LEGAL
That nuisance could be your problem D
evelopers, utility companies and local authorities are increasingly being
held responsible for nuisances, even in circumstances where they did not cause the nuisance and/ or other regulators are already dealing with the problem.
There are two types of common law nuisance, actionable in tort:
a private nuisance is caused by the person in possession of land doing something he is entitled to do on that land, but its consequences extend to his neighbours’ land causing, for example, physical damage. Those neighbours can be compensated in damages and/or, where appropriate, can obtain injunctive relief to ban the nuisance altogether; and
Peter Atkinson is a consultant and Rebecca Oglethorpe is a professional support lawyer at Walker Morris
a public nuisance is an act that endangers life, health, property, morals or the comfort of the public or obstructs the enjoyment of rights common to all. It is actionable in tort and is a criminal offence (see the reform proposals below).
In assessing whether the conduct complained of constitutes a nuisance, the court must consider its location; the time of its occurrence; its duration; its frequency, and whether it was a reasonable or malicious use of the land.
There are benefits
for a victim of a nuisance to pursue a statutory nuisance remedy rather than a private or public nuisance
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Applying these factors, certain principles can be extracted from the cases – it is unlikely that a one-off occurrence will amount to a nuisance; the test is based on what would cause a nuisance to a ‘reasonable neighbour’, not a hyper-sensitive one, and planning permission for the conduct complained of is not necessarily a valid defence.
This was the case in Watson v Croft Promo-Sport in which an injunction was granted against a motor racing operator to limit the number of race days per year to forty, despite having planning permission to race 210 days of the year.
Public nuisance has been in the news recently following the much publicised group litigation in Re. Corby. The case concerned a significant cluster of birth defects in children whose mothers were pregnant during Corby Borough Council’s remediation of a heavily contaminated steelworks which released toxic materials into the atmosphere.
The claim was brought in public nuisance because personal injury damages are not recoverable in private nuisance. Corby BC applied to strike out the claim, arguing that the case of Hunter v Canary Wharf established that, to bring a nuisance claim, the claimants required a proprietary interest in the neighbouring land.
The Court of Appeal dismissed the council’s application and allowed the claim to proceed. The parties have since achieved a mediated settlement in which the council has agreed not to pursue its appeal and to pay compensation to the claimants immediately (without the acceptance of liability).
A statutory nuisance must either constitute a private or public common law nuisance or be prejudicial to health. Part III of the Environmental Protection Act 1990 sets out the regime for statutory nuisances and lists 11 categories, including smoke, fumes, noise (including vibration), insects and the keeping of animals.
There are benefits for a victim of a nuisance to pursue a statutory nuisance remedy rather than a private or public nuisance.
Firstly, unlike private nuisance, there is no requirement that the complainant has a property right which the nuisance interferes with. Unlike public nuisance, the complainant also need not show that the nuisance affects a significant section of the public.
The onus is on the local authority to ensure that the relevant statutory nuisance is investigated and if, on the balance of probabilities, it considers a nuisance to exist, ensure it is abated. Schedule 3 of the EPA provides the local authority’s environmental health officer with extensive powers of entry to determine the existence and extent of any nuisance.
A recipient of a local authority’s abatement notice faces criminal sanctions if he does not comply. The local authority can apply for a court injunction if it considers the abatement notice procedure would be too slow and it also has ‘step-in powers’ to abate the nuisance itself while claiming back its reasonable expenses from the person responsible for the nuisance. So, for those affected by a nuisance, the statutory nuisance regime can offer a quick and cheap way to remedy the problem.
Interaction between nuisances
The statutory nuisance regime overlaps with other regulations and arguably this has led to some confusion/duplication.
For example, there is a potential overlap with the waste management regime under Part II of the Environmental
Jul/Aug 10
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