What Can Be Done About A Nuisance

The word ‘nuisance’ carries with it almost Victorian connotations. It creates images of young street children being reprimanded by officers of the law. Indeed, it is the type of word that people would think had long vanished from English common law.

Despite its anachronistic appearance, nuisance is a useful tool that allows people to sue for things that may seriously affect their standard of living. As such, it is worth exploring the limits of nuisance and how claims can be brought.

What Is Nuisance?

Nuisance refers to situations where someone unreasonably interferes with another’s enjoyment of land. Examples of nuisance could be loud music being played from a neighbouring property, damage to a garden caused by a neighbour’s dog, or bad smells from nearby factories drifting over to residential areas.

As a result, it is a tort based on property. This is significant because noise pollution and other unwanted emissions can hugely disrupt a person’s health and happiness. It is therefore important that people are able to look to the law if they are faced with a nuisance.

How Is Nuisance Different From Negligence?

 Although claimants are able to sue for nuisance and negligence separately, there is very little difference between the two. Nuisance and negligence both allow people who have suffered problems caused by other people to seek justice through the courts. In many cases, if a person has a valid claim for nuisance they will also be able to sue for negligence.

The main point of difference is probably that negligence places more emphasis on damage and tangible loss. With nuisance cases, the central damage may be less quantifiable – lost sleep, unpleasant smells etc. It is therefore advisable for people to pursue nuisance in these cases as well as negligence.

Who Can Sue For Nuisance?

 Another important difference between nuisance and negligence is that nuisance is only available to those who have a proprietary interest in the land that they are occupying. A ‘proprietary interest’ means essentially that the claimant owns or rents the property. Visitors or those who occupy property under a license are thus prevented from suing.

This is a significant prohibition as it excludes large numbers of potential claimants. Those who do not have a proprietary interest in the land they occupy are therefore only able to rely on negligence, which simply requires there to have been a duty of care on the defendant.

What Must Be Proven?

 The main issue that claimants must prove in nuisance claims is that the defendant’s use of land was unreasonable. There can be no valid claim, for example, against a person who creates small levels of noise in connection with running a business in daytime hours. Most people would regard this as a reasonable use of land.

Rather, nuisance only exists to prevent unreasonable interference. In deciding whether a particular use of land is unreasonable a court will consider:

  • Locality – obviously more noise is to be expected in an urban industrial area than in a quiet corner of the countryside. The courts will therefore be more likely to rule in favour of claimants in the latter rather than the former.
  • Sensitivity of the claimant – the court will judge whether interference with land has been unreasonable according to the standards of the ‘ordinary, reasonable claimant’. A claimant who has a particularly acute sense of hearing, for example, will be less likely to show that noise coming from neighbouring properties is excessive.
  • Public benefits – if the public derives a benefit from the defendant’s use of land, e.g. through the increased housing produced through construction, a court will be more likely to conclude that it was reasonable.
  • Malice – if it is demonstrated that the defendant is creating the disturbance in order to annoy the claimant rather than for any legitimate purpose, the courts will come down strongly in favour of the interference being unreasonable.

The locality point is particularly important where the claimant has recently moved to the area. If a claimant has knowledge of the local area and moves to a place where nuisances are likely he is said to have ‘moved to the nuisance’ and will be unable to prove that the defendant’s use of land was unreasonable.

How Long Must The Nuisance Continue For?

 There is no set period of time a nuisance must continue for in order to allow a person to sue but it is nonetheless clear that the interference with land must take place on at least one occasion. As a result, the nuisance must be continuous even if it does not continue for very long.

Clearly, the longer the nuisance goes on for the more likely it is that a court would consider it to be unreasonable.

Who Can Be Sued?

 Generally, the claimant should sue the creator of the nuisance. In many cases, the creator of the nuisance will be the owner of the land from which the nuisance originates. In other cases, however, especially in the industrial context, the creator of the nuisance will be occupying the land in another capacity, usually as a licensed contractor.

In addition, landlords can be sued for nuisance even if they do not create the nuisance themselves. This is only really possible, however, if it can be proven that the landlord was aware of the nuisance and consented to it continuing over time. One good example of this is if the landlord authorised repairs to their property, which led to noises and fumes being received by neighbouring houses.

Summary and Key Points

  •  The tort of nuisance allows people to sue for unreasonable interference with their enjoyment of land.
  • Nuisance is a property-based tort and is only available to those with a proprietary interest in land.
  • In considering nuisance cases, the court must decide whether the defendant’s use of land was reasonable. The court will take into account the locality, the sensitivity of the claimant, whether any public benefits arose from the defendant’s activities, and whether any malice was involved.
  • Claimants may sue the creator of the nuisance, whether that is a land owner, tenant, or licensee, or, in limited circumstances, the landlord directly.