A private nuisance is usually caused by a person doing something on his own land, which he is lawfully entitled to do, but which becomes a nuisance when the consequences of his act extend to the land of his neighbour by, for example, causing physical damage. A private nuisance is actionable and a claimant can take civil proceedings against a defendant for:
- damages to compensate him for his loss; and/or
- injunctive relief to abate a continuing nuisance and prevent its recurrence.
A public nuisance arises from an act that endangers the life, health, property, morals or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all. A public nuisance is actionable in tort and can also be a criminal offence.
When a claimant takes common law nuisance proceedings, the civil court undertakes a balancing exercise, weighing up the factors in each case, with an overarching principle of reasonableness. These factors include:
- Time of occurrence.
- Whether it is a malicious act or a reasonable use of land by the defendant.
The following principles apply:
- The fact that a defendant may have planning permission for the activity causing the nuisance is not a defence to a common law nuisance claim. Neither is the defendant’s compliance with its environmental permit, of itself, a defence.
- A one-off event is unlikely to amount to a nuisance.
- The court will assess the nuisance according to the effect on a reasonable, rather than a hypersensitive, claimant.
Remedies for common law nuisance
Common law nuisance provides the remedies of interim and/or final injunctions, which require the defendant to cease the nuisance, together with damages (compensation) for the claimant’s loss of enjoyment of their property rights. However, in some circumstances, damages may be awarded in lieu of an injunction.
Statutory nuisance provides the alternative remedy of an abatement notice, which if breached incurs a criminal sanction. Enforcement for non-compliance under other environmental regimes also include criminal sanctions
What is a statutory nuisance?
The 11 categories of statutory nuisance
The statutory nuisance regime is set out in Part III the Environmental Protection Act 1990 (EPA 1990).
Section 79(1)(a) – (h) of the EPA 1990 lists the following categories of matters which can amount to a statutory nuisance:
- Physical state of any premises (“premises” in section 79(1) includes land and most vessels.)
- Smoke from premises.
- Fumes or gases (from private dwellings).
- Dust, steam, smell or other effluvia from industrial, trade or business premises.
- Any accumulation or deposit.
- Keeping of animals.
- Insects from industrial, trade and business premises.
- Artificial light from premises.
- Noise from premises (including vibration).
- Noise from a vehicle, machinery or equipment in the street.
- Any other matter declared by any enactment to be a statutory nuisance.