Private Nuisance

• Private Nuisance


  Behaviour that interferes with the neighbours' ability to use their land and is considered unreasonable
• Legal definition of nuisance

  An unlawful interference with a person's use or enjoyment of land or some right over it, or in connection with it
• Nuisance can be indirect (e.g. smells, noise, smoke) or direct (e.g. tree roots encroaching)
• Who can claim nuisance

  • Anyone who has use or enjoyment of the land, and is affected by the interference, may claim
  • The claimant must have an interest in the land, such as being an owner or tenant
• What cannot be protected by nuisance

  • A right to a view
  • A right to light
  • TV reception
• The courts may protect against offensive behaviour that affects the character of the area or property prices
• Factors of reasonableness


  • Duration
  • Social benefit
  • Malice
  • Sensitivity
  • Locality
• Adopting a nuisance


  When the occupier fails to deal with a problem, even if it was caused by a previous owner or trespasser
• A defendant can be liable for a nuisance caused by natural causes they are aware of but fail to deal with
• Prescriptive right


  If the action has been carried on for at least 20 years with no claimant, the defendant has a right to continue
• The "moving to the nuisance" defence does not amount to a valid defence
• Statutory authority


  When the defendant's activities are regulated by law, this can be a defence to a nuisance claim
• Volenti


  A defence if the claimant has taken active steps to encourage the creation of the nuisance
• Remedies for nuisance


  • Injunction
  • Abatement
  • Damages
• Factors for awarding damages instead of an injunction

  • The injury to the claimant's rights is small
  • The claimant can be compensated by a small amount of money
  • It would be unfair on the defendant to grant an injunction
• The Supreme Court has said an injunction could be the default order in a nuisance claim, and it is open to the defendant to argue damages would be a suitable alternative