When being stuck indoors becomes a nuisance

People are spending more time at home during lockdown as a result of the coronavirus pandemic. For some, this may be a welcome opportunity to enjoy time at home and to use any outside space they are fortunate to have. However, for others, spending time at home may be far from peaceful or relaxing, due to the activities of neighbours or those who are working close by. To what extent could these activities amount to a nuisance – and if they do, what action can be taken?

A nuisance may fall into the category of a private, public or statutory nuisance. A private nuisance is an unlawful interference with a person’s use or enjoyment of their land or of a right in connection with the land, such as an easement. In contrast, a public nuisance is an unlawful act or omission, which is so widespread in range and indiscriminate in its effect that it obstructs, damages or inconveniences the rights of a community. An act which has been designated or treated by statute as a nuisance is known as a statutory nuisance. An example of this is the emission of smoke, fumes or gases from premises, which constitutes a statutory nuisance under the Environmental Protection Act 1990.

A private nuisance can take many forms, but the most common will include nuisance from smells, noise, dust, vibrations and encroachment by tree roots. A person’s actions will only amount to a nuisance when their acts are not confined to their own land and extend to their neighbour’s land. For a nuisance to be actionable, it must amount to a real or substantial interference with a person’s basic enjoyment of their property.

A balancing act must be carried out, to weigh one party’s right to enjoy their land against the other party’s right to enjoy theirs. In assessing the interests of the respective parties, the court will adopt a reasonableness test and consider, in particular, the impact of the alleged nuisance on the claimant. In doing so, it will take into account a variety of factors, including the locality; whether the nuisance is taking place in an otherwise quiet residential area or on a busy high street, and whether it would be reasonable to expect the defendant’s actions to take place in that location; whether the nuisance is temporary or continuing; and any motive on the part of the defendant. Ordinary use of a property will also be considered. In Southwark LBC v Mills [1999] 4 All ER 449, the court found that everyday noise and sounds of domestic life which travelled between thin walls separating neighbouring properties did not constitute a nuisance, as ordinary use of residential property was not capable of amounting to a nuisance.

What action can be taken?

Before embarking on any formal action, the other party should be informed of the disturbance being caused and a request made for this to stop. In the case of nuisance caused by building works, an agreement could be sought regarding the times and dates when any ‘noisy’ work or work which will cause vibrations can be carried out.

If an initial approach to the neighbour is unsuccessful, the party complaining of the nuisance may wish to consider what remedies it may have. The usual remedies for nuisance are an injunction to restrain the nuisance and/or damages. Damages rather than an injunction will generally be granted where the nuisance is trivial, it can be adequately compensated in damages or where the nuisance is temporary.

In addition, in the case of a potential statutory nuisance such as the emission of fumes or smells from nearby commercial premises, the relevant local authority should be contacted. The local authority will be under a duty to investigate the complaint and will also consider whether there have been any breaches of any environmental permits held.

Where the potential nuisance is between one tenant and another, the relevant lease terms should also be reviewed. Where there is an obligation on a mutual landlord to enforce compliance with tenant covenants not to cause any nuisance or annoyance, the landlord should be advised of the situation and a request made for them to take action. The position regarding a landlord’s obligation to enforce mutual tenant covenants was considered recently by the Supreme Court in Duval v 11-13 Randolph Crescent [2020] UKSC 18. In Duval, the Supreme Court confirmed that the landlord of a residential block would be in breach of a covenant requiring it to enforce mutual tenant covenants, in the leases of a residential block, by granting licence to one tenant to authorise works which would be a breach of an absolute covenant in the lease.

A nuisance here to stay?

Given the recent government announcement that construction sites in residential areas can apply to local councils to extend their working hours until 9pm Monday to Saturday, there will clearly be a continued conflict and a difficult balance to be struck between a residential occupier’s right to enjoy their property with a business owner’s desire to resume their business during the pandemic.

Michelle Leonard is a solicitor in the property disputes team at LexisPSL