Reasonable use sets limits to interference with enjoyment

To make a more sensible balance between neighbours and industry, it was necessary to move away from an absolute idea of a landowner’s rights to one which focused on the reasonableness of activity in its locality. This is not the same as finding that the landowner’s conduct was at fault, but the language is similar.

The German jurist, Jhering suggested in 1863 that the acceptability of interference depended on its seriousness and whether it was normal in the locality. This idea passed into § 906 of the German Civil Code which reads (as amended in 1960):

“The owner of land may not prohibit the discharge upon it of gas, steam, odours, smoke, soot, heat, noise, vibrations, and any similar interferences from the operations conducted on other land insofar as the use of his own property is not impaired or not substantially impaired...”

Similarly from 1919, the Dutch took the view that the standard of unlawful behaviour was whether an action breached standards of acceptable social conduct, rather than just whether actions interfered with rights as a proprietor or were prohibited by law. Now this test is similar to when the court finds a person to be at fault. It is objective – it looks at what is reasonable activity in that locality, rather than whether the landowner has been careless.