A private nuisance is distinguished from a public nuisance.
From Halsbury’s Laws of England:
“It is ... a violation of a person’s private rights as opposed to a violation of rights which he enjoys in common with all members of the public.”
Private nuisance occurs when a person conducts himself in such a fashion as to unreasonably or excessively interfere with the private land-related rights of another. Thus, the plaintiff must be the owner or tenant of the real property affected.
What may appear at first glance to be a private nuisance may later establish the facts necessary to become, in law, a public nuisance.
Examples abound and include:
- The encroachment of a neigbour's tree branches, tree roots or other underground or overhead obstruction such as wires or fences;
- Smoke, sparks, gases, noxious fumes, smells or vapours;
- A right to light under limited circumstances (ancient lights); and
- Sounds such as those which are caused by racetracks and airports.
A statute can also exempt an individual from liability for a private nuisance. If the conduct complained of is legislatively authorized, it may provide the defendant with a complete defence.
Some statutes may even provide statutory immunity from nuisance claims in some limited cases such as exempting a city or town from nuisance liability for sewage discharge or smells.
A defendant may also be shielded by the limitations statutes, deprived of the support of the common law if the conduct has gone without complaint for a specified period of time, such as, for example, 20 years, in which event no claim for nuisance may be allowed.
REFERENCES:
- Duhaime, Lloyd, Legal Definition of Abatement
- Duhaime, Lloyd, Legal Definition of Ancient Lights
- Duhaime, Lloyd, Legal Definition of Nuisance
- Duhaime, Lloyd, Legal Definition of Public Nuisance
- Duhaime, Lloyd, Nuisance in Tort Law
- Rodrigues, G., Halsbury’s Laws of Canada, 1st ed., “Torts” (Toronto: Lexis-Nexis, 2007), pages 203-231