4.1 Private Nuisance

4.1.1 The Definition, Character and Purpose of the Tort

1.  Defined as ‘continuous, unlawful and indirect interference with a person’s enjoyment of land or some right over, or in connection with it.’

2.  It only applies to an ‘indirect’ interference – direct is trespass.

3.  It concerns prevention more than compensation.

4.  It concerns the relationship between neighbours.

5.  There are three key elements to neighbourhood:

   continuity – involving a recurring state of affairs;

   people should be free to use their land as they wish, so long as it does not harm their neighbours;

   neighbours are subject to many trivial disputes, so there is a risk of the courts being flooded with claims.

6.  Only ‘unreasonable’ interference is a nuisance:

   so there is no protection against interference classed as reasonable;

   but if classed as unreasonable it is irrelevant whether it was reasonable for the defendant to engage in such behaviour.

7.  The test is: what conduct is sufficient to justify legal intervention?

8.  The court must strike a balance between conflicting interests and this now involves balancing the rights of the individual against that of the wider community even where violation of human rights (Article 8) is involved (Hatton v UK (2003); Dennis v MoD (2003); Marcic v Thames Water Utilities Limited (2003)).

4.1.2 Who can Sue in Nuisance

4.1.3 The Ingredients of the Tort

There are three key elements:

a)   unlawful use of land;

b)   indirect interference with land;

c)   indirect interference with the claimant’s use or enjoyment of his/her land.

The Unlawful (Unreasonable) Use of Land

1.  Interference alone is insufficient – it must be unlawful.

2.  Unlawful means unreasonable so, in balancing competing interests, the question is whether in all of the circumstances it is reasonable for the claimant to suffer the particular interference.

3.  In assessing the defendant’s conduct the court is analysing fault (so there must be foreseeable damage), but in a more flexible way than with negligence – so a defendant might be excused liability for not having the resources to avoid the nuisance (Solloway v Hampshire County Council (1981)), but see Hurst & another v Hampshire County Council (1997) CA.

4.  Many key factors are used to assess what is unreasonable.