4 - Common Law Nuisance

Summary

INTRODUCTION

In this chapter we look at how the common law has attempted to provide redress for a variety of adverse circumstances (including the creation of noise) that unreasonably affects an individual's enjoyment of the land which they occupy. The law recognises the fact that the occupier (for example, by virtue of being the owner, tenant or subtenant) of land has the right to enjoy the occupation of that land. However, such a right is circumscribed by the law imposing an obligation on that occupier not to use their land in such a manner as to unreasonably interfere with the enjoyment their neighbour's occupation of their land. That is to say, that one's neighbour possesses a similar right to enjoy the occupation of their land. The rights of the respective occupiers can often conflict with each other. For example, I may choose to sit at home in the evening and read, whereas my musically-inclined neighbour may wish to practice with his drum kit, the upshot of which is that I am discomfited. Essentially, the function of the law of nuisance is to strike a reasonable balance between these conflicting rights. In the Court of Appeal case of Fearn v Tate Modern Modern Galleries it was held that the unifying principle in the law of nuisance was reasonableness between neighbours. In short, the governing principle is ‘good neighbourliness’ and this involves reciprocity between neighbours. The law was neatly summarised by Lord President Cooper in Watt v Jamieson when he stated:

‘The balance in all cases has to be held between the freedom of a proprietor to use his property as he pleases, and the duty on a proprietor not to inflict material loss or inconvenience on adjoining proprietors, and in every case the answer depends on considerations of fact and degree. The critical question is whether what he was exposed to was plus quam tolerabile, when due weight has been given to all the circumstances of the offensive conduct, and its effects.’

Watt, therefore, is authority for the proposition that before an adverse state of affairs can be categorised as a nuisance, it must be plus quam tolerabile (i.e. more than can be reasonably endured) in the eyes of the law.