The right of use and enjoyment of land or property by an owner or occupier has long been established in law.
However, property owners don’t have the absolute right to use their land in any way they wish.
This is because one person’s right to do whatever they want on their land could conflict with another person’s rights.
In 1860, private nuisance was defined in Bamford v Turnley as “any continuous activity causing a substantial interference with a claimant’s land or his use or enjoyment of that land.” A private nuisance claim is therefore regarded as a civil wrong that can give rise to a claim against the person causing the nuisance.
Interference by nuisance can come in many forms such as excess noise, pollution of air or water, mould and damp, vibration and encroaching tree roots for example.
Proceedings in the civil courts do offer a remedy for concerned parties, but it can often be a challenging and lengthy process.
Local authorities have powers to enforce remedial action, but this is subject to the vagaries of time, interests and budgets.
So what happens when things go awry and how can you make a claim?
An effective route for the individual to address any nuisance if a landlord fails to act is through the procedure laid out in the Environmental Protection Act 1990. Most people are surprisingly unaware of this procedure, however it is being used more frequently.
Section 82 allows an individual to apply to the Magistrates’ Court for an abatement order:
- requiring the defendant to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose
- prohibiting a recurrence of the nuisance, and requiring the defendant within a time specified in the order, to execute any works necessary to prevent the recurrence
Should the court take the view that the nuisance exists or is likely to recur then failure to comply with the order may amount to a criminal offence.
This confers a significant power upon the applicant and represents a valuable tool in rectifying what is likely to be a distressing situation for the resident.
Claims for private nuisance can be made by owners of the land, those with exclusive possession of the land or those occupying the land as a tenant or licensee.
A benefit of this procedure is that an application, properly made, does not carry the same adverse costs risks as civil proceedings. If you win, you may be entitled to have your costs paid. It can also be executed quite quickly, which may lead to the nuisance be rectified more speedily.
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