There are a variety of different types of legal action that should be considered by a person affected by
pollution. If the
pollution is causing damage to a person’s
property or is causing them
disturbance or
inconvenience, they may well have a nuisance claim against the person causing this interference.
There are a wide variety of different situations where a person may have a claim in nuisance and it is impossible to give an exhaustive list. However, by way of example, recent nuisance cases handled by Leigh Day & Co include the following:
- A explosion and fire from a waste transfer site causing damage to nearby properties and disturbance to the residents who were either evacuated or told to remain indoors;
- Petrol vapours leaked into the foundations of a house from a nearby petrol station causing contamination to the property, creating a danger of explosion and a consequent reduction in property values;
- Odour problems affecting local residents from the gas being produced by a nearby landfill site;
- The flooding of properties with water from a burst pipe, damaged by contractors carrying out work in the street;
- Early morning noise problems suffered by residents living adjacent to Royal Mail office causing loss of sleep;
- Severe fly problems suffered by residents living close to a nearby egg production plant.
What is a 'nuisance'
In legal terms, a nuisance is defined as the "unlawful interference with a person’s use of or enjoyment of land”. A nuisance claim will therefore usually involve a claim for compensation for damage to the property and loss of enjoyment of the property and may also include an application to the Court to prevent the nuisance continuing or recurring in the future.
Proceedings can be brought by an individual or group of individuals, where many people are affected by the same activity.
Historically, the law of nuisance was previously most used for neighbour disputes. However, in recent years, it has been widely used in environmental actions by residents against polluting activities or incidents.
How can the law of nuisance help you?
Cases where there is physical damage include damage to the premises themselves, to plants and trees in the garden, to washing hanging out on the line, to curtains and to car paintwork. For an action to be taken, the damage must be shown to be real, to be significant and to have been caused by nuisance that is the subject of the complaint.
Cases where a person’s enjoyment is affected are likely to arise from offensive smells, high dust levels, noise or vibration. Examples of activities affected can include not being able to use the garden, not being able to open windows and doors, not being able to sleep or feeling sick and nauseous because of a smell.
Evidence and complaints
It is very important for someone who considers that he may be suffering a nuisance to collect as much evidence as possible to show that the nuisance has occurred and the effect on them. It is often helpful to keep a diary setting out the nature of the problem and the effect on them. Photographs showing the pollution and the damage caused can also be helpful.
It is also important to make sure that you register a complaint with the relevant regulatory authority. This is usually either the
Environment Agency or the Environmental Health Department of the local council, depending on the type of industrial activity causing the pollution.
Pollution and health
In addition, if you consider that your health may have been affected, it is important to go and see your GP and explain the health problems that you have experienced.
In deciding whether a nuisance has occurred or not, the Court will balance the activities of the two parties concerned. Therefore, they will weigh the activities of the person causing the alleged nuisance against the effect of the alleged nuisance on the person bringing the complaint. The type of factors commonly given weight by the Court include the following:
- The excessiveness of the conduct (for example the noise caused by one barking dog may be reasonable, but noise caused by 20 barking dogs may not);
- Any malice by the person causing the interference;
- The character of the neighbourhood;
- Whether the interference is a continuous or repetitive incident or an isolated incident;
- Whether the person causing the alleged nuisance is using the best practical means to try and eliminate or reduce the interference;
- The social value of the Defendant’s operation;
- Whether the damage was foreseeable.
Funding an environmental case
In England and Wales, the general rule is that the loser of the legal case pays the costs of the winner. These costs are separate from the damages or compensation awarded by the court. There are a number of different ways to fund a claim as it proceeds.
- Entering a Conditional Fee Agreement (often called a “no win – no fee” agreement) with your solicitor;
- Public Funding (previously known as Legal Aid) although this is only available to clients with a limited amount of money and who are therefore financially eligible;
- Legal Expenses Insurance (where an insurance policy (usually attached to other insurance policies such as household, travel or motor insurance) has been purchased before the incident has occured;
- Private funding – this is where the client pays the solicitors costs as the case proceeds.
For further information about such cases please contact
Sean Humber on 020 7650 1200
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