Private nuisance starts as a result of you doing on your land what you are lawfully entitled to so. So, if you have permission to build a 10-storey office block next door to my beautiful thatched cottage, you are lawfully entitled to build. Your conduct becomes nuisance when that building work, or anything else on your site, interferes with my comfort or enjoyment of my cottage. That your activities, which constitute a nuisance, are lawful in themselves, does not provide a defence to an action in nuisance. Nor, by the way, is it open to you, as the creator of the nuisance, to say that it is carried out at a convenient or suitable place or that precautions have been taken. Nuisance is nuisance. Watch out.
Mr and Mrs Fowler bought their farmhouse in 1982 from Miss Ellen Jones. She stayed on in the bungalow, a driveway distance next door. "Within a year," said the judge at the recent trial, "what started as good neighbourly relations had deteriorated to a point from which they have not recovered, and have become entrenched and bitter as it is possible to imagine." These people have been at odds for 20 years, culminating into the case of Fowler vs Jones (10 June 2002).
The Fowlers enjoy a restored farmhouse, a large garden and views to open fields. A few feet away is Miss Jones' neglected and now unoccupied bungalow. She prefers to live in a caravan in the yard. Her family mainly consists of horses, dogs, cats and geese. Invited itinerants park their caravans in front of the bungalow. Two men live in the yard in converted horse boxes.
Miss Jones' clay pigeon shoots got a bit too much for the Fowlers, especially during the night. An enforcement notice was obtained. A rave involving hundreds of people and very loud music from 9pm to 8am was said to be a one-off mere birthday party. The dogs barked, said an expert, to a level of sound, twice as loud as aircraft in take-off at Gatwick. Mind you, it didn't help that those hounds were kept in a brick shed with a corrugated tin roof. The bonfires were as much of a pain as the dogs; they were started directly beside the Fowlers' boundary and carried the stink and fumes into the Fowlers' house. One of Miss Jones' horse-box house guests frequently set light to waste vegetation and mucking out. The Fowlers saw this as a deliberate intention to annoy.
Miss Jones is free and easy about periodic visitors who tend to stay on and help out. Travellers' caravans come and stay and go.
It isn’t open to you, as the creator of the nuisance, to say that it is carried out at a suitable place or that precautions have been taken
A few years ago the local bobby popped in and discovered several sheds full of pretty cannabis. Miss Jones was not prosecuted, but the cultivators were and went to prison.
Miss Jones, however, was upset with Mrs Fowler's use of the shared driveway. Apparently Mrs Fowler would back down the drive and reverse in front of the neighbour's bungalow.
So Miss Jones placed oil drums, gas canisters, a wheelbarrow in the way. Mrs Fowler removed them. Things got so bad over this driveway that Miss Jones even made allegations of assault leading to the arrest of her neighbour. She was released without charge. Nasty all the same. By now the Fowlers had installed video equipment on advice of the police. It recorded a visiting car to Miss Jones reversing into the Fowlers' gates. Nothing to do with me, said Miss Jones, the car was occupied by three masked men with guns.
So what did the judge say to all this? Mrs Fowler had committed a trespass by reversing into next door for which the damages would be £1. But the video cameras were not an invasion of privacy and the dogs' barking had not been provoked.
Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on firstname.lastname@example.org.