal rights in the property, including spouse and children, cannot bring a case in private nuisance Malone v Laskey (1907).
WHO CAN BE SUED in a private nuisance?
The creator: Anyone who does a positive act that causes or creates a nuisance or damage to property can be sued. Note that one has to DO SOMETHING to be liable in a private nuisance, if a damage or harm is caused by NOT DOING (omission), then a liability cannot be created.
An occupier: a person who occupies a land or property can be liable for his acts and can be vicariously liable for the acts of his licensees and employees or people under his control. An occupier can be liable for the acts of predecessors in title (previous occupiers) if the present owner knew such nuisance existed (St. Anne’s Well Brewery Co v Roberts 1929). He can also be liable for the acts of trespassers Sedleigh-Denfield v O’Callaghan (1940).
Landlords: generally if a property is let – no liability arises on a landlord but if the landlord knew that letting will cause a nuisance inevitably Tetley v Chitty and Others (1986)., the liability will arise. But if the letting of property causes a nuisance and the tenancy agreement specifically forbids such acts, then the tenants are liable and not the landlord. As the purpose of the property (letting) did not cause the nuisance but the tenants did (smith v Scott 1973. Basically whether a landlord is liable for nuisance depends on if the nuisance was authorised by him, or he knew about it, continued or adopted it, or if the property, without the fault of the occupier, causes a nuisance e.g. leaking rain water.
Damage to property: Damages to property under private nuisance are only recoverable if the damage is caused to land and to its property. To successfully bring a claim, claimants must prove they have suffered damage which can be presumed so it may may have happened. Damages can be awarded for: physical harm to the land, and the quite enjoyment of the property. Note that no claim can be brought under a nuisance for personal injury or for personal belongings which need to be brought under tort of negligence. To establish damage, the court will apply a test of remoteness which asks if the damage was not too remote to happen. In other words the test of remoteness tries to establish if the act by the defendant that caused the damage was foreseeable.
Defences: A defence, if accepted by the court, will either set the defendant not liable, or will take some of the liability away.
Prescription: the defence of prescription applies it the nuisance has lasted over 20 years. Prescription means that the creator / landlord have acquired a right to create a nuisance. Prescription has to be actionable for 20 years.
Statutory authority: means that a certain nuisance has been made legal by law. If the defendant can show that a nuisance is valid because of a Statute, he would have no liability. Sometimes planning permission itself can be a defence but then it depends on the nature of the case. For example, if the area has changed significantly because of the planning permission. The dock case
Contributory negligence: is a partial defence. It is available when the claimant is partially to blame for the damage caused.
Consent: If a damage is due to the fact that it was voluntarily or by consent accepted by the claimant.
Act of God or nature: examples include subsistence near or under the foundation of the defendant’s house. This defence is only available where the defendant has not been negligent.
Ineffective defence: It will be a defence which argues that the claimant came to the nuisance as the nuisance was already there and the claimant knew about it. However this will not be a valid defence just because it pre-existed or the claimant knew it.
Public benefit: can be a defence for a nuisance because it is beneficial to public however it depends on case to case basis RAF case. In Miller v Jacson the court decided not to award injunction in the interest of public benefit. The court knew that claimants were aware that the property they were going to buy had a cricket playing filed adjacent to the property.
Contributory actions of others: a defendant cannot argue that his action alone could not have amounted to a nuisance. For example, smoke emanating from various sources at one time and the defendant arguing that he was not the only one causing the smoke.
Remedies: Damages can be had for any structural damage caused by vibration etc. as well as damages can be had for smell and noise. In most cases it will be easy for the courts to ascertain physical damage than to calculate intangible nuisance such smell etc.
Injunction: can be awarded if damages have not been awarded, however if damages are awarded and if they will sufficiently compensate then an injunction will not be awarded.
Abatement – it means self-help. A claimant can opt to self-help, if for any reason, the nuisance is not taken care of or the claimant wants to take care of it himself. The rules are that if you are going to do it yourself then you have to give a notice in advance to the defendant. You need permission to go on his land. But if abatement can be done from your own land then you don’t have to notify the defendant. Any property that comes into your possession due to abatement has to be returned to the defendant. For example, if you cut down branches from a tree from the defendant’s garden that are hanging over yours, then any branches or parts of the tree must be returned to the defendant.