There two types of common law nuisance:
  • 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.
  • A private nuisance usually is caused by a person doing something on their own land, which they are lawfully entitled to do but which becomes a nuisance when the consequences of their act extend to the land of their neighbour by, for example, causing physical damage. A private nuisance is actionable in tort.
The statutory nuisance regime is set out in Part III of the Environmental Protection Act 1990, which sets out 11 specific categories of nuisance for which a local authority will serve and enforce an abatement notice to prevent and abate the statutory nuisances.

Private Nuisance

Private nuisance is an interference with a plaintiff’s use or enjoyment of his property. To make a claim for private nuisance, the plaintiff has the burden to show three elements:

1)    A plaintiff has a possessory interest in the land;

2)    A defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property; and

3)    That the defendant’s interference with the plaintiff’s use or enjoyment of land was substantial and unreasonable.[3]

            In the analysis, the most debated element is the third, defining what a substantial and unreasonable interference with the use of land is. The law treats these two categories separately. A substantial interference is one that would be offensive, inconvenient, or annoying to a reasonable person. The court will look at factors like whether there is financial loss, whether there has been any physical change in the property, and if the harm is continuous and ongoing.[4] However, courts have also made it clear this is a low standard. Cases involving nauseating fumes from an oil refinery,[5] an overly large and intentionally obstructing fence between properties,[6]  and a loud air conditioning unit,[7] have all been found to be substantial interference amounting to nuisance.

Neighborliness Standard

In addition to being substantial, the interference must also be unreasonable. Two approaches have been developed by courts to determine whether activity is unreasonable. Under the neighborliness standard, the court determines if an activity is unreasonable based on the character of the community where the action takes place and the suitability of the activity to that neighborhood.  This standard comes from a case in which a group of farmers sued the owners of a nearby coal burning electric plant because the sulfur from the plant damaged the farmers’ crops. The court observed that because the sulfur-emitting plant was near farmland, it would inevitably cause substantial harm to the ordinary use of these properties. The court held that burning coal is not a suitable activity so close to farm country and it would not be reasonable to allow the farmers to suffer the harms without compensation.[8]

Usefulness Standard

A modern approach to nuisance rejects the idea that reasonableness should be determined solely based on the character of the neighborhood and the nature of the harm. Instead, this approach starts from the assumption that to determine what is reasonable or unreasonable under nuisance law, the courts must ask questions about the usefulness of the activity in question. This approach recognizes that certain activities which are important and useful for society, such as producing energy, do have negative consequences for some portion of the population. In a deeply industrialized and densely populated society, such conflicts are unavoidable. Allowing for potential liability in all cases where the use of property is impacted, without considering social utility, would severely hamper economic activity.

Like the neighborliness standard, this approach considers the suitability of the conduct to the local character of the community. In addition to this consideration, it will also consider the social value of the activity in question and the practicality of avoiding the harms which the activity causes.[9]

To understand how this works, let’s return to the case of the farmers and the coal plant. Under the neighborliness standard, once the farmers had shown that the harm was significant, and the plant didn’t comport with the agricultural character of the area, that was sufficient to find that the plant was a nuisance. Under the more modern approach, the court would consider facts such as the number of homes in the area, the coal plant powers and whether there are alternative sources of energy. It would also consider whether there are practical ways for the plant to prevent the sulfur from damaging the nearby crops without hindering its efficient operation. If the gravity of the harm outweighs the utility of the conduct, then the activity in question is unreasonable. So, if the power plant we have been discussing powers a relatively small power grid, but produces emissions that destroy many tons of important local produce, the courts may determine that the plant’s operation is unreasonable under the circumstances.[10] On the other hand, if it is determined that the value of the plant to society is greater than the harm to the farmers’ crops, then emitting the sulfur will not be considered a nuisance.

Even when the usefulness of the harmful activity to society at large outweighs the potential injury to the plaintiff, that does not mean the plaintiff is not entitled to compensation. Courts will assess how much it would cost the creator of the harm to compensate the landowner for the loss of use of his or her land. If the financial burden of compensation would not prevent the socially useful activity from continuing, the courts may hold the creator of the nuisance liable for compensatory damages.[11] This is not because the defendant’s conduct is considered wrong or unlawful, but because the plaintiff should not have to bear the burden of that cost.

            It is important to remember that the legal analysis will involve broader societal questions beyond the harm to a specific property and the loss of use suffered by the owner. The legal analysis will deliberate the social value of the activity in question and the economic consequences of assigning liability under the circumstances of the case.

            Private nuisance is a mechanism by which the law holds people accountable for interference with real property that does not rise to the level of trespass. In another presentation, we look at public nuisance and nuisance defenses and remedies.