Nuisance

Law of Nuisance

The law of private nuisance compensates for or prevents the unreasonable interference disturbance or annoyance of a person in his occupation of land. It protects the interest of the landowner and occupier in the quiet and peaceful enjoyment of the property. The law of public nuisance protects rights enjoyed by the public, such as the right to exercise a public right of way.

A person may be liable for nuisance without any proof of negligence. It may be easier to prove a claim for nuisance than for negligence.

Public Nuisance

A public nuisance is an interference with the rights of the public or a group of the public. It relates to the interference with rights held in common. For example, the blocking of a highway or interference with a public right of way may be a public nuisance. If a member of the public trips and falls on something that comprises a public nuisance, he may be entitled to seek compensation on the basis of both nuisance and negligence.

Generally, the Attorney General is the only person who can take legal action. Members of the public who are particularly affected may take legal action. Where a private person has suffered particular or so-called special damage or loss over and above that suffered by other members of the public, that person may take a legal action.

Public authorities may take action against nuisances under statutory powers, Over time, statutory bodies gained significant powers to prevent the use of land in such a way that causes damage or danger to the health or welfare of others. For example, public health laws entitle the local authorities to remove dangerous structures, force the clean up of derelict sites, require the removal of nuisance rubbish, or require sanitation etc

Public nuisance constitutes a serious interference with the convenience and comfort of the public or a segment of the public. A person who suffers special or particular damage, over and above that suffered by the public generally, may take an action for public nuisance.  This must be damage or loss in excess of that suffered by the community generally.  Apart from this, only the Attorney General may take action. Public nuisance is a crime at common law.

As with private nuisance, public nuisance is a civil wrong, which carries strict liability.  Once the nuisance is shown to have been caused by the defendant, he is liable. There are a limited number of defences only.

Public nuisance may provide a remedy for environmental damage.  In practice, the water pollution, air pollution and waste legislation, has provided more direct and effective legal action toe taken by private persons.  Similarly, planning legislation allows for private persons to apply to the court for an injunction to prohibit a breach of planning legislation.

Public nuisances may cover a wide range of circumstances; events and wrongs which cause unreasonable inconvenience and discomfort to the public.  As with private nuisance, it may be constituted in a wide variety of ways. For example, Smells, traffic congestion, noise, spillages, vibrations and blockages may constitute a nuisance

Commonly, a public nuisance involves interference with public rights such as the right to use the highway.  The classic public nuisance comprises obstruction of the highway.  This may include blockages of the road, digging holes. It may include permissible works, which block the public highway for longer than necessary.

Actions which block rivers and other public ways may constitute a public nuisance.

Public nuisance may be caused by things at or near the roadside. It may arise from things escaping and emanating from land. An encampment, allowing golf balls and cricket balls to escape onto the road, letting walls adjacent to the road fall into despair, failing to reinstate the road in a safe way, allowing a roadway to subside may constitute public nuisance.

A person responsible, for example, for acts on the public road may not escape liability by employing his contractors or employees.  If a person arranges for a roadway adjoining his property or otherwise could be dug up, he is responsible for its reinstatement.  The fact that his independent contractors have failed to perform their contract is not a defence.

Injunctions and Abatement

A nuisance can generally be restrained by an injunction. This is a court order to prohibit prevent the nuisance. For example in the case of noise and noxious smells,  compensation would not adequate to remedy the wrong. Therefore a permanent injunction may be available, following the hearing of the dispute.

An Injunction is a court order directing a person to do or refrain from doing a particular act. Courts have flexibility and discretion in granting injunctions. Injunctions may require an act to be performed. More commonly, they require the cessation of a particular act or omission.

It is possible to obtain a temporary injunction in a short form application at the beginning of or in the course of a legal claim. This is for the purpose of maintaining the position until the full hearing. These types of pre-hearing injunctions are common and may be effective in providing a rapid solution to.

With nuisance, a person may be entitled to take action without a court order in order to abate the nuisance. This is a self-help solution. The law does not generally permit self-help. In nuisance cases, abatement may be allowed in an emergency situation, where there is no other alternative.

Private Nuisance

Private nuisance is a civil action which the owner or occupier of land may take to compensate for or prevent the unreasonable interference with his rights in the enjoyment of land. There must be an unreasonable interference with another person in the quiet enjoyment of its properties, Nuisance covers anything that discommodes or injuriously affects the senses.

Nuisance may include physical interference such as by fire, flooding, escaping pests and animals etc and other intrusions. It also covers less tangible interference such as noise, smells, pollution and offensive behaviour.

Nuisance law does not require that a person must never suffer some interference with his enjoyment of land. Liability for nuisance will only apply where the interference is unreasonable, in the circumstances. For example, it is reasonable that an adjoining owner may build from time to time or take other action which may interfere with an adjoining owner’s enjoyment of land.

A person can be liable in nuisance by reason of the condition of the property. If, for example, if a person allows gas to accumulate on his land and escape or allows trees to overgrow, he can be liable for nuisance, even though the interference did not happen as a result of a direct human action.

Liability for nuisance is strict (without fault) when it results from an act. Frequently, the nuisance will exist through want of care. However, a nuisance may occur without fault, in which event the owner or controller of the property will be responsible.

If it results from an omission then the person will not be liable unless he failed to exercise reasonable care. For example, if damage arises from an unseen defect in a tree which suddenly falls, the owner may not be liable, if for example he has inspected the tree regularly, taken due care and did not know of the defect.

Balancing Rights

In the law of nuisance, the courts seek to strike a balance between the competing needs and interests of the neighbours in the use and enjoyment of land. The courts consider the standards of a reasonable person and the standards of behaviour, which are generally accepted amongst ordinary people in society.

Where are the defendant’s conduct is socially useful, a greater amount of interference may be allowed than it the conduct has not useful purpose If the defendant’s actions are gratuitous, for sport, or unnecessary, then it is more likely to be categorised as unreasonable.

It may be necessary and reasonable, for example, for a person to undertake building works from time to time, notwithstanding that it may interfere with his neighbour. However, although this may generally be reasonable, he must act reasonably in the manner in which works are undertaken. If he was to decide to build at night so as to interfere with his neighbours’ sleep, etc, it is likely that an injunction would issue to limit the building works and noise to certain daytime hours.

What might be acceptable in one neighbourhood or location would not be acceptable in an another A public house or nightclub in the city centre would be likely to be tolerated. However, it would be much less be less likely to be tolerated in a suburban residential area. This is apart from the planning law aspects of such matter. In either case, the courts may restrict the hours of operation, so as to accommodate the reasonable requirements of neighbours.

Protects Occupier of Land

Nuisance protects occupiers of land. This may include owners, tenants and licensees. It also extends to certain occupiers such as family members.  It would not protect somebody who was merely on the land temporarily or as a visitor.

A legal action for nuisance may be taken against whoever authorised the nuisance or failed to take reasonable steps to abate or reduce it. Both a tenant and landlord may be sued where the nuisance arises from circumstances for which both may have responsibility. The nuisance may the landlord’s responsibility, in so far as it relates to circumstances existing at the time of the letting or lease and the tenant’s responsibility, in so far as he has failed to abate it.

Defences to Nuisance

A number of the defences that apply to other civil wrongs such as negligence, also apply nuisance. There are other defences  to a nuisance action.

There a person is acting under a statutory authority, such as a state body or a private contractor acting on its behalf, this may immunise what would otherwise be a nuisance.  The principle applies to actions which are the inevitable consequence of what they are authorised to do is. For example, a contractor undertaking road works would not, for this reason alone, be liable to be sued for nuisance If however, the nuisance arises from negligence or failure to use a proper method, this defence will not apply.

Public authorities and private bodies may be empowered by law to undertake repair and development work.  For example, Councils have broad obligations to maintain public facilities.    Statutory bodies may have authority, such as laying of pipes, wire, conduits for services and other infrastructure.  Where the activity is permitted expressly or by necessary implication, by the enabling legislation, then there is a defence to an action for nuisance.

A person may be deemed to have consented to a nuisance by failing to challenge it within a reasonable time of becoming aware of it. In the case of certain private nuisances, use for more than 20 / 12 years (depending on the whether pre-2009 land law reforms apply) may create an easement in favour of the person who has created or is causing the nuisance. That easement may permit that which would otherwise constitute nuisance. Some nuisances only are capable of being enjoyed as an easement.

Prescription refers to the acquisition of a right by long use. Where a particular action has been undertaken openly for 20/12  years ), it may legalise what would otherwise be a nuisance. The conduct or activity must occur openly with the notice to the persons affected. .An easement must be exercised openly with the knowledge of the person affected, but without consent.  Generally, 20 years of continuous use is required.  The 2009 land law reforms require registration of most easements in order to establish them definitively.

Contributory negligence of the part of the claimant will arise in some case. relevant.  Prospectively, the amount of compensation which they may receive may be reduced or eliminated depending on the respective degrees of fault.

Unless an easement may be established, it appears that no right to undertake a nuisance is established by long use. It is not a defence to an action for nuisance that the claimant came to the nuisance.  Short of where an easement is established in the above circumstances, the passage of time does not create  a defence.

Nuisance law looks to the reasonable or average person, in considering whether the claimant has been unreasonably affected in the use and enjoyment of his land. Where a person has an undue sensitivity to noise or other nuisance, he is not entitled to any greater protection than a  person of ordinary sensitivity.

The cumulative effect of several different persons’ actions, may be such as to cause a nuisance.  Each might not suffice to constitute a nuisance by itself.  It may do so in combination with other activities.  If two parties have created or are maintaining a nuisance, then they may be concurrently liable to the claimant. They may claim contribution amongst themselves under the Civil Liability Act.

Strict Liability for Escape of Dangerous Things

There is a separate principle of liability for the escape of things form land. Liability is strict. Proof of negligence is not required. This is known as the rule in Rylands v Fletcher.

The damage must be caused by dangerous risky non-natural accumulations on land. Generally, if a person creates or allows something on land which would be dangerous to adjoining owners, if it escaped, then he will generally be liable for the consequences if it escapes and causes damage to adjoining owners.

The rule reflects the principle that if a person brings onto and collects on land, something which would do damage if it escapes, he must keep it at his risk. The presumption is they the person is liable for all the natural consequences of an escape.

The principle only applies where the lands is used in some unusual or so-called “non- natural” way. There are different views on what constitutes a natural or non-natural use of the land. Dangers which arise from nature are natural. Persons accumulating gas explosive substances, poisonous materials, fumes, oil are clearly a non-natural use. Some other uses may not be so easy to categorise.

What is non-natural use depends on the time and circumstances. The mere keeping of dangerous materials will not necessarily be non- natural. The principle would only apply where the use was excessively large or unreasonable. The possibility of escape need not be foreseen. The possibility that it may cause injury and must be foreseen.

The rule may apply where land is left in a dangerous state by activities such as where rocks are left by reason of clearance by explosions .led

The must escape from the property which is re under the defendant’s control and occupation to a place outside his control and cause damage.

As with nuisance, it is possible to claim damages or an injunction to restrain actual or feared damage.

Defences

There are limited defences to this strict liability. They include the following

• Where the cause of the damage is a third party’s intervention.
• Where the matter arises from an unforeseeable event was such as an act of God
• statutory authority and
• the consent of the claimant.