Nuisance (Part 2)

Question 1

Parties: who may be sued? - Creators

Answer 1

-The creator(s) of the nuisance will usually be liable for the foreseeable consequences of their acts.

-They can always be sued even if they are no longer in occupation of the land giving rise to the nuisance

Question 2

Cambridge Water Co v Eastern Counties Leather plc

Answer 2

The Defendant should have been able to foresee damage of the relevant type when the act alleged to be a nuisance occurred. The creator is not liable for continuing damage when they cannot rectify the situation

-The company did not owe compensation because they couldn’t have reasonably predicted that the chemical would travel so far and cause harm.
-In nuisance law (which is about stopping or compensating for unreasonable interference with someone’s property), you must be able to foresee (predict) the damage for someone to be legally responsible.

Question 3

Parties: who may be sued? - Occupiers

Answer 3

Occupiers who did not create the nuisance (nonfeasance)
-Some occupiers benefit from the ‘state of affairs’ created by someone else, e.g. a previous occupier;
-Occupiers of premises will usually be liable for nuisances caused by the ‘state of their premises’ when they ‘adopt or continue’ the nuisance;
-To ‘adopt’ a state of affairs, an occupier only needs to make some use of whatever constitutes the nuisance – even if the nuisance was initially created by a trespasser:

Question 4

Occupiers who did not create the nuisance (nonfeasance)

Answer 4

But what if:

-there is a state of affairs on the land giving rise to a nuisance;
-it could have arisen through a third party’s action or through natural processes affecting the land;
-the occupier does not positively adopt the nuisance; but
-the occupier is the party in a position to do something to prevent the nuisance from arising or continuing

Should the occupier be held liable for the nuisance?

Question 5

Sedley-Denfield v O’Callaghan

Answer 5

-A local authority (not the landowner) placed a drainage pipe on Sedleigh-Denfield’s land without permission.
-The pipe got clogged, causing flooding to a neighbour’s land.
-Sedleigh-Denfield (the landowner) knew about the pipe and the risk of flooding but did nothing to stop it.

Question 6

Occupiers, ‘Adoption’ and the rule in Sedleigh-Denfield

Answer 6

“[An occupier of land] ‘adopts’ [a nuisance] if he makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance.”

Question 7

Occupiers, ‘continuing’ the nuisance and Sedleigh-Denfield

Answer 7

“In my opinion an occupier of land ‘continues’ a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable means to bring it to an end though with ample time to do so.”
Per Viscount Maugham

“What is the meaning of ‘continued’? In the context in which it is used ‘continued’ must indicate mere passive continuance. If a man uses on premises something which he found there, and which itself causes a nuisance…he is himself in continuing to bring into existence the noise, vibration, etc., causing the nuisance. Continuing in this sense and causing are the same thing…if a man permits an offensive thing on his premises to continue to offend, that is, if he knows that it is operating offensively, is able to prevent it, and omits to prevent it, he is permitting the nuisance to continue; in other words he is continuing it.”
Per Lord Atkin

Question 8

Link Between the Occupier of the Land and the nuisance

Answer 8

In addition to showing that there has been an actionable nuisance, you also need to ask:
-Is there a sufficient link between the occupier of land and the nuisance, to justify liability on the part of the occupier?

According to Sedleigh-Denfield, there is a sufficient link when the occupier:
-creates the nuisance; or
-has knowledge or presumed knowledge of the nuisance and an opportunity to abate it

Question 9

Goldman v Hargrave

Answer 9

Australian case BUT in Leakey & Others v National Trust…the courts were able to restate the law in the case also translates to English cases as well

A giant redgum tree on the respondent’s land was struck by lightning and caught fire. The blaze could not be dealt with while the tree was standing so the respondent cut the tree down. The respondent did nothing to extinguish the fire, leaving it to burn itself out. A strong wind caused the fire to flare up and spread to the appellant’s land and damaged the respondent’s property.

Held –
-Yes — the defendant was liable in nuisance.
-when an occupier becomes aware of a nuisance, he is under a duty to take positive action (not merely a duty to abstain from creating/adding to a nuisance).
-The standard is subjective.
-In determining the occupier’s liability, the court must take into account the cost of abatement and balance it against the occupier’s resources (resources = financial and physical resources).
-This is the case regardless of whether the nuisance was caused by a natural hazard (as in Goldman) or a third party (as in Sedleigh-Denfield).

Question 10

Leakey & Others v National Trust

Answer 10

-The claimants’ two houses were located at the foot of a hill called, ‘The Burrow Mump’ owned and occupied by the defendants. Due to natural weathering debris and soil had fallen on the houses for a number of years. The claimants drew the defendant’s attention to a large crack in the soil above their houses. Some time later, soil and tree roots fell on the claimant’s property. They brought an action in nuisance.

Held -
-The principle in Goldman applied in English law
-The occupier owes positive duties to a neighbour in respect of a nuisance arising on his land due to natural forces.
-The duty was subjective – the steps which should reasonably be taken varied depending on the resources of the defendant.

Question 11

Holbeck Hall Hotel v Scarborough Borough Council

Answer 11

-The Claimants’ hotel was on a cliff near the sea. The land between the hotel and the sea was owned by the SBC and had been gradually eroded. In 1993 a landslide occurred – the third in three years. This led to the hotel being undermined and having to be demolished.
-The Claimants argued that the defendants were liable on the basis of withdrawal of support.

Question 12

Holbeck Hall Hotel v Scarborough Borough Council

Answer 12

Held:
-There is no difference between withdrawal of support and any other nuisance claim resulting from natural forces.
-Where the defendant has not created the danger, but it arises solely from the operation of nature, the duty of the occupier does not extend to damage which is more extensive than could be foreseen – even if of the same type.
-So in this case, the council was found not to be liable because it did not have any actual knowledge of the danger of a major landslide. And such knowledge could not be presumed from the mine as landslides which had previously occurred, especially without further investigations being done, which is not a requirement.

Question 13

Vernon Knight Associates v Cornwall Council

Answer 13

A landowner owes a…duty in…nuisance to take reasonable steps to prevent natural occurrences on his land from causing damage to neighbouring properties.

Question 14

Marcic v Thames Water Utilities Ltd

Answer 14

-Sewers had been built which were originally adequate, but became inadequate due to increased use. This resulted in flooding which affected the claimant’s property.

-The HL held that the defendant’s conduct did not constitute a nuisance.

Question 15

The HL distinguished this case from the line of cases following Sedleigh-Denfield:

Answer 15

-The difference in my opinion is that Sedleigh-Denfield’s case, Goldman’s case and Leakey’s case were dealing with disputes between neighbouring land owners simply in their capacity as individual landowners.
-the exercise becomes very different when one is dealing with the capital expenditure of a statutory undertaking providing public utilities on a large scale. The matter is [not] confined to the parties to the action. If one customer is given a certain level of services, everyone in the same circumstances should receive the same level of services.”

Question 16

Occupiers Summary:

Answer 16

It is mostly the occupier of the land giving rise to the nuisance that is sued.

The occupier may be liable for nuisances created by:
-Themselves;
-Their servants, i.e. employees/agents through vicarious liability;
-But NOT independent contractors – unless the occupier is under a non-delegable duty/the contractor is working on the highway and creates a danger to highway users.
-Generally, the occupier may be held liable where although they did not create the nuisance, they adopted or continued it.

Question 17

Parties: who may be sued? - Landlords

Answer 17

-Before Demise
-During Demise
-After Demise

Question 18

Parties: who may be sued? - Landlords

Answer 18

Nuisance created by tenants
“-In general, a landlord is not liable for nuisance committed by his tenant, but…there is…[a] recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance.”
-Per Sir John Pennycuick V-C in Smith v Scott

Put another way:
-the landlord is not liable as they have parted with control of the land.
-the landlord is only liable for nuisances created by the tenant if he/she authorised the nuisance. If the tenant does not create a nuisance, then the landlord does not authorise a nuisance and cannot be liable.

Question 19

Parties: who may be sued? - Landlords

Answer 19

Before the demise:
Nuisance existed at the time of letting = landlord liable if they knew or ought to have known of the nuisance before letting

Question 20

Parties: who may be sued? - Landlords

Answer 20

Nuisance created by tenants – exceptions

-The landlord is liable for the nuisance if they authorised it.
-Authorising a nuisance = directly participating in the commission of the nuisance, or by letting the property
-There must be ‘a very high degree of probability’ that a letting will result in a nuisance for the landlord to be liable.
——Lawrence and another v Fen Tigers Ltd and others (racing car case-was dismissed in relation to the landlord)
-Fouladi v Darout Ltd and others (noise complaints….the landlord’s case was dismissed)
———–landlord will only be liable where it authorises or directly participates in the nuisance itself.
-To constitute a nuisance, the acts complained of must involve the use of the tenant’s land (anti-discrimination not applicable)
———–Hussain v Lancaster City Council

Question 21

Parties: who may be sued? - Landlords

Answer 21

-Where the landlord has reserved the right to enter and repair in the lease, or there is an implied right to do so, the landlord will be liable even if they did not know of the defect, unless the defect was caused by a trespasser or natural processes.

Question 22

Landlords and Licensees

Answer 22

Lippiatt v South Glocestershire County Council
-Travellers congregated on the defendant council’s land. They frequently trespassed on the claimant farmer’s land opposite and carried out various anti-social activities such as obstruction, fouling with rubbish and excrement, theft and actual damage.
*Held –the council was liable for the anti-social activities of the travellers because by allowing the licensees to occupy a site and not taking action to evict them they caused the nuisance.

-Appears to be a distinction between tenants and licensees: a landlord, unlike a licensor, has ceased to occupy the land, it’s the tenant who is the occupier, so they generally will not be liable for the tenant’s nuisance – Cocking v Eacott [2016] EWCA Civ 140

Question 23

Parties: who may sue?

Answer 23

A claimant must establish that they have legal ‘standing’ – i.e. the right to sue.

Malone v Laskey [1907]
-A woman was injured when a toilet cistern fell on top of her whilst she was using it. It had been dislodged by vibrations emanating from the neighbouring defendant’s electricity generator.
-The Court of Appeal held that she had no cause of action because she had no proprietary interest in the premises. The house belonged to her husband’s employer and she was ‘merely present in the house’.

Therefore, a claimant must have a proprietary or possessory right in land in order to bring a nuisance claim.

Question 24

Hunter v Canary Wharf

Answer 24

The House of Lords - extended the categories of claimant to those with just a substantial link with the property would undermine the whole basis of nuisance law:

In Hunter, not all of the claimants were householders with the exclusive right to possession (such as freeholders, tenants or even licensees). They included people that the householders shared their homes with e.g. wives/husbands, children or other relatives.

Question 25

Hunter v Canary Wharf

Answer 25

-Private nuisance was a tort against land and not against the person- damages are for injury to the property, not the sensibilities of the occupier. -The idea that it could be ‘modernised’ by extending it to protect certain personal interests was rejected. -Claims in nuisance can only be brought by claimants with an interest in land – landowners, tenants, grantees of an easement or those with exclusive possession.

Question 26

Parties: who may sue?

Answer 26

-Art 8 ECHR – the right to respect for private and family life, home and correspondence - incorporated into the Human Rights Act? -Issue: What effect does the Human Rights Act have on the position of those persons without proprietary property rights?

Question 27

McKenna v British Aluminium Ltd

Answer 27

The defendant wanted the court to strike out the claimants’ claims on the basis that they had no standing. Neuberger J stated that the claimants with no proprietary right had an arguable case and the restrictive common law approach should be extended in light of the HRA, so dismissed the defendant’s application to strike out their claims. (But this was just a strike-out application).

Question 28

Dobson v Thames Water Utilities

Answer 28

Hunter provided no support for the idea that a person with the right to sue could recover damage on behalf of other occupiers who did not have the right to sue, e.g. a child Overall, whether Hunter is compatible with Article 8(1) remains to be seen. The requirement of an ‘interest in land’ might need to be reconsidered in future in light of the Human Rights Act.

Question 29

Defences & Remedies

Answer 29

-Contributory negligence?- Maybe -Volenti non fit injuria? - Maybe The key defences specific to private nuisance: -Statutory authority (but not planning permission) -Prescription (the ‘20 year rule’)

Question 30

Manchester Corporation v Farnworth

Answer 30

Defences to nuisance: Statutory authority Where a defendant’s activities are authorised by statute, i.e. a statute orders a defendant to use their land in a particular way, and this inevitably causes a nuisance to a neighbouring land user, the defendant has a total defence to claims in nuisance. -‘inevitably’ means that the consequence is one that cannot be avoided through due care and skill. Therefore, the claimant has no remedy even if they are able to establish nuisance on the facts.

Question 31

But see Geddis v Proprietors of the Bann Reservoir

Answer 31

“no action will lie for doing that which the legislation has authorised, if it be done without negligence.”

Question 32

Allen v Gulf Oil Refining Ltd

Answer 32

The Defendants’ expansion of the Gulf Oil company in part of Wales was expressly authorised by the Gulf Oil Refinement Act 1965. The statute stipulated that an oil refinery should be built but not how it should be operated. The claimants claimed in nuisance arguing that smell, noise and vibrations emanating from the refinery caused unreasonable levels of disturbance. -The HL saw the issue as one of statutory interpretation and considered whether the nuisance was impliedly or expressly authorised by statute. -The burden of establishing this was placed on the defendant. -The majority held that the refinery’s operations were implicitly authorised by statute, i.e. the nuisance caused by its operation was inevitable. The defendant will not succeed under the defence of statutory authority if the claimant can show either that the works in question could have been situated if the claimant can show either that in some other place within the terms of the statute and thus avoiding the nuisance,

Question 33

Hatton v UK

Answer 33

Hatton alleged that the Government’s policy on night flights at Heathrow Airport, which gave her persistent sleeping problems, constituted a violation of her private life (Art 8). Held -No violation was found. The Court decided that there was no interference to be justified and that the authorities had acted within their margin of appreciation, striking a “fair balance between the right of the individuals affected by those regulations to respect for their private life and home and the conflicting interests of others and of the community as a whole” (§ 129). In light of the Human Rights Act and particularly the Art.8(1) right to private, home and family life, courts need to be careful in how they interpret statutes as giving a defence to a claim in nuisance, especially when they are implying an authorisation, rather than it being expressly written in the statute.

Question 34

Remember!

Answer 34

Statutory authority means the defendant has authority, created by statute, to use his/her land in a particular way. Neither planning permission nor environmental permits can be said to be equivalent to statutory authority.

Question 35

Defences to nuisance: Prescription

Answer 35

In actions for private nuisance, a defendant has a defence if they can show that: -the nuisance has been actionable for a period of 20 years – i.e. the interference amounted to a nuisance throughout the prescriptive period of 20 years. -the claimant was aware that the interference affected his/her interests during this period.

Question 36

Sturges v Bridgman

Answer 36

A confectioner and doctor lived next door to each other. The confectioner had been using industrial pestles and mortars for over 20 years. The resulting noise and vibration did not cause any interference until the doctor built a consulting room at the rear of his garden. He alleged that the noise and vibration was a nuisance and brought an action for an injunction. Held –the defence of prescription failed because there was no actionable nuisance until the consulting room had been built. The ‘20 year clock’ starts when the interference becomes a nuisance not when the activity commences.

Question 37

Arguments which are not valid defences to nuisance- Coming to the Nuisance

Answer 37

COMING TO THE NUISANCE -It is not a defence to argue that the claimant was aware of the nuisance when they moved to the area (Sturges v Bridgeman (1879). -Miller v Jackson ~Cricket had been played on the village ground since 1905. Houses were built nearby in 1970 in such a place that cricket balls frequently entered the claimant’s garden. It was no defence to say that the claimant had brought trouble onto his own head by moving there. (But it was a factor in the court’s decision not to grant an injunction)

Question 38

Lawrence v Fen Tigers

Answer 38

COMING TO THE NUISANCE The case affirms the rule in Sturges but the Supreme Court seems to have introduced some qualifications: “where a claimant builds on, or changes the use of, her land…it may well be wrong to hold that a defendant’s pre-existing activity gives rise to a nuisance provided that (i) It can only be said to be a nuisance because it affects the senses of those on the claimant’s land, (ii) It was not a nuisance before the building or change of use of the claimant’s land, (iii) It is and has been, a reasonable and otherwise lawful use of the defendant’s land (iv) It is carried out in a reasonable way, and (v) It causes no greater nuisance than when the claimant first carried out the building or changed the use. (This is not intended to imply that in any case where one or more of these requirements is not satisfied, a claim in nuisance would be bound to succeed). “…it appears clear to me that it is no defence for a defendant…to contend that the claimant came to the nuisance, although it may well be a defence, at least in some circumstances, for a defendant to contend that, as it is only because the claimant has changed the use of, or built on, her land that the defendant’s pre-existing activity is claimed to have become a nuisance, the claim should fail.” Per Lord Neuberger at [58]

Question 39

Arguments which are not valid defences to nuisance- Usefulness or Public Utility

Answer 39

Shelfer v City of London Electric Lighting Co– public benefit is not a sufficient reason to refuse an injunction. It is not a defence to argue that the defendant’s activity is a useful one or provides a public benefit. - Miller v Jackson -Confirmed in the Supreme Court case of Fearn v Board of Trustees of the Tate Gallery where it was said that public utility is not a defence and its only relevance is in the consideration of what remedy to grant. -------------Public utility “may justify awarding damages rather than an injunction, but it does not justify denying a victim any remedy at all.”

Question 40

Arguments which are not valid defences to nuisance- Nuisance caused by the separate actions of many

Answer 40

Where a nuisance is caused by several people, a defendant cannot argue that their contribution alone would not have amounted to a nuisance. Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd -Pollutant sewage from a number of factories reached a river through the sewage pipe of a local authority from the sewage works. Held – the local authority was responsible. The Court of Appeal held that all defendants were liable for nuisance. Key points included: CHATGPT -Joint Liability: Even though the pollution resulted from multiple sources, each defendant's contribution was significant enough to establish liability. -Statutory Authority Not a Defence: The court rejected the argument that statutory powers granted to Derby Corporation and the British Electricity Authority provided immunity from nuisance claims. The court emphasized that statutory authority does not permit the creation of a nuisance unless explicitly stated. -Injunction Granted: The court issued injunctions against all defendants, restraining them from further polluting the river. However, recognizing the need for the defendants to implement corrective measures, the injunctions were suspended for two years.

Question 41

Remedies

Answer 41

Broadly speaking, there are 3 remedies for nuisance: -Abatement -Injunction -Damages

Question 42

Abatement

Answer 42

-Abatement is a form of self-help -The claimant is justified in entering the land from which the nuisance emanates to put a stop to it. -Notice should be given except in an emergency or where it is not necessary to enter another’s land to exercise the remedy. When does the remedy apply? - Burton v Winters [1993] 1 WLR 1077: -“[T]he courts have confined the remedy…of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy.”

Question 43

Injuction

Answer 43

-A claimant seeking an injunction is asking for the court to stop the part of the defendant’s activity which amounts to nuisance. -An injunction is an equitable remedy, therefore whether to grant one and on what terms is a discretionary decision for the court. ---------It is also personal to the claimant seeking an injunction (they cannot transfer the injunction to a new landowner. See Raymond v Young Coventry v Lawrence [2014] -confirms that the general position is that a court should grant an injunction unless the defendant can convince the court why it should not be granted (at [121]). -the decision whether to grant an injunction or damages in lieu of an injunction would depend on the facts of each case (at [120]).

Question 44

Damages

Answer 44

Damages for past injury and interference: -Damages are only awarded where the type of damage was reasonably foreseeable. Hunter v Canary Wharf -Damage to the land itself – damages assessed by the diminution in the capital value of the land. -Amenity damages – damages assessed by the diminution in value during the period in which the nuisance persists. -“In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value on intangibles. But estate agents do this all the time. The law of damages is sufficiently flexible to be able to do justice in such a case.”

Answer 45

Damages in lieu of an injunction: -Initially four restrictive criteria needed to be established for damages to be awarded lieu of an injunction (Shelfer v City of London Electric Lighting Co: ----Injury is small ----Injury is capable of being estimated in money ----Injury can be adequately compensated by a monetary payment; AND ----Granting an injunction would be oppressive to the defendant. -Dennis v the Ministry of Defence– an exceptional case because of HR considerations? -Coventry v Lawrence– the normalisation of damages

Question 46

Putting it all together

Answer 46

Look at the last slides on the powerpoint