THE LAW OF PRIVATE NUISANCE

Summary of this section

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).

Most people will probably associate private nuisance with ‘intangible’ interferences, i.e. those nuisances (in a colloquial 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.

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 is said, for instance, that a nuisance is an “unreasonable interference with the use and enjoyment of land”.  Historically, the following maxim has been applied: “sic utere tuo ut alienum non laedas”.  This can be translated as ‘you cannot enjoy your own property in a way that damages another’s’.  However, an unreasonable use from one person’s perspective is very likely to be entirely reasonable from that of the neighbour.  This is especially the case since, when taken on their own, the conflicting uses are likely to be lawful.

Ultimately, the law seeks to strike a balance between neighbouring land-uses in order to determine what is ‘reasonable’ and what is not.  A ‘reasonable’ use is to be tolerated, whereas the law will intervene if the use is ‘unreasonable’.  Context is everything.

Certain rules or principles are common to all types of private nuisance, and these are contained on separate pages of this website.  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 (treated separately below), it is critical to be able to establish which of one of four categories of nuisance applies.  This categorisation 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.

Private nuisance compared with public nuisance and statutory nuisance

Before proceeding further, it is worth asking: why ‘private’ nuisance?  How is a ‘private’ nuisance different from either a ‘public’ or a ‘statutory’ nuisance?

A private nuisance protects private property rights (such as my garage which has suffered crack damage, or my home which is subject to odours from a local landfill site).  It is always contested in the civil (rather than the criminal) courts.  It should be distinguished from a ‘public’ nuisance, which exists where there has been some injury to a wide number of people and not just to an individual or individuals.  A public nuisance is usually identified because of some impact on health.  But that is not always the case.  The relevant rules are very different from those applicable in the case of private nuisance.  A separate set of pages on this website considers the law of Public Nuisance.  Whether or not there has been a public nuisance is a matter for the civil courts.  However, they can also be dealt with as offences in the criminal courts.

A distinction should also be drawn between private nuisance and statutory nuisance.  ‘Statutory nuisances’ are certain specified private and public nuisances which are required to be dealt with in the magistrates’ courts.  Examples are noise nuisance, unhealthy housing, smoke and artificial lighting.  Usually, but by no means always, statutory nuisances are dealt with by local authorities.  They are subject to a simplified process (or so it is often described).  There is another part of this website which considers rules relating to Statutory Nuisance.  Magistrates deal with statutory nuisances sometimes in their civil, and sometimes in their criminal, jurisdiction.  Private nuisance offers a more robust and generally more effective set of rules in the civil courts, the drawback being the cost of the proceedings.

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 a son of Poseidon, who had developed the skill of changing form when he needed to do so.  One minute he might turn into a lion.  Next, he might be a tree, water or anything else.  Nuisance, like Proteus, is always changing shape and complexion according to time and circumstances.  The role of the court is first to locate and identify the rules relevant to the alleged nuisance.  Then it can determine whether the use of land is a ‘reasonable’ one.  Although it has been said that what is a nuisance depends on the usages of society, the courts tend to respond conservatively.

Much also 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.  Another factor is whether the defendant’s land-use is unusual and therefore dangerous.  If it is, then “generally no appeal to reasonableness will help” (Arscott, 2004).

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 damning a river.  Such deliberate and dangerous conduct, unsurprisingly, is likely to be treated on the basis that the landowner has not acted reasonably.  In such circumstances, liability is strict.

On the other hand, flood water may simply have accumulated on a landowner’s land.  The question then is whether or not the landowner has any duty to abate the problem.  If the landowner has not caused the problem, then less will be expected of it.  The landowner will be dealing with a problem caused by someone else, or even with a consequence of the natural environment.  An example of a ‘natural’ nuisance would be tree-roots growing from a person’s land which have caused subsidence.  A landowner in these circumstances may be under a duty to anticipate and to deal with the problem.  In these cases liability is not strict.  The landowner is subject to a ‘measured’ 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, an entirely separate set of rules has 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 principles which are different from those where there has been property damage.  These include such considerations as the degree of interference and the nature and character of the area.

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 different sets of principles.  By the application of these principles 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
• 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.
• 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 Court in Williams was concerned lest parties should adhere too closely to old-fashioned technical forms of pleading. The proposed grouping here is modelled on interpretations in common use today and provides a ready identification of the core principles.  As Sir Terence Etherton MR said in Williams, “although nuisance is sometimes broken down into different categories, these are merely examples of a violation of property rights as I have described them”.  As this introductory section of this website has emphasised, what it seeks to do is to identify those common elements of interferences with rights of property which are understood to constitute the law of private nuisance.  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 flooding (e.g. from drains or across made ground). In all of these cases the defendant itself will 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, or generating machinery which causes vibrations.  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.  Unsurprisingly, therefore, liability is strict.  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.

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 became necessary 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.

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’ in 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.

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 be end up being liable to pay compensation.  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’. 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.