C2 Private Nuisance

Question 1

Definition

Answer 1

• An unreasonable interference with C’s land or its use or enjoyment
• C must have interest in land affected by unreasonable interference
• Hunter v Canary Wharf Ltd (1997) C would be the person with the right to exclusive possession of the land

Question 2

Further guidance

Answer 2

• If two people make a noise if combined then both are responsible and can be restrained by injunction (Lambton v Mellish (1894))
• If D created nuisance on another’s land it is no defense that D is no longer able to stop the nuisance because they have no permission to access land (Thompson v Gibson (1841))
• Should not have created nuisance in the first place (accessing land without permission would make them trespassers)
• D is responsible if they authorize the nuisance created by someone else
• D is responsible if they have actual or presumed knowledge of the nuisance on their property and fail to take reasonable steps to stop it
• Applies even where nuisance is created by trespasser or by nature

Question 3

Sedleigh-Denfield v O’Callaghan (1940)

Answer 3

• Drainpipe on D’s land became blocked by leaves
• Heavy rain caused overflow of drain onto neighbor’s land
• Nuisance even though D had not installed drainpipe
• Installed by local council inadvertently trespassing on D’s land
• D (monastery) was taken as knowing about the drainpipe and potential blockage since one of the monks was actually tasked with cleaning the ditch where the drainpipe was located

Question 4

Goldman v Hangrave (1967)

Answer 4

• Lightning strike set tree on fire on D’s farmland
• D cut down tree and left it to burn out
• Wind changed and fire revived, spreading to C’s land
• Nuisance made out
• No defense that it was created by an act of nature
• D should not have put out the fire with water therefore failed to take reasonable steps

Question 5

Leakey v National Trust (1980)

Answer 5

• Hill on D’s land had suffered landslips onto C’s land below
• Dry summer and wet winter caused large landslip to damage C’s property
• Natural phenomenon irrelevant
• Financial resources to address nuisance?
• Only reasonable steps necessary
• Leaves to question what is reasonable (subjective or objective test)

Question 6

Landlords

Answer 6

• Landlord not liable for nuisance created by tenant unless landlord directly participated in committing the nuisance or there was a high degree of probability that letting the property to this tenant would result in nuisance
• Not enough that landlord was aware of nuisance but took no steps to prevent it (Lawrence v Fen Tigers Ltd No. 2 (2014))
• With a lease right to exclusive possession transfers - Tenant can exclude trespassers and complain about other people’s nuisance

Cocking v Eacott (2016)

• House owner allowed daughter to live there rent free
• Daughter – licensee
• Owner retained right to possession and therefore liable for nuisance created by barking of daughter’s dog
• Failed to take reasonable steps to abate
• Principles of Sedleigh-Denfield apply

Question 7

Types of interference

Answer 7

Three types of interference

• Physical injury to the land or chattels
• Encroachment (e.g. overhanging branches)
• Sensory interference which affect the use of the land
• Trespass is actionable per se so nuisance requires damage in order to complete the cause of action
• Sensory interference must affect the land  land becomes less useful or valuable

Kelsen v Imperial Tobacco Co

• D’s advertising sign protruded into C’s airspace
• Trespass but not nuisance because there was no interference with C’s use or enjoyment of the airspace and no damage

Hunter v Canary Wharf

• Nuisance does not cover injury to people on the land
• If C suffered personal injury they have no claim in nuisance but might have another cause of action such as trespass to the person or negligence
• Most common type of private nuisance tends to be indirect and sensory interferences like sounds or smells which tend to be repeated
• Can a one-off event support a plea of nuisance?
• Conflicting case law
  • Color Quest Ltd v Total Downstream UJK plc (2009) – couldn’t on appeal
  • Northumbrian Water Ltd v Sir Robert McAlpine Ltd (2014)

Midwood & Co Ltd v Mayor of Manchester (1905)

• Problem with one of D’s electricity lines laid under a road which caused it to heat surrounding bitumen which volatilized into an inflammable gas, exploding
• Explosion was one-off but court said prior build-up of gas was ongoing state of affairs which sounded in nuisance (only three hours)
• Emanations from D’s land are sensory like smells or sounds
• People can count as emanations

Halsey v Esso Petroleum Co Ltd (1961)
- D liable for nuisance for noise trucks made when leaving depot and driving down public road past C’s house

Lippitatt v South Gloucestershire Council (2000)
- D council potentially liable in nuisance when travelers whom it had failed to evict as trespassers from its land went forth causing loss and damage to neighboring properties

Question 8

Unreasonable interference

Answer 8

Andrae v Selfridge v Co Ltd (1938)

• D was demolishing and rebuilding which produced noise and dust
• Noise continued during unreasonable hours and dust was excessive
• Nuisance made out
• C cannot complain interference is unreasonable just because they are oversensitive

Test
- What normal person would find reasonable

Heath v Brighton Corp (1908)

• C who ran a church complained of humming noise from D’s electricity substation interfering with quiet prayer
• Not nuisance
• Use of land required more than usual levels of silence
• Locality relevant e.g. living next to a factory

Lawrence v Fen Tigers Ltd (2014)

• D got planning permission to build motor sports stadium
• Decades later C bought house nearby and complained of noise
• D carried out work to reduce noise but was still considered too much
• C had to expect noise from a motor racing stadium
• No defense that the stadium was there first and C moved later
• Case stands for proposition that D might commit a nuisance even though it has planning permission to do what it is doing

Wheeler v JJ Saunders Ltd (1996)

• D obtained planning permission for a pigsty to be located on edge of property
• Neighboring C suffered from smell
• Nuisance made out
• Planning officers are not judges of tortious liability by granting permission they cannot deprive landowner of tortious rights (Lord Neuberger)

Christie v Davey (1893)

• C made a living giving music lessons
• Neighboring D took offense at noise so beat trays and banged on walls for no purpose other than to disrupt lessons and annoy in revenge
• Court said C’s music lessons were no nuisance but D’s banging was as it was out of malice

Hollywood Silver Fox Farm Ltd v Emmett (1936)

• D had plans to develop a field into bungalows but thought that C’s sign proclaiming neighboring fox fur farm would be detrimental to project
• C refused to take down sign which was on C’s own land
• D fired guns in order to startle foxes and prevent breeding
• Done maliciously so amounted to nuisance

St Helen’s Smelting Co v Tipping (1865) – courts are stricter when it comes to physical damage to property

• Nuisance when noxious fumes from D’s factory harmed C’s trees
• Court suggested that locality was not relevant consideration in context of physical damage to property

Halsey v Esso
- Nuisance when smuts from chimneys of D’s boilers at its oil depot caused damage to clothing hanging in C’s garden and paintwork of car parked outside

Crown River Cruises Ltd v Kimbleton Fireworks Ltd (1996)

• Nuisance when a barge moored on the River Thames suffered fire damage caused by falling debris from firework display
• Should fireworks be banned? Chance of them falling on something