Land-Based Torts Flashcards
What is the definition of private nuisance?
Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.
Who can sue in private nuisance?
In order to bring an action in private nuisance, the claimant must have a legal interest in the land, namely a possessionary or proprietary interest (eg freehold or leasehold). Mere permission to use or occupy land is insufficient. The logical basis for this requirement is that a claim in nuisance arises from interference with one’s land.
Key case: Hunter and Others v Canary Wharf Ltd [1997] AC 655
In Hunter and Others v Canary Wharf Ltd [1997] AC 655, around 700 claimants’ TV reception had been interfered with as a result of a tower constructed in Canary Wharf. Several of the claimants’ claims in private nuisance failed as they had no legal interest in the land affected; for example,
they were family members living with the homeowner. An action in private nuisance could only be brought by those with a legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession. The claims of those who did have a legal interest in the land affected failed on the grounds that there was nothing emanating from the defendant’s land.
Who can be sued in private nuisance?
- The claimant can sue the creator of the nuisance, the occupier of the land from where the nuisance emanates and/or the owner of the land from where the nuisance emanates (including, under certain conditions, the landlord).
- An occupier may be liable for nuisances created by third parties, including, under certain conditions, independent contractors, predecessors in title, trespassers, visitors and for naturally occurring nuisances.
Who could be the creator of a nuisance?
If an occupier asks an independent contractor onto their land to perform certain tasks and those tasks cause an inevitable nuisance, there will be liability.
The occupier will be liable if they continued or adopted the nuisance. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 the
defendant was liable for a nuisance created by a trespasser. A water pipe had been unlawfully put under the defendant’s land
by the local authority. The pipe got blocked and water flooded the claimant’s land. The defendant had used the poorly maintained pipe and was therefore liable. Occupiers continue a nuisance if they knew or ought reasonably to know of its existence and fail to take reasonable steps to end it. Occupiers adopt a nuisance if they make use of the thing causing the nuisance.
An occupier may be liable for naturally occurring nuisances. In the Australian case of Goldman v Hargrave [1967] 1 AC 645 the Privy Council held an occupier liable for a naturally occurring nuisance where they knew or ought to have known of a danger
and failed to take reasonable steps to abate the nuisance ie continued the nuisance.
Lightning struck a tree on the defendant’s land, starting a fire. The defendant extinguished the fire but did not douse the embers. The wind reignited the fire causing damage to the claimant’s land. The defendant was liable; he had the physical and financial ability to spray water over the embers and therefore should have
taken these reasonable steps to abate the nuisance. However, a duty to abate a naturally occurring nuisance is subject to the means of the occupier who will not be expected to bankrupt themselves in the process of averting the nuisance. The
court will consider what steps it is fair and reasonable to expect the defendant to take considering the resources available to both
the defendant and the claimant and must take into account the competing demands on and public purpose of the funds of public authority defendants.
A landlord could only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would
result in that nuisance being created.
What are the four elements of private nuisance?
(a) Indirect interference;
(b) Recognised damage;
(c) Continuous act; and
(d) Unlawful interference.
What constitutes indirect interference?
Private nuisance concerns indirect interference with the use or enjoyment of the claimant’s land in contrast with direct interference which would be classified as trespass to land. Examples of indirect interference include sounds, smells, fumes and vibrations (ie intangible interference).
An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land. Indirect interference can include a failure to act which results in loss.
What constitutes recognised damage?
The claimant must establish that they have suffered some damage. The types of damage recoverable in private nuisance are (St Helen’s Smelting Co v William Tipping (1865) 11 HL Cas 642):
(a) Physical damage to property (eg overhanging branches causing physical damage);
(b) Sensible personal discomfort (SPD). This is where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land eg unpleasant odours or noise. It can be defined as amenity damage, ie something which damages the amenity (enjoyment)
value of the property, as opposed to its physical value.
In St Helen’s, smoke and fumes from the defendant’s copper smelting plant caused damage to the claimant’s property (vegetation) and prevented the use and enjoyment of their property.
The type of damage must have been reasonably foreseeable (Cambridge Water Company v Eastern Counties Leather [1994] 1 All ER 53) and the claimant can recover for any consequential losses flowing from recoverable damage, for example, loss of profits caused by the claimant’s
inability to use their land to make those profits.
A claimant cannot claim for personal injury given that private nuisance is a tort against land not the person (Hunter).
Any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery [1886] App. Cas. 127).
Any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851) 64 ER 849).
What qualifies as a continuous act?
The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. In such instances claims may be brought in negligence or, if it is possible, by means of an action in public nuisance or under the rule in Rylands v Fletcher.
However, there are some exceptions to this general rule. The exceptions are:
(a) A single incident caused by an underlying state of affairs; and
(b) An activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material.
In British Celanese v AH Hunt Ltd [1969] 1 WLR 959: Metal foil strips blown from the defendant’s factory came into contact with
an electricity sub-station, causing a power failure which stopped the claimant’s machines. The claimant alleged that the defendant knew or ought to have known of the likely consequences of the escape because a similar occurrence had taken place three years ago and the defendant had received a warning from the electricity board. The court held that this isolated incident could create a nuisance, especially as it was not the first occurrence. The persistent habit of storing the metal strips outside of the factory provided the continuance.
In Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533 the court reached a fact-sensitive decision,
when a firework display (and the resulting fire) was held (obiter) to be a private nuisance (the claim succeeded in negligence). The fire caused extensive property damage. The court suggested that
where an activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material,
such as water, gas or fire, then private nuisance is available, even if the state of affairs is brief in duration.
What constitutes unlawful inference?
The nuisance must constitute an unlawful interference with the claimant’s land or use or enjoyment of the land. The term ‘unlawful’ in this context denotes unreasonableness. The courts will not look at whether the defendant is at fault in any way but whether the activity that is
causing the nuisance amounts to an unreasonable use of land (Cambridge Water Company v Eastern Counties Leather [1994] 1 All ER 53). If the use of land is reasonable, the defendant will not be liable; but if the use is unreasonable, the defendant will be liable, even if they exercised reasonable care and skill to avoid it.
In Sedleigh Denfield v O’Callaghan [1940] AC 880 it was stated that reasonableness is ‘the ordinary usages of mankind living in society, or more correctly in a particular society’.
The purpose of private nuisance is to balance two competing interests: the right of the defendant to do what they like on their land and the right of the claimant to enjoy their land without being disturbed by the defendant’s activities. Where there has been property damage, it will usually be easily demonstrated that the claimant’s enjoyment of their land has been affected over and above what is reasonable, but not always.
There are various factors that the courts will consider when deciding whether the defendant’s interference with the claimant’s land is unreasonable/unlawful. No one factor is conclusive as to whether the use is unreasonable – the courts balance all the relevant factors against one another
to reach a decision. The factors considered are:
(a) Time and duration
(b) Locality
(c) Abnormal sensitivity
(d) Malice
(e) defendant’s lack of care
(f) Excessive behaviour
How might time and duration impact unlawful interference?
Everyone has to put up with some interference from their neighbours at some time. However, if the interference is frequent or for long periods of time, this may be deemed unreasonable. The longer
the interference lasts, the more likely it will be deemed unreasonable.
Key case: Kennaway v Thompson [1981] QB 88
In Kennaway v Thompson [1981] QB 88, it was stated that it will be important to see when the alleged nuisance takes place, how long it continues and how frequently it is repeated. These were important considerations in Kennaway in which a residential neighbour complained of the noise created by the defendant motorboat racing and water-skiing club. However, note that where the loss is property damage only, the court might find a nuisance even if caused by a temporary or short-lived activity.
How might locality impact unlawful interference?
The second factor that the courts can consider is locality or character of the neighbourhood. However, this factor is only relevant where the loss is SPD, not where the loss is property damage.
Whether use of land is reasonable will depend, in part, on the character of the area.
Key case: Sturges v Bridgman (1879) 11 Ch D 852
In Sturges v Bridgman (1879) 11 Ch D 852 a doctor complained that his surgery was disturbed by the noise and vibrations coming from the defendant’s premises used for manufacturing confectionery. The defendant’s business was held to be a nuisance in a residential area. Thesiger
LJ made the famous comment that: ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ ie what is reasonable in a residential area is different to what is reasonable in an industrial/commercial area. Use of land which is acceptable within a city centre
may not be so in the surrounding rural area. This argument was applied in Adams v Ursell [1913] 1 Ch 269 where fumes caused by a fish and chip shop were held to constitute a nuisance in a residential area. The judge, however, remarked that this did not mean the defendant could not carry on their business in another more suitable
place. Just because a fish and chip shop was a nuisance in one place, does not mean it would be in another place.
Is planning permission relevant when considering locality?
Planning permission may alter the character of the area, so that what was once a nuisance in that area is no longer a nuisance as the area has changed or vice versa. In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343 a predominately residential area
became a commercial port following planning permission, which resulted in heavy traffic, noise and fumes on residential roads. At one point it was recorded that a lorry passed every 1.5 minutes in the early morning. Residents complained of interrupted sleep and general disturbance. The claim failed as planning permission had changed the nature of the locality to a wholly
commercial area which was benefiting the community. The court considered the locality as it was after the planning permission was granted.
However, the mere granting of planning permission does not authorise a nuisance. For example, in Wheeler v JJ Saunders Ltd [1996] Ch 18, the defendant had planning permission to build two new pig sheds. One shed was 11 metres from the claimant’s holiday cottages. Strong smells emanated from the farm to the claimant’s property. Despite the planning permission, the Court of Appeal held the defendant liable in private nuisance. The planning permission had not changed the nature of the locality (it simply allowed the already existing pig farm to become bigger).
Key case: Coventry v Lawrence [2014] UKSC 13
Finally on locality and planning permission, this was discussed in the key case of Coventry v Lawrence [2014] UKSC 13. The defendant’s speedway stadium causing the nuisance to the claimants had been built in 1975 with planning permission. However, it was in a very rural area with the nearest village being 15 miles from the claimants’ house. The Supreme Court effectively
confirmed Wheeler; the planning permission did not authorise the nuisance. The noise from the stadium amounted to a nuisance given that the area was overwhelmingly rural. The court confirmed that planning permission does not determine private rights and therefore planning permission is normally of no assistance to the defendant in private nuisance claims. It would be wrong that through planning permission, a planning authority could deprive a property-owner of
a right to object to what would otherwise be a nuisance. However, the court went on to say that there will be occasions when the precise terms of the planning permission may have a bearing on whether or not a nuisance exists (ie the terms can provide some evidence of un/reasonableness of
the use of land), and it might also have relevance to remedies.
Following Coventry v Lawrence it seems that the precise terms of the planning permission may have a bearing on whether a nuisance exists.
How might abnormal sensitivity impact unlawful interference?
The third factor the court will consider is abnormal sensitivity. A claimant who is unusually sensitive (or has unusually sensitive property) cannot claim that activities that would not interfere
with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.
Key case: Robinson v Kilvert (1889) LR 41 Ch D 88
In Robinson v Kilvert (1889) LR 41 Ch D 88 the claimant operated a business in the same premises as the defendant which involved storing heat sensitive paper. The defendant carried on a manufacturing business in the cellar of the building. The heat emitted from the defendant’s
premises damaged the claimant’s paper. The court held that the claimant’s paper was abnormally sensitive and ordinary paper would have been unaffected. There was no nuisance and the defendant’s use of the land was reasonable.
In contrast, if the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation, even though these are increased by their sensitivity (the so called ‘thin skull’ rule that we considered in negligence).
Key case: McKinnon Industries v Walker [1951] 3 DLR 577
In McKinnon Industries v Walker [1951] 3 DLR 577 the claimant had a commercial florist and nursery. Part of the claimant’s business involved growing orchids, known for their sensitivity. The claimant sued the defendant in private nuisance as the defendant’s factory was emitting fumes
and smuts which deposited over his shrubs, trees, hedges and flowers causing them to die. The court found the defendant’s use of land to be unreasonable, and the claimant was entitled to recover for his property damage including for his orchids despite their sensitivity. Given that ordinary flowers were affected by the defendant’s activity, the claimant could claim for the damage to the sensitive orchids. The claimant recovered costs for replacing the orchids and for lost profits on the damaged orchids.
It is worth also noting the case of Network Rail Infrastructure Ltd v CJ Morris [2004] EWCA Civ 172. Whilst Robinson was not overturned, it was disapproved of by the Court of Appeal. The claimant argued that a signalling system installed by the defendant (Network Rail), interfered with electric guitars being used in the claimant’s recording studio. The defendant argued that the use of the studio was abnormally sensitive, in that the claimant was involved in an extraordinary commercial activity. The court doubted whether the concept of abnormal sensitivity still existed, and thought such cases should be viewed in terms of foreseeability instead. If something or someone is abnormally sensitive, then arguably the loss is not foreseeable to the defendant. An activity on land can only be a nuisance if the defendant could reasonably foresee that it might be a nuisance to someone else. It was recognised that the use of electronic equipment was now a
feature of modern life, but it was not reasonable to expect the defendant to foresee the interference caused to the electric guitars. The defendant was not liable.
How might malice impact unlawful interference?
A fourth factor the court will consider if relevant is malice. Private nuisance is concerned with balancing the defendant’s right to do as they wish with their land against the claimant’s right to enjoy their land free from interference. A certain amount of conflict is inevitable and if the
defendant can show a legitimate reason for what they have been doing, the court will be less inclined to interfere with their activities. However, if the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance. This is sometimes referred to as the issue of malice.
Key case: Christie v Davey [1893] 1 Ch 316
In Christie v Davey [1893] 1 Ch 316 the parties lived next door to one another in a semi-detached house. Mrs Christie (the claimant) was a music teacher and throughout the day music pervaded
the defendant’s house. This irritated the defendant who responded by making noise himself; beating trays, shouting and hitting the wall when the music was playing. The defendant’s noise was held to be excessive and unreasonable given that it was made deliberately and maliciously for the purpose of upsetting the claimant. It was not a legitimate use of the land. Mrs Christie was
granted an injunction, restraining the defendant from creating any sounds in his house with the purpose of annoying the claimant.
How might the defendant’s lack of care impact unlawful interference?
A fifth factor the courts will consider if relevant is where the defendant has shown lack of care; this is likely to count in the claimant’s favour.
Key case: Andreae v Selfridge and Co Ltd [1938]
In Andreae v Selfridge and Co Ltd [1938] Ch 1 (CA), the defendant was undertaking extensive building work next to the claimant’s hotel causing the claimant loss of custom due to noise and dust. The claimant was successful. The court held that there will always be some disturbance when one party is undertaking building works next to another. Provided these works are
reasonably carried on and all reasonable steps are taken to ensure that no undue inconvenience is caused to the neighbours, whether from noise, dust or other reasons, the neighbours must put up with it. However, the defendant had not exercised reasonable care; its attitude was to work
until someone complained and its own convenience prevailed over the neighbours’ convenience.
How might excessive behaviour impact unlawful interference?
A sixth factor to consider if relevant is excessive behaviour (how far removed is the behaviour from ‘normal’). If the defendant has behaved in an excessive manner, this may indicate that they
are being unreasonable and creating a nuisance.
In Farrer v Nelson (1885) 15 QBD 258 where the defendant owned hundreds of pheasants. The pheasants were able to access the claimant’s farm causing damage to his grain and other crops.
What defences are available for private nuisance?
(a) 20 years’ prescription;
(b) Statutory authority;
(c) Consent;
(d) Contributory negligence;
(e) Act of third party;
(f) Act of God; and
(g) Necessity.
What is the prescription rule for private nuisance?
If the defendant’s activity has been an actionable nuisance for 20 years or more (ie a claimant would have had grounds for bringing a claim against the defendant for that period) but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance. Note it is the length of time that a claimant could have complained that is crucial, not
the length of time that the activity has been ongoing.
In Sturges the confectionery had been in existence for over 20 years, but it had only become a nuisance when the claimant doctor’s consulting rooms had been built near the nuisance (the noise and vibrations of the confectioner’s factory). Consequently, the defence of prescription was not available.
In Coventry, the stadium was constructed in 1975 and the claimant moved into the nearby house in 2006.
The defendant was unable to rely on the defence of prescription as it was not enough to show that the activity or noise had been carried on for 20 years. They had to establish that the activity had created a nuisance for 20 years or more and they had not done this. The claimant’s predecessor only first formally complained of the defendant’s activities in 1992 (16 years before proceedings were brought by the claimant). Even then the predecessor was described by his wife as over-sensitive to noise and there was no real evidence that the noise had amounted to a nuisance during the 1990s. Note that the 20 years does not have to be continuous.
How does statutory authority operate as a defence for private nuisance?
Where the defendant’s activity is being carried out on the basis of statutory authority (note planning permission is not statutory authority), they will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.
How does consent operate as a defence for private nuisance?
If the claimant specifically agrees to the defendant causing the nuisance, then that consent will be a defence. The defence may be available where the claimant, knowing of the danger to their property, has (by word or deed) shown willingness to accept the risks.
How does contributory negligence operate as a defence for private nuisance?
The usual rules of contributory negligence apply.
In Trevett v Lee [1955] I WLR 113 the defendant’s house was not connected with a water main and in times of drought, the defendant would lay a garden hosepipe across the road to enable water to be brought by a water supply on the other side of the road to their premises. The claimant saw the pipe, but failed to step over it, caught her heel in it, fell and injured her back. The court held that there was no nuisance. However, if the court had found a nuisance, they confirmed that the defendant would have been able to argue the defence of contributory negligence. Note that this case concerned public nuisance, but the same principle applies to private nuisance.
How does acts of third parties operate as a defence for private nuisance?
Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable, unless they adopt or continue the nuisance (Sedleigh-Denfield).
How does acts of god operate as a defence for private nuisance?
Where the nuisance results from an act of God, the defendant will not be liable unless they adopt or continue the nuisance. In Nichols v Marsland (1876) 77 LR 2 ExD 1 the defendant’s artificial pools flooded and damaged the claimant’s property. The flooding was caused by a very unusual
amount of rainfall which was wholly unexpected, so the defendant had a complete defence.
How does necessity operate as a defence for private nuisance?
The usual principles apply which are considered in the section ‘Necessity’ in the chapter on defences.
