Pusey & Anor v Somerset County Council

A private nuisance claim turns on fact and degree. The claimant must prove a real interference with the comfort or convenience of living, judged by the standards of the average person. The court must assess the particular incidents objectively, taking account of the character of the neighbourhood, duration, frequency and cumulative impact. A numerical threshold cannot determine whether interference is actionable, although thresholds may regulate an intrusive activity prospectively. Abnormal sensitivity is excluded. Prior use before acquisition does not itself defeat an otherwise actionable nuisance, but the neighbourhood’s character remains relevant. An appellate court will not disturb a trial judge’s overall factual assessment absent error. On the findings here, the lay-by’s use was not an actionable nuisance.

The claimants owned a farm adjoining a Council-owned highway lay-by. They alleged that vehicles, noise, fumes, urination, abusive behaviour and other conduct materially interfered with their use and enjoyment of the property, and sought damages and an injunction for private nuisance.

His Honour Judge Denyer QC dismissed the claim on 14 July 2011, finding that the evidence did not establish an unreasonable interference. The claimants appealed, arguing that the judge had been influenced by public benefit, applied an impermissible threshold and failed to assess the cumulative effect of the incidents. The central issue was whether the proven use of the lay-by amounted to a real and unreasonable interference with the claimants’ property.

Disposition

The appeal was dismissed unanimously. Lord Justice Patten gave the judgment, with Lord Justice Longmore and Lord Justice Ward agreeing.

Applicable principles

1. Actionable private nuisance is a question of fact and degree. The claimant must establish a real interference with the comfort or convenience of living according to the standards of the average person. The court must consider relevant circumstances, including the character of the neighbourhood, duration and frequency. Abnormal sensitivity is insufficient.
2. A threshold may regulate an intrusive activity prospectively by controlling its frequency or duration. It is not a legitimate means of deciding whether the interference already experienced is actionable. The court must evaluate the particular incidents and their effect.
3. The assessment must be objective and cumulative. Everything relevant must be considered, including the continuing course of conduct and any overlap between more serious periods and lesser incidents. The question is whether the average resident would have been adversely and unreasonably affected. Particular sensitivities of the actual claimants are excluded.

Application

The trial judge’s reference to local support for the lay-by was part of the history and did not show that he had balanced public benefit against private rights. His analysis of the evidence was not a threshold exercise. He used the frequency and duration of the incidents to test the claimants’ assertion of near-permanent disruption and then assessed their overall effect.

On the findings, urination and swearing were relatively infrequent, most incidents were not visible without investigation, and noisy vehicle movements and running engines were relatively isolated. The judge had assessed the overall impact and was entitled to conclude that it was not excessive or actionable. The Court of Appeal could not properly interfere with that evaluative conclusion.

Alternative arguments

Because the claim failed on the facts, the court did not need to determine the Council’s alternative arguments under the Highways Act 1980, including whether lawful highway use could amount to private nuisance or whether the Council had power to close the lay-by.

• Court of Appeal (Civil Division) — dismissed the appeal on 19 July 2012: [2012] EWCA Civ 988.
• Bristol District Registry — His Honour Judge Denyer QC dismissed the claim for damages for nuisance by order dated 14 July 2011.