Nuisance & Trespass Solicitors

Private Nuisance, Public Nuisance & Trespass

Property owners have the right to enjoy their land without unreasonable interference from others. When a neighbour's activities substantially and unreasonably interfere with that enjoyment, or when someone enters or places objects on your land without permission, the law provides remedies through the torts of private nuisance, public nuisance and trespass to land. Legal Merchant's specialist property litigation solicitors advise on all types of interference with property rights, from noise nuisance to Japanese knotweed encroachment.

Private Nuisance

Private nuisance is an unlawful interference with a person's use or enjoyment of land, or of some right over or in connection with it. The interference must be:

• Indirect — arising from the defendant's use of their own land (direct physical intrusion is trespass, not nuisance)
• Unreasonable — taking into account the nature of the locality, the duration and frequency of the interference, the sensitivity of the claimant, and the utility of the defendant's conduct
• Causing actual damage — either physical damage to property or substantial interference with comfort and convenience

Common Private Nuisance Claims

The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher (1868) LR 3 HL 330 imposes strict liability (without proof of negligence) where a person brings onto their land something likely to do mischief if it escapes, and it does escape and cause damage. The rule requires:

• A non-natural use of land — something beyond ordinary domestic or agricultural use
• An escape of the dangerous thing from the defendant's land
• Damage to the claimant's land or to the claimant

The rule applies to water, fire, gas, electricity, explosives, chemicals and similar dangerous substances. It does not apply to things that are naturally on the land (e.g. a natural spring) or to ordinary domestic use.

Public Nuisance

Public nuisance is an act or omission that materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. It is primarily a criminal offence but may also give rise to a private law claim where the claimant has suffered particular damage over and above the general public impact. Examples include:

• Obstructing the highway
• Causing a noise or smell that affects a neighbourhood
• Industrial pollution affecting a residential area
• Blocking a public right of way

Private individuals can bring a civil claim in public nuisance where they have suffered "particular damage" — damage beyond the ordinary inconvenience suffered by the public generally. Our solicitors advise on both private and public nuisance where appropriate.

Trespass to Land

Trespass to land is the direct and intentional interference with land in the possession of another without lawful justification. Unlike nuisance, trespass is actionable per se (without proof of damage). Common forms of trespass include:

Physical Encroachment

Building, erecting a structure, or placing objects on your land — including parts of buildings (eaves, footings, foundations) that overhang or encroach across the boundary. Even a small encroachment is actionable as trespass. Remedies include:

• A mandatory injunction requiring removal of the encroaching structure
• Damages for the trespass (including mesne profits — the value of the use of the land)
• An injunction to prevent further trespass

Unauthorised Entry

Entering land or a building without permission — including by tradespeople, surveyors, or persons exercising an alleged right of access that does not exist. Repeated unauthorised entry may also give rise to harassment claims. Emergency injunctions can be obtained very quickly where continuing trespass is causing harm.

Airspace Trespass

Landowners own the airspace above their land to a reasonable height necessary for the use and enjoyment of the land. Cranes swinging over a neighbouring property, or drones flying at low altitude, can constitute trespass to airspace. This is a growing area of dispute as construction cranes become increasingly common in urban areas.

Underground Trespass

Drilling, tunnelling or laying pipes beneath neighbouring land without consent is a trespass. This is relevant to utility companies exercising statutory powers, developers carrying out piling works, and mining operations.

Remedies for Nuisance and Trespass

Defences to Nuisance and Trespass

Common defences raised by defendants in nuisance and trespass claims include:

• Prescription — a nuisance that has been openly enjoyed for 20 years (such as a right to cause a certain level of noise or smell) may become a prescriptive right
• Consent — the claimant consented to the interference, expressly or by coming to the nuisance (though the "coming to the nuisance" defence has been substantially weakened by Lawrence v Fen Tigers Ltd [2014] UKSC 13)
• Statutory authority — acts authorised by Parliament cannot be actionable as nuisance if carried out with all reasonable care and without negligence (e.g. certain activities of statutory undertakers)
• Act of God or act of a third party — where the escape or nuisance was caused by unforeseeable natural events or the acts of a stranger
• Contributory negligence — the claimant's own actions contributed to their loss

Frequently Asked Questions