Nuisance

Nuisance

There are two types of nuisance in English law: Public nuisance and Private nuisance. In some instances, the same set of facts can produce liability in both kinds of nuisance, although the two types of nuisance are very much distinct. Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land. The parties to an action in private nuisance are generally neighbors in the popular sense of the word and the courts undertake a balancing exercise between the competing rights of land owner to use his land as he chooses and the right of the neighbor not to have his use or enjoyment of land interfered with. Public nuisance is a crime but becomes actionable in tort law if the claimant suffers 'particular damage' over and above the damage suffered by the public generally.

 Public Nuisance

Public nuisance has been defined as an act ‘which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’: per Romer LJ in Attorney General V PYA Quarries [1957] 2 QB 169.

In Attorney General v PYA Quarries, dust and vibrations caused by the operation of a quarry amounted to a public nuisance, although the defendants tried to argue that too few people were affected by their acts for them to amount to anything more than a private nuisance, if that.

·         Materiality

In many of the other cases on nuisance, the relevant question was the degree of interference which the activity caused. The acts complained of must have been such as to cause real disturbance, but this is a question of fact in each case.

Some examples of acts amounting to public nuisance are: organizing a pop festival, which caused noise and a large amount of traffic (Attorney General of Ontario v Orange (1971) 21 DLR 257); blocking a canal (Rose v Miles (1815) 4 M & S 101)

; queuing on a highway, so causing an obstruction (Lyons v Gulliver [1914] 1 Ch. 631)

; picketing on a highway (Thomas v NUM (South Wales Area) [1985] 2 All ER 1)

; Interference with navigation rights in the River Thames (Tate and Lyle Industries v GLC [1983] 1 All ER 1159).

In R v Johnson (Anthony Thomas) (1996) 160 JP 605, the Court of Appeal held that making obscene telephone calls to numerous women on many occasions constituted a public nuisance. The conduct materially affected the reasonable comfort and convenience of a class of people.

 In R v Gaud (1999) unreported, a surgeon who operated on a large number of patients knowing that he was suffering from an infectious disease was convicted of causing a public nuisance.

·         Reasonable comfort and convenience

The requirement of reasonable comfort and convenience is thought to be the common factor between public and private nuisance, which have little else in common. In both torts, the claimant must establish that the interference with comfort and convenience is substantial enough to amount to a nuisance and is beyond what would reasonably be expected. To succeed in a claim in tort for public nuisance, however, the claimant must prove that he or she has suffered special or extra damage over and above that suffered by other members of the community. The criminal law is adequate to prevent repetitions of the harm, but the object of the civil law is to compensate, and tort is limited to those cases in which extra harm has been suffered.

One important distinction between public and private nuisance here is that for acts to amount to private nuisance there must be continuity or repetition of the acts over a period of time whereas, in public nuisance, there appears to be no such requirement and a single act is probably enough to amount to the tort.

The requirement of interference with comfort covers noise damage to public health and other disturbances, but there is no need, as there is in private nuisance, to prove injury to health or even substantial interference in order to succeed in a claim for public nuisance. Interference with convenience could include the obstruction of entrances to land and highway obstruction

If the public nuisance arises from a condition on land that arises naturally, the tort is committed by the failure of the defendant to remedy the situation, as in Wandsworth LBC v Rail track plc [2001] EWCA Civ 1236 in which pigeons had roosted in large numbers under a railway bridge to the knowledge of the defendant and he had done nothing about it.

·         A class of Her Majesty’s subjects

There must be sufficiently large numbers of people affected by the defendant’s behavior before a claim for public nuisance can be sustained. Essentially, the tort is concerned with protecting the interests of the public and individuals can only be protected by the tort as part of the wider community.

 The Court of Appeal in Attorney General v PYA Quarries did not define how many people constitute a ‘class’, but Lord Denning indicated that there would be a claim for public nuisance if the disturbance was so widespread that it would be unreasonable to expect only one individual to try to prevent it. The question is more one of the effect upon the community than one of the numbers involved.

In Attorney General V Hastings Corps (1950) SJ 225, noise from occasional stock-car racing did not amount to public nuisance because the area was sparsely populated and too few people were affected on too few occasions in the year.

 In Cheung v Southwark London Borough Council, Ch. D 19/12/2007, a civil claim failed because the claimant was unable to prove damage suffered over and above that of the general public.

HIGHWAY NUISANCE

Highway nuisance was defined by Lord Simmonds in Jacobs’s v London CC [1950]

1 All ER 737 as:

Any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the highway

Nuisances which affect the highway are covered by the tort of public nuisance, but an individual would only succeed in a tort claim if there was special damage suffered as a result of the obstruction of the highway.

·         Unreasonable use and obstruction of the highway

Strictly speaking the highway may be used only for passing and re-passing. Any other use of the highway, such as standing or sitting on the road or placing objects upon it could constitute a public nuisance if the conduct involved is unreasonable.

Examples of highway nuisance include

·         queues for theatres (Lyons v Gulliver [1914] 1 Ch. 631)

·         putting up a stand to watch the King’s funeral procession (Campbell v Paddington Corps [1911] 1 KB 869)

·         unreasonable use of the highway during the night by heavy lorries (Halsey v Esso Petroleum [1961] 2 All ER 415)

·         unreasonable parking of an unlit vehicle on a highway at night (Ware v Garston Haulage [1944] KB 30)

·         constantly slicing golf balls onto a highway, one of which caused a taxi-driver to lose an eye (Castle v Saint Augustine’s Links (1922) 38 TLR 615)

·         Putting up advertising hoarding around a building site (Westminster City Council v Ocean Leisure [2004] EWCA Civ 970).

As in private nuisance, there must be unreasonable use of the highway for the tort to be committed. Anything which constitutes unreasonable use, even of a minor nature and particularly if it is solely for the defendant’s convenience will be a public nuisance, as in Farrell v John Mowlem & Co Ltd [1954] 1 Lloyd’s Rep 437, in which the claimant was injured tripping over a pipeline laid across a pavement.

In Day v Suffolk County Council [2007] EWCA Civ 1436, the Court of Appeal held that the trial judge had been entitled to conclude that an inspection carried out by a local authority as part of its maintenance programmer was inadequate, and that a dangerous defect had been overlooked, in breach of the authority’s duty under the Highways Act 1980. The judge had held that the local authority was liable, and that the special defense under s 58(1) of the Act had not been met.

Threats to the highway from adjoining premises

The rule in Wringe v Cohen [1940] 1 KB 229 sets a standard equivalent to strict liability for manmade structures which cause a danger to highways from adjoining premises. In that case, the Court of Appeal held that the person responsible for repairing premises which adjoin a highway is liable for dangers created by those premises if he or she knew or ought to have known of the danger. Liability is not absolute. The exceptions to this are when the danger was caused by a trespasser, or was the result of some natural process causing a latent defect of which the occupier was unaware. Indeed, some writers, including Sir Percy Winfield, take the view that the cases fall into two clear categories, those involving manmade structures, when liability is strict, and those involving natural projections such as trees, when liability depends upon proof of negligence.

 In Caminer v Northern and London Investment Trust Ltd [1951] AC 88, the landowner was not liable when a tree with diseased roots fell across a highway, as it was not possible to detect that the tree was in danger of falling.

 In British Road Services v Slater [1964] 1 All ER 816, a landowner was not liable when a branch of a tree growing on his land but overhanging

The highway knocked a large package off a high vehicle, damaging the claimant’s lorry which was travelling behind. The defendants were found not liable because the breach could not be regarded as a foreseeable source of danger.

In Devon CC v Webber [2002] EWCA Civ 602, the Court of Appeal held that the

Defendants were not liable for a breach of s 150(4) (c) of the Highways Act 1980, nor in nuisance or negligence. A violent and unforeseeably heavy rainstorm had washed 400tonnes of rubble and soil from their land onto the highway and no reasonable person could have predicted this

However, in Chapman v Barking and Dagenham LBC [1998] CLY 4053, the Court of Appeal upheld the decision of the trial judge, who had found the defendants liable for injuries caused by a tree branch. The branch had broken off in high winds, crushing the claimant in the cab of his van. Following Noble v Harrison [1926] 2 KB 332, it was held that there would be liability in nuisance if a landowner neglects to remedy a natural defect on his or her land within a reasonable time.

Occupiers of premises which adjoin the highway are responsible for their maintenance and would also bear responsibility for any damage caused by their disrepair if this amounted to a danger to the highway or persons using it. In Tarry v Ashton (1876) 1 QBD 314, an adjoining land occupier was liable to a passer-by who was injured by a lamp which fell from the premises. Although the occupier attempted to escape liability on the grounds that he had employed an independent contractor to keep the premises in repair, it was decided that the duty to maintain premises so close to a highway could not be delegated. This is one of the exceptions to the rule that an employer is not liable for the torts of an independent contractor

Defences to public nuisance

The general defences in tort apply to public nuisance, but, in addition, the defense of statutory authority has proved useful. For example, in Allen v Gulf Oil Refining Ltd [1981] 1 AC 1001, it was held that where Parliament has expressly or impliedly authorized the construction of works, in this case the installation of an oil refinery, that authorization carries with it the right to do all that is necessary for the authorized purpose, without the fear of a claim for nuisance being brought.

A further analogous defense based on planning permission was successfully pleaded in the first instance decision of Gillingham BC v Medway (Chatham) Dock Co [1993] QB 343.

In this case, Buckley J held that as planning law operates through delegated powers within a statutory framework approved by Parliament, the character of a neighborhood can be changed by planning permission to such an extent that what would previously have been a public nuisance may not be so after the change of use. Here, the council had given the defendants permission to operate a commercial port on the site of the old naval dockyard at Chatham. This had generated heavy commercial traffic by day and night, which passed through what had previously been a quiet residential area. The council, despite their previous assurance to the defendants that they would have unrestricted access to the dock area, brought this claim on behalf of the residents seeking a declaration that heavy traffic through the area at night was a public nuisance, and seeking an injunction to restrain the traffic. It was held that there was no public nuisance here in the light of the changed use of the area under properly considered planning regulations.

The defense of act of a stranger has also proved useful (see Wringe v Cohen)

Prescription, which is a good defense to private nuisance, does not apply to public nuisance.

REMEDIES FOR PUBLIC NUISANCE

Damages

If the claimant has suffered personal injuries or financial loss, this would have to be pleaded as particular damage over and above that suffered by the general public, and damages will be awarded accordingly. However, only compensatory damages will be payable. In Gibbons v South West Water Services Ltd [1993] QB 507, the Court of Appeal held that exemplary damages would not be awarded to claimants who had suffered illness as a result of drinking water which had been contaminated by a grossly excessive dose of aluminum accidentally introduced into the water supply at a treatment works. The defendants had acted in a high handed manner and had sent a misleading letter which stated that the water was safe to drink

Injunctions

The claimant will frequently be seeking an injunction to restrain further repetition of acts of public nuisance. As an equitable remedy this is discretionary, and could be refused in some circumstances.

 In Gillingham BC v Medway (Chatham) Dock Co [1993] QB 343, Buckley J held that, even if a public nuisance had been committed, he would have exercised his discretion and refused an injunction because the claimant had assured the defendant when granting planning permission for change of use, that access to the area would be unrestricted.

 Heathrow Airport Ltd v Garman [2007] EWHC 1957 (QB) is a case which demonstrates the comprehensive protection afforded by the law to landowners in certain cases. Here, an injunction was granted to prevent people protesting at Heathrow airport. Protestors were organizing demonstrations in the wake of concerns about the impact of airports on climate change, and were in the process of setting up a camp close to the airport. The court took the view that the protests would have serious and damaging consequences on the running of the airport, and had the potential to increase the risk of a terrorist attack on the users of the airport, and an injunction was awarded.

Differences between private and public nuisance

·         Public nuisance Protects land and other interests whereas Private nuisance essentially protects land.

·         •public nuisance is primarily a crime whereas private nuisance is only a tort.

·         In public nuisance the Claimant must prove special damage over and above that of public whereas in private nuisance Claimant must prove damage.

·         In public nuisance a Single act can be enough whereas in private nuisance a Single state of affairs is necessary.

·         In public nuisance there is No defense of prescription whereas in private nuisance Prescription is a defense.

·         In public nuisance Exemplary damages are not available whereas in private nuisance Exemplary damages may be available.

·         In public nuisance there is strict liability for some forms of highway nuisance. Whereas in private nuisance Fault is a must usually

A vast range of interferences are capable of amounting to an actionable nuisance. Some examples include: Nuisance from flooding - Sedleigh-Denfield v O' Callaghan [1940] AC 880 Case summary

The council undertook some work on the defendant’s land at the request of a neighboring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighboring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert.

Held:

The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance.

Nuisance in the form of smells - Wheeler v JJ Saunders [1996] Ch. 19 Case summary

Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal

The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd.  JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a nuisance.

Held:

The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighborhood which may make it more difficult to establish a nuisance. It does not authorize a nuisance.

Encroachment by tree branches or roots -Lemmon v Webb [1894] 3 Ch. 1Case summary

A neighbor could cut back branches overhanging his property without giving notice to the owner of the tree provided he could do so without entering the other’s land.

Nuisance noise - Kennaway v Thompson [1981] QB 88 Case summary

The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Club’s waters since the early 1960s. 1972 the claimant moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the club’s waters were often used as a venue for both national and international races. The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The claimant appealed.

Held:

Appeal allowed and an injunction was granted. Lord Cairn’s Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller v Jackson doubted.

Cricket balls - Miller v Jackson [1977] 3 WLR 20 Case summary

The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs. Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period.  There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs. Miller complained that she could not use her garden during matches and would often stay out of the house altogether.

Held:

The defendants were liable in both negligence and nuisance (Lord Denning dissenting)

However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs. Miller received the benefit of being adjacent to an open space.

Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defense for the defendant to show that they came to the nuisance.

Disturbance from a brothel Thompson-Schwab v Costaki [1956] 1 WLR 335 Case summary

Some interference is not capable of giving rise to an actionable nuisance:

 Some interference cannot give rise to an action

Interference with television reception Hunter v Canary Wharf [1997] 2 All ER 426 Case summary

690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were:

1.       Whether interference with television reception was capable of giving rise to an actionable nuisance

2.       Whether an interest in property was required to bring an action in

Held:

1.       There is no right of action in nuisance for interference with the television reception.

2.       An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.

Private nuisance

Private nuisance consists of continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. Proof of damage is usually necessary

Continuous interference

Claims for private nuisance arise when there has been continuous interference over a period of time with the claimant’s use or enjoyment of land. In Delaware Mansions and Fleckson Ltd v Westminster CC [2001] UKHL 55, the House of Lords held that a local authority had a duty to abate a nuisance caused by tree roots undermining the foundations of a block of flats. That duty was not nullified simply because the damage had occurred before the freehold interest was obtained. There was a continuous nuisance in this case which could have been remedied at very little cost if immediate action had been taken. There is no set period of time over which the events must occur to amount to a private nuisance. Much depends upon the neighborhood and the other surrounding circumstances but the common law imposes a fair and just duty as between neighbors.

A situation that may not have been a nuisance in the past can become a nuisance later. In Bybrook Barn Garden Centre Ltd v Kent CC [2001] BLR 55, it was held that a culvert had not been a nuisance when it was created, but became a nuisance later when the volume of water passing through it greatly increased

Temporary interferences do not usually amount to actionable nuisances. However, a temporary, but very substantial state of affairs may amount to a nuisance, as in De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257, in which noisy pile driving at night during temporary building works was held to be a private nuisance. Some nuisance claims involve regular temporary events such as the ringing of church bells (Calvert v Gardiner [2002] EWHC 1394 QB).

A single act giving rise to a complaint will not normally constitute private nuisance,

Though it could be a public nuisance. However, there are one or two instances of cases

In which what appears to be a single act has been held to amount to a private nuisance.

On closer examination, it will be observed that these apparently isolated acts were the culminating event in a state of affairs which has prevailed for some time. In SCM v Whittall & Son Ltd [1970] 1 WLR 1017, Thesiger J explained that a single escape of materials from the defendant’s land may constitute a private nuisance, if the same event had occurred before as a result of activities on the land as it had in British Celanese v Hunt (Capacitators) Ltd [1969] 2 All ER 749. In that case foil had blown from the defendant’s land where it was stored and had damaged an electricity substation, causing the electricity to a small industrial estate to be cut off. The same problem had occurred once a few years previously and had arisen because of the way in which the material was stored on the defendant’s property. The judge had no difficulty in finding that what had occurred was a private nuisance.

Temporary building works may amount to nuisance, but builders will not be liable if they can show that they have used all reasonable care and skill to avoid disturbance or annoyance. However, if there is more than mere inconvenience, and if what is done amounts to physical damage to the claimant’s land, damages may be recoverable (Clift and Another v Welsh Office [1999] 1 WLR 796. Also Video London Sound Studios Ltd v Asticus (GMS) Ltd (2001) WL 542314).

·         Unlawful interference

The unlawfulness of the defendant’s conduct is to be found in the element of unreasonableness which the claimant must prove. Reasonable activities on the defendant’s land do not amount to nuisance. It is only when they become unreasonable in character because of the way in which they interfere with the claimant’s use or enjoyment of neighboring property that they are unlawful and may be actionable. The factors which courts take into account in assessing the reasonableness or otherwise of the defendant’s use of land are as follows

·         The defendant’s conduct in the light of all the circumstances

In reality, what the courts are considering here is the question of fault, but the approach is more flexible than that taken in negligence actions. Thus less is expected of defendants who are poor or infirm In relation to nuisance arising from naturally occurring hazards; the courts have adopted a subjective approach to the reasonableness or otherwise of the defendant’s conduct, based, among other matters, on his or her financial circumstances. This distinguishes nuisance from negligence, where the approach is ostensibly objective. An example of the way in which the courts deal with the question of reasonableness is to be found in Leakey v National Trust [1980] QB 485. The National Trust owned land upon which was located a large mound of earth which was being gradually eroded by natural processes, and was sliding onto the claimant’s property. It was held by the Court of Appeal that natural encroachments of this kind could amount to nuisances in some circumstances, and that landowners had a duty to do all that was reasonable in the circumstances to prevent encroachments onto adjoining property, but that in these cases, the relevant circumstances included the ability of landowners, both physically and financially, to take steps to prevent the danger, and also the neighbors’ ability to protect themselves from the danger. Megaw LJ said: The criteria of reasonableness include, in respect of a duty of this nature, the fact of what the particular man, not the average man, can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means.

The same approach used in Solloway v Hampshire CC (1981) 79 LGR 449, in which a claim by householders whose property had been damaged by encroaching tree roots which were the responsibility of the local authority, was defeated because the authority lacked the resources to undertake checking and remedial work to all buildings in their area which might be affected by encroaching tree roots. As Sir David Cairns explained:

If it could be said to be a reasonably foreseeable risk, I am satisfied that it was a risk such that the cost and inconvenience of taking steps to remove or reduce it would be quite out of proportion to the risk.

Another example of the flexible approach taken by the courts in nuisance cases is Arscott v The Coal Authority [2004] EWCA Civ 892. Here the Court of Appeal held that the occupier of land which was susceptible to flooding was not liable in nuisance if it took steps to prevent flooding and the result was damage by flood water to adjoining property. The flood waters were a ‘common enemy

The locality

Whether the defendant’s activities amount to a nuisance will depend upon the area

In which they are carried out. It was explained in Sturges v Bridgman (1879) 11 Ch. D

892 that: ‘What would be a nuisance in Belgravia Square would not necessarily be so

In Bermondsey.’

An area like Bermondsey which was full of tanneries using excreta in the tanning process, and which was accustomed to the noise and pollution of heavy industry is less likely to provide fertile ground for successful private nuisance claims than a quiet residential suburb, but this does not mean that people living in industrial areas will never be able to succeed in nuisance, as much will depend upon the extent and degree of the activities of the defendant in the light of what is customary in the particular area, and there will be limits as to what people are able to tolerate even in commercial or industrial localities.

It has been argued that this rule as to the locality of the nuisance only applies to cases in which a claimant complains of interference with use or enjoyment of land, and that if the activities cause physical harm to the land itself, the character of the neighborhood is not a relevant consideration. This view is based on the old case of St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642, in which the claimant complained of damage to trees as a result of fumes from copper smelting by the defendants. He succeeded in his claim despite the fact that he lived in a manufacturing area. The House of Lords drew a rather forced distinction between nuisances which caused damage to the land and to crops, and those which merely affected the use or enjoyment of the land, stating that the character of the neighborhood is only of relevance in the case of the latter.

Nevertheless, in Blackburn v ARC Ltd [1998] Env LR 469, it was held that permission to fill in a quarry was granted for only a temporary period, and this should not mean that nuisances were inevitable. The smells and noise generated by the work amounted to a nuisance because they were held to be more than those which must be tolerated in modern living conditions. The position was revised in Murdoch v Glacier Metal Co Ltd [1998] Env LR 732 in which the Court of Appeal confirmed the principle that noise must be judged in the context of the character of the locality. The character of a locality can change over the years.

·         Sensitivity of the claimant

It is consistent with the notion of ‘give and take’ which pervades the law of nuisance that abnormally sensitive claimants are unlikely to succeed in their claims for private nuisance, since their perceptions of the defendant’s conduct are not the criterion by which the activities are to be judged. The standard of tolerance is that of the ‘normal’ neighbor. The leading case is Robinson v Kilvert (1889) 41 Ch. D 88, in which the claimant’s claim was for damage to abnormally sensitive paper stored in a cellar which was affected by heat from adjoining premises. The claim failed because ordinary paper would have been unaffected by the temperature

However, if the ordinary use of land would have been affected by the defendant’s activities, the claim will succeed. In McKinnon Industries v Walker (1951) 3 DLR 577, a crop of delicate orchids was damaged by fumes from the neighboring premises, and although the plants were unusually delicate the claimant succeeded in a nuisance claim because ordinary flowers would have suffered a similar fate.

Similar principles operate in relation to personal discomfort. In Gaunt v Finney

(1827) 8 Ch. App 8, Lord Selbourne LC explained the situation in this way:

A nervous or anxious or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance originating within him sounds which at other times would have been passively heard and disregarded. The maxim sic utere tuo ut alienum non laedas has been said to apply in cases of nuisance, and it means, in rough translation, ‘you should use your own land in such a way as not to harm other people’. Although this notion has been described as ‘mere verbiage’, it still has some influence on the way in which nuisance cases are decided, and the principle of sensitivity is an example of this. The courts do not regard use of land as unreasonable merely because an unduly sensitive neighbor objects to such use

Morris (t/a Soundstar Studio) [2004] EWCA Civ 172, the Court of Appeal held that the use of electronic equipment was part of modern life and should not be regarded as ultra-sensitive.

In Abbahall v Smee [2002] EWCA Civ 1831, the Court of Appeal emphasized the importance of reasonableness between neighbors when apportioning the cost of abating a nuisance equally between the owners of properties on different floors of a building. The nuisance in that case was the roof that was in a serious state of disrepair.

·         The utility of the defendant’s conduct

In nuisance cases judges are concerned with balancing the conflicting interests of neighboring landowners and householders, and will be less inclined to consider that an activity amounts to a nuisance if it is useful for the community as a whole taking into account all the surrounding circumstances, such as locality and the duration of the activities. Although it has been stated on several occasions that ‘public benefit’ is no defense to nuisance, if an activity is beneficial to the community as a whole, the judge will sometimes be prepared to find that the defendant has not behaved unreasonably. In Miller v Jackson [1977] 3 WLR 20, the Court of Appeal held that the playing of cricket on a particular ground had been for many years a benefit to the whole community but that, since the construction of houses close to the cricket ground, it had become a nuisance because the interference with the use and enjoyment of the adjoining properties was substantial

On the other hand, there are several cases in which activities are of benefit to the community, and because of their temporary nature they have been found not to be a nuisance. Among such activities is building work, provided it is carried out at reasonable times of the day, as in Harrisonv Southwark and Vauxhall Water Co [1891] 2 Ch. 409. In Dennis v Ministry of Defense [2003] EWHC 793, it was held that aircraft noise amounted to a nuisance, but that public interest demanded that flights continue. However Damages were awarded to the claimants.

Malice

Malicious behavior on the part of the defendant will certainly contribute to the

Impression that his or her conduct has not been reasonable, and may therefore

Amount to a nuisance. It is not necessary to establish malice in order to succeed in a

Nuisance claim but, if it is possible to prove that the defendant’s activities were

Motivated by malice, the claimant has a good chance of succeeding. In Christie v Davey [1893] 1 Ch. 316, the claimant had for several years been giving music lessons and holding musical evenings in his semi-detached house. The defendant, irritated by the noise, banged the party walls, shouted, blew whistles and beat tin trays with the malicious intention of annoying his neighbor and spoiling the music lessons. An injunction was granted to restrain the defendant’s behavior.

In Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468, the defendant was liable in nuisance when he deliberately fired guns close to the boundary with his neighbor’s land where silver foxes were kept, so interfering with their breeding habits, as they are nervous animals and likely to eat their young if frightened. It appears that here the court was prepared to accept that what might otherwise have been a lawful act on the defendant’s own land had become a nuisance because of the malice involved, although other factors, such as the frequency of the shots may also have been relevant.

·         The state of the defendant’s land

It is no longer the case, as it appears to have been at common law, that the defendant is able to leave the processes of nature to do their worst on his or her land without the fear of a nuisance claim by neighbors. The law was changed in Goldman v Hargrave [1967] 1 AC 645, a Privy Council decision. This case is rather confusing as it appears to equate nuisance and negligence, and much of the terminology used in it by the judges is the language of negligence. An occupier of land in Australia did not take steps to extinguish a burning tree which had been struck by lightning, even though it was foreseeable that a wind, common in that area, could fan the flames and cause danger to adjoining land. He was liable for nuisance when the fire damaged neighboring property. This was adopted into English law by the Court of Appeal in Leakey v National Trust [1980] QB 485, in which it was held that an occupier must take such steps as are reasonable to prevent or minimize dangers to adjoining property from natural hazards on his land, in this case the risk of landslides caused by the processes of nature.

In Holbeck Hall Hotel Ltd v Scarborough BC [2000] 2 All ER 705, the Court of Appeal held that the owner of land which formed the lower part of a cliff owed a ‘measured’ duty to prevent higher land being damaged by lack of support caused by erosion. This duty would only arise, however, if the owner of the lower land knew, or ought to have known, that there was some patent defect on his or her own land which gave rise to the danger, and it was reasonably foreseeable that the defect would damage the higher land if nothing was done to remedy the situation. The Court of Appeal emphasized that there would be no duty to remedy the fault if the defect was latent or hidden and could only be discovered by further investigation. In this respect, the law has moved forward since the decision in Leakey. Much of the reasoning in the case was based on considerations that are usually taken into account in negligence cases and the three-stage test in Caparo Industries plc v Dickman [1990] 2 WLR 358 was referred to.

In Bradburn v Lindsay [1983] 2 All ER 408, it was held that the owner of one semidetached house was liable in nuisance to the adjoining house owner for the spread of dry rot, a naturally occurring fungus which damages the fabric of buildings and which he should have attempted to eradicate.

In Rees v Skerrett [2001] EWCA Civ 760, the Court of Appeal held that the owner of a terraced house was under a duty to take reasonable steps to provide weatherproofing for a dividing wall that he had exposed to the elements by demolishing his house.

·         Indirect interference

The requirement that the interference with the claimant’s use or enjoyment of land be indirect distinguishes nuisance from trespass, which covers only direct entry onto land, and negligence, which encompasses both direct and indirect acts.

Indirect interference includes the following

·         allowing smoke and fumes to drift onto the neighboring land (St Helen’s Smelting Co v Tipping (1865) 11 HLC 642)

·         allowing unpleasant stenches to invade adjoining land (Bliss v Hall (1838) 4 Bing NC 183)

·         Smells and fumes from candle-making (Bone v Searle [1975] 1 All ER 787); smells from manure;

·         disturbing neighbors’ sleep by noise and vibrations (Halsey v Esso [1961] 2 All ER 145)

·         allowing tree roots to suck moisture from adjoining soil, so causing subsidence (Solloway v Hampshire CC (1981) 79 LGR 449)

·         quarry blasting (Harris v James (1876) 45 LJ QB 545)

·         Pollution of rivers with factory effluent (Pride of Derby and Derbyshire Angling Association v British Celanese [1953] Ch. 149).

In Younger v Molesworth [2006] EWHC 3088 (QB), it was held that a nuisance claim could arise as a result of indirect interference, when the defendant had been aware of the serious ingress of water into the claimant’s property and knew that his drainage system was not satisfactory to prevent a build-up of pressure in the adjoining wall, but had done nothing to remedy the situation.

Interference with the use or enjoyment of land or some right

Over or in connection with it

In Crown River Cruises Ltd v Kimbolton Fireworks Ltd and Another [1996] 2 Lloyd’s Rep 533, it was held in a first instance decision that damage to a floating barge on the Thames permanently attached to a mooring on the river bed of which the claimants had exclusive possession under a license was actionable in private nuisance. There were two vessels involved, a ‘dumb’ barge which acted as a mooring for other barges and vessels, and a passenger barge which was attached to it. The barge which was itself also used as

Mooring was for the better use and enjoyment of the claimant’s mooring right, and thus gave rise to the possibility of a claim for private nuisance. There was also a finding of negligence against the defendants who had not themselves taken any steps to inspect the contents of the barge for inflammable material, but had relied on the diligence of the second defendants. The fire on board the passenger vessel was caused by the negligent failure of the second defendants to attend to flammable material which had fallen onto the barge.

If injury to health, such as headaches caused by noise, is complained of, then providing the claimant is not unusually sensitive there will be a remedy in private nuisance.

Malone v Laskey 1907 2 KB  141

The claimant was injured when vibrations from an engine on an adjoining property caused a bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as she did not have a proprietary interest in the house. Her husband was a mere licensee through his employment as a manager.

Private nuisance protects anyone who has the use or enjoyment of the land affected. Anyone who owns rights over or in connection with that land may also bring a claim for nuisance. Thus in Cheung v Southwark London Borough Council Ch. D 19/12/2007 it was held that the claimant did not have locus standi to bring claims for public and private nuisance and breach of s 130 of the Highways Act 1980 in respect of a certain piece of land, because the claimant did not have a proprietary interest in the land, and had not suffered damage over and above the general inconvenience to the public.

Khorasandjian v Bush [1993] 3 WLR 476

The claimant was an 18 year old woman who was being harassed by the defendant a 23 year old man. He had threatened her with violence, behaved aggressively when he saw her, shouted abuse at her, he would pester her with phone calls at her parents and grandparents house. He had spent time in prison for threatening to kill her. She obtained an injunction in civil law against him to prevent him “using violence to, harassing, pestering or communicating” with her. The defendant appealed against the injunction on the ground that the judge had no jurisdiction to grant such an injunction as harassing, pestering or communicating did not constitute any tort known to law. Whilst the persistent telephone calls were capable of constituting the tort of nuisance, the claimant did not have an interest in the land and therefore had no cause of action in tort law.

Held:

His appeal was dismissed.

This case was overruled in Hunter v Canary Wharf

Hunter v Canary Wharf [1998] 1 WLR 434   House of Lords

690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were:

1.       Whether interference with television reception was capable of giving rise to an actionable nuisance

2.       Whether an interest in property was required to bring an action in

Held:

1.       There is no right of action in nuisance for interference with the television reception.

2.       An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance.

Lord Hoffman:

“In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbor, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land.” The claimant must possess a right to the enjoyment of the facility that is being deprived.

Proof of damage is usually necessary

Yet another factor which distinguishes nuisance from its companion trespass, is that, in order to succeed in nuisance, the claimant must prove that damage has been suffered. Private nuisance is not actionable per se, with the exception of interferences with servitudes,

The relationship between private nuisance and negligence

The claim has been made that negligence is gradually encroaching upon some of the other torts, especially private nuisance, and that one day negligence will take over from nuisance. Glanville Williams (Foundations of Tort, 1984, London: Butterworths) explains the trend in this way: Why should we not say that people are under a duty of care not to allow a noxious escape of such a nature that the claimant cannot reasonably be expected to tolerate it? It follows that nuisance is a branch of the law of negligence. It merely adds to the list of duties of care.

These are many examples of cases in which both nuisance and negligence are claimed, and the boundaries are not always blurred between the two torts. One such case is Thames Water Utilities Ltd v London Underground [2004] EWHC 2021 (TCC). A water main owned by the claimants had burst after there had been extensive drilling and tunneling in the area during the construction of the Jubilee Line on the London Underground. It was held the claim for negligence for failure to use reasonable care and skill should succeed. The claim for nuisance for removing ground support also succeeded.

However, the notion of fault in negligence involves different considerations to that in private nuisance, although the reasonableness of the defendant’s behavior is assessed in both torts. As we have seen, nuisance allows explicit consideration of the claimant’s economic position in some cases, whereas, in negligence, cost-benefit analysis is shunned, at least openly. The relevant factors for determining fault in nuisance include the nature of the locality and other factors which would not usually be relevant in negligence, but that is merely because of the importance of land in the equation. In both torts, it is possible for the judges to arrive at decisions on grounds of policy, using the reasonableness test to justify such decisions. Lord Reid summed up the situation in The Wagon Mound (No 2) [1967] 1 AC 617, when he said: It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts, and in much negligence in the narrow sense is not essential . . . Although negligence in the narrow sense may not be necessary, fault of some kind is almost always necessary, and generally involves foreseeability.

Who can be sued for private nuisance?

Any person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the action. However, it is most usual for the occupier to be sued, and the occupier may also be vicariously liable for the nuisances of servants and independent contractors if the duty concerned is non-delegable. Occupiers who adopt and continue to allow nuisances on their land may also be liable, even if such nuisances are created by predecessors in title, trespassers or third parties (Sedleigh Denfield v O’Callaghan [1940] AC 880).

A single individual or enterprise may be identified and sued for nuisance in cases where the accumulation of several activities causes interference with adjoining property . It is not a valid defense for the individual who has been singled out to attempt to prove that the contributory acts of others are responsible for the nuisance, even though the activities of each one, taken alone would not amount to a nuisance. In Pride of Derby and Derbyshire Angling Association v British Celanese Ltd, fishing in a river was ruined by pollution from several factories, but the defendants could not escape liability by pleading that they were not the only polluters. A landlord may be liable for nuisances emanating from land in certain exceptional circumstances, for example if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises.

It seems that landlords are not responsible for the nuisances of tenants in the absence of authorization, express or implied (Smith v Scott [1973] CR 314). This lighter burden on landlords presumably reflects the fact that they have parted with possession of the property and have less control over what happens on it than a licensor has over licensees such as travelers.

The law on landlords’ liability for nuisance is still developing. For example, in Southwark LBC v Mills (1998) unreported, the Court of Appeal held that a landlord cannot be compelled to carry out soundproofing of flats to prevent one set of tenants from annoying others. Mantell LJ, faced with conflicting lines of authority on the point, was reluctant to construe a covenant of quiet enjoyment in a lease ‘as encompassing a promise to alter or improve’ the premises. The House of Lords (2000) confirmed that the covenant for quiet enjoyment could not be used to demand repairs or improvements.

DEFENCES TO PRIVATE NUISANCE

The general tort defences apply to nuisance. These include consent, volenti non fit injuria (consent), contributory negligence, Act of God, act of a stranger and, possibly, inevitable accident.

 Prescription

If the nuisance has been continued for 20 years without interruption the defendant will

Escape liability by pleading a prescriptive right to commit the nuisance.

The 20 years is counted from the time that the claimant becomes aware of the nuisance for the first time, even if the nuisance had been continued for many years before the claimant moved into the neighborhood. The leading case is Sturges v Bridgman (1879) 11 Ch. D 852, in which the defendant had operated a confectionary manufacturing business for more than 20 years when the claimant, a doctor, built a new set of consulting rooms in his garden immediately adjacent to the building which housed sweet making machinery. The claimant then complained of nuisance from the noisy machinery and brought a successful legal action against the defendant. The court decided on the facts that there was no nuisance until the consulting rooms were built, and that the 20 years began to run from that date, so the defense of prescription was not available.

In Miller v Jackson [1977] 3 WLR 20, the argument favored by Lord Denning that the claimants who had bought property near a place where they knew that cricket had been played for many years had no right to complain of the nuisance it caused, was rejected by the majority of the Court of Appeal, as it is not a defense to argue that the claimant ‘came to the nuisance’.

Statutory authority

There will be a defense to private nuisance if it can be shown that the activities complained of by the claimant were authorized expressly or impliedly by a statute. As Lord Dunedin explained in Corps of Manchester v Farnworth [1930] AC 171: When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result . . . The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance

In Allen v Gulf Oil Refining Ltd, it was held that the defense of statutory authority operated to the benefit of the oil refinery which was causing great inconvenience and annoyance to local residents who complained of unpleasant odors, noxious fumes, vibrations, heavy traffic and loud noise in their previously quiet rural setting

REMEDIES FOR PRIVATE NUISANCE

There are a number of remedies for private nuisance. Some are self-help remedies for which the aggrieved party need not trouble the courts.

 Damages

Compensation will be paid if it can be proved that damage to land, personal injuries or substantial inconvenience have been caused. Reasonable remedial expenditure may be recovered (Delaware Mansions and Fleckson Ltd v Westminster CC). The amount payable will be calculated according to the basic principles for assessing damages in tort.

In Fowler v Jones (2002) unreported, the claimants complained of nuisances from barking dogs, smoke and smells. The judge ruled, applying Hunter v Canary Wharf, that the claimants were entitled to damages for the diminution in the amenity value of their property during the continuation of the nuisance.

Injunction

A very common remedy for nuisance is the award of an injunction, and this will be almost automatic in many cases, though the court does have discretion to award damages in lieu of an injunction. An injunction will be refused if the interference with the claimant’s land is trivial (Shelfer v City of London Electric Lighting Co [1895] 1 Ch. 287), as the courts do not wish to collude in allowing defendants to ‘buy off’ the rights of claimants (Kennaway v Thompson [1981] QB 88). However, an injunction was refused in Miller v Jackson, and damages were paid instead, which would have been small consolation to the claimants who were in real physical danger in their gardens from stray cricket balls. A similar situation arose in Goode v Owen where an injunction was refused because the defendants could not be expected to put up a 40 foot fence to protect an area of only one and a half acres from falling golf balls. The prerequisite for damages being awarded in lieu of an injunction is that it would be oppressive for the defendant if an injunction were to be granted. In Gafford v Graham [1999] EGLR 75, the basis for the award of damages was the sum which the claimant might reasonably have demanded for relaxing the relevant restrictions in perpetuity. The claimant in that case was refused an injunction because he had stood by and watched while the defendant had built a structure and had made no complaint at the time

An injunction was granted in Mika v Chetwynd (2000) unreported when unpleasant odors from the defendant’s knackers yard interfered with the claimants’ caravan business. However, in Jacklin v Chief Constable of West Yorkshire [2007] EWCA Civ 181, the Court of Appeal approved the decision of judge to grant a mandatory injunction requiring the police authority to remove a container obstructing a stretch of land over which a landowner had a right of way.

Abatement of the nuisance

This ancient self-help remedy involves the claimant in taking steps to prevent the nuisance by entering the defendant’s property and removing the source of the nuisance. Anything belonging to the defendant must be left on his property; even tree branches which have spread from adjoining land should, strictly, be returned. A person entering land in the process of abating a nuisance will have a defense to trespass. The claimant must normally give notice of the abatement, but need not do so in an emergency or if the nuisance can be abated without entering the defendant’s land. Tree roots and overhanging branches are often the subject of abatement (Jones Ltd v Portsmouth CC [2002] EWCA Civ 1723)