Week 17: Nuisance

Question 1

What is a nuisance in law?

Answer 1

A nuisance in law is the use of land in a way that interferes with others’ enjoyment of their property, e.g. through noise, smell, vibration, or pollution.

Question 2

What does “plus quam tolerabile” mean in the context of nuisance?

Answer 2

“Plus quam tolerabile” means the interference must be more than what is tolerable or reasonable to count as a legal nuisance.

Question 3

How did nuisance law develop historically?

Answer 3

Nuisance law developed in the 19th century as a basis for managing environmental harms like water and air pollution, though modern statutes now also govern these.

Question 4

How does nuisance link to other areas of law?

Answer 4

Nuisance links to negligence, trespass (including aemulationem vicini—actions done out of spite), and property law, as it is considered a ‘property delict.’

Question 5

What types of harm can be caused by a nuisance in law?

Answer 5

Nuisance can cause harm to property and also include ‘amenity nuisances’—interferences that make life unpleasant for individuals or communities.

Question 6

How does English law of nuisance differ from Scots law?

Answer 6

English law of nuisance differs from Scots law in that it recognises both public and private nuisance, whereas Scots law primarily deals with nuisance as a property delict.

Question 7

What is public nuisance under English law?

Answer 7

Public nuisance in English law is divided into multiple categories and is more complex, reflecting the higher volume of cases in England.

Question 8

What case illustrates the complexity of English public nuisance law?

Answer 8

Fearn & others v Trustees of the Tate Gallery [2023] UKSC 4 illustrates the complexity of English public nuisance law.

Question 9

Who can sue in English private nuisance cases?

Answer 9

In English private nuisance, a person usually must have a private property right to sue—it’s not typically about broader neighbourhood issues.

Question 10

Should Scottish students rely on English nuisance case law?

Answer 10

Scottish students should be cautious with English nuisance case law, as nuisance is one of the areas with the greatest divergence between Scots delict and English tort law.

Question 11

What do English and Scots law have in common regarding nuisance?

Answer 11

Both English and Scots law have broadly the same approach to statutory nuisance.

Question 12

What is a common type of nuisance action related to water?

Answer 12

A common type of nuisance action involves water pollution between riparian properties, especially in early industrialisation cases like the ‘Esk cases’.

Question 13

What kind of nuisance arose with urbanisation and industrialisation?

Answer 13

Urban ‘amenity nuisances’ arose with industrialisation—these included noxious fumes, street waste, and animals.

Question 14

What is a modern example of nuisance in property damage?

Answer 14

Modern nuisance cases often involve damage to buildings from water or subsidence.

Question 15

What kind of nuisance involves hazardous materials?

Answer 15

Nuisance involving hazardous substances includes cases like Chalmers v Dixon (1876) (combustible materials) and Kerr v Earl of Orkney (1857) (flooding).

Question 16

Are nuisance categories fixed in Scots law?

Answer 16

No, nuisance categories are not exclusive; early and modern cases can overlap and evolve, as discussed in Thomson’s notes.

Question 17

Should nuisance relate only to novel or extraordinary uses of land?

Answer 17

In Scots law, nuisance does not need to relate to novel or extraordinary land use; English law has mixed authority (see Fearn).

Question 18

Does the harm in a nuisance case need to be foreseeable?

Answer 18

Yes, the harm must be foreseeable in both Scotland and England—main authority is Cambridge Water v Eastern Counties Leather [1994] 2 AC 264.

Question 19

Can planning permission prevent a nuisance claim?

Answer 19

No, planning permission does not stop something from being a nuisance, but it may affect the character of the locality (e.g., converting it to industrial).

Question 20

Is statutory authority a defence to nuisance?

Answer 20

Yes, statutory authority can be a defence, but its extent depends on the context and how explicitly it authorises the activity.

Question 21

What is the significance of Watt v Jamieson (1954) in the modern law of nuisance?

Answer 21

In Watt v Jamieson (1954), the court held that ordinary domestic use is not automatically a defence to nuisance; the focus should be on the impact on the victim.

Question 22

What caused the nuisance in Watt v Jamieson (1954)?

Answer 22

In Watt v Jamieson (1954), sulphurous water vapour from a neighbour’s gas heater caused damp and structural damage.

Question 23

What is the ‘proper angle of approach’ in nuisance cases according to Watt v Jamieson (1954)?

Answer 23

The proper approach is from the victim’s perspective—the court must weigh all circumstances to see if the interference was plus quam tolerabile (more than tolerable).

Question 24

How does locality affect nuisance claims in Watt v Jamieson (1954)?

Answer 24

In Watt v Jamieson (1954), the court recognised that some disturbance is tolerable in urban areas, but nuisance must go beyond that threshold.

Question 25

What remedies might the pursuer seek in Watt v Jamieson (1954)?

Answer 25

The pursuer in Watt v Jamieson (1954) could seek damages for property damage and possibly interdict (injunction) to prevent further nuisance.

Question 26

What must a nuisance be to be actionable?

Answer 26

A nuisance must be more than tolerable (plus quam tolerabile) and is assessed case by case based on the circumstances.

Question 27

How does the location affect whether something is a nuisance?

Answer 27

The location matters—what may be a nuisance in the countryside (e.g. industrial noise) might be expected in a city, and vice versa.

Question 28

How does the sensitivity of the pursuer affect a nuisance claim?

Answer 28

If the pursuer is unusually sensitive, this may weaken the claim—courts assess from the view of a reasonably robust person.

Question 29

What was held in Macbean v Scottish Water [2020]?

Answer 29

In Macbean v Scottish Water, the court held that occasional faint smells from a wastewater plant were not actionable, especially given the public interest in sewage treatment.

Question 30

Can public interest justify some level of nuisance?

Answer 30

Yes, public interest, like the need to run a wastewater treatment plant, may justify some minor interference.

Question 31

Does public interest prevent something from being a nuisance?

Answer 31

Public interest does not prevent a nuisance from being found, but may affect remedies, such as delaying an interdict.

Question 32

What was decided in Ben Nevis Distillery v North British Aluminium Co (1948 & 1949)?

Answer 32

In Ben Nevis Distillery, despite noxious fumes, the court acknowledged public interest and deferred interdict to allow time for remedial works.

Question 33

What happened in Webster v Lord Advocate (1985)?

Answer 33

In Webster v Lord Advocate, the noise from the Military Tattoo and construction was found potentially actionable as a nuisance, but public interest affected how remedies were considered.

Question 34

Does it matter if the pursuer 'came to the nuisance'?

Answer 34

No, whether the nuisance came to the person or they came to it, the rights are the same, as held in Fleming v Hislop (1886).

Question 35

Can long-standing nuisances become immune from challenge?

Answer 35

Yes, under the Prescription & Limitation (Scotland) Act 1973 s 7, a nuisance that continues for 20 years may be extinguished by long negative prescription.

Question 36

What is the ‘agents of change’ principle in planning law?

Answer 36

Under the Planning (Scotland) Act 2019 s 25, new developments must adapt to pre-existing noise sources, e.g., with soundproofing, to protect existing venues.

Question 37

Is fault required for damages in nuisance under Scots law?

Answer 37

Yes, in Scotland, where there is a claim for damages in nuisance, there must be some element of fault or culpa.

Question 38

Is fault required to obtain an interdict for nuisance in Scotland?

Answer 38

No, for an ongoing nuisance, fault may not need to be averred, and an interdict is always available (though it may be delayed).

Question 39

When is an interdict useful in nuisance actions?

Answer 39

An interdict is useful for ongoing nuisances, especially in neighbourhood or amenity cases; not as helpful for one-time property damage unless the issue will recur.

Question 40

What if the nuisance ‘speaks for itself’?

Answer 40

If the nuisance is obviously ongoing and harmful, fault may be inferred under the doctrine of res ipsa loquitur.

Question 41

Was nuisance ever considered strict liability?

Answer 41

Historically, nuisance was sometimes treated as strict or no-fault liability, especially in English law, though this is not the standard in Scotland for damages.

Question 42

What are possible defences to nuisance?

Answer 42

Defences to nuisance may include damnum fatale (acts of God) or harm caused by a third party.

Question 43

What happened in RHM Bakeries v Strathclyde Regional Council (1985)?

Answer 43

In RHM Bakeries v Strathclyde Regional Council, a bakery was flooded with sewage from a collapsed sewer owned by the council.

Question 44

What did the pursuers claim in RHM Bakeries v Strathclyde Regional Council (1985)?

Answer 44

The pursuers claimed SRC had an absolute duty to maintain the sewer under s2 of the Sewerage (Scotland) Act 1968, despite not averring specific fault.

Question 45

What was the final decision in RHM Bakeries v Strathclyde Regional Council (1985)?

Answer 45

The House of Lords held that for damages to be awarded, there must be some element of fault, and the duty to maintain was not absolute.

Question 46

Is it necessary to state the exact fault in sewer cases like RHM Bakeries (1985)?

Answer 46

No, the court said it is not necessary to aver the precise fault, but showing the collapse as evidence of failure to maintain could be enough.

Question 47

What did the court decide in Argyll & Clyde HB v SRC (1988) about pleading fault?

Answer 47

In Argyll & Clyde HB v SRC, the court held the case was irrelevant as the pursuers failed to specify the fault or the required maintenance, making their pleadings inadequate.

Question 48

How was culpa and its relationship to negligence addressed in Kennedy v Glenbelle Ltd (1996)?

Answer 48

In Kennedy v Glenbelle Ltd, the court said culpa in nuisance and negligence could both be relevant, and allowed the case to proceed on both grounds.

Question 49

What were the facts in Kennedy v Glenbelle Ltd (1996)?

Answer 49

In Kennedy v Glenbelle, an upper flat was damaged when a load-bearing wall was removed in the basement; engineers and owners were sued in nuisance and negligence.

Question 50

What are the five ways culpa can arise, according to Kennedy v Glenbelle Ltd (1996)?

Answer 50

In Kennedy v Glenbelle, culpa could arise through malice, intent, recklessness, negligence, or conduct involving special risk of abnormal damage where fault may be inferred.