What happens if someone unlawfully interferes with someone's use or enjoyment of land?
What are the options?
Dispute Resolution Solicitor Rupert Knell outlines everything you need to know in this article…
What is Private Nuisance?
‘Private nuisance is a violation of real property rights. It involves substantial interference with the claimant’s ordinary enjoyment of their land, often by noise or smell, or by encroachment or actual physical damage to their property.’ – Lexis Nexis – Private nuisance – general principles.
Nuisance is a civil wrong against land and only someone with a legitimate legal interest in the land can make a claim.
It doesn’t matter if the person who is causing a nuisance to the land knows that they are doing so.
It has to be a significant and unreasonable interference with someone’s land that leads to reasonably foreseeable damage.
The damage may be against the land; the property or; if the damage causes personal discomfort to the claimant.
What three things will a claimant have to prove for private nuisance?
To bring a claim of nuisance, the potential claimant must show that there has been:
- An indirect interference with the land such as noise, vibrations, and smells;
- That the indirect interference caused damage, which can be evidenced; and
- That the indirect interference was unreasonable. When deciding what constitutes as ‘unreasonable,’ factors such as the character of the neighbourhood, duration and frequency of the interference will be taken into account.
What are the defences to private nuisance?
There are several defences to a nuisance claim including:
- If they have statutory authority for the interference
- Which is not the same as having planning permission for the interference!
- If the nuisance arises from the acts of a stranger.
- Although if the defendant knowingly or negligently allows the stranger’s actions then they may still be liable.
- If the interference has existed for 20+ years continuously and the claimant has taken no previous action against it; or
- If the defendant has taken all reasonable steps to avoid causing a nuisance.
- This can be difficult to prove as the liability for nuisance is strict.
What is a non-natural use of land?
In the past we have seen cases arise where a non-natural use of land has taken place. This is where a potential defendant:
- brings a substance onto their land and accumulates it
- the substances will likely cause mischief if it escapes
- there was a non-natural use of the land involving increased risk to others
- the substance escapes from the land
- it causes damage which is reasonably foreseeable
For example, in the case of Rylands v Fletcher, Rylands build a reservoir on his own land, which caused the water to leak into an old mine shaft. The mine shaft ended up flooding Fletcher’s coal mine next door.
In this case the court found that Rylands had bought something dangerous onto his land which had then caused damage, meaning he had to pay for the damage it caused
What are the remedies for private nuisance?
A claimant may seek an injunction to prevent the nuisance from continuing. However, if the nuisance is trivial or unpreventable, then the claimant may be awarded damages instead.
Any damages awarded are done on a compensatory basis for the actual damage to the land, the loss of amenity value of the land (to reflect any diminution in value), or any damage to the claimant’s chattels on the land. Any damages must be reasonably foreseeable to be awarded.
A claimant may also seek an order for abatement where, upon sufficient notice being given, a claimant can enter the defendants land and take reasonable steps to stop the nuisance from occurring.
Specialist Dispute Resolution Solicitors
At Frettens, we understand that everyone’s circumstances are different.
Our bright & experienced Dispute Resolution team would be happy to talk to you to gain a better understanding of your situation and provide more tailored advice and support.
We offer a free chat for all new clients. You can call us on 01202 499255 or fill out the form at the top of this page to get in touch.
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