Law
Private Nuisance
Private nuisance refers to a legal concept where an individual's use or enjoyment of their property is interfered with by the actions of another party. This interference can include things like excessive noise, odors, or other disturbances. To be considered a private nuisance, the interference must be substantial and unreasonable, and it must cause harm or discomfort to the affected party.
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eBook - PDFEnvironmental Law in Scotland
An Introduction and Guide
- Francis McManus(Author)
- 2016(Publication Date)
- Edinburgh University Press(Publisher)
CHAPTER 2 Nuisance The law of nuisance concerns itself with resolving the conflicting interests in the use of land. The law of nuisance protects the occu-pier of land from unreasonable interference which is taking place outwith the land that is affected. Whether any given state of affairs ranks as a nuisance in law is a question of fact and degree. In order to ascertain whether the adverse state which the pursuer complains of ranks as unreasonable and, therefore, a nuisance in law, the courts take a variety of factors into account. As far as the law of Scotland is concerned, the pursuer requires to prove culpa (or fault) on the part of the defender. Also discussed in this chapter are the defences which are available in an action in nuisance. Introduction The law recognises that the occupier of land has the right (for example, by virtue of being the owner, tenant or subtenant of the land) to enjoy the occupation of that land. However, such a right to use one’s land as one pleases is circumscribed by the law imposing an obligation on the occupier of the land not to use it in such a manner as to unreasonably interfere with the enjoyment of my neighbour’s occupation of land. 1 In 1933 Burn- Murdoch observed that the law of nuisance was a modern development and was not recognised as such by the institutional writers. 2 In essence, the law of nuisance is concerned with the law of neighbourhood. 3 However, the expression, ‘nuisance’ is a rather amorphous concept. Indeed, it is fiendishly difficult to define. 4 According to Smith, a nuisance comprises an operation on the part of the defender which, taking into account the natu-ral rights of his neighbours, is unreasonable or extraordinary on account being unnatural, dangerous or offensive; and such operation must have caused material injury.
eBook - ePub- Wendy Laws(Author)
- 2021(Publication Date)
- Taylor & Francis(Publisher)
PART 10Nuisance
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16Private Nuisance
DOI: 10.4324/9781003133698-2716.1 Chapter overviewChapters 16 , 17 , and 18 all deal with aspects of nuisance: Private Nuisance, the rule in Rylands v Fletcher, and public nuisance.To put this into context, it is important to be aware that harms which amount to a nuisance at common law may also be subject to statutory controls. However, we will not discuss statutory nuisance since our focus is on claims in tort.This chapter covers Private Nuisance, and begins by introducing what is meant by Private Nuisance: an unlawful interference with the claimant’s use or enjoyment of land. It first examines who may sue in Private Nuisance (who can be a claimant?) and who may be sued (who is the relevant defendant?). Next, it examines the elements of a claim in Private Nuisance. Then, it then considers the possible defences to a claim in nuisance. Finally, the chapter outlines remedies for a claim in nuisance.16.2 Introduction to Private Nuisance- An unlawful interference with the claimant’s use or enjoyment of land.
Look at the following problem scenarios and in each one identify the interference with land and think about the remedies that might be sought. (Consider also how these interferences differ from the intentional and direct interferences actionable as trespass to land.)A householder in a busy city cannot sleep because a nightclub next door regularly plays loud music until late at night. An extra storey is added to a tower block. The leaseholder of a neighbouring building complains that it blocks out the light entering the windows. A factory processing fish emits a strong smell which is so bad that the tenants of nearby flats cannot open their windows.In each of these examples someone is complaining about an interference with their land caused by a conflicting use of their neighbour’s land. They could consider bringing a claim in Private Nuisance. The principles of Private Nuisance are the means by which the law of tort regulates conflicts that arise between neigh-bours over their use of land.
eBook - PDF- John Eldridge, Michael Douglas, Claudia Carr(Authors)
- 2021(Publication Date)
- Hart Publishing(Publisher)
7 Economic Wrongs and Private Nuisance: A Common Law Perspective PAULA GILIKER * I. Introduction The tort of Private Nuisance 1 seeks to protect the plaintiff from unlawful inter-ference with his or her use or enjoyment of land, or of some right over, or in connection with it. As a tort protecting land rights, it is often termed a ‘property’ tort 2 and this trait influences who can sue and the remedies provided. Only plaintiffs with a legal right to, or exclusive possession of, the land, will be able to sue. 3 Remedies equally respond to an ‘undue’ interference with the plaintiff ’s land rights. Compensation will be awarded for diminution in value of the plaintiff ’s land and for loss of its ‘amenity value’. 4 In the leading nineteenth century case of St Helen’s Smelting Co v Tipping , 5 Lord Westbury made it clear that Private Nuisance would not only remedy physical (material) damage to property (for example damaged crops and buildings), but would extend to sensible personal discomfort (caused, for example, by fumes and noxious gases). In this latter category, however, * Professor of Comparative Law, University of Bristol. 1 This chapter will not cover the law relating to the rule in Rylands v Fletcher which is part of Private Nuisance in the law of England and Wales, but is treated as part of the tort of negligence in Australia: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (HCA). To avoid clumsy duplication, the chapter will also use the term ‘plaintiff ’ in relation to English and Australian law, although English law now prefers the term ‘claimant’. 2 D Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in D Nolan and A Robertson (eds), Rights and Private Law (Oxford, Hart Publishing, 2011) 459. 3 Hunter v Canary Wharf Ltd [1997] AC 655 (HL). For complications this may cause to business plaintiffs, see Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, [2011] QB 86.
eBook - ePub- Sanmeet Kaur Dua, Chris Turner(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
The tort is essentially concerned with balancing the competing interests of neighbours to make lawful use of their own land. The difficulty is that what may be reasonable to the person carrying out the activity, may be perceived as wholly unreasonable by a neighbour because of the way it interferes with what the neighbours want to do on their land. The courts are left to conduct a balancing act. Only interference which is found by the court to be unreasonable can amount to a Private Nuisance. In considering whether or not the interference is reasonable, the courts will have regard to■ the extent of the harm;■ the nature of the use interfered with.The extent of the harm is judged on the basis of the impact on the claimant. This is judged subjectively. Street gives a good example. A defendant who plays a trumpet very loudly objectively causes a nuisance to a neighbour. It will not be perceived subjectively as a nuisance by a neighbour who is deaf and who is therefore unlikely to hear the noise.The use to which the claimant puts their land is often also relevant to whether he has suffered a nuisance.It will be seen later that the social utility of the defendant’s use of land is only relevant to the remedy which may be awarded.CASE EXAMPLE
Smith v Giddy [1904] 2 KB 448The defendant was liable in nuisance for the branches of trees on his property which overhung the claimant’s land. While this would normally have been an unactionable blockage of light, the fact that the claimant ran a fruit orchard and the interference meant that the fruit trees did not grow properly was decisive in the decision that the defendant was liable.9.3 The parties to an action in Private Nuisance
9.3.1 Who can sue?
Private Nuisance protects interests in and the enjoyment of land. In order to bring an action, the claimant must have a legal interest in the land. This will normally mean a right to exclusive possession by way of freehold or leasehold title. A licensee, for example a lodger or a member of the owner’s family, has no interest in land and cannot therefore bring an action.
eBook - ePub- Graham Stephenson(Author)
- 2012(Publication Date)
- Routledge-Cavendish(Publisher)
locus standi to sue for nuisance. What would she be suing for? Mr Brennan QC, who appeared for the [claimants], drew our attention to the rights conferred on a wife with no proprietary interest by the Matrimonial Homes Act 1983. The effect of these provisions is that a spouse may, by virtue of an order of the court upon a break up of the marriage, become entitled to exclusive possession of the home. If so, she will be entitled to sue for nuisance. Until then, her interest is analogous to a contingent reversion. It cannot be affected by a nuisance which merely damages the amenity of the property while she has no right to possession…It seems clear from the above that claims in Private Nuisance are very restricted in what can be recovered and by whom, emphasising that the tort is one concerning the enjoyment of land. Claims for personal injury are to be brought in negligence rather than nuisance. This is thought to prevent anomalies from arising we are told, but is it not anomalous that in this day and age that a spouse or partner (and other permanent members of a household) are held not to have a sufficient interest requiring protection from the nuisance action? What if the person with sufficient interest is temporarily away (for example, working abroad on a long term contract) from the home? Must his/her return be awaited before a nuisance action can be brought?Conduct covered
We shall see that nuisance is concerned with interferences of a physical nature which are indirect, whereas direct physical interferences would be within the scope of a trespass to land action. Nuisance, as we have already seen, however, encompasses more than just physical damage or inconvenience to property. It covers intangible interferences, which can and often are, serious interferences with the use and enjoyment of the claimant's own property. Into this category fall smells, noise, vibrations, for example. Establishing a sex shop or a brothel in a particular area might also be examples of intangible interference. Interference with a view or reception of television signals is not actionable, however.7 There is a tendency, as we shall see, for the law to take the physical interferences more seriously in most situations.Activity or conduct must be unreasonable
This is the crucial issue in any Private Nuisance action. Was the defendant's conduct or activity reasonable in relation to the claimant's use and enjoyment of his own land? There has to be give and take in regard to the use of land, but has the defendant gone beyond this?
eBook - ePubStatutory Nuisance and Residential Property
Environmental Health Problems in Housing
- Stephen Battersby, John Pointing(Authors)
- 2019(Publication Date)
- Routledge(Publisher)
neighbouring property, though this should not be interpreted as being restricted solely to adjoining property. This conception of Private Nuisance also applies to the nuisance limb of statutory nuisance. In both cases, there is a legal requirement for the problem causing a nuisance to originate on or emanate from one property and to cause harm on neighbouring property.4.04 The tort of Private Nuisance is a civil action giving rights to the owners of property to protection from activities carried out on neigh-bouring property. Besides harmful activities, it may be the condition or state of the property that causes a nuisance to neighbours. A civil action in Private Nuisance would usually be taken in order to obtain an injunction to prevent it from continuing or recurring. It may also include an application for damages: compensation for loss or damage that resulted from the nuisance.4.05 Private Nuisance covers a wider range of interferences to neighbouring land than statutory nuisance. An encroachment onto a neigh-bour’s land by tree roots, causing damage to the foundations of a block of flats was found to be a Private Nuisance in Delaware Mansions .1 But this could not be a statutory nuisance because, firstly, this type of problem does not come within the scope of the statutory nuisances listed in s.79 EPA 1990. But there is also a conceptual reason which limits this problem only to a Private Nuisance action. For a nuisance to come within the scope of statutory nuisance, the harm suffered must interfere with “personal comfort” or be “offensive to the senses” of those occupying or visiting the neighbouring property.2
eBook - PDF- John Lowry, Rod Edmunds, John Lowry, Rod Edmunds(Authors)
- 2000(Publication Date)
- Hart Publishing(Publisher)
Obviously, evidence that an annoy-ance is one which induces the land occupier to go out when it is happening is strong evidence that the annoyance constitutes a nuisance. 12 30 J. E. Penner 8 E.g., R.A. Epstein, “Nuisance Law: Corrective Justice and its Utilitarian Constraints” (1979) 8 J of Leg. Stud. 49; T.W. Merrill, “Trespass, Nuisance, and the Costs of Determining Property Rights” (1985) 14 J of Leg. Stud. 13. 9 E.g., Laws v. Florinplace [1981] 1 All ER 659. 10 On the historical relation between disseisin and nuisance, see J.R. Spencer, “Public Nuisance–A Critical Examination” (1989) 48 CLJ 55 at 56–7. 11 See Laws, supra n.9. 12 See, e.g., Tetley v. Chitty [1986] 1 All ER 663; Kennaway v. Thompson [1981] QB 88; Miller v. Jackson [1977] 3 All ER 338 (CA). From this perspective, the best way of framing the basic moral question which the law of nuisance poses is this: what kinds of interference with an owner in his use and enjoyment of his land influencing him to leave the property and move elsewhere are so serious or material in this dispossessory respect that he ought to be able to enjoin them? Framing the question in this way shows why the action is typically regarded as nebulous and difficult to theorise in a satisfying way. All kinds of influences by one’s neighbours may give one reason to pack up and move, and clearly not all of them can be actionable nuisances. Which ones can be regarded as so unreasonable as to be unlawful, i.e. actionable? The answer given by the modern law was essentially established in the nine-teenth century. 13 The issue of the reasonableness of the defendant’s user of his land was the central issue in what is still, it is submitted, the leading case on this matter, Bamford v. Turnley . 14 The case was preceded by four years by Hole v.
eBook - PDF- Donal Nolan, Andrew Robertson(Authors)
- 2011(Publication Date)
- Hart Publishing(Publisher)
In most instances of the second type a defence of plaintiff’s having moved to the nuisance will not be neces-sary, since the effects of the defendant’s activity on the plaintiff’s use and enjoyment of his or her land would not be considered significant by a person of ordinary sensitivity in the locality: Dobbs, above n 7, at 1327–28; Klar, above n 13, at 729. 97 Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc 114 So 2d 357 (Fla Ct App 1959), certiorari denied 117 So 2d 842 (Fla 1960). 98 In Prah v Maretti 321 NW 2d 182 (Wis 1982), decided during the glory days of the environmental movement, the Court (over a vigorous dissent), supposedly applying the Second Restatement ’s definition of a Private Nuisance, but ignoring its ‘non-trespassory inva-sion ’ requirement, reversed a summary judgment for the defendant and remanded to allow the plaintiff to try to prove that the defendant’s building of a house that allegedly inter-fered with solar collectors on the plaintiff’s house on an adjacent lot in a new sub-division constituted an ‘unreasonable’ interference. On remand, the defendant’s house was moved at the plaintiff’s expense. However, it was not a good location for solar energy. The plaintiff’s solar collectors did not work and were abandoned. Private Nuisance Law: A Window on Substantive Justice 513 the Supreme Court of Illinois and the German Bundesgerichtshof in cases in which the plaintiffs sought to hold the owners of buildings liable for interfering, by the mere presence of the building, with the transmission of television and radio signals. 99 Interference with the transmission of television signals by the construc-tion of a building was also at issue in Hunter v Canary Wharf Ltd , 100 in which the House of Lords reached the same result as the Bundesgerichts-hof and the Supreme Court of Illinois on very similar grounds.
eBook - PDF- Jonathan Morgan(Author)
- 2022(Publication Date)
- Hart Publishing(Publisher)
Why not in nuisance? The impact can be severe, as in Rogers v Elliot. There is no pros- pect of the interference being reciprocal (thus no ‘mutual in-kind compensa- tion’); by definition, these are cases involving unusual sensitivity. Private Nuisance AND PROPERTY RIGHTS 297 206 Quotation (n 102). 207 Epstein (n 193) 89. 208 Keating (n 187). 209 Cour d’appel, Riom, 7 September 1995. 210 Keating (n 187). Epstein argues that ‘utilitarian constraints’ on rights mean that the idiosyn- cratic owner ultimately has to give way to locally prevailing uses of land, or the general objective standard of ordinary robustness (‘plain living’). That is, the overall interests of society may prevail in a sufficiently clear case. It seems evident that if one residential occupier could close down all the factories in a generally industrial locality, society as a whole would be seriously impover- ished. (Epstein here has support from dicta in the leading case of St Helen’s v Tipping.) 206 While rights deserve special protection and ‘do not rise and fall with each new refinement in economic theory’, Epstein accepts that the law does not (and should not) take seriously the idea that they must be upheld even though ‘the heavens fall’ (Fiat justitia, ruat cælum). For example in cases of deviation from prevailing patterns of land-use the law holds that ‘utilitarian constraints are sufficiently powerful to dominate’. 207 Keating, however, disagrees that the various rules of objective reasonable- ness are ‘utilitarian’. They are not constraints on individual rights imposed when the social costs of protecting them become excessive. Again, Keating’s view is that objective balancing derives from the law’s concern with reconcil- ing individuals’ competing rights. The problem nuisance law confronts is not a bilateral one (concerning only the two litigating parties) but omnilateral. What one does on one’s land interferes with everyone else’s (and is also interfered with by everyone else).
eBook - ePubCompensating Landowners in the Vicinity of Airports
A Comparative Study of the Neighbour Conflict
- Magdalena Habdas(Author)
- 2023(Publication Date)
- Routledge(Publisher)
288286 L. Aynès, ‘Property law’, in G.A. Berman, E. Picard (eds), Introduction to French Law, Wolters Kluwer: Alphen aan den Rijn, 2008, 155.287 Knetsch (2021), 107.288 Bloch (2022), nos. 74–75.Interestingly, the fact that the concept of nuisance is derived from property law should not be confused with the basis of the action for neighbourhood disturbances. As mentioned in Section 1.2 above, the doctrine of neighbourhood disturbances is a particular combination of Article 544 FCC (definition of ownership) and Article 1240 FCC and 1241 FCC regulating general liability for tortious acts. Although it could have been argued that using one’s property in a manner that excessively disturbs the neighbour is in itself a form of fault, which would open up the possibility to apply tortious liability provisions without having to assess fault beyond ascertaining that the disturbances are abnormal,289 French courts ultimately settled on a different solution. Addressing the violation of another’s real property right through excessive disturbances has been achieved through the introduction of an autonomous liability regime that is linked to extra-contractual (tortious) liability and not property law as such.290 Despite the link to extra-contractual liability, strict as opposed to the typical, fault-based liability has been employed; however, the limitation period of the action remains the one that applies to tortious liability.291 According to Article 2224 FCC this is only 5 years,292
eBook - PDF- Rachael Mulheron(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
139 [2014] UKSC 13, [74]. 140 See pp 856–57. 141 [2012] EWCA Civ 312, [36]. 866 Private Nuisance continuous, intense, or hard to escape from. It is a fact-specific enquiry. Some cases may use-fully be contrasted on this factor. In the following cases, an actionable nuisance was proven: 142 In Barr v Biffa Waste Services Ltd , facts previously, the introduction of ‘pre-treated’ tipping by Biffa caused unpleasant smells on a fairly constant basis for five years (but always worse when the wind was blowing from a certain direction), until the site was filled up and the pre-treated waste area moved away from the estate. In Ruth v Jones , 143 Mr Ruth, D, carried out renovation and extension works to his houses at no. 103 (adding an extension and a third storey) for four years, which caused Ms Lovegrove and Ms Jones, living at no. 105, to suffer from excessive and persistent noise, dust, pollution, and vibration. It also caused cracking in the walls of C’s premises and affected Cs’ privacy because of scaffolding erected for long periods, and D ‘deliberately disregarded’ Cs’ peaceable enjoyment by allowing noisy building works at the weekend, and permitting the builders to play radios loudly and to use heavy machinery with no warnings to C. However, no actionable nuisance occurred in the following cases, notwithstanding that there was, undoubtedly, some interference of frequent occurrence: In Hirose Electrical UK Ltd v Peak Ingredients Ltd , 144 facts previously, the evidence as to the frequency, intensity, and effect of the odours reaching C’s premises was not sufficient. The discomfort caused on an industrial estate, where persons concerned work on weekdays in the daytime, was not as great as would be caused to residential neighbours who simply could not have escaped from it.
eBook - PDF- Francis McManus(Author)
- 2019(Publication Date)
- Edinburgh University Press(Publisher)
3 STATUTORY NUISANCE INTRODUCTION In the last chapter we looked at how a private individual can invoke the common law to secure redress against the defender whose conduct unreasonably interferes with the former’s enjoyment of land. However, the common law has its limitations. For one thing, to raise an action in nuisance is expensive. We have also seen, in Hunter v Canary Wharf Ltd ([1997] Env LR 488), that the pursuer requires a proprietary interest in the land that is affected by the conduct of the defender, in order to raise an action in nuisance. In this chapter we look at the subject of statutory nuisance which, as we have seen (p. 3, above), has its origins in the mid-nineteenth century. Currently, the law relating to statutory nuisance is found in ss. 79–82 of the EPA 1990, to which we now turn our attention. STATUTORY NUISANCES Section 79(1) of the EPA designates a variety of adverse environmental circumstances as a nuisance. We now look at each in turn. Premises Under s. 79(1)(a) ‘any premises in such a state as to be prejudicial to health or a nuisance’ rank as a statutory nuisance and, therefore, fall to be dealt with in terms of the EPA. The subsection comprises two quite separate limbs, namely: (a) premises that are prejudicial to health; and (b) premises that are a nuisance. Therefore, in order to rank as a statutory nuisance the relevant premises must either be prejudicial to health or a nuisance, or both. ‘Prejudicial to health’ In order for premises to be prejudicial to health, in terms of the EPA, the physical state of the premises must be prejudicial to health, in contrast to the use to which the premises are put (see, e.g., R v Parlby (1889) 22 QBD 520). Furthermore, it is not sufficient that 22 SCOTTISH ENVIRONMENTAL LAW ESSENTIALS the relevant state of affairs simply interferes with human comfort. Rather, the premises must affect human health: Salford City Council v McNally [1976] AC 379.
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