Summary of this section
The claimant must be able to demonstrate a ‘proprietary interest’, or a right of exclusive occupation in the land affected – the absent owner – a ‘robust’ standard of tolerance – hypersensitivity.
A critical first step in identifying whether or not there is a claim in nuisance is to ensure that the claimant has a ‘sufficient interest’ in the land affected.
The second important consideration is to ensure that the claimant has a suitably tolerant and robust approach towards the defendant’s conduct. The claimant must not be ‘hypersensitive’. Hypersensitivity is an issue which is relevant mainly in claims of ‘intangible interferences’ (known in these pages as the ‘Plagues of Egypt’).
If these two thresholds are not met, then a claim in private nuisance will not be maintainable.
A sufficient (proprietary) interest
A claimant should be able to demonstrate a ‘proprietary interest’ in the property affected by way of exclusive possession, or by a right of exclusive occupation (Hunter, 1997, Butcher Robinson & Staples, 1999). This is because private nuisance affects the enjoyment of land and interests in land. It has been said, at the highest judicial level, that an “action in private nuisance will only lie at the suit of a person who has a right to the land affected” (Hunter, 1997).
Because the right to complain of a nuisance is ultimately a consequence of exclusive possession (Thornhill, 2009), a “tolerated trespasser” has sufficient interest to be able to sustain an action (Pemberton, 2000).
In some circumstances (where formal proof is impossible), a court is prepared to infer the existence of a proprietary interest. De facto possession is sufficient (Foster, 1906). A weekly tenancy will be enough to give a claimant the right to sue (Jones, 1875), but a licence to occupy is unlikely to be enough (Hunter, 1997).
In Crown River Cruises Ltd (1996) this necessary pre-condition was satisfied in the case of the claimant’s barge which was secured to a private mooring fixed in the bed of a river. This also meant that the claim in nuisance extended to the claimant’s pleasure craft moored alongside the barge. Both the barge and the craft were destroyed by a fire following a firework display.
A consequence of the fact that a claimant must have proprietary right (or at least a right of exclusive occupation), in respect of the property affected, is that there can only be one claim per property. There are no personal rights attaching to those who happen to live in the property. A husband and wife, for instance, do not have their own separate claims in the case of odour, or any other such emissions, which may affect the enjoyment of their home. The possibility of making a claim as an occupant under the Human Rights Act cannot be excluded, but payment of damages to the person with a proprietary interest is likely to constitute just satisfaction, making such a claim unlikely (Dobson, 2007).
The absent owner
In principle, a person whose reversionary interest is likely to be damaged is also entitled to take proceedings in nuisance (Colwell, 1904 and Wood, 1914). The ‘reversion’ is the interest which will revert back to the owner once a lesser interest has come to an end.
If a property has been let to a tenant, for instance, the absent owner can still bring proceedings if there may be permanent damage to the property. If a tenant is threatening to leave because of a nuisance, then the reversioner (the owner) may also take proceedings in order to bring the nuisance to an end.
The court will expect the tenant who is in occupation to be added to the proceedings, either as claimant or defendant (depending on whether or not the tenant is willing to be added as a party).
It has famously and repeatedly been said that a nuisance can only be deemed such “according to plain and sober and simple notions among the English people” (see Walter, 1851). This is still good law in the context of ‘intangible’ interferences. A reasonable tolerance must be expected in the case of the behaviour of our neighbours.
Where there has been actual physical damage to property, on the other hand, then it will be difficult ever to say that the claimant’s complaint is trivial or that the claimant is being hypersensitive. A defendant must take a claimant as he finds it. It has been held, for instance, that a claim in nuisance is sustainable in respect of an old building constructed according to the less robust principles which prevailed at the date of its original construction (Hoare, 1921).
Caution is needed in the case-law. The old authority generally relied on to demonstrate, in the context of sensible personal discomfort, that a claimant must not be hypersensitive, is the case of Robinson (1889). This was never very satisfactory, since Robinson was a landlord and tenant case about an implied covenant of quiet enjoyment and derogation from grant. It concerned the effect on the brown paper stored by the claimant tenant after the defendant decided to make more use of its boiler in the cellar. The heat dried out the paper, which the claimant sold by weight. This was, factually, a claim about the effect on goods. There was no evidence that there was an impact on the property or its occupants. It was also clear that the damage was not foreseeable. The case was treated, however, by the judges as a case about nuisance, supporting the subsequent contention that there is no claim in nuisance in respect of an unusually delicate trade.
Network Rail (2004) was a case about the effect of electrical waves from the defendant’s railway track on sound recordings made at the claimant’s sound studio. Network Rail apparently holds Robinson to have been wrongly decided. But, as to this, it would be a very odd result if Robinson were ever to be interpreted on the basis that someone who is unduly sensitive could complain about interferences with the use and enjoyment of land which any reasonable occupier should be expected to tolerate. Network Rail should be interpreted, as should Robinson, as a case about actual physical damage. Neither case was one in which tenants or occupiers complained that the enjoyment of their properties had been sensibly diminished.
It follows that the true legal position remains unchanged. Someone complaining about interference with their enjoyment arising from noise, dust, etc, must still be reasonably robust (see the over-sensitive author in Emms (1973)). Someone who sustains actual physical damage, on the other hand, is entitled to make a complaint in nuisance even if the property in question responds to physical damage because it is unusually sensitive.
It has been said that a “fleeting and inconvenient” interference cannot constitute a nuisance (Benjamin, 1874). At the same time, a single trumpet blast has also been said to constitute a nuisance.
In short, whether or not something constitutes a nuisance is entirely a matter of fact and degree.