A nuisance arises when an owner of land carries out an activity on his land or does something on his land that while it may be legal for him or her to do so has the consequence of causing a substantial and unreasonable interference with another’s land or use or enjoyment of his or her land.

This nuisance (known as a private nuisance) is actionable and a claimant can seek damages to compensate him/her for any loss caused as a result of the nuisance and/or an injunction to stop the nuisance and prevent its recurrence. If an injunction is not awarded the damages awarded will usually be for the diminution in value of the property caused as a result of the nuisance.

The harm must be caused to the land or ability to use or enjoy the land itself. When considering nuisance claims the courts will have regard to the character of the locality and whether the claimant has changed the use of the land itself so that the result is that the defendant’s activities now cause a nuisance when they would not have done so before had the use not been changed.

Many acts have the potential to become a nuisance such as noise, smoke or vibrations but each of itself will not necessarily be a nuisance.

An old tree planted near a boundary by a predecessor on land may seem harmless enough. However, it may become a nuisance to a neighbour over the years if it too near the adjoining property so that the tree roots cause damage to the neighbour’s property or the branches damage the neighbouring property causing physical damage.

The courts will look at whether the act complained of has occurred on a regular basis or is a one off and whether it is sufficiently substantial to be regarded a nuisance and whether the outcome of the act complained of is reasonable in all the circumstances.

Further, it is no defence by the perpetrator of a nuisance that the claimant has moved into the area where the nuisance had been in existence for a number of years.

This is a complex area of the law and each case will turn on its facts. Legal advice should be sought to assess any claim you may have or made against you.