THE LAW OF PRIVATE NUISANCE

Summary of this section (updated August 2025)

Private nuisance in outline – an ‘unreasonable interference with the use and enjoyment of land’ – common principles (relevant by reference to the Claimant and the Defendant) – common defences – public nuisance and statutory nuisance distinguished – determining what is ‘reasonable’ means striking a balance – classification into four overriding sets of principles to determine how the balance is struck – nuisance is ‘protean’

Introduction

‘Private Nuisance’ is a branch of the law which provides remedies where there has been a significant detriment to the use or enjoyment of a person’s land.  “Nuisance is a tort against land, including interests in land such as easements” (Hunter, 1997).  See Fearn (2020): a private nuisance is a “violation of property rights”.

A typical summary of the tort is from Jalla (2023): “The tort of private nuisance is committed where the defendant’s activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant’s land”.

Most people will probably associate private nuisance with ‘intangible’ interferences, i.e. those nuisances (in a colloquial rather than sense) which affect personal discomfort, such as noise, dust or odours.  However, it is also applicable where a person has brought about some hazard causing material (‘tangible’) damage, for instance, contamination by hydrocarbons, cracking caused by pile-driving, or pollution of the air, streams or the water supply.  Flood and fire damage are also types of physical damage which can be pursued in private nuisance proceedings.  Private nuisance is very wide in its scope.

There has been a lot of interest in private nuisance by the courts in recent years,  including a number of Supreme Court cases. These give an idea as to the divergent issues covered. They include Delaware Mansions (2001) (tree root subsidence), Marcic (2003) (sewage surcharging), Transco plc (2003) (water flooding from a fractured pipe), Lawrence (2014) (noise from speedway racing), Fearn (2023) (‘overlooking’ from the Tate Gallery viewing platform), Jalla (2023) (oil spill at sea reaching land), Davies (2024) (encroachment of Japanese knotweed)  and The Manchester Ship Canal Co. Ltd. (No.2) (2024) (sewage pollution).

Various phrases are regularly used to describe an actionable nuisance.  (An ‘actionable’ nuisance is a nuisance which has the ingredients necessary to be the object of legal proceedings.)  It has been said, for instance, that a nuisance has been said to be “undue”, “unreasonable” or “unlawful” interference with the use and enjoyment of land.

The lack of clarity in what constitutes a private nuisance is generally recognised by the higher courts. See for instance Sedleigh-Denfield v. O’Callaghan (1940) p.903: “It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.

Recognition has been given to the nature and extent of the balance which a court must strike, a balance which seeks, so far as possible, to maintain the right of one occupier to do what he likes with his own property, and the right of his neighbour not to be interfered with. In the 21st century, especially where land is cramped (and valuable), it is acknowledged that neighbouring landowners shuld be able to build whatever they like on their land, even if this is novel and unusual (see Hunter, 1997, Fearn, 2024 and Cooper, 2025).

Certain rules or principles are common to all types of private nuisance, and these are contained on separate pages of this website.  Most significantly, they concern who can sue (The Claimant) and who can be sued (The Defendant).  Most importantly, a claimant should have a ‘proprietary interest’ in the land affected.  Without a proprietary interest, a claimant is unlikely to be able to make a claim at all.  There are also some defences brought about by the intervention of statute which are common in all cases of private nuisance.  These too are considered in a separate section (Defences).

When it comes to the core question as to the balance to be struck between neighbouring land-use, it is important to be able to establish which of one of four categories of nuisance applies. This categorisation typically depends on the nature of the damage and on whether or not the landowner caused it.  Each of the four categories makes use of, or emphasises, different principles in order to assist in the assessment as to what is a ‘reasonable’ as opposed to an ‘unreasonable’ use of land. They are summarised in more detail at the end of this introduction, and each has its own dedicated areas on this site.  See further below.

Two particular factual topics have been heavily litigated, namely Flooding and Water Damage, and Tree Root Subsidence.  The principles as they have been applied in those two topics are considered separately in additional sections of this website.  This is purely for the sake of the convenience of those practitioners who are interested in these types of litigation.

Determining what is ‘reasonable’ – striking the balance

The key demand of the law of private nuisance, then, is to identify where the balance should be struck between neighbouring owners or users of land.  A starting-point is “what is reasonable according to the ordinary usages of mankind living in a particular society”.

Private nuisance has been described as “protean”, which should perhaps be explained.  Proetus was the shape-shifting son of Poseidon: one minute he might turn into a lion, but next, he might be a tree, water or anything else.  Nuisance, like Proteus, is always changing shape and complexion according to general legal developments and societal change (see Sedleigh-Denfield above). 

However, certain common themes can be identified across the categories of the tort. In Arscott (2004), Laws LJ stated that: “I think it possible to discern in the cases certain overlapping themes. … If, albeit broadly, a landowner will not be liable in nuisance for the consequences of what would be recognised as a natural use of his land by him, unless the quality or extent of that use was unreasonable, still if he pursues a non-natural use, then generally no appeal to reasonableness will help him.”  In other words where the use of land does not have special dangers, then the court will assess whether the defendant behaved reasonably, or with reasonable consideration for the defendant’s neighbour.  But the less ‘natural’ the use was, then the less likely that a plea to ‘reasonableness will be successful.

In this context, the role of the court is first to identify the rules relevant to the alleged nuisance.  Then it can determine the standard of ‘reasonableness’ to apply.  It helps to identify which set of principles apply, and there is a good argument that there are four. Accordingly, this website refers to four categories of nuisance, particularised below.

In establishing this categorisation, much depends on the type of damage.  If there is structural damage to property, then the law is unlikely to be sympathetic to a plea that a defendant has acted reasonably (since the land use will probably have entailed special danger).  Much also depends on whether or not a landowner has actually brought about the problem.  For instance, a landowner may have caused a flood by damming a river.  Such deliberate and dangerous conduct, unsurprisingly, is likely to be treated on the basis that the landowner has not acted reasonably.  Such cases are treated here as ‘category 1″.  It is a ‘strict liability’ form of the tort since it is unneccessary to identify a duty of care.

In the case of ‘intangible’ interferences (or what is sometimes described in these pages as ‘Plagues of Egypt’), such as noise, odour, dust and so on, the underlying themes are applied rather differently and it can be said that a distinct set of rules has been developed.  Liability, however, is also strict, in the sense that no duty of care need be established.  The balance whether or not a defendant has acted unreasonably in these circumstances is struck by reference to different principles which apply where there has been property damage. These include such considerations as the degree of interference and the nature and character of the area.  The concept of the “ordinary” use of land has become recently become prominent in this area (see Fearn, 2023).

Returning to the case of physical damage, historically, it was not possible to recover compensation where a state of affairs giving rise to a nuisance was brought about by a trespasser (i.e. where it was not in fact caused by the landowner of the site of the problem).  An example is a drainpipe badly laid on a field by a trespasser to take flood water away from the trespasser’s own land.  Where flood water has accumulated on that field, but the field is owned by the landowner where the trespass has taken place), then that landowner previously had no duty to deal with the problem in order to stop further flooding elsewhere. As a result of the ground-breaking case of Sedleigh-Denfield (1940), however, if the landowner can be said to have ‘adopted’ (made use of) or ‘continued’ (not abated) the cause of the flooding, then an action for compensation is permissible.  This principle has more recently been extended to ‘natural’ nuisances which cause property damage, for instance the effects of tree roots, and it has been extended to other ‘hazards’ such as spontaneous combustion from a coal heap (Anthony, 2005).  

Because the landowner has not actually caused the problem in these type of cases, then less will be expected of it (than if it had, for instance if it had dammed a river). The landowner will be dealing with a problem caused by someone else, or even with a consequence of the natural environment.  In these cases liability is not strict and it is said that the landowner is subject to a ‘measured’ duty of care, under category 3.

Category 4 is very rare and is dealt with below. It is restricted to overhanging eaves and similar items. 

Four categories of private nuisance

When it comes to the critical question how and where to draw the line between competing land uses, it is easiest today (as has been said above), to understand nuisance as a loosely connected system which can conveniently be organised into four sets of principles.  By the application of these principles, which reflect underlying themes in different ways, it is possible to understand how the courts will strike a balance as to what is, and what is not, an ‘unreasonable’ use of land:

• Category I – property damage where liability is strict (in the sense that it is not necessary to show a duty of care).
• Category 2 – ‘Plagues of Egypt’, being ‘intangible interferences’ with the use and enjoyment of land (or cases of ‘sensible personal discomfort’) such as noise, odours, dust, etc. Liability is strict (in the sense that it is not necessary to show a duty of care).
• Category 3 – property damage and the ‘measured duty of care’.
• Category 4 – encroachment.

This suggested division does not give rise to the risk, recently identified in Williams (2019), that the law of private nuisance should be too rigidly categorised since to do so might not easily accommodate new social conditions.  The proposed grouping here is modelled on interpretations in common use today and provides a ready identification of the core principles. 

In all categories of private nuisance it is necessary to demonstrate that the type of damage was ‘foreseeable’ (Cambridge Water, 1994).  Until Nicholas (2025), the courts were not much concerned with ‘foreseeability’ in category 2 cases, if at all.

In all categories, once the assertion of a private nuisance has been made out, the burden shifts to the defendant to identify some justification for its conduct.  

More detail about each of the four categories is provided below, together with links to the relevant sections of this website.

Property damage where liability is strict (category 1)

Nuisance in its first form encompasses property damage caused by another occupier of land.  For instance, this might be damage caused by vibrations (e.g. from pile-driving), by explosions (e.g. from volatised bitumen or fireworks) or by sewage or flooding (e.g. from drains or across made ground). In all of these cases the defendant itself will generally have brought about some physical state of affairs which gives rise to the nuisance.  Examples are a mound of earth through which rainwater can percolate, generating machinery which causes instability in the ground or certain instances of river pollution.  In these cases, the land-use tends be dangerous or unusual in character.  The unusual nature of the activity calls for extra steps to be taken to ensure that neighbouring property is not damaged.  It is unsurprising, therefore, that liability is strict (in the sense that no duty of care needs to be identified).  A landowner engages in such an activity at its peril.  The damage about which a complaint is made must have been the foreseeable consequence of the landowner’s acts.  It is for the defendant to find a defence to its actions.

There is a related principle, known as the rule in Ryylands v. Fletcher, which is now seen as a species of this category of private nuisance.  It applies specifically where exceptionally dangerous items or material are collected (such as fireworks) and damage is caused by some escape of emissions from those items. 

See the section Direct Property Damage in the drop-down menu under Private Nuisance.

‘Plagues of Egypt’ – noise, odours, dust etc. (category 2)

The law of nuisance as considered by this second set of rules extends to cases of inconvenience from ‘intangibles’ such as odour, noise, smoke and dust. These principles were developed during the time of the industrial revolution.  They “mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort” (St Helen’s Smelting Company, 1865). 

These rules were applied, or consolidated, as a result of increased demands on the environment by way of building, manufacturing, steam trains, etc.  In these cases the balancing principle is one of reciprocity.  “The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live” (Bamford,1862).  The relevant principles are also applied in the case of easements.  A statutory nuisance system which reflects these cases has also been made available under legislation.

Arguably, the case of Fearn (2023), the Tate Gallery viewing platform case, represents a significant change in the law, certainly in the way in which has been developed in the case of Nicholas (2025).  

See the section ‘Plagues of Egypt’ in the drop-down menu under Private Nuisance.

Property damage and the ‘measured duty of care’ (category 3)

Nuisance in its third form is governed by a ‘measured duty of care’, which constitutes a clear overlap with the tort of negligence.  It has only been recognised as a form of nuisance since about 1940 when society came to expect that a person should be held to account not just for the consequences of their acts but also for their omissions (their failures to act).  Circumstances constituting a nuisance of this type were first recognised by reason of the acts of trespassers.  For instance, a trespasser might have placed the end of a badly covered drain on someone else’s land.  If it is not attended to by the landowner, then it might get blocked and cause flooding to a neighbour.  Alternatively, some natural event might have been the cause of damage.  Examples are fires caused by lightning, or subsidence from encroaching tree roots. 

This category of nuisance has also come to provide remedies where what was not previously a hazard has become one over the course of time.  An example is a highway drain which can no longer cope with the volume of water because of a new housing development (although this is a complicated topic which requires caution).

In other words, if some hazard on a person’s land has become a threat to a neighbour, then the landowner is expected to do something about it.  If not, and some property damage is the result, then the landowner may end up being liable. 

In recognition of the fact that the defendant will not have brought about the problem, the duty to take care is a ‘measured’ duty.  That means that in balancing what should reasonably be done, the court will have an eye to the resources available both to the defendant and to the claimant.  In some circumstances the defendant may be very short of resources, but the claimant may be well-resourced.  In those circumstances, the court might think it only reasonable that the claimant, rather than the defendant, should have been the one to have taken steps to abate the nuisance.

The development of this third type of private nuisance (category 3) has given nuisance something of a new life.  At the same time, it has sometimes been suggested that it has diluted the weight to be attached to property damage claims where liability is strict (category 1).  It has also led to calls for the law of private nuisance to be revoked in favour of the law of negligence.  That would be unfortunate.  Claimants properly benefit from strict liability rules where a defendant has brought an unusually dangerous thing on to its land.

See the section The ‘Leakey’ Duty in the drop-down menu under Private Nuisance.

Encroachment (category 4)

A conventional categorisation of private nuisance makes provision for damage by “encroachment”.  This is only appropriate in rare circumstances.  The anomalous case of eaves which cause water to drip on to neighbouring land constitutes an encroachment and a nuisance.  Tree roots are also a form of encroachment, but these are cases which are dealt with today according to the ‘measured duty of care’ (category 3). There is no unifying principle dealing with encroachments.  They are cases of strict liability.  These are also claims of antiquity (like category 1 claims).  They are dealt with on this site as a fourth category only because the principles are rarely used.

See the very short section Encroachment in the drop-down menu under Private Nuisance.