Free Essay. Private Nuisance

A nuisance is anything harmful or offensive that causes annoyance and inconvenience to the members of the community for which a legal remedy exists. Nuisances usually arise when a landowner carries an act on his piece of land, which affects the neighbor's enjoyment or use of their property. There exist two types of nuisance, which is a public nuisance and private nuisance. A private nuisance is, therefore, concerned with safeguarding the rights of an occupier from unreasonable interference with enjoyment or land use by the neighbor. The UK law provides that any private individual whose right for enjoyment over his/her land is hindered by the actions or inaction of neighbors can file a nuisance case against the occupiers of the neighborhood.

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Furthermore, nuisance is a collective civil wrong that is developed through civil law, and statute law and a successful action may lead to a reduction of annoyance, damages compensation, and ban of a further nuisance. An example of a case concerning private nuisance is Coventry v Lawrence (2014) UKSC 13. The matter is concerned with Mrs. Lawrence, who purchased a bungalow in 2006 located next to a stadium used for motorsports. The motor company has used the stadium since 1984, and the company had also obtained the planning permission. The stadium users could also not acquire a right to nuisance by prescription as the law requires that one should have committed a nuisance for twenty years without interruption. Still, the motor company could only account for sixteen years. Although some attenuation works were carried out by the defendant, the complainant alleged that the noise constituted of private nuisance. She, therefore, sought the court's intervention to restrain the activities at the stadium. The sound coming from the stadium has thus resulted in a nuisance, although it did not cause any harm to Mrs. Lawrence's health, as stated in section 79 (1) (ga) and (6a).

The court should also look at the reasonableness of the nuisance between the two parties before determining the case. The court, therefore, has to look at several issues, which are: Social utility: This is the use of the land or the facility that produces the nuisance, which can be noise, dust, or smell. Besides, we must put up with certain levels of annoyance in life as is may not be possible to eliminate the nuisance. For instance, it may be futile to take legal action against a military base that had existed before one migrated to the neighborhood or against noise from the fire engines. However, if a premise creates noise just for its sake, then one should sue them for a nuisance.

Duration of the noise: For noise to be considered a nuisance, then it has to be more than temporary. However, the contributors must put in place all reasonable measures to avoid annoyance to nearby neighbors. As such, endureing noise for a long time creates a more robust case against the nuisance is, although the law does not provide for any timeline to warrant for nuisance.

The character of the area: This applies when one resides in an area that already has high levels of noise. For example if one resides in a noisy industrial area, the environment is thus taken as a factor. On the other hand, those living in the leafy areas expect a high degree of quietness in order to protect the rural characteristic of the place. In such a case it is important to find out if planning permission has been granted to create noise.

Individual's sensitivity to noise: If a person is hypersensitive to noise, then he/she can complain of a nuisance if the activities of the neighbors are not extraordinary. Therefore, if the factory engages in an ordinary manufacturing process may defeat a hypersensitive person. The egg-shell rule can thus not be used in the law of nuisance. The test in the regulation of tort of nuisance is therefore objective to the plaintiff.

Malice and ill-motive on the side of the defendant: The court should consider whether the dependant is using noise as a weapon to annoy the claimant. Therefore, an action that may not ordinarily be actionable may give rise to liability for nuisance if it is actuated by malice on the part of the defendant. The law, however, requires that the claimant of interference towards using his/her land must provide evidence to show that the intervention is substantial. He/she should also show that the response leads to inconvenience, and thus the court should bring the remedy as highlighted in the case of Halsey v Esso Petroleum Co. Ltd (1961). This case illustrates the tore of private nuisance where the complainant lives on one side of the road designated for a residential area, and the defendant's factory is opposite the plaintiff house but in an area designated for industrial use. There was acid smut from the factory that destroyed the claimant's clothes and the paint of his car this acid smut violated Section 79(1) (b), (2) and (3). There was also a pungent odor emanating from the factory, disturbing the claimant, although his health was not affected.

Additionally, several tankers coming to the factory to lift oil created a lot of noise that disturbed the plaintiff's sleep. The defendant, however, made an effort to make their boilers soundproof to reduce the disturbance to the claimant vibrations was still affecting his doors and windows. As such, the court made a judgment that an injunction to prevent the noise at night and the smell. The question of the degree of noise and smell was sufficient to constitute a nuisance was taken into account.

More so, part three of the Environmental Protection Act 1990 stipulates the acts of a nuisance I which reduction procedures apply. These nuisances include:

• Any premises in a state that may be harmful to health or a nuisance as provided by section 79 (1) (a)
• Smoke coming from the premises that are harmful to health or is a nuisance, but this does not apply to premises used by the ministry of defense.
• Exception from this provision as covered by the legislation and these are:
• Smoke emitted from a chimney of a private dwelling within in a smoke control area
• Premises occupied on behalf of a crown or having the responsibility of the ministry of defense
• Dark smoke emitted from a chimney of a building serving as a furnace of a boiler or an industrial plant attached to a building.
• Smoke emitted from a railway locomotive engine
• Dark smoke emitted otherwise than the mentioned above from industrial or trade premises.
• Fumes or gases coming from private dwellings that are harmful to health or a nuisance provided by section 79 (1) (c) and (4)
• Any dust, steam, smell, or other effluent is arising from industrial, business, or trade premises that are harmful to health or nuisance as provided in 79 (1) (d) and (d).
• Accumulation or deposit which is prejudicial to health or nuisance
• Any un-kept animal which is harmful to health or a nuisance
• Noise from premises which acts as a nuisance or prejudice to health
• Noise from vehicles and equipment on a road
• Any other matter declared to be a statutory nuisance by the enactment

Moreover, Lord Neuberger, in the case of Coventry v Lawrence (2014) UKSC 13, added that it is no defense to argue that the claimant came to the nuisance. However, this can be used as a defense in a case where the claimant changes the use of the build on the land that the pre-existing activities are claimed to have become a nuisance. In this case, the court considers whether the injury complained of is reasonable in the case of interference with the enjoyment of land and material damage to property. The court also finds whether the conduct of the defendant is unlawful, unwarranted, or unreasonable. It is also essential to understand that what might be a nuisance in one area may not necessarily a nuisance in other areas.

Planning permission is also essential when assessing whether somebody is liable for nuisance as seen in the Barr v Waste Services Ltd (2012). This case was an appeal made by Barr and others after the judgment of Coulson J, who dismissed the claims for nuisance by the smell from the waste tip operated by Biffa in wales. This case took the form of a group action against the company because it involved 152 households represented by 30 selected claimants selected from different zones of the estate.

Similarly to the Coventry v Lawrence (2014) UKSC 13, the Biffa's had acquired the planning permit, and thus they submit that it would be unfair and unrealistic if the law changed the terms of the license were ignored. As such, the court should not overlook the permit terms and legislation to make the defendant comply with the numerous obligations of the permit. As such, the judge found that Biffa's were operating the site following the license granted by the Environment Agency, and thus, they had a statutory authority for the activity which was causing the odor and such not liable for nuisance.

Additionally, the company's use of land was reasonable because the Environment Agency had authorized it through the grant of their operating permit under the environmental protection act 1990. Provided they complied with the license and us not negligent, no claim for nuisance could arise from the right landfilling. Besides, the level of the problem was not sufficient to constitute an actionable claim in nuisance. In the absence of negligence and breach of the permit, Biffa should not be liable for a nuisance of such an inevitable consequence of the activities.

Remedies for Nuisance

Abatement of Nuisance: This refers to a situation where one applies self-help to stop the nuisance. This remedy is usually discouraged as it may cause chaos in the society, although minor cases are allowed as court cases are generally expensive and may take longer to determine.

Injunction: This is a discretionary remedy of the court which grants or refuses order so that even if one has made out a good case for the grant of an injunction, the court may still find a good reason to deny the injunction. The discretion must, however, be done within the confinement of the law. There are several types of injunction, which involves, interim injunction, interlocutory injunction, final injunction, prohibitory injunction, and mandatory injunction.

Damages: This type of remedy involves monetary compensation for the losses, injuries, or other threats inflicted or posed to the plaintiff, respectively, by the act of nuisance by another person or company. Damages can be classified, as usual, aggravated, or special loss.

The planning permission, therefore, plays a vital role in assessing whether someone will be found guilty of nuisance. Planning permission plays a central role in establishing the legality and the extent to which a person is exposed to nuisance or whether an action results in a nuisance.

References

Priel, D. (2015). Land Use Priorities and the Law of Nuisance-The Law of Private Nuisance by Allan Beever. Melb. UL, Rev., 39, 346.

Baker, D. (2015). Application of noise guidance to the assessment of industrial noise with the character on residential dwellings in the UK. Applied Acoustics, 93, 88-96.