To begin with the scenario deals with the issue of private nuisance. This is defined by Professor Winfield as an “unlawful interference with a person’s use of enjoyment of land or some rights over it, or in connection with it.” Not all interference’s will constitute a nuisance. The interference will only be unlawful if it is an unreasonable one.
The basic function of nuisance is to assist the rules of relations between neighbours. The courts have had to strike a balance between neighbours in order to see the reaction of whether the nuisance is going to be a reasonable one or not. Lord Wright in “Sedliegh Denfield V O Callaghan” stated, a balance has to be maintained between the right of the occupier to do what he likes on his own and the right of his neighbour not to be interfered with.
In the case of Hunter v Canary Wharf [1997] 2 All ER 426, Lord Lloyd stated that private nuisances are of three kinds. They are 1) Encroachment on a neighbour’s land; 2) physical injury to a neighbour’s land and 3) Nuisance by interference with a neighbour’s comfort and convenience (intangible damage). Examples are smell, dust, and noise.
However this question only concerns physical damage and intangible damage.
There is an immense difference between physical damage and intangible damage. Lord Westbury distinguished between a nuisance that produces what he called material injury to property discomfort. He held that material damage to property can never arise from a reasonable use of property that it will always amount o a nuisance. He said that where intangible damage concerned the degree of interference it has to be measured against all the surrounding circumstances such as nature of the locality. In addition, where the Plaintiff complains about interference with use and enjoyment of land the courts will use balancing exercise to determine whether the defendants conduct was reasonable or not. With physical damage such matters are irrelevant as the occupier is protected from physical damage no matter where he lives. In addition where the Plaintiff complains about the interference with use and enjoyment of land in that physical damage has occurred the courts do not determine whether it is reasonable unless Defendant’s use of land is abnormally sensitive
The outcome of the distinction is that physical damage is more of a serious from of injury than a mere discomfort. In other words, actual damage to land is worse than damage to people’s subjective interest in it. Also Interference that results in physical damage is more likely to be regarded more unreasonable than a less tangible harm such as loss of amenity (inability to sleep, sickness)
This usually requires the courts to engage in a more intricate balancing exercise taking into account a number of factors deciding whether an alleged interference is a nuisance. Courts are more willing to find an actionable nuisance where physical damage is evident than where an intangible damage is alleged.
