Private Nuisance

Question 1

Torts relating to land

Answer 1

(1) Private nuisance
(2) Public nuisance
(3) The rule in Rylands v Fletcher

Question 2

Private nuisance definition

Answer 2

Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or his use or enjoyment of that land

Question 3

Who can sue in private nuisance?

Answer 3

The claimant must have a legal interest in the land, namely a possessionary of proprietary interest. Mere permission to use or occupy the land is insufficient.

Question 4

Malone v Laskey

Answer 4

The land was occupied by a manager, who worked for the tenant, and his wife. The wife could not bring a claim in private nuisance because she did not have any legal interest in the land and so had no right to sue.

Question 5

Who can be sued in private nuisance?

Answer 5

(1) the creator of the nuisance
(2) the occupier of the land
(3) the owner of the land

Question 6

Creator of the nuisance

Answer 6

Can be sued even though they may not be in a position to end the nuisance and even though they may not be the occupier of the land (Thomas v NUM)

Question 7

Occupier of the land

Answer 7

The usual defendant is the occupier of the land from where the nuisance has come. They can be liable for nuisances created by themselves as well as others. This responsibility derives from the fact they have control over the land.

• Leakey v National Trust: the National Trust as occupier and owner was liable for a large mound of earth that had accumulated on its land. Although aware of the hazard, they had made no steps to prevent it.
• an occupier will not normally be liable for nuisances caused by others, but may be held liable in exceptional circumstances

Question 8

Circumstances in which the occupiers might be liable for nuisances created by others

Answer 8

• Independent contractors (Matania v National Provincial Bank - although this case was unusual because building work does not normally form the basis of a private nuisance claim as people are expected to put up with a certain amount of give and take (Bamford v Turnley))
• Trespassers (will be liable if the occupier continued or adopted the nuisance, e.g. Sedleigh-Denfield v O’Callaghan, a water pipe had unlawfully been put under the defendant’s land by the local authority but the defendant had used the pipe and the problem would have been easy for the defendant to rectify) The same applies to nuisance created by previous owners of the land

Question 9

Can an occupier be liable for naturally occurring circumstances?

Answer 9

Can sometimes be liable for naturally occurring circumstances - Goldman v Hargrave: occupier held liable for a naturally occurring nuisance where they knew or ought to have known of a danger and failed to take reasonable steps to do anything about the nuisance

However: duty to abate a naturally existing occurrence is subject to the means of the occupier (they are not expected to bankrupt themselves) (Holbeck Hall Hotel v Scarborough- council not liable for a land slip) The court will consider what is fair and reasonable based on resources available to the defendant and the claimant

Question 10

Owner of the land

Answer 10

A landlord will not usually be liable for private nuisance unless they either (1) created it or (2) authorised it. (Coventry v Lawrence - the landlord had not actively participated in the nuisance)

Question 11

Elements of a private nuisance claim

Answer 11

(1) Indirect interference
(2) Recognised damage
(3) Continuous act
(4) Unlawful interference.

Question 12

Indirect interference

Answer 12

• Governed by principles laid down by the courts. Sounds, smells, fumes and vibrations have all been held to be an indirect interference
• An indirect interference occurs when the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of his land. This can include a failure to act.

Question 13

Loss (recognised damage)

Answer 13

• The damage must have been reasonably foreseeable (Cambridge Water Company v Eastern Counties Leather)
• The damage that is claimed in relation to this tort is damage that affects the claimant’s use or enjoyment of their land. It is not possible to claim for personal injury (Hunter v Canary Wharf Ltd)
• Two types of damage recoverable in private nuisance: (a) physical damage to property and (b) sensible personal discomfort (SPD) (St Helen’s Smelting Co v William Tipping)

Question 14

Definition of SPD

Answer 14

‘anything that discomposes or injuriously affects the senses or the nerves.’

Question 15

Thresholds for physical damage to property and SPD

Answer 15

• any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery)
• any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe)

Question 16

Fearn and others v The Board of Trustees of the Tate Gallery

Answer 16

Tate Modern customers could see into the claimants’ apartments when on the ordinary viewing gallery. Mere ‘overlooking’ held not to constitute a nuisance.

Question 17

Is consequential economic loss recoverable in private nuisance?

Answer 17

Yes; lost profits caused by the claimant’s inability to use their land to make those profits.
Pure economic loss not recoverable
(Hubbard v Pitt)

Question 18

Continuous Act

Answer 18

The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable.

Question 19

Exceptions to the ‘continuous act’ general rule

Answer 19

• A single incident caused by an underlying state of affairs (e.g. persistent habit of storing metal strips outside of a factory - British Celanese v AH Hunt Ltd)
• An activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material (e.g. firework display caused a fire which caused extensive property damage - Crown River Cruises Ltd v Kimbolton Fireworks Ltd)

Question 20

Unlawful interference

Answer 20

• The term ‘unlawful’ in this context denotes unreasonableness
• If the use of the land is unreasonable, the defendant will be liable, even if they exercised reasonable care and skill to try and avoid it (Cambridge Water Company v Eastern Counties Leather)

Question 21

Definition of reasonableness

Answer 21

‘the ordinary usages of mankind living in society, or more correctly in a particular society.’
- Where there has been property damage, it will usually be easily demonstrated that the claimant’s enjoyment of their land has been affected over and above what is reasonable, but not always

Question 22

Factors considered in determining whether the defendant’s use of land is unreasonable

Answer 22

(1) Time and duration
(2) Character of a neighbourhood or ‘locality’
(3) Abnormal sensitivity
(4) Malice
(5) Defendant’s lack of care
(6) Excessive behaviour
(7) Public benefit

Question 23

(1) Time and duration

Answer 23

• If the interference is frequent or for long periods of time, this may be deemed unreasonable
• When the nuisance takes place, how long it continues and how frequently it is repeated (Kennaway v Thompson)
• Where the loss is property damage, the court might find a nuisance even if caused by a temporary or short-lived activity (Crown River Cruises v Kimbolton Fireworks)

Question 24

(2) Character of neighbourhood or locality

Answer 24

• Not relevant when physical damage is caused, only SPD (St Helen’s Smelting Co v Tipping)
• Sturges v Bridgman: defendant’s business was held to be a nuisance in a residential area. “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.”
• Adams v Ursell: fumes caused by a fish and chip shop held to be a nuisance in a residential area

Question 25

Planning permission

Answer 25

• Gillingham v Medway: Planning permission may alter the character of an area, so what was once a nuisance is no longer or vice versa. A predominantly residential area became a commercial port following planning permission. The claim failed as planning permission had changed the nature of the locality.

Wheeler v JJ Saunders: Planning permission will not authorise a nuisance. The defendant had permission to build two new pig sheds. Strong smells emanated to the claimant’s property. Despite the planning permission, the court held the defendant liable as planning permission had not changed the nature of the locality

Question 26

Coventry v Lawrence

Answer 26

• Stadium noise in a rural area
• Planning permission does not determine private rights so is usually of no assistance to the defendant in private nuisance claims
• There will be circumstances where planning permission may have a bearing on whether or not the nuisance exists (i.e. whether it is reasonable or not) and may have relevance to remedies

Question 27

(3) Abnormal sensitivity

Answer 27

• A claimant who is unusually sensitive cannot claim that activities that would not interfere with the ordinary occupier are a nuisance
• Robinson v Kilvert: claimant operated a business which involved storing heat sensitive paper. The defendant carried on a manufacturing business in the same building. Court held that the claimant’s paper was abnormally sensitive and ordinary paper would have been unaffected so the defendant’s use of the land was reasonable
• Heath v Mayor of Brighton: only the claimant was affected by noise from an electricity station. If the reasonable occupier would be affected, the claimant can full for the full extent of their loss and irritation, even though these are increased by their sensitivity.
• McKinnon Industries v Walker: given normal flowers were affected by the defendant’s activity, the claimant could claim for damage to the abnormally sensitive orchids

Question 28

Abnormal sensitivity - Network Rail Infrastructure v CJ Morris

Answer 28

• Abnormal sensitivity should now be considered alongside or as part of foreseeability.
• If someone or something is AS, then arguably the loss is not foreseeable to the defendant.
• The correct test is whether it was foreseeable that specific damage would be caused to a specific claimant
• e.g. in this case, recognised that the use of electronic equipment is now a feature of modern life, but it was not reasonable to expect the defendant to foresee the interference caused to the electric guitars.

Question 29

(4) Malice

Answer 29

If the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance.
Christie v Davey: claimant was a music teacher so made noise. The defendant responded by making noise himself. The defendant’s noise was held to be excessive and unreasonable given that it was made deliberately and maliciously, it was not a legitimate use of the land.

Question 30

(5) Defendant’s lack of care

Answer 30

If the defendant has shown lack of care, this is likely to count in the claimant’s favour.
Andrae v Selfridge: there will be some disturbance where one party is undertaking building work next to another. Provided these works are reasonably carried on and all reasonable steps are taken to ensure that no undue inconvenience is caused, the neighbours must put up with it. Reasonable care may include restricting building hours.

Question 31

(6) Excessive behaviour

Answer 31

Farrer v Nelson: the defendants owned hundreds of pheasants

Question 32

(7) Public benefit

Answer 32

If the defendant’s activities serve a useful purpose or benefit the community, this will not mean that the defendant has not caused a nuisance.

• Adams v Ursell: there was a public benefit to the fish and chip shop, but this was outweighed by the residential nature of the area and the interference. It would be wrong to expect the claimant to bear too great a burden for the benefit of the public at large.
• Dennis v Ministry of Defence: even the defence of the nation was not a sufficient benefit for the court to find the flying of Harrier jet fighters reasonable and not a nuisance
• Barr v Biffa Waste Services: although public benefit might be a factor, it is not to be given too much significance. More relevant when considering remedy.

Question 33

Moving to the nuisance

Answer 33

This will not justify the commission of nuisance.

Question 34

Potential exception to moving to nuisance

Answer 34

In Coventry v Lawrence, in some circumstances, a defendant might be able to argue that the claimant’s claim should fail if the defendant’s activity only became a nuisance because of the claimant’s change of use or building.

Question 35

Defences for private nuisance

Answer 35

(1) 20 years prescription
(2) Statutory authority
(3) Consent
(4) Contributory negligence
(5) Act of third party
(6) Act of God

Question 36

(1) 20 years prescription

Answer 36

If the defendant’s activity has been an actionable nuisance for 20 years or more (i.e. the claimant would have had grounds for bringing a claim against the defendant for that period) but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance.

It is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing.

Question 37

(2) Statutory authority

Answer 37

Where the defendant’s activity is being carried out on the basis of statutory authority, they will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.

Allen v Gulf Oil: a private Act of Parliament provided for the expansion of an oil refinery. Residents complained of the noise and vibrations. A majority held that it was authorised by statute and the nuisance was inevitable.

Wheeler v JJ Saunders: a grant of planning permission under statutory powers is not the same as statutory authority and will not act as a licence to commit a nuisance

Barr v Biffa Waste Services: a permit to dispose of waste per se would not authorise the commission of the nuisance; the reasonableness of the behaviour still needs to be determined

Question 38

(3) Consent

Answer 38

If the claimant specifically agrees to the defendant causing the nuisance then the consent will be a defence. The defence is only available where the claimant, knowing of the danger to his or her property, has (by word or deed) shown willingness to accept the risks. (Pwllbach Colliery v Woodman)

Question 39

(4) Contributory Negligence

Answer 39

The usual rules of contributory negligence apply

Question 40

(5) Act of third party

Answer 40

Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable for the nuisance, unless they have carried on the nuisance or it is reasonable for them to put a stop to it (Sedleigh-Denfield v O’Callaghan)

Question 41

(6) Act of God

Answer 41

Nichols v Marsland: defendant’s artificial pools flooded and damaged the claimant’s property. Flooding was caused by a very unusual amount of rainfall which was wholly unexpected, so the defendant had a complete defence

Leakey v National Trust: a land slip caused a mound of earth accumulated on the defendant’s land to damage the claimant’s property. The defendant was unable to rely on the defence of an act of God because it had been aware that the mound of earth had accumulated on its land and had done nothing about it.

Question 42

Potential remedies for private nuisance

Answer 42

(1) Injunction
(2) Damages
(3) Abatement

Question 43

Injunction

Answer 43

• the primary remedy for a continuing nuisance
• injunctions can be full (banning the activity altogether) or partial (regulating the activity on certain conditions)
• a partial injunction can be seen as a compromise between parties
• the court may grant a partial injunction where the defendant’s actions are of public benefit (Kennaway v Thompson)

Question 44

Damages

Answer 44

• Where a nuisance causes actual physical damage, the cost of repair or renewal can be claimed, whichever is lower. Damages can also be awarded for any consequential economic loss.
• Damages can be awarded in lieu of an injunction where there is SPD
• However, where a claimant establishes a nuisance, prima facie, the remedy awarded should be an injunction and the defendant needs to put forward arguments as to why the injunction should not be granted.

Question 45

Cases where damages were awarded in lieu of an injunction

Answer 45

Dennis v Ministry of Defence: Public benefit (defence of the nation) outweighed the claimants’ rights for an injunction
Miller v Jackson: balance had to be struck between the rights of the claimant to enjoy their property without th e threat of damage and the rights of the public to engage in lawful pastimes.
Coventry v Lawrence: the stadium case. Awarded damages based on the reduction in value of the claimant’s property. There was planning authority for the stadium and the planning authority had been reasonably influenced by the public benefit of the activity

Question 46

3) Abatement

Answer 46

A ‘self help’ remedy where the claimant acts to stop the nuisance.

A claimant may, in certain circumstances, enter onto the land of another and take reasonable steps to prevent the nuisance from continuing. It is this principle that allows people to cut down branches overhanging their land (Lemmon v Webb), although they must be returned to the defendant and the claimant must do no more than is necessary to abate the nuisance.

Notice must usually be given by the claimant of their intention unless it is an emergency situation.