Nuisance Claims

Overview

If another person’s action does prevent you from enjoying and using your property, this may be classified as a nuisance. There are two types of common law nuisance: private and public.

Private Nuisance

A private nuisance is usually 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, and a claimant can take civil proceedings against a defendant for damages to compensate them for their loss and/or injunctive relief to abate a continuing nuisance and prevent its recurrence. Examples include:

• allowing a tangible thing to encroach upon their neighbour’s land, for instance, tree roots
• causing physical damage to their neighbour’s land or building or vegetation
• creating dust, smoke, smells, noise etc and thus interfering with their neighbour’s right to have quiet and comfortable enjoyment of their land
• interference with the enjoyment of an easement, profit or right relating to the neighbour’s land

If you experience damage or interference with your land, consideration must be given to the unifying principle of reasonableness with neighbours, known as the “give and take principle”. However, if the damage or interference is more than a bit of give and take, the nuisance must be:

• Must be substantial or unreasonable.
• Can arise from a single incident or a “state of affairs”.
• It can be caused by inaction or omission as well as by some positive activity.

The nuisance must affect land that the claimant has a direct and proprietary or possessory interest in. If so, the nuisance is actionable in tort enabling the claimant to begin civil proceedings against the defendant for either or both:

• Damages to compensate for their loss.
• Injunctive relief to require the defendant to abate a continuing nuisance and to prevent its recurrence.

There is a general duty of care owed by a landowner to their neighbour. They must do what is reasonable in the circumstances to prevent the nuisance and this incorporates the foreseeability of the nuisance.

Public 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.

The statutory nuisance regime, strict enforcement procedures and other legislation provide a quicker and more streamlined process than public nuisance prosecutions. As these alternatives become more abundant, then a claim for public nuisance will become more difficult to prosecute.

However, things to consider regarding public nuisance in comparison to private nuisance. First the claimant does not have to own or have a proprietary interest in the affected land. Second, as well as claiming damages to property rights, a claimant can also claim for personal injury.

If initial discussions with a neighbour does not produce the desired results, it may be necessary to proceed with legal action. We frequently guide our clients on the solutions available from the court, including injunctions. An injunction is a legal order that can be either prohibitory or mandatory.

We can discuss alternative dispute resolution methods, which include round table discussions and mediation. We try to resolve cases using these methods thereby avoiding the potential expenses of court proceedings. If you are experiencing problems with a neighbour, please call Mann Roberts and let us help you.