Summary of this section
The claimant must be able to demonstrate a ‘proprietary interest’, ‘sufficient interest”, or a right of exclusive occupation or of exclusive occupation in the land affected – the absent owner – a ‘robust’ standard of tolerance – being hypersensitive.
Introduction
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
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).
Hypersensitivity
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, 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). This was confirmed by the Supreme Court in Fearn (2024), save that Lord Leggatt JSC added: I would not wish to rule out the possibility that there could be extreme cases where the design or construction of a building is so unusual and far from anything that could actually be expected that it might do so”.
Caution is needed in the case-law. The old authority generally relied on to demonstrate, in the context of sensible personal discomfort (‘Plagues of Egypt’), 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.
Fearn (2024) was a case about interference with privacy, classified as a case about sensitive personal discomfort (i.e. similar to the effects of noise, dust, smoke, etc.). The Supreme Court held that the claimants (who were subject to ‘overviewing’ from the viewing platform of the Tate Gallery, London), should not be expected to have to take steps to protect themselves, so long as they were enjoying their land in a ‘common and ordinary’ way, which they were, since they were occupying their land as residential flats (albeit glass from floor to ceiling, a reasonably common design in the locality).
It follows that someone complaining about interference with their enjoyment of land arising from noise, dust, etc, must still be reasonably robust (see the over-sensitive author in Emms (1973)), but if they are using land in a ‘common and ordinary’ way’ then they are at an advantage when compared with the use by a defendant of his or her land. They hold what is in reality a trump card and will not be expected to take additional steps to protect themselves from the effects of a neighbouring land use. Further, someone who sustains actual physical damage, save for extreme cases, is entitled to make a complaint in nuisance even if the property in question responds to physical damage because it is unusually sensitive.
Temporary inconveniences
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, save that a claimant occupying land in a ‘common and ordinary way’ will be an advantage.