Private nuisance: What does there need to be to establish a claim?

Private nuisance concerns an unreasonable interference with someone’s use or enjoyment of their land. Naturally, people can behave how they choose on their own land, however, if this affects an adjoining owner, the offending action can be prevented or reduced.

Who can claim in private nuisance?

Anyone with a legal interest in the land, an owner or tenant, whose use or enjoyment of the land has been affected by a neighbouring interference, can make a claim in private nuisance. This means that family members without proprietary rights cannot sue. Nuisance laws protect the land itself, not individuals who happen to occupy it.

What is an interference?

An interference is an indirect and unreasonable act, omission, or situation on a defendant’s property that substantially disturbs a neighbour’s use, comfort, or enjoyment of their own land. The types of interference are:

• Interference with use and enjoyment of land, including noise, dust, or smoke
• Physical damage to property, such as flooding or vibrations causing structural harm
• Encroachment – the act of gradually or unlawfully intruding upon another person’s property, which includes overhanging branches, projecting structures, or depositing materials on neighbouring land

However, it was confirmed by the Supreme Court in Fearn v Board of Trustees of the Tate Gallery 2023, where overlooking a neighbouring property was deemed a nuisance, that what can form a nuisance is not limited to these categories.

How do you determine whether an act is unreasonable?

Whether an interference is unreasonable depends on the duration of the act, character of the local area, particular sensitivity of a claimant, whether there is malicious intent, and whether the action provides a social benefit.

Duration of the act and time it occurs?

An unreasonable interference will likely occur at unreasonable hours of the day or night, defined as 11:00pm to 7:00am by The Noise Act 1996, and will be continuous. This timeframe is legally targeted because this window interferes with core sleep requirements, causing a negative impact on health, well-being, and a person’s ability to live normally in their own home. A one-off interference is unlikely to constitute a successful nuisance claim, because neighbours are expected to tolerate minor, temporary inconveniences as a normal part of living in a community. However, an interference being temporary will not necessarily block a claim.

This could include:

• Noise, such as loud music
• Odours, including chemical fumes
• Construction noise

Character of the local area?

Whether an activity is an interference depends on the nature of an area, and whether it could be reasonably expected for this activity to occur. This could include whether the area is purely residential, industrial, is situated in the town or country, or has changed in character over time. Activities generally tolerated in industrial zones may be deemed nuisances in quiet rural or residential areas.

Abnormal/ unusual activity of a claimant?

If a neighbouring action only causes an interference because of a claimant’s unusual use of their property, the claim will be likely to fail. However, if the activity causes physical damage to land or property, this rule on sensitivity will not be considered.

Examples of sensitivity are:

• Exceptional health conditions, such as Hyperacusis and recurring migraines
• Requirement for silence when working at home
• Unusual sleep schedules for night-shift workers

Was the act committed with malicious intent?

An act that is deliberately harmful will likely be an unreasonable interference and considered a nuisance. This is because establishing unreasonableness usually requires balancing the competing interests of the utility of the defendant’s conduct against the severity of the harm or disturbance caused to the claimant. If an act is done purely to harm or vex another person, it inherently possesses zero social, economic, or personal justification.

Examples of malicious acts include:

• Spiteful noise creation, such as banging on pipes and trays
• Deliberate interference with business, such as firing guns near livestock to interfere with breeding patterns
• Retaliatory obstruction of views, sunlight, or access, such as building high walls or fences

Did the act provide a public benefit?

If the act appears to provide a benefit to the community, the action may be considered reasonable and not constitute a nuisance.

Instances where an act may provide a public benefit are for:

• Military and national security, such as low-flying RAF pilot training
• Essential public transport, including railway operations and noise
• Environmental protection, for example wind turbines, and waste management

Conclusion

Ultimately, if you are an owner or tenant of land and an outside interference, that is substantial and unreasonable, affects your use or enjoyment of this land, then it would be possible to make a claim in nuisance.

by Amelia Taunton a student at Barton Peveril College