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When housing conditions are statutory, public or private nuisance

This content applies to England & Wales

What constitutes a nuisance. Statutory, public and private nuisance.

Nuisance is a tort relating to land arising from an action or omission which causes offence, annoyance, trouble or injury. It is a legal term, which has a different meaning from its everyday meaning. The nuisance can be statutory, public or private.

Statutory nuisance

Statutory nuisance is a tort established by a specific Act or statutory instrument. The Environmental Protection Act 1990 provides the example most relevant to housing conditions. Some of the problems that might constitute a statutory nuisance are noise,[1] and serious disrepair to a property.[2] For more information about statutory nuisance see Definition of statutory nuisance.

Public nuisance

This is when the act or omission causing offence, annoyance trouble or injury affects the public generally or a class of persons. In order to prove a public nuisance it is necessary to show that the nuisance affects a number of people. It is therefore unlikely to be used in relation to residential accommodation except in limited circumstances.

Private nuisance

The general principles of private nuisance have been clarified by case law.[3] Private nuisance occurs when something in one property interferes with the use and enjoyment of a neighbouring property, or constitutes a violation of legal rights of the owner or someone else with exclusive possession of that property. This could be encroachment on a neighbour's land, direct physical injury to a neighbour's land or interference with the neighbour's quiet enjoyment of their land.[4]

Examples of private nuisance:

  • the encroachment of Japanese knotweed and its rhizomes onto a property from a neighbouring land was held to constitute private nuisance, even in the absence of actual physical damage, because the risk of future damage given by the invasive nature of the plant and high costs of removal constituted an immediate interference with the use and enjoyment of land[5]
  • where a waste disposal company complied with the relevant permit but the occupiers of the nearby estate were affected by the smell coming from the waste disposal site, the High Court was wrong to dismiss their claim of nuisance.[6]

Where owners of flats with floor-to-ceiling windows brought proceedings against a nearby gallery whose guests frequently looked into their flats and invaded their privacy, the Court of Appeal examined the relevant case law and found that mere overlooking was not capable of giving rise to a cause of action in private nuisance. The Court held that the core issue was invasion of privacy rather than damage to interests in the property and occupiers affected by overlooking could use other remedies, such as laws relating to privacy, confidentiality or harassment.[7]

Common parts

If the landlord has control of part of the building let to the tenant then the landlord is liable in nuisance if defects in that part cause interference with the tenant's reasonable use and enjoyment of the property let. Nuisance can therefore arise from defects in the common parts and in neighbouring premises owned by the landlord. For example, where:

  • the landlord had control of the roof and gutters but did not maintain them and as a result rainwater leaked into the property and caused damage, the landlord was found to be liable in nuisance[8]
  • the landlord knew and was responsible for the existence of a nuisance before the letting, the landlord could not give up liability against third parties by letting the property to a tenant.[9]

Tenant's ordinary use of the land

A landlord may also be found liable if the nuisance is a consequence of the tenant's ordinary use of the land for the purpose for which it was let, so where defective tiling caused a nuisance by noise to an occupier of the flat below and the noise was caused by the normal use of the property as indicated in the lease, the landlord was found to be liable in nuisance.[10] For more information about nuisance by noise, see the page on How an occupier can deal with noise.

[1] s.79(1)(g) Environmental Protection Act 1990.

[2] s.79(1)(a) Environmental Protection Act 1990.

[3] see, for example Fearn & Ors v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104; Williams v Network Rail Infrastructure Ltd [2018] EWCA Civ 1514; EWCA Civ 104; Hunter v Canary Wharf [1997] AC 655, HL; R v Neill [1826] 2 Carrington and Payne 485; R v White and Ward [1757] 1 Burr 333.

[4] Network Rail Infrastructure Ltd v (1) Williams (2) Waistell [2018] EWCA Civ 1514.

[5] Network Rail Infrastructure Ltd v (1) Williams (2) Waistell [2018] EWCA Civ 1514.

[6] Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312.

[7] Fearn & Ors v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104.

[8] Tennant Radiant Heat Ltd v Warrington Development Corporation [1988] 11 EG 71, CA.

[9] Brew Bros v Snax [1970] 1 All ER 587.

[10] Sampson v Hodson-Pressinger (1981) 12 HLR 40.

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