In a legal sense, nuisance is a branch of tort law which, broadly speaking, allows an owner of land to seek either an injunction or damages against a person or entity that is unreasonably interfering with their use and enjoyment of it. That interference can take the form of:
- Noise;
- Smells;
- Vibrations; and/or
- Any other act which can disturb a prospective claimant, including both physical encroachment and/or injury to a person’s land.
To be actionable, however, it must be sufficiently serious to satisfy the legal test which is set out below. Whereas nuisance can be categorised as both “public” and “private”, this note will focus on the latter category.
Private nuisance defined
In Lawrence and another v Fen Tigers Ltd and others [2014], Lord Neuberger explained that:
“A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant’s reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant’s enjoyment of his land.”
The case of Network Rail Infrastructure Ltd v Williams & Waistell [2018] allowed the Court of Appeal to carry out a detailed review of the law of nuisance. Their conclusion was that there are five central principles that apply to a claim for nuisance:
- A private nuisance is a violation of a property right in land.
- The traditional categories of nuisance are merely examples of violations of property rights in land.
- It is not entirely correct to say that damage is always an essential requirement.
- Nuisance may be caused by inaction or omission as well as by some positive activity.
- The broad unifying principle is the reasonableness between neighbours.
Of course, what is reasonable to one person may be entirely unreasonable to another and, ultimately, the law seeks to strike a balance between neighbouring land uses to determine what is “reasonable” or not. A “reasonable” use is to be tolerated, whereas the law will intervene if the use is “unreasonable”. It is important to understand that context is everything. Indeed, in Sedleigh-Denfield v O’Callaghan [1940], Lord Wright said that:
“…a useful test is perhaps what is reasonable according to the ordinary usages of making a living in society, or more correctly in a particular society”.
The legal test for private nuisance
Generally speaking, for a claimant to be successful in an action for private nuisance they must demonstrate that:
- The damage or interference with the enjoyment of the land suffered must be substantial or unreasonable. For the purposes of this element, the Court will consider:
- The nature of the locality in determining whether an interference is substantial or unreasonable;
- The time and intensity of any alleged nuisance; and
- Any special hypersensitivity (if any) of the claimant;
- They have a direct proprietary interest in the land that has been affected by the nuisance; and
- Whilst the cause(s) of the nuisance may be physical (i.e. water ingress, overhanging trees or invasive tree roots etc) or intangible (i.e. noises, smells etc), they do need to be continuous or frequent.
Although a one-off event is less likely to amount to nuisance than one that is continuous or frequent, an exception to this is where “an” event causes physical damage to the claimant’s land. This in fact occurred in the case of Rylands v Fletcher [1868], where damage was caused to the claimant’s land after water escaped from the defendant’s land. The case went on to develop a tort in its own right.
Tejani v Fitzroy Place Residential Ltd [2022]
Case summary
The recent case of Tejani v Fitzroy Place Residential Ltd provides a good example of the above principles at work. Whereas the case covers nuisance, breach of contract, and breach of covenants, we will focus purely on the nuisance element.
Facts
Mr Tejani was the owner of a newly constructed apartment at Fitzroy Place in London, which he purchased “off plan” for £2,595,000.00 in July 2012. The development was completed in around May 2016 and Mr Tejani and his family then moved in. After a time, Mr Tejani brought a claim in nuisance against the defendant claiming that noises emanating from the façade of the apartment meant that he and his family were unable to sleep.
Mr Tejani claimed that the noises were intermittent and varied in volume, occurring mainly during daylight hours, with the frequency of occurrence significantly reduced between 11pm and 7am. The likely cause of the noises (referred to by the parties’ experts as “cracks, pops, bangs, creaks, ticks, taps” or “clicks, ticks, and bumps”) was a thermal movement of the façade components.
Mr Tejani’s claim failed and the case was dismissed.
Decision
The parties accepted that there needed to be something more than just a “trivial” disturbance to establish an action in nuisance. The parties focused on the extent, if any, to which the noises complained of would disturb an average person’s sleep. The Judge concluded that the noises were not such as to awaken the average person when sleeping in the apartment, let alone frequently. Would the noises otherwise materially interfere with the ordinary comfort of the average person living in the apartment? The Judge concluded that they would not and so could not be described as “substantial” or “unreasonable”.
Comment
The law of private nuisance can be complex, with many cases turning on their facts and the relationships between the parties. It is therefore imperative that proper legal advice is sought early in any contemplated action, not only to establish whether there is a claim available but, also, to set out the options available.
Early legal advice may also enable the parties to reach a negotiated settlement rather than becoming involved in costly litigation proceedings.
How can we help?
If you would like any legal advice concerning the subjects discussed in this article, please contact a member of our Property Disputes team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.
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