Current economic times may call for people to be a bit more enterprising in their revenue generation efforts or for businesses to consider expanding their operations. These efforts may very well include activities such as farming, animal husbandry, fabricating, welding or other construction, industrial or manufacturing activities. What if your enterprise causes your neighbour discomfort in some form? Would this discomfort be enough to enable them to bring a legal claim against you? What are your rights versus those of your neighbour in this context? The law recognises claims in “private nuisance.”

Nuisance deals essentially with property rights and to action a complaint in nuisance, a claimant must have a proprietary interest in the property which is interfered with. This might be as an owner, leaseholder or tenant. Such claims can arise where a person does something on his own land which he is lawfully entitled to do, but which results in consequences that are felt on his neighbour’s property.

For example encroachment, physical damage or undue interference with his neighbour’s comfortable and convenient enjoyment of his own land.

Nuisances can either be continuous or recurrent and can include unreasonable noises, the emitting of smoke, fumes, heat, vibrations, dust, and a multitude of different things. In one case, one of the offending acts complained of was the defendant’s spray-painting activities causing noxious spray-painting emissions which wafted to the claimant’s house interfering with his enjoyment of his property.

In another case, the court found that the noise generated by trucks as they entered and left a depot amounted to a nuisance, even when the trucks were driving along a nearby public road.

However, it is not every annoyance that will give rise to an actionable claim in private nuisance.

For an event or an occurrence to be actionable nuisance depends on a variety of factors. The court will have to balance conflicting interests and take into account all the circumstances of the case.

Relevant considerations include the defendant’s conduct, the commission of the acts complained of, the manner of committing it and the effects of its commission on the person complaining.

Furthermore, there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a legal nuisance.

In this regard, the acts complained of as constituting the nuisance, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as time, place, extent or the manner of performance.

In addition, the character of the neighbourhood is vital in considering the standard of comfort or convenience or living of the “average man.” This means that what may be deemed nuisance in one neighbourhood may not be viewed as nuisance in another.

The law provides that if the locality has been traditionally for the particular purpose being complained about, then this may not amount to private nuisance.

So how uncomfortable must you be for there to be a nuisance, actionable in law? The discomfort must be substantial, and it must be of such a degree that it would be substantial to any person occupying the claimant’s premises, irrespective of his position in life, age or state of health.

Furthermore, it must according to the very old case of Walter v Selfe (which principles are applied today) “inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions…”

Once it has been established that the interference is substantial, the burden of proof rests with the defendant to show reasonableness.

Redress for a successful complaint in nuisance is usually monetary damages and/or an injunction from preventing the person committing the nuisance from continuing to do so.

Undoubtedly if there is a change in usage of land from residential/agricultural to commercial/industrial, the requisite planning approval must be sought and gained.

Before embarking on a new business venture or expanding your current venture, it is important to consider in detail the potential effects on your neighbours.

If there are potential substantial ill-effects, you may want to reconsider or employ some mitigation measures, lest you find yourself unfortunately facing a claim in private nuisance.

Cherie Gopie is a partner at M Hamel- Smith & Co. She can be reached at mhs@trinidadlaw.com Disclaimer: This column contains general information on legal topics and does not constitute legal advice.

Nuisance deals essentially with property rights and to action a complaint in nuisance, a claimant must have a proprietary interest in the property which is interfered with. This might be as an owner, leaseholder or tenant. Such claims can arise where a person does something on his own land which he is lawfully entitled to do, but which results in consequences that are felt on his neighbour’s property.