A key feature of a claim in nuisance is that it is not necessary to prove that the respondent ’s behaviour was deliberate or even negligent. Once the action itself constitutes a nuisance and is an unreasonable interference with the claimant’s land, this of itself creates liability. In effect, the fault lies in the nuisance itself.
Where a tree over-hangs a boundary and damage arises from a hidden fault which is not reasonably discoverable, then there is no liability for nuisance. The degree of vigilance required, depends on the circumstances, including the extent of the risk, which may depend on the nature of the location. Trees overhanging the boundary in an agricultural area require a lesser standard of vigilance than trees overhanging a boundary in a populated suburban setting.
Circumstances and environment may change over time and impose a greater care. Therefore, liability has been imposed for damage caused to vehicles of a height, which would not have used the adjoining highway roadway, in an earlier period.
Unlike the position in trespass, a case in nuisance requires proof of damage (loss). The damage may be physical interference or damage to land, interference with easements or interference with the enjoyment of land. For example, the intrusion of roots or branches, does not create an automatic right to damages. However, if there is a prospect of damage or risk, the adjoining owner may take pre-emptive action or seek an injunction in anticipation of damage.
Relationship with Other Claims
Claims may be made both based on negligence and nuisance simultaneously. The same facts may justify both claims. The advantage of a claim in nuisance for the claimant is that it is not necessary to show that the defendant owed his and has breached a duty of care.
A nuisance may be contrasted with trespass. Trespass involves a direct and immediate incursion into land. Nuisance involves a state of affairs, which may, but does not necessarily involve an element of physical intrusion. Nuisance is wider than trespass and may involve smells, noises, a gradual intrusion of root and many other phenomena.
A nuisance may involve intrusion physical injury to land, but it primarily protects against interference with the use and the enjoyment of land, whether or not there is any intrusion of noise, smell et cetera. It may be caused by such matters as the intrusion of dust, water, noise, toxic substances, smoke, sewage, obstruction and heat
The intrusion of roots and branches may constitute a nuisance. Although trespass law covers intrusions over the boundary, which are the inevitable result of something being left at the boundary, the intrusion of roots and branches is regarded as too slow and indirect to constitute trespass.
Liability for nuisance does not generally extend to personal injuries. Its purpose primarily is to compensate for and prevent interference with the enjoyment of land. However, in principle, where such interference leads to personal injury, for example, in the case of noxious fumes, compensation for personal injury is available.
What may be acceptable in one area may not be acceptable in another area. In an apartment complex, neighbours will be expected to have a greater tolerance for noise and disturbance, due to the practical limitations imposed by the proximity of owners. In the cases of houses with gardens, a lesser degree of disturbance and noise will be reasonable and acceptable.
Nuisance recognises that an area may change over time. An area at the edge of a city at one time may be gradually urbanised and developed. Owners may be obliged to accept a higher degree of noise, activity and disturbance, from surrounding properties, necessitated by the greater density.
Activities which are acceptable in a commercial area, may not be acceptable in a residential area. Within an industrial estate, activities involving considerable noise, fumes, dirt and other emissions may be deemed acceptable. In contrast, the commencement of such an activity in a residential area is unlikely to be permissible under the law of nuisance.
In modern times, the law of nuisance has been supplement by planning law which regulates and restricts the use of land. Areas are zoned in accordance with Development Plans and local area plans. They may allow for commercial, residential, other and mixed uses, in particular, defined parts of the local authority area. Modern development plans are sophisticated and may provide forward detailed indication on what is or is not acceptable.
Balancing of Interests
The courts may grant an injunction in order to limit activities which constitute a nuisance. Nuisance itself involves a balancing of thee the social use and necessity of the defendant’s conduct against claimant’s enjoyment of property. A similar balancing is always involved in the granting of an injunction. An injunction may limit works to normal workdays and working hours. It may limit the intensity of the user where, requiring, for example, certain activities are undertaken within defined limits.
Where an activity has become established in an area, the continuance of the same activity with the same level of intensity is unlikely to constitute a nuisance. However, where the activity is increased significantly in scale or intensity from its former level, there may be an actionable nuisance. Where a shop commences trading on a 24-hour basis in a residential area, then apart from planning law consideration, the intensification of use may constitute a nuisance.
The utility of the conduct and the intention of the defendant is relevant, in balancing the interests of the parties. Where an activity is of little social use, it is less likely to justify an increase of noise, inconvenience and other adverse effects, on adjoining owners. Similarly, where a neighbour deliberately set out to annoy his neighbour, then it may constitute a nuisance, even if the same activity might be justifiable and not be a nuisance, is it was for a socially useful purpose.
Nuisance generally relates to an activity or to a continuing activity or state of affairs. A one off event will not constitute a nuisance in itself. However, a state of affairs may lead to a one-off event and act of damage, in which event, it may constitute a nuisance.
The occupier of land including persons with no interest in it, such as the family members of the owner, may sue for nuisance. At common law, the claimant had to have some interest, such as a tenancy in the land.
Some cases limit liability to owners, licensees, and tenants. These cases have taken the view that family members should properly be compensated under the law of negligence, if at all, so that nuisance should be limited toa diminution of the amenity value of the land.
The Irish courts have appeared willing to take a more flexible approach. They appear to be willing to extend a claim to compensation for nuisance to occupiers who have been affected, but who have no proprietary interest in the property.
An action for nuisance may be taken against the person who has created the nuisance. The occupier of land will generally be responsible and legally liable for the nuisance. This will generally be a person in possession and control of land in the vicinity of that of the claimant.
A landlord is not liable unless he is authorised the creation or continuation of the nuisance. Nuisance may pre-exist the letting, in which event the landlord may continue to be liable.
A person will be liable for the actions of his employees, agents and contractor, for example, a building contractor. He will be responsible for the actions of his invitees and guests. The occupier may be liable for a nuisance caused by other parties, unless having become aware of the nuisance, he fails to remove it or actually adopts it.
What is required of an occupier in these circumstances will depend on his what is reasonable to expect. If an occupier has a significant infringing use thrust on him, without his consent or fraud, the steps required will depend on his means and resources.
Occupiers of land may be liable for nuisance arising from boundary features. The cases show two trends, one in favour of imposing strict liability and one on imposing a more fault based liability.
The owner property owes its duty to prevent damage caused by falling trees and boundary features. The extent of the duty will depend on the circumstances. Greater care will be required in an urban setting, than in a rural area.
The Supreme Court has expressed contrary views regarding the extent of liability for nuisance in relation to the highway outside of the respondent’s property. One view taken is that by dedicating such property as part of the highway, the adjoining owner ceases to be responsible for it.
Under another view, the occupier may be liable for nuisance on the adjoining, including that created by a stranger. He must know of the danger and he must fail to take reasonable steps to avoid it. Even on this view, his obligations may be no higher under nuisance law than under negligence.