Private Nuisance

Most people have an idea as to what constitutes a private nuisance. They do not need a law degree to know it when they see it. However, in order for someone’s conduct to constitute a private nuisance that is actionable in law, there are certain legal requirements that must be satisfied.

In General

In its most basic form, private nuisance is an unreasonable interference with someone’s use and enjoyment of his or her own land. The nuisance must originate outside the complainant’s property, but need not be constituted by an actual physical invasion of the land. The most familiar types of private nuisance include noise, vibrations, noxious odours, air or water pollution and roots of trees encroaching on the complainant’s property. With the technological advances of more recent times, new types of private nuisance have arisen and been deemed actionable, including interference with television signal reception and persistent abuse of the telephone system.

As in many other areas of law, the law of nuisance involves the reconciliation of conflicting rights – the right to undisturbed use and enjoyment of one’s land on the one hand, measured against the right to freedom of action on the other. The courts have reconciled this conflict by allowing claims only where the offending party’s actions cause inconvenience to the complainant beyond that which other occupiers in the area can be expected to bear, having regard to the prevailing standard and the character of the neighbourhood. In addition, the social utility of the offending party’s conduct must be weighed against the significance of the injury to the complainant.

Prevailing Standards and Character of Neighbourhood

Where the nuisance has caused actual material damage to the complainant’s premises, the tort of nuisance is established regardless of the nature of the character of the neighborhood. However, where no actual damage is done and personal discomfort is the only issue, the character of the neighborhood becomes more relevant. Individuals living in a particular area must be prepared to accept a certain amount of discomfort or inconvenience unless it exceeds that to be expected given the nature of the locality. For instance, someone operating a business in a commercial locality will normally be required to put up with a greater intrusion on his or her sensibilities than someone living in a residential area. Having said this, the character of the locality is not determinative. It is but one of the factors to be considered in determining, in all of the circumstances, whether an activity constitutes an actionable nuisance.

In determining whether an interference is unreasonable, the courts will not, by and large, take into consideration the particular sensitivity of the complainant. Rather, the courts will consider the effect the offending party’s activity would have on normal persons of ordinary habits and sensibilities in the particular area. For instance, it has been held that the owner of a cedar mill that produced fine cedar dust which blew onto the complainant’s premises was not liable for damages to the complainant who happened to be asthmatic to wood dust.

Utility of the Offending Party’s Conduct

Another factor to consider when determining the reasonableness of the interference is whether or not the offending party’s conduct has social utility. Where the complainant has suffered only minor inconvenience, the offending party’s conduct may be tolerated for its beneficial value to the community. For instance, it has been held that early morning milk deliveries, while bothersome, were necessary for the good of the community and not actionable. Having said this, it must be remembered that, in considering the social utility of the offending party’s actions, the court will be balancing it against the inconvenience to the complainant. It is certainly possible that someone may be liable even where the purpose of his or her conduct is the advancement of public safety or the provision of necessary services.

Even where an actionable nuisance is found to exist, the social utility of the offending party’s action may nevertheless be relevant to the remedy given. Often, injunctions are sought to stop the offending party from engaging in the conduct altogether. It has been held that where the conduct has social benefit, the remedy given may be in damages only. When this happens, it allows the offending party to pay what amounts to a fee in exchange for the right to continue with its activities. In this way, the complainant is compensated for his or her loss while the business of the offending party, which is otherwise beneficial to the community, is allowed to continue.

The above represent only the very basics of the law of private nuisance. The case law is full of interesting and specific examples of how this law is applied. To determine whether an actionable nuisance exists in any particular circumstances, the interested party should seek legal advice.