Private Nuisance
The tort of nuisance sets out to protect the right to use and enjoy land, without
interference from others. Private nuisance is a common law tort. The essence of it is an
unreasonable interference with another’s use or enjoyment of land, and in assessing
what is reasonable, the courts will balance each party’s right to use the land as they
wish.
The tort of nuisance has been described as the law of ‘give and take’ as it
attempts to balance competing interests between two individuals. This element of
compromise can come with a price: one person’s interests will be protected at the
expense of another. It can be difficult to establish liability because competing interests
can give rise to complex issues.
ELEMENTS OF THE TORT
The elements of the tort include an indirect interference, that it was unreasonable, and
that it caused damage to the claimant.
1. Indirect interference
The claimant must prove that the defendant has caused an interference with the
claimant’s use or enjoyment of their land. It must be indirect and usually be the result of
continuing state of affairs, rather than a one-off. It may involve physical invasion, such
as roots of a neighbour’s tree spreading into claimant’s land (Davey v Harrow
Corporation) or water flooding onto land as a result of something done by a neighbour
(Sedleigh-Denfield v O’Callaghan). It may involve something intangible, such as noise
(Christie v Davey) or smells (Wheeler v J J Saunders).
The situation must be sufficient to interfere with the claimant’s use of land, such as
anything which causes actual physical damage to the land and fumes, noise or smells
which make it physically unpleasant, and also situations causing emotional distress.
Thompson-Schwab v Costaki
It was held that running a brothel in a respectable residential street could be considered
as nuisance.
However, the courts have not allowed the tort to protect recreational facilities, or ‘things
of delight’.
Bland v Moseley
, Blocking a neighbour’s pleasant view cannot be nuisance.
Hunter v Canary Wharf
Interference of television reception due to huge tower blocks was not sufficient to give
rise to nuisance.
Recreational facilities such as views are not covered by the tort, as seen in
Hunter v Canary Wharf. Television forms an important part of people’s lives and it
seems unjust to remove this without compensation.
Continuing a nuisance is where an occupier of land can be liable for nuisance caused
by naturally arising hazards, providing they are aware of their existence and fail to take
reasonable precautions.
Leakey v National Trust
The defendant’s’ land had a mound. After a hot summer, they took no precautions and a
landslide occurred. The courts held that they were liable for nuisance, even though they
did not actually caused it, but had failed to prevent it. The law will take into account what
it requires the defendant to do and his resources.
Holbeck Hall Hotel v Scarborough Council
The claimant’s hotel collapsed as a result of a landslip in the neighbouring land.
However, they could not have known as bad the problem was without ordering
expensive investigations, so they were not liable.
Bybrook Barn Garden Centre v Kent County Council
A flooding occurred when the culvert overflowed, due to changes to the local area. It
was held that once the council became aware that the culvert was no longer adequate,
they had a duty to enlarge it.
2. Unreasonableness
The tort of nuisance sets out to protect the right to use and enjoy land, without
interference from others. Private nuisance is a common law tort. The essence of it is an
unreasonable interference with another’s use or enjoyment of land, and in assessing
what is reasonable, the courts will balance each party’s right to use the land as they
wish.
The tort of nuisance has been described as the law of ‘give and take’ as it
attempts to balance competing interests between two individuals. This element of
compromise can come with a price: one person’s interests will be protected at the
expense of another. It can be difficult to establish liability because competing interests
can give rise to complex issues.
ELEMENTS OF THE TORT
The elements of the tort include an indirect interference, that it was unreasonable, and
that it caused damage to the claimant.
1. Indirect interference
The claimant must prove that the defendant has caused an interference with the
claimant’s use or enjoyment of their land. It must be indirect and usually be the result of
continuing state of affairs, rather than a one-off. It may involve physical invasion, such
as roots of a neighbour’s tree spreading into claimant’s land (Davey v Harrow
Corporation) or water flooding onto land as a result of something done by a neighbour
(Sedleigh-Denfield v O’Callaghan). It may involve something intangible, such as noise
(Christie v Davey) or smells (Wheeler v J J Saunders).
The situation must be sufficient to interfere with the claimant’s use of land, such as
anything which causes actual physical damage to the land and fumes, noise or smells
which make it physically unpleasant, and also situations causing emotional distress.
Thompson-Schwab v Costaki
It was held that running a brothel in a respectable residential street could be considered
as nuisance.
However, the courts have not allowed the tort to protect recreational facilities, or ‘things
of delight’.
Bland v Moseley
, Blocking a neighbour’s pleasant view cannot be nuisance.
Hunter v Canary Wharf
Interference of television reception due to huge tower blocks was not sufficient to give
rise to nuisance.
Recreational facilities such as views are not covered by the tort, as seen in
Hunter v Canary Wharf. Television forms an important part of people’s lives and it
seems unjust to remove this without compensation.
Continuing a nuisance is where an occupier of land can be liable for nuisance caused
by naturally arising hazards, providing they are aware of their existence and fail to take
reasonable precautions.
Leakey v National Trust
The defendant’s’ land had a mound. After a hot summer, they took no precautions and a
landslide occurred. The courts held that they were liable for nuisance, even though they
did not actually caused it, but had failed to prevent it. The law will take into account what
it requires the defendant to do and his resources.
Holbeck Hall Hotel v Scarborough Council
The claimant’s hotel collapsed as a result of a landslip in the neighbouring land.
However, they could not have known as bad the problem was without ordering
expensive investigations, so they were not liable.
Bybrook Barn Garden Centre v Kent County Council
A flooding occurred when the culvert overflowed, due to changes to the local area. It
was held that once the council became aware that the culvert was no longer adequate,
they had a duty to enlarge it.
2. Unreasonableness
