Tort Law: Private Nuisance

Private nuisance protects a person's use and enjoyment of their land. It is a substantial and unreasonable interference with that use or enjoyment, whether by noise, smells, vibrations or encroachment. The central question is always reasonableness, judged by a cluster of recognised factors.

1. The Reasonableness Factors

Locality

What counts as a nuisance in a quiet residential street may be acceptable in an industrial area. As the court memorably put it, what is reasonable depends on the character of the neighbourhood (Sturges v Bridgman).

Duration, frequency and sensitivity

A longer and more frequent interference is more likely to be a nuisance. A claimant cannot complain merely because their use of land is abnormally sensitive; the test is the effect on an ordinary occupier (Robinson v Kilvert).

Malice

Conduct done deliberately to annoy a neighbour is far more likely to be unreasonable. In Christie v Davey, banging on the wall in retaliation against a music teacher was an actionable nuisance precisely because it was malicious.

2. Physical Damage and Loss of Amenity

The locality factor matters for interference with amenity (comfort and enjoyment), but where the nuisance causes physical damage to property, the character of the neighbourhood is no defence.

3. Who Can Sue and Be Sued

Because nuisance protects rights in land, only a person with a proprietary interest in the affected land can sue.

The creator of the nuisance is liable, as is an occupier who adopts or continues it. The general rule is that one cannot complain of coming to the nuisance, though the grant of planning permission and the time a defendant has carried on the activity can be relevant (Coventry v Lawrence).

4. Defences and Remedies

Genuine defences include statutory authority and a prescriptive right acquired over 20 years. The usual remedies are an injunction to restrain the nuisance and damages, and the court retains a discretion to award damages in lieu of an injunction.

5. Worked Example

Interference: persistent late-night noise in a residential locality is a substantial and unreasonable interference (Sturges v Bridgman). Standing: the freeholder can sue, but the visiting child, lacking a proprietary interest, cannot (Hunter). Remedy: an injunction limiting the hours of amplified music, with damages for past disturbance.

Examiner Insights

Conclusion

Private nuisance turns on reasonableness in the round. Weigh locality, duration, sensitivity and malice, distinguish physical damage from loss of amenity, confirm the claimant's standing, and match the remedy to the harm.