Private nuisance is a civil matter, referred to as a tort, against land and is the unlawful interference with a person’s use or enjoyment of land or of some right over or in connection with that land.
To establish a claim under English law certain elements must be satisfied:-
- Interference – there must be a substantial and unreasonable interference with the claimant’s use or enjoyment of their land or property. This interference can manifest in various forms, such as noise, vibrations, odors, pollution, or encroachments onto the claimant’s land.
- Unreasonableness: The interference must be unreasonable, meaning that it exceeds what a reasonable person would tolerate in similar circumstances. Factors considered in determining reasonableness include the severity of the interference, its duration, and the sensitivity of the claimant.
- Foreseeability: under English law, the foreseeability of the interference is crucial in assessing liability for private nuisance. The defendant must have reasonably foreseen that their actions would cause a nuisance to the claimant.
Some common examples of private nuisance are flooding from a neighbour’s property, encroachment by tree branches or roots, scaffolding being erected on land without consent and fencing issues.
A recent case involving The Tate Modern concerned with whether the gallery’s viewing platform (the top floor of the Blavatnik Building) constituted a nuisance to its neighbouring flat owners whose walls are mainly made of glass. The Supreme Court overturned the High Court’s 2019 decision which had been that it was NOT an actionable nuisance.
The Supreme Court found that the flat owners should not have to take remedial action (such as lowering their blinds as was put forward by the Court of Appeal) to deal with the nuisance experienced and thus it is an actionable claim in nuisance
(Fearn and others (Appellants_ v Board of Trustees of the Tate Gallery (Respondent)([2020]GWCA Civ 104) further information can be found here Fearn and others (Appellants) v Board of Trustees of the Tate Gallery (Respondent) – The Supreme Court
The Court stated that regard must be had to the duration and intensity and that ‘a degree of overlooking is to be expected’.
Before embarking on a costly claim for private nuisance, all the circumstances should be fully considered and attempts to resolve the issue made through formal or informal discussions and mediation.
For any advice related to private nuisance or any issues regarding property disputes do not hesitate to contact me on caroline.knowles-ley@cognitivelaw.co.uk or call on 01243 943203.
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