C6B: Nusiance

Question 1

What is private nuisance?

Answer 1

The tort of private nuisance protects a person’s use and enjoyment of land, and the tort therefore operates mainly between neighbouring landowners due to its nature.

Question 2

What is public nuisance?

Answer 2

A public nuisance is principally a criminal offence but may also be actionable as a tort.

Question 3

Can a defendant be tried for both private and public nuisance?

Answer 3

Yes, the same conduct by the defendant may give rise to actions in any of the three varieties of nuisance (incl. statutory).

Question 4

Does the defendant of private nuisance need to be the occupier of the premises from which the nuisance comes?

Answer 4

No, they don’t have to be the occupant. The defendant can be the creator of the nuisance OR a landlord out of possession of the land.

Question 5

What are the requirements of a claim in private nuisance?

Answer 5

• need for a proprietary interest
• damage and sensory discomfort
• concept of nuisance being unreasonable

Question 6

Explain the effect of the decision in the case of Hunter v Canary Wharf [1997] on who can bring a claim in the civil courts based on private nuisance.

Answer 6

Proprietary entitlement to the use and enjoyment of land remains a necessary characteristic of a claimant in a private nuisance action in English law.

It solidified the traditional view that private nuisance is a wrong against land.

This was a correction of the case of Khorasandjian v Bush [1993] (stalker calling mother’s house) and a continuation of Malone v Laskey [1907] (toilet in employer’s house). A woman was injured while using the toilet when its cistern fell on top of her. It had been dislodged by vibrations emanating from the electricity generator on the neighbouring defendant’s property.

Question 7

Does the claimant need a proprietary interest in land in order to sue for private nuisance?

Answer 7

Yes, the claimants must have a legal interest in the land affected, e.g. be owner-occupiers or tenants.

Question 8

Can private nuisance be used for trivial nuisances?

Answer 8

No, the nuisance needs to ‘materially interfere with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions amongst the English people’ - from Walter v Selfe p1851].

Question 9

Does there need to be physical damage for there to be a tort in private nuisance? (knotweed)

Answer 9

No, i.e. Network Rail Infrastructure Ltd v Williams [2018], where a judge held that Japanese knotweed hadn’t caused physical damage to properties, but it had damaged the amenity value of the land and therefore was a continuing nuisance.

Question 10

Explain the different approaches taken by the courts depending on whether the claimant has suffered (a) material damage or (b) sensory discomfort as a result of their neighbour’s activities.

Answer 10

(a) material damage can be physical damage or damage to amenity of the land (e.g. Japanese knotweed)

(b) sensory discomfort will need to be unreasonable in relation to frequency, duration, timings, volume and type of noise, i.e. the court will have greater regard to the circumstances surrounding the interference. E.g. Tate Gallery flats, no actionable nuisance based on the flats, ‘mere overlooking’ did to give rise to a cause of action in private nuisance.

Question 11

When will duration be used as a factor for private nuisance?

Answer 11

If the nuisance demonstrated by the repetition or recurrence of the incident. The longer it continues, the more likely it becomes a nuisance.

Question 12

Would building work be a private nuisance?

Answer 12

Probably not, if it was carried out with reasonable skill and acre, no actionable nuisance is committed.

Question 13

Explain private nuisance in terms of state of affairs? (explosion)

Answer 13

If there is a state of affairs on the defendant’s land likely to cause a nuisance, the actual interference may only occur once. E.g. Spicer v Smee [1946], electrical wiring that was faulty and caused a fire, or Milwood v Manchester Corp [1905], where electric main caused explosion.

Question 14

What does the phrase ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ (Sturges v Bridgman [1879]) mean?

Answer 14

Locality is a factor to consider when looking at private nuisance. It means that it is difficult to succeed in an action for discomfort in an industrial area, like Bermondsey.

Question 15

What would happen if a defendant gave a malicious response to a claimant’s behaviour? Give two case examples. (banging, guns)

Answer 15

If their actions are unreasonable, then they may amount to a private nuisance. E.g. banging on the walls as a response to the claimant conducting music lessons (Christie v Davey 1893) or Hollywood Silver Fox Farm v Emmett [1936], where guns were fired close to sensitive foxes in order to disturb and disrupt breeding.

Question 16

What can counter nuisance claims of malicious responses to claimant’s behaviour? (natural water)

Answer 16

“If it was a lawful act, however ill the motive might be, [the defendant] had a right to do it.” They can do something malicious if it is legal.

The defendant had interfered with the natural water which percolated under his land, eventually making its way downhill to be used by the claimant. There was no enforceable right to the use of this water and the defendant committed no tort by his actions.

Question 17

Is there an absolute right to make noise or absolute protection from noise?

Answer 17

No, there is neither. The reason for making the noise can become the deciding factor in whether the amount of noise is unreasonable.

Question 18

List the arguments that a defendant may use to oppose a claim based on private nuisance. For each argument, note whether it is likely to be accepted by the court as a defence to any claim, or whether it will just be taken into account when deciding on the remedy to be granted to a successful claimant.

Answer 18

Dancing Llamas Party, So Playful So Cute!

Duration: one off - taken into account

Locality: constitute part of the character of the locality? - taken into account

Public Utility: valuable to the community? - taken into account

Sensitivity of claimant or claimant’s property - taken into account

Prescription: likely to be accepted

Statutory authority: likely to be accepted

Coming to the nuisance is not a defence: likely to be rejected

Question 19

What are the defences in private nuisance?

Answer 19

(Dancing Llamas Party) So Playful So Cute

Sensitivity of claimant or claimant’s property

Prescription

Statutory authority

Coming to the nuisance is not a defence

Question 20

What is the rule around private nuisance and statutory authority?

Answer 20

If statutory authority permits something to be done, the courts will normally interpret this as authority to cause interference provided there is no negligence.

If a statute orders something to be done, there will be no liability for performing the duty and for any inevitable consequences.

An inevitable consequence is one which cannot be avoided by the use of due care and skill.

Question 21

What is the rule around private nuisance and the sensitivity of the claimant or claimant’s property?

Answer 21

Where the damage is due more to the sensitivity of the claimant or the claimant’s property than to the defendant’s activity, no nuisance is committed.

Question 22

What are the three cases to consider when looking at private nuisance and the sensitivity of the claimant or claimant’s property? (brown paper, orchids, TV signal)

Answer 22

Robinson v Kilvert [1889] - stored brown paper affected by heat from defendant’s building- failed, as too sensitive

McKinnon Industries Ltd v Walker [1951] - orchids (sensitive plant), however fumes also damaged other plants - succeeded

Bridlington Relay Co v Yorkshire Electricity Board [1965] - power cables interfered with TV transmissions - failed, tall building cannot be a nuisance, they’re part of urban landscape. TV viewing was not protected by the law of nuisance.

Question 23

What is the rule around private nuisance and prescription?

Answer 23

In cases of private nuisance, if the nuisance has been actionable for a period of 20 years and the claimant was AWARE of the nuisance throughout the relevant period, the defence of prescription applies.

Question 24

How does Coventry v Lawrence [2014] relate to prescription?

Answer 24

Speed stadium v bungalow. Stadium argued that they had acquired a right to emit noise over the appellant’s land, as they had been doing so since the 1970s. However, it was rejected because bungalow owners had made a series of complaints about the noise, so they couldn’t say they had emitted noise for 20 years without interruption or challenge.

Question 25

What is the public utility argument?

Answer 25

The defendant may advance the argument that their activity had public utility. The traditional view is that in assessing reasonableness the court does not take into account any wider notions of whether the activity was for the public benefit, although in deciding whether to grant an injunction, the court may take into account public interest. In Miller v Jackson [1977] the Court of Appeal refused to grant an injunction against a cricket club when interference was caused by the defendant, because the cricket club was a valuable part of the community.

Question 26

What is the distinction between the power of Parliament and a planning authority when it comes to private nuisance?

Answer 26

The relevance of planning permission (in this case to erect units for housing pigs) was considered in Wheeler v Saunders [1995] by the Court of Appeal.

A distinction was drawn between the power of Parliament to grant statutory authority for certain activities and that of a planning authority, which can at most effect a change of use of an area of land.

Such permission granted did not prevent a claim in nuisance caused by the unreasonable level of smell from the pigs.

Question 27

What does ‘coming to the nuisance is not a defence’ mean in terms of private nuisance?

Answer 27

It means that someone who was carrying out a nuisance cannot claim that they ‘have always been doing it’ and the other person ‘came into the nuisance’ through their own fault. The person who came into the nuisance did not ‘invite his peace to be disturbed’. E.g. noise in flat with no neighbours, then neighbours move in and complain. It is no defence that they’ve always been doing it.

Question 28

Which two cases are relevant to ‘coming to the nuisance is not a defence’ in private nuisance? (consulting room, bungalow)

Answer 28

In Sturges v Bridgman [1879] the defendant had used an industrial pestle and mortar for years in his business. This caused no interference to the claimant doctor until he built an extension consulting room in his garden. The claimant obtained an injunction.

In Coventry v Lawrence [2014] the respondents argued that the appellants had come to the nuisance, having purchased the bungalow only in 2006, whereas the respondents had been conducting races in the area since the mid-1970s. Lord Neuberger’s judgment confirmed the authority of earlier cases like Sturges v Bridgman [1879] and Miller v Jackson [1977] in finding that it was no defence to say that the claimant came to the nuisance.

Question 29

In nuisance, can you claim for personal injury?

Answer 29

No, private nuisance is a property tort and is not to do with personal integrity.

Question 30

Explain what a claimant would have to prove to be successful in a claim based on public nuisance.

Answer 30

Every public nuisance is a crime, but a person who suffers special damage as a result of the crime may bring a civil action for damages in tort.

Question 31

What is public nuisance defined as in Attorney-General v PYA Quarries Ltd [1957]?

Answer 31

It is defined as one “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.

Question 32

What are the three major groups of public nuisance?

Answer 32

1. Abuses of the highway
2. Carrying on of noxious trades
3. Assorted wrongs, like holding a badly organised pop festival, keeping a brothel or making a hoax bomb alarm call.

Question 33

What is ‘special damage’?

Answer 33

Special damage is damage over and above that suffered by the class of persons affected, that is, different in nature or extent.

Question 34

Can special damage be general damage in public nuisance?

Answer 34

Yes. Special damage in nuisance may be general damage within the usual context of damages provided it is substantial, direct and not consequential.

Question 35

Give two examples of cases that define what ‘special damage’ is in public nuisance. (golf ball, highway and shop)

Answer 35

Special damage was held to occur when a golf ball driven over a highway caused injuries to the claimant motorist. The siting of the tee (spot from where the first shot is taken) amounted to a nuisance. The class affected were highway users. The claimant suffered damage over and above that suffered by other members of the class (Castle v St Augustine’s Links [1922]).

Special damage has also been held to occur where a business suffers economic loss because of obstruction of the highway. E.g. Westminster City Council v Ocean Leisure [2004] defendant erected hoardings around building works, obstructing the public highway and so causing economic loss to the claimant shop owner. While an occupier of buildings had a right to erect hoardings for building works to a reasonable extent and for a reasonable time, substantial interference over a substantial time constituted a public nuisance.

Question 36

For public nuisance, do the claimants need to have a legal interest in the land affected?

Answer 36

No, not for public nuisance.

Question 37

Explain the three key elements that must be proved for a claim based on the Rylands v Fletcher tort to succeed.

Answer 37

1. The defendant’s use of land is non-natural
2. The defendant has accumulated something that is exceptionally dangerous
3. Which has escaped onto the claimant’s land and caused damage

Question 38

What does non-natural mean?

Answer 38

‘Some special use bringing with it increased danger to others… not ordinary use of land’

Question 39

How does non-natural depend on time and place?

Answer 39

The concept is adaptable to current social and moral conditions. See Read v Lyons [1947]: Here, the use of land as a munitions factory in wartime was classed as a natural use. ‘What may be regarded as dangerous or non-natural will vary according to the circumstances’, taking into account the ‘circumstances of the time and the practice of mankind’. These are almost equivalent to a negligence test.

Question 40

What kinds of things would be classed as exceptionally dangerous, in relation to the rule in Rylands v Fletcher?

Answer 40

Chemicals, explosives, accumulations of water, fire, gas, slag heaps, a fairground ride and caravan dwellers. I.e. anything that the defendant has increased the risk of damage to others by the use to which they have put their land.

Question 41

What is meant by ‘escaped onto the claimant’s land and caused damage’ in Rylands v Fletcher? (explosion, gas canister)

Answer 41

Anything leaking, escaping on to someone else’s land and causing mischief or damage.

E.g. Read v Lyons [1947] - explosion on defendant’s premises, employee injured on the premises. Failed, as it hadn’t escaped from the defendant’s property to land.

E.g. Rigby v Chief Constable of Northamptonshire [1985] police fired a CS gas canister into a shop in an attempt to flush out a psychopath. The shop caught on fire. Failed - probably does not apply to the intentional release of a thing.

Question 42

What are the rules around remoteness of damage in Rylands v Fletcher?

Answer 42

The defendant will be liable only for such damage as they knew or ought reasonably to have foreseen as the type of damage which the escaped things might cause. Thus, the test for remoteness of damage is the same as that for private nuisance, that is, reasonable foreseeability.

It is important to note that the test for remoteness is to be applied only after the defendant’s strict liability has been determined

Question 43

In Rylands v Fletcher, does the claimant need to prove either intention or negligence on the part of the defendant when applying the test for remoteness?

Answer 43

No, the claimant is not required to prove either intention or negligence on the part of the defendant, as strict liability has already been determined. The test for remoteness is applied only to determine for which damage the defendant will be held liable.

Question 44

When non-natural use of the land is high risk, is the defendant likely to be liable? (Polystyrene blocks)

Answer 44

LMS International Ltd v Styrene Packaging and Insulation Ltd [2005]. The defendant occupied a factory in which polystyrene blocks were cut with a hot-wire machine. A fire broke out which destroyed the factory and caused extensive damage to the claimant’s property and contents. The court found that, while the stages in the causation of the fire were not unusual, the defendant had brought things onto its premises likely to cause fire and used them in such a way that they were likely to cause a fire. The polystyrene had been stored in such a way that if there was a fire it was likely to spread to the claimant’s premises. Thus, the defendant’s use of land was a non-natural use. This case suggests that Transco has not limited the role of the tort of Rylands v Fletcher as much as had been expected.

Question 45

What does it mean that Rylands v Fletcher is a tort of strict liability?

Answer 45

You don’t have to prove any fault on the part of the defendant, no requirement of fault. Because of that, the conditions are quite tight (e.g. non natural, dangerous, escaped). All reasonable steps can be taken, but there is still no requirement to prove fault for the defendant.

Question 46

What are the defences for Rylands v Fletcher?

Answer 46

Contributory negligence
Consent
Act of God
Act of a stranger
Statutory authority

Question 47

What type of damage is recoverable in public nuisance but not in private nuisance?

Answer 47

Personal injury