What constitutes a nuisance and how can it be addressed appropriately?

Hammond Pole Attorney, Neil Mc Kinon, tells us what constitutes a nuisance, and how it can be addressed appropriately, in this article. 

Modern cosmopolitan living in complexes and Estates is a moderate solution to security issues but to a degree results in a compromise to one’s privacy.

The result is that residents in a dense community often have to tolerate neighbourly issues such as noise, barking dogs, children at play and scarcity of parking. This all constitutes a nuisance.

But to what degree is one expected to tolerate a nuisance and what is considered to be reasonable to the average home owner?

In the matter of Steenkamp V Knysna Local Municipality and another, the court applied principles developed by various authorities in formulating a test to determine what is reasonable.

The test applied by the courts is an objective test. The court looked at what would be acceptable to the reasonable person.

An infringement on one’s property rights can only constitute a nuisance of it is unreasonable – What constitutes “unreasonable” however, is when it ceases to be a “to-be-expected-in-the-circumstances” infringement.

In the circumstances, what might be reasonable in one complex might not be reasonable in another.

In solving this test the courts consider issues such as the type of disturbance, the time of day that the infringement takes place and also whether it ought to be fair under the circumstances for one to be to tolerate the nuisance.

In the Steenkamp matter the court was faced with a complaint against noises which emanated at early hours of the morning from an old age home situated in a tranquil suburb called Leisure Isle.

Peace, tranquillity and harmony are synonymous with the type of community where the old age home was situated. The complaint however was about noises emanating from the kitchen of the establishment as well as early morning deliveries and staff discussions in the courtyard which all gave rise to a complaint by the Appellants who sought to interdict the old age home from operating in such a manner.

The matter was problematic as the old age home had always been there when the complainant took occupation. The court found that objectively considered, it was unreasonable to expect the Appellants to tolerate the noises in such an environment. Although the noises came from an old age home where a kitchen was run, the location of the old age home was not conducive to the tranquil environment promoted by the estate.

Perhaps if situated in a different area such as an industrial area the noises from the kitchen at the old age home would be more “reasonable” and more “tolerable” in the circumstances.

In applying the above principles to today’s society, various factors such as the type of complex, location of the complex, rules of the complex and also frequency of the nuisance would all be considered in determining what is reasonable.

For instance, a barking dog in a pet friendly complex might be more reasonable than a neighbour operating a business using noisy equipment.

The relief available in instances such as the above would be in the form of an interdict. But in essence the objective test to be applied is always reasonableness under the circumstances.

In conclusion, noisy neighbours run the risk of being interdicted and may end up paying the legal costs involved.