Nuisance Flashcards
Emanation causing material injury to property
- Hunter v Canary Wharf:
- Blue Circles v Ministry of Defence: (CoA)
- St Helen’s Smelting v Tipping:
- Consider (4 things):
Examples:
- Hunter v Canary Wharf: (CoA) deposit of excessive dust on a carpet can amount to physical damage
- Blue Circles v Ministry of Defence: (CoA) intermingling of plutonium with soil so that it couldn’t be removed amounts to property damage
St Helen’s Smelting v Tipping: Characteristics of locality is irrelevant because just because the neighbourhood is devoted to manufacturing purposes of a similar kind to D’s doesn’t mean that it may be carried on with “impunity” resulting in “injury and destruction to” C’s property, except where prescriptive right acquired by lengthened use
Consider:
1. Emanation was created/authorized/continued/adopted by the defendant
2. Emanation was from land over which D had sufficient control (analysis required)
3. Emanation caused injury to the property
4. Damage wasn’t trivial/hypersensitive (Halsey v Esso)
Defences
Emanation causing sensible personal discomfort/loss of amenity value
- St Helen’s Smelting v Tipping:
To establish unreasonable interference:
- (what should be ignored/exception to this rule)
- Consider characteristics of locality
- gaunt v Fynney; Adams v Ursell
- Coventry v Lawrence (Carnwath? Neuberger?)
- is this absolute?
- planning permission? - Consider significance of interference with regards to time, duration, regularity and intensity
- Rushmer v Polsue
- Halsey v Esso
- Sedleigh-Denfield - Consider reasons for interference
- Bradford v Pickles
- Fox v Emmett
St Helen’s Smelting v Tipping: Characteristics of locality/established patterns of use relevant to the question of reasonable use
To establish unreasonable interference:
- Ignore amplification based on hypersensitivity
o Unless there is malice: Hollywood Silver Fox v Emmett - Consider characteristics of locality (if applicable)
o Broad brush categorization (Gaunt v Fynney) or finer distinctions (Adams v Ursell) – latter preferred in light of Coventry v Lawrence: problematic areas are usually not homogeneous but contain various coexisting patterns of use (Carnwath) and thus “established patterns of use” is preferable to “character of locality” (Neuberger). This consideration may not be absolute; Lord Loreburn, as quoted by Veale J in Halsey v Esso, remarked that a person living in a relatively comfortable abode in the manufacturing part of Sheffield may still have a right to complain if a steam-hammer is introduced next door.
o Planning permission relevant insofar as it doesn’t permit the actual nuisance complained of or amount to a nuisance (Neuberger), and where it offers a “benchmark” on issues such as time where noise is permitted (Carnwath). In exceptional cases (Gillingham v Medway) planning permission can change character of a locality to make an actionable nuisance innocent but this is very rare (Wheeler v Saunders, Coventry v Lawrence). - Consider significance of interference with regards to time, duration, regularity and intensity
o Rushmer v Polsue, Halsey v Esso: unreasonable to interfere with sleep with excessive noise (remedy: close down plant at night)
o Sedleigh-Denfield v O’Callaghan: one-off or isolated events can only be actionable if they arise from an underlying state of affairs - Consider reasons for interference (malice, negligence, pursuit of legitimate purpose)
o Although Bradford v Pickles held that malice didn’t render an innocent action actionable, Hollywood Silver Fox v Emmett distinguished the case and held that it was a relevant factor in considering reasonableness. Bradford v Pickles shouldn’t be relied on as authority because it could be decided on the alternate ground that C had no right to percolating water (the object obstructed), and even in that case Lord MacNaghten (who decided Emmett), said “He is churlish, selfish and grasping… But where is the malice?”, suggesting that D’s conduct did not amount to malice without ruling out the relevance of actions that do, in fact, amount to malice.
Both causing material injury to property and sensible personal discomfort
- Robinson v Kilvert
- Southwark London BC v Tanner:
Robinson v Kilvert: Interference must be so as to materially interfere with the ordinary comfort of human existence, not merely according to elegant or dainty modes of living
Southwark London BC v Tanner: Interferences resulting from acts necessary for the common and ordinary use and occupation of land and houses do not constitute a nuisance as long as they are conveniently done
- eg. noise of daily activities (quarrelling, babies…) don’t constitute nuisance in flats with thin walls even if they are “intolerable”
- “conveniently done” is an important qualification because if D could put the washing machine elsewhere but chose to put it where walls are thinnest, then it can be actionable
Encroachment
- which encroachments are automatically unreasonable?
- what must C show?
- Lemmon v Webb?
- All encroachments violating boundaries of C’s land automatically amount to unreasonable interference
- C needs to show that D is responsible for the interference
- Lemmon v Webb: C allowed to cut off protruding branches etc. but can only sue if further damage is caused by the encroachment
Obstruction
When can C sue?
- rule
- Bradford v Pickles
- Hunter v Canary Wharf
- Bridlington v Yorkshire Electricity Board (what did HL think in Hunter about this reasoning?)
When will C be able to prove he has a right:
- light
- air
- water
However two views in Hunter v Canary Wharf contradict assertion that C must prove violation of right
- Cooke
- Hope?
re maliciousness(?)
- Hunter
- Bradford v Pickles
- C can only sue if obstruction is related to some right over the land; otherwise can’t sue even if the obstruction reduces C’s use and enjoyment/causes physical damage
- Bradford v Pickles: (D stopped water that was percolating under his land from continuing onto C’s reservoirs out of malice/to persuade C to buy his land/pay him fee) Claim failed because C couldn’t prove that he had the right to the water.
- Hunter v Canary Wharf: Building of Canary Wharf tower blocked Cs’ access to television signal. Though in Bridlington v Yorkshire Electricity Board it was held that such interference wasn’t nuisance because it constituted a purely recreational facility and not health/physical comfort, HL in Hunter disputed the validity of this reasoning in light of growing social importance of television. However HL held that C had no right to television signals coming from neighbor’s land just like he has no right to a view of neighbor’s unobstructed field
- When will C be able to prove he has a right:
o Light – prescription (Prescription Act 1832 fixed period of acquisition at 20 years) may give rise to freedom from future obstruction; right to a view can only be negotiated for a restrictive covenant that the other party not build on their land (Lord Blackburn, Dalton v Angus)
o Air – no general right to receive air/wind that but for obstruction would have come onto C’s land, but where air flows to a defined aperture (eg. ventilator) he may have an easement
o Water – right to receive water from adjacent stream subject to reasonable use by people upstream (can claim if upstream diverts most of flow/pollutes the water); no right to water like in Bradford v Pickles
- However two views in Hunter v Canary Wharf contradict assertion that C must prove violation of right: o Cooke: real reason why C wasn’t entitled to TV signal was ‘give and take’ and that neighbors are expected to deal with such interference (however malicious erections for purpose of blocking neighbour’s TV signal is actionable like Christie v Davey) o Hope (support?): The tower wasn’t maliciously constructed in order to interfere with C’s reception - Suggests that maliciousness is an alternative for proving rights, however, majority of HL didn’t agree and it contradicts Bradford v Pickles
Afront
- when was it principally used?
- Laws v Florinplace (likely?)
- dangerous factories
- Birmingham Development v Tyler
- Principally used against brothels, pornographic cinemas and sex shops
- Laws v Florinplace: residents sought injunction to close down “Victoria Sex and Video Centre”. Held that even if D changed its name knowledge of its trade was enough to amount to interference with use and enjoyment of C’s land
- IAO these claims are rare because C must prove interference was unreasonably judged from POV of ordinary resident (thus most lawful businesses will be fine even if they cause people to feel uncomfortable)
- Sometimes dangerous factories (eg. gunpowder) were held to be affront cases before they caused any damage (from fear and anxiety), but this conflicts with principle that C can obtain an injunction to restrain an anticipated tort only when it is highly probable and imminent
- Birmingham Development v Tyler: CoA held no tort where D’s wall was in a state that C was advised to stop work on his land because it might collapse, because fear of imminent collapse must be “well-founded”.
Responsibility
Must the nuisance emanate from D’s land for private nuisance?
- Hussain v Lancaster CC
- Halsey v Esso
(i) Veale J on difference between public/private N
(ii) Veale J on why private nuisance - R v Moore
- Jones v Portsmouth CC
- Hussain v Lancaster CC: D must own the land from which the nuisance emanates; therefore, harassment carried out in the streets didn’t count (CoA)
- Halsey v Esso: Veale J summarized the difference between private and public nuisance as private nuisance requiring “possession and control of land from which the nuisance proceeds” (quoting Lord Wright, Sedleigh-Denfield) while public nuisance “can cover a multitude of sins, great and small” (quoting Lord Denning).
- However in Halsey v Esso Veale J concluded that though the nuisance was on the highway, it was directly connected with the operation of D’s land, and therefore constituted private nuisance. Therefore, it seems that some connection with the use of D’s land is necessary, so noise emitted from a car will probably not constitute nuisance despite the anomaly that it would create in that noise emitted from a house would.
- M&B: C’s degree of protection shouldn’t depend on D’s rights over the land from which the nuisance emanates. IMO this is not the current state of the law, and not necessarily desirable – Coventry v Lawrence held that D didn’t have to create the nuisance personally to be held liable (authorize/continue are enough – suggested that failure to prevent is included); therefore, the property owner will be held liable in nuisance (a tort relating to the land) and there is no need to hold liable those who have no interest in the land. (M&B argue that C should be protected from fire no matter who lit it, but negligence will protect C against the stranger and nuisance against the property owner; if the stranger wasn’t negligent and the property owner didn’t continue/authorize the fire, then it is unclear why the stranger should be held liable without fault)
- Further, R v Moore held that D can be held liable for the side effects of an activity (for example, strangers gathering outside D’s property to shoot at stray pigeons); thus, there is no need to protect, in nuisance, against Ds who don’t have interests in the land.
- However, in LE Jones v Portsmouth CC Dyson LJ held that the test for liability is not occupation of land but the right to control over the hazard. Thus, the defendant council was held liable in nuisance for damage caused by trees on a highway that they didn’t own but were responsible for maintaining
What is necessary for “authorizing”?
- Hussain v Lancaster CC
- London BC v Tanner
- Coventry v Lawrence
- Hussain v Lancaster CC: A landlord who is able to evict tenants but do not, are held to have authorized tenants’ activities
- However, in London BC v Tanner, lord Millett asserted that mere failure to act cannot on its own amount to authorization. This was confirmed in Coventry v Lawrence, which held (but by a slim majority) that a landlord should only be liable where he directly participated in the nuisance or where the nuisance was a “virtual certainty”.
- Thus, the positive action of granting a lease with the inevitable result that a nuisance would be committed is authorization, but Lord Carnwath held in Coventry v Lawrence that knowing nuisance was only “likely” or “foreseeable” did not lead to liability
What is necessary for “adopting/continuing”?
- Lippiatt v South Gloucestershire CC:
- Sedleigh-Denfield
- Leakey v National Trust: Megaw LJ
- Holbeck Hall Hotel v Scarborough BC
- Lippiatt v South Gloucestershire CC: an occupier of land is responsible for a state of affairs that he didn’t create if he:
o Continues: knows about the nuisance, fails to take reasonable steps though he had ample time to do so
o Adopts: makes use of the erection constituting the nuisance - Sedleigh-Denfield: Failure to prevent a nuisance that would have been relatively simple and cheap to prevent constitutes nuisance, but difficulties arise when prevention is costly or nuisance is caused by strangers/natural forces
- Leakey v National Trust: Megaw LJ in the CoA held that the Sedleigh-Denfield principle applied to potential nuisances caused by nature, even if prevention was costly
- Holbeck Hall Hotel v Scarborough BC: CoA held that D is only liable to the extent of the damage that was foreseeable (thus difference between “measured duty of care” and most cases of physical damage is that extent of damage matters in the former), and that where the possibility of nuisance was caused by natural forces and D would have gained little from prevention, then reasonableness only required D to inform C of the risk. Stuart-Smith LJ also distinguishes between patent dangers (duty arises where defect is known) and latent dangers (no need to conduct investigations).
DEFENCES
- prescriptive right
- coming to the nuisance
- necessity
- statutory authority
- wholly unpredictable act by 3rd party
(a) smith v littlewoods
(b) mitchell v glasgow - act of God
- C has no title to sue
DAMAGES
- injunction
- damages
- propertydaamge
- loss of amenity
- loss of consequential reduction of amenity value - damages in lieu of injunction
- Prescriptive right (Coventry v Lawrence, Angus v Dalton)
- Coming to a nuisance (except where C converted the use of his land subsequent to D’s commencing his activity: Coventry v Lawrence)
- Necessity (Southport v Esso: Lord Radcliffe said obiter that D could rely on the necessity defence unless his own carelessness brought about the necessity. However lower courts were split: Devlin J – would only be a defence to save human life but not to save one’s own property; Singleton LJ – D could rely on defence unless he was negligent in causing the necessity; Denning LJ – D must prove the necessity was unavoidable. Further, Andreae v Selfridge: Bennett J held that the court will not countenance the development of a wide defence of necessity)
- Statutory authority (Dobson v Thames Water)
- Wholly unpredictable act of a third party (as long as D didn’t continue the nuisance by failure to remedy the situation)
a. Smith v Littlewoods: Lord Mackay – landowner has duty to take reasonable steps to prevent a trespasser acting in a way foreseeable that failure to prevent would likely cause damage to C. However Lord Goff – this duty would only be owed if 1) landowner assumed responsibility to C, 2) or was responsible for controlling the trespasser, 3) or negligently permitted the source of danger, 4) or knew trespasser had created a fire risk
b. Mitchell v Glasgow CC: Lord Hope and Roger both agreed with Lord Goff’s approach - Act of God (wholly unpredictable and uncontrollable natural force, as per Sedleigh-Denfield, where Lord Maugham said that D couldn’t argue rainfall leading to flood was so heavy as to give rise to defence, except if it is “so exceptional in amount that no reasonable man could have anticipated it”)
- C has no title to sue (Hunter v Canary Wharf: only those with sufficient interest in land can sue –Lord Goff: only those with “right to exclusive possession” (freeholder, tenant in possession, licensee with exclusive possession, someone in actual possession))
Damages
- Injunction (prima facie entitlement)
- Damages (to compensate for foreseeable past interferences – per Wagon Mound II, as endorsed in Cambridge Water)
o Property damage – cost of repair/diminution in value
o Loss of amenity – degree land was rendered less useful (for the purpose for which it was actually used)
o Loss consequential to reduction of amenity value of land – recoverable except for consequential physical injury (Hunter v Canary Wharf)
- Damages in lieu of injunction (to compensate future interference)
o Shelver v City of London Electric Lighting: remedy is appropriate if injury to C’s right is 1) small, 2) estimable in money, and 3) can be adequately compensated with small amount of money
o Coventry v Lawrence: Court should move away from Shelfer and more readily award damages in lieu. While Shelfer observed that public benefit is insufficient, Lord Sumption in Coventry argued that this view is “unduly moralistic” and that injunctions shouldn’t be given if third party interests are engaged (however other judges didn’t endorse this view; Lord Mance says that the home is often valued independently of money, suggesting that damages in lieu shouldn’t be so readily available)
Damages in lieu of injunction
When they should be given
- key case?
- Neuberger?
- Sumption?
- Mance?
- Carnwath?
Coventry v Lawrence
- Lord Neuberger: Two lines of cases emerged where the Shelfer line was only prepared to award damages in lieu in exceptional circumstances, while the Regan line was much more flexible. Regan should be followed, and though the court’s discretion should not be fettered, guidance is available: planning permission relevant to support public benefit contention, and public policy is always to be taken into account
- Lord Sumption: Damages in lieu are the solution to the public vs private interest conflict, and should prima facie be awarded if planning permission has been granted.
- Lord Mance disagrees with Lord Sumption because most people value the home independently of money and damages are therefore normally inadequate
- Lord Carnwath disagrees with Lord Sumption because planning permission is given for a variety of reasons so it would be unwise to lay down a general rule
Exemplary damages?
Coventry v Lawrence
- Neuberger
- Clarke
- Carnwath
Coventry v Lawrence
- Lord Neuberger: damages should exceed diminution of value because the right to enforce a remedy as of right is a separate cause of action capable of substantial damages. However damages should never be assessed with reference to D’s benefit in causing the nuisance
- Lord Clarke: Damages based on the reasonable price of committing the nuisance may be considered
- Lord Carnwath disagrees with Lord Clarke because of the difficulty of determining reasonable price
Easement to make noise
- trial judge in coventry v lawrence
- neuberger
- who must nuisance maker negotiate it with?
- what must the level of noise be?
- the relevant of the positive nature
- can it be prescriptively acquired?
- Trial judge in Coventry v Lawrence ruled that noise could not be prescriptively acquired, but Lord Neuberger considers that it can even though it affects a large number of neighbouring properties, but it must be negotiated with each neighbour in turn. He notes that it can be expressed in terms of conventional easements as that of “transmitting sound waves over”. However, the 20 years can only run if it is of a level that amounts to nuisance, not just (as suggested by the CoA) emission of noise. Also, time does not run unless the activity can be objected to by servient owner (i.e. when neighbouring land is occupied)
NOTE: prescriptive acquisition of the right to make noise is fine even though it extends to a large area because it is a positive easement, so you would have to make enough noise for 20 years while there are neighbours living there and they don’t complain. Also you can negotiate with each neighbour in turn, something you can’t do with negative easements (like right to prospect)
Note: perhaps the prescriptive right to do damage to neighbouring property that Lord Westbury alludes to in St Helens Smelting v Tipping is acquired in the same way? It is interesting that this right can be prescriptively acquired, but that established patterns of use is no defence.
Extent that D’s own activity is to be taken into account
- Coventry v Lawrence:
o CoA:
o Lord Neuberger:
o Lord Mance:
o Lord Carnwath
o CoA: The actual use of the stadium with planning permission was relevant in assessing the character of the locality
o Lord Neuberger: Rejects CoA’s approach and held that only those activities that do not constitute a nuisance, especially the very nuisance complained of, are to be taken into account when assessing the character of the locality (this is a circular test but the circularity shouldn’t pose too great a problem
o Lord Mance: A change in the intensity of a previous activity can also give rise to a nuisance
o Lord Carnwath: D’s existing activity at “previous level” can be taken into account to assess the characteristics of the locality, until the new intrusive element was introduced
Who Can Sue?
Newark, “The Boundaries of Nuisance”
- Nuisance is a tort to land, so that a sulphurous chimney is a nuisance not because it makes householders cough but prevents them from enjoying their gardens. However, IMO this is not completely true – it is a nuisance because it prevents their gardens from being enjoyed. If the householders were bedridden from coughing so that they couldn’t enjoy their gardens, then it wouldn’t have been nuisance because others could still enjoy them…
Who Can Sue?
Foster v Warblington UDC
- Someone in exclusive possession of land can sue without need to prove title
Who Can Sue?
Malone v Laskey
- Subject to people with right to exclusive possession, exception people without rights cannot sue
Who Can Sue?
Bush v Koninandjian
- Dillon J held that occupiers could sue, because it would be ridiculous that deliberate harassment actions hinge on whether C happens to have interest in the premises. However, IMO this is not a argument for allowing a claim in nuisance, but rather than fuller and more extensive harassment protection laws should be enacted.
Who Can Sue?
Hunter v Canary Wharf:
- Pill LJ (COA)
- Goff
- Hoffmann
- Cooke
Important points (3)
- Pill LJ (CoA): occupiers can sue, consistently with the law’s trend to give occupiers additional protection in certain circumstances
- Lord Goff: Exceptions such as in Motherwell v Motherwell and Bush v Konihnandjian shouldn’t be relied upon, so CoA’s decision was wrong
- Lord Hoffmann: the mistake in Bush was interpreting the term “sensible personal discomfort” in St Helens Smelting v Tipping to mean compensation for discomfort/personal injury; if this were true, then interest in land becomes no more than a “springboard” that entitles C to sue for injury to self
- Lord Cooke (dissenting): law of nuisance survived fundamental changes like TV, radio, aviation etc. because it is so flexible and wide-ranging, making it a potent instrument of justice (Bank of NZ v Greenwood). If St Helens distinguishes based on sensible personal discomfort, then the issue of who can sue should also adopt that distinction. This change will lead to borderline cases, but this shouldn’t prevent the development.
Important Points:
1. Majority affirmed that nuisance was a tort against land and refused to ‘modernize’ it by developing it to protect personal interests
2. This resolves question of who can sue but has implications for how damages are assessed in amenity nuisance cases and for range of injuries that can be claimed
3. Lord Goff’s refusal to make a special case for the ‘home’ is objectionable especially since HRA 1998 and Art 8 ECHR, as well as Lord Cooke’s broader point about the status of children
Should wider class of people be allowed to sue?
Khorasandjian v Bush
- suggests that, in the absence of alternate statutory rights of action like those in the Protection from Harassment Act 1997, certain interferences will leave seriously affected claimants without remedy (however, doesn’t mean that nuisance is the correct avenue to deal with these – we should rather wait for other statutes)
Should wider class of people be allowed to sue?
re wives + children
- the fact that children and wives, who were affected to the same extent by the mosquitoes, were left without protection suggests that they should be able to sue (however, this doesn’t mean that they should sue in nuisance; other avenues should develop, as nuisance protects interest in land)
Should wider class of people be allowed to sue?
Hunter v Canary Wharf
- Other Cs shouldn’t be able to sue because (5 points)
- Other Cs shouldn’t be able to sue because
o 1) nuisance protects interest in land while negligence protects safety of people,
o 2) would undermine clarity and thus Ds’ ability to negotiate with potential Cs for the right to commit a nuisance for a price (since law would bring in other, unascertainable potential Cs)
o 3) In the past damages for personal injury had been recoverable in private nuisance, but it is now more suited to negligence because it is more fully developed (Lord Goff)
o 4) difficulty of defining “sufficient link” (wives, children, au pairs, resident nurses…)
o 5) inconvenience objection (eg. owner unwilling to sue because he is less sensitive to smoke than residents) will not happen in practice and doesn’t justify departure (Lord Lloyd)
Rylands v Fletcher Liability
Rylands
- Blackburn J
- Lord Cairns
Transco
Rule
Is fault required?
- Anyone who “for his own purposes brings on his land anything likely to do mischief if it escapes, must keep it at his peril” and otherwise is prima facie answerable for any damage that is the natural consequence of its escape, except if he can show that C or vis major caused it (Blackburn J in Rylands v Fletcher). This rule only applies to non-natural use of land (Lord Cairns, Rylands v Fletcher)
- Transco v Stockport MBC: rule applies where A has brought onto, or kept on, some land an “exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances”. Rule is:
o Thing escapes from Place and
o Thing consequentially damages B’s land (or property attached to it) and
o Kind of damage that Thing causes was reasonably foreseeable of escape then
o B entitled to sue A for compensation unless
o A can raise a defence
- B will not have to prove that A was at fault for escape
Rylands v Fletcher Liability
Rationale
4 points
- Costs of commercial enterprises should be internalized and entrepreneurs should provide insurance for risks that his enterprise creates (Lord Hoffmann).
However this rule is usually not accepted in English law, which otherwise holds entrepreneurs liable only for consequences of his wrongs (and it is not wrong to keep a dangerous thing). Thus Lord Hoffmann has concluded that the rule is an “isolated victory for the internalisers” (isolated because subsequent years Court tried to restrict its application, and policy explanation rejected in most contexts). However, the rule has formed part of English law for too long to abolish it now.
- Fair to impose liability on those who create an exceptional risk.
- Abolishing the rule would be too radical, and attempting to limit rule without abolishing led to High Court of Australia saying that it is “likely to degenerate into an essentially unprincipled and ad hoc subjective determination” (Mason CJ, Burnie Port Authority v General Jones)
- Ds were usually at fault, and rule would prevent Ds from escaping liability because it is difficult to prove fault/negligence especially against a big corporation (but this assumes that most RvF Ds were at fault and that without the rule they would escape liability)
Is Rylands v Fletcher a species of private nuisance?
- Transco tried to restate rule with certainty by classifying it as a sub-species of private nuisance, so that liability is because D is responsible for isolated escapes which have unreasonably interfered with the use and enjoyment of C’s land. IAO this classification is misguided:
o Private nuisance is a tort while to be liable under RvF D doesn’t have to commit any legal wrong
o Original rationale behind rule (internalizing costs to commercial enterprises) doesn’t justify confining liability to neighbouring land and not extending to eg. personal injuries
o Reason provided in Transco doesn’t justify confining compensation to damage to land (eg. Lord Bingham cites the Aberfan tragedy as an example of an exceptional case where RvF would apply (waste heap slid down hill and buried a school, killing 116 children) – implication is that owner of school can sue for damage to buildings without having to prove fault, while parents of children would have to prove fault
Scope of Liability under Rylands v Fletcher
Who can be liable?
- Read v Lyons:
- Transco:
- Dicta from Rainham v Belvedere
o Read v Lyons: Macmillan – RvF is part of law concerning “the mutual duties of adjoining or neighbouring landowners”; suggests that only owner can be liable
o Several cases held Ds liable who weren’t owners or even tenants; Lord Bingham in Transco [11] refers to D as “occupier” suggesting all occupiers can be liable
♣ NOTE: However at [4] and [11] he also refers to C as having only to be an “occupier” of the land – an apparent oversimplification (because in fact C would have to have exclusive possession/right to possess – this also undermines Lord Bingham’s classification of D having to be an “occupier” and suggests a misuse of the word in general not authority for widening rule in Read v Lyons
o Some dicta suggest anyone responsible for storing the substance can be liable regardless of connection to land (Rainham v Belvedere Lord Summer: can’t escape liability “which otherwise attaches to them on storing it there merely because they have no tenancy or independent occupation”). IAO dicta are correct (consistent with who can be liable in private nuisance)
Scope of Liability under Rylands v Fletcher
- Who can claim?
what can they sue for?/ what can they not sue for?
Cattle v Stockton
Cambridge Water
o Same as Hunter v Canary Wharf’s treatment of other private nuisances: C must have legally recognized interest in land/in exclusive possession; can only sue for harm caused to land, harm to amenity value and consequential damage to property (not personal injury)
o Cattle v Stockton: Blackburn J – employees in the mine couldn’t claim for lost wages (no claim for PEL)
but loss of amenity value and economic loss consequential on physical damage may be claimable (Cambridge Water v Eastern Counties Leather was such a claim)
Rylands v Fletcher
- An exceptionally dangerous or mischievous thing
1. Hale v Jennings 1938
2. Transco
o At first thought that thing had to be “inherently dangerous” (Hale v Jennings 1938) but Stallybrass concluded that this is unhelpful because nothing is always dangerous just like nothing is always safe
o Transco – Bingham restated dangerousness at [10] as D “judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognized, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been”
Rylands v Fletcher
- Extraordinary use of land
o Blackburn J - RvF applies only to keeping on land something “which was not naturally there”
o Cairns LJ (HL) drew distinction between “natural” and “non-natural” use
Rylands v Fletcher
- Extraordinary use of land
Rickards v Lothian
PC held that escape of water from ordinary plumbing didn’t fall within RvF (Lord Moulton – must be “some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community”) – last bit could be interpreted as improper use only (really restrictive)
Rylands v Fletcher
- Extraordinary use of land
Cambridge Water:
Goff:
- is storage of chemicals on industrial premises non-natural use?
- does creation of employment matter?
- how has the need for foreseeable consequences affected non natural use of land?
- Development of RvF alongside private nuisance might mean…
o Lord Goff spoke against Moulton’s classification:
♣ Storage of substantial quantities of chemicals on industrial premises should be a classic case of non-natural use
♣ Creation of employment couldn’t establish use as natural
♣ Since HL also deciding that RvF doesn’t apply to unforeseeable consequences of escape, there will in future be less need to interpret “non-natural user” narrowly to limit liability
♣ Development of RvF alongside private nuisance might mean “non-natural user” will develop alongside “reasonable user” in private nuisance (suggests that excluded from “non-natural user” will be risks accepted as part of ordinary social give and take)
Rylands v Fletcher
- Extraordinary use of land
Transco:
o Bingham – use doesn’t have to be unreasonable/improper to fall into RvF (preferred “ordinary”/”extraordinary” use rather than natural/non-natural use without giving guidance on the line between them)
o Hoffmann says “ordinary” use is vague and offered alternative test: useful guide for “non-natural” use is to ask whether damage that eventuated was something against which CLAIMANT could reasonably be expected to have insured himself
♣ NOTE: What about changing this test to ask whether damage was something against which defendant ought reasonably have insured against (i.e. whether it was sufficiently foreseeable and he should have had the knowledge to purchase insurance)
Rylands v Fletcher
- Extraordinary use of land
Stannard v Gore
o Etherton LJ said that D wasn’t using his small industrial estate “extraordinarily” by storing over 3,000 tyres there, because it was perfectly ordinary and reasonable to do so, and because it posed a foreseeable/recognized danger. IAO focus on danger rather than ordinary practice is much more convincing (and consistent with Goff’s view that storing large amounts of chemicals is non-natural)
o Therefore IAO test based on degree of risk better than Hoffmann’s test for insurability (which should be irrelevant to classification of activity)
♣ Homeowner might insure against property damage but that doesn’t make the neighbouring fireworks factory exploding an ordinary activity
♣ Often both parties would be ensured; doubtful whether leaving claimant to bear the cost would be economically efficient (usually efficient only if C was better placed to avoid the harm or to evaluate/insure against the risk as a result of escape from D’s land – neither of these criteria is satisfied)
♣ Also unfair to make C pay the additional insurance premium
o Two further points:
♣ Transco per Lord Scott at [89] – where use is permitted by statute it will be natural unless there has been negligence
♣ Blackburn J’s formulation contains “for his own purposes” – Court unlikely to protect D who stored for benefit of general public, but might if he stored for benefit of himself and C (though this overlaps with defence of consent)
Rylands v Fletcher
- Escape
o Read v Lyons:
o Transco:
o Stannard v Gore:
o Read v Lyons: Thing must escape from D’s premises not merely from D’s control (here C was inspector at munitions factory injured by exploding shell – held RvF didn’t apply)
o Transco: Where water escapes from one part of D’s premise to another part where it threatens to damage C’s pipe where he had an easement, Lord Scott said that RvF still didn’t apply
o Stannard v Gore: D’s unit was lit on fire and it spread to C’s unit because of tyres stored on D’s unit. Held RvF didn’t apply because the tyres (thing stored) weren’t the dangerous substances; the fire was. This will likely limit RvF from inflammable substances cases (however CoA thought precedent that rule should not be extended applied to any situation beyond those covered by formulation of rule in Transco)
Rylands v Fletcher
- Reasonable foreseeability
o Rylands v Fletcher:
o Cambridge Water:
o what must he shown to be reasonably foreseeable?
o Rylands v Fletcher: “natural consequence” sufficient
o Cambridge Water: Must be reasonably foreseeable that someone like C would suffer that kind of harm (here D ran tanning business that used large quantities of chemicals, some of which got spilled on D’s factory floor and seeped through into ground beneath and flowed into C’s borehole a mile away from D’s factory and contaminated the water. C sued D for costs of a new borehole and held not liable because unforeseeable that escape would cause someone like C to suffer a contaminated borehole)
o Not needed to show reasonable foreseeability that thing would escape, just that if it did C would be harmed
Defences to Rylands
- Liability under RvF is strict – it applies regardless of fault
- However it is not absolute – there are defences available:
o Act of stranger: D not liable if escape caused by act of stranger whom he couldn’t control
o Act of god: “wholly extraordinary natural event”
o Fault of C: C must be wholly at fault
o Volenti: if C consented to the thing being stored (consent means acceptance of risk)
♣ Peters v Prince of Wales Theatre: D owned a theatre that had a shop which they leased to C, who knew that there was a sprinkler system in the building. When the system broke down and damaged contents of the shop, D were held not liable because C was happy to rent the place and were therefore held to have accepted the risk of the system breaking down
Remedies for Rylands
- Damages for cost of repair or diminution in capital value, and redress for consequential economic loss
Gearty, 48 CLJ 214
Intro and 3 main problems
Indirect physical damage to land cases
The lack of definition + absence of coherent goals or purposes have left nuisance vulnerable
Environmental tort
- remedies
- responds to
Is it underutilised in pollution?
The three main problems:
- definition problem
- structural problem
- doctrinal problem
Indirect physical damage to land cases (Sedleigh-Denfield, Leakey) should properly belong to negligence and not to nuisance, in analogy with Goldman v Hargraves.
The lack of definition + absence of coherent goals or purposes have left nuisance vulnerable, especially to negligence → Williams and Hepple have suggested that nuisance is merely a sub-set of negligence, and occasionally, judges have ventured to this effect (ex. Lord Parker CJ in British Road Services v Slater).
Private nuisance is an environmental tort – it is the best tool in common law to get sewage out of rivers/reduce unwanted noise/clean the atmosphere…
- Its remedies are the strongest that courts can offer (injunction)
- It responds to the harm done not culpability of the harmer
But it’s been underutilized in pollution, but overloaded with new responsibilities while its very existence has been challenged → it is attacked and burdened because it lost all sense as to what it stands for.
Three main problems:
- Definitional Problem: private nuisance must be seen as distinct from public and statutory nuisance, and from interferences with servitudes → authorities from this area should not encroach on analysis of private nuisance
- Structural Problem: costs/causation/burden of proof/locus standi obstacles to claimants, especially where D is a big business or the source of pollution is complicated scientific process → statutory nuisance procedure that was developed in response to this and thrived + expanded since
o Thus, the impact of private nuisance is largely residual, though it remains highly relevant because statutory nuisance relies on the common law definition of nuisance.
- Doctrinal problem: relationship between nuisance and negligence → non-physical damages are classic nuisance but physical damage to land appears more like negligence (involves analysis of D’s conduct and whether they knew what was happening) → IAO categorization of physical harm as private nuisance is anomalous because in 19C the boundaries of nuisance were not well understood so that it became an attractive receptacle for cases not easily classified → damaged private nuisance by introducing an emphasis on D’s conduct which is foreign to nuisance
Gearty, 48 CLJ 214
Thesis
THESIS: Indirectly causing physical damage to land once belonged to negligence, and should now be returned to negligence so that nuisance can turn its undivided attention to protecting occupiers against non-physical interferences with the enjoyment of land
“”the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive.” (Lord Wilberforce, Goldman v Hargraves). → liability rested on “negligence and nothing else”; whether it fell within/overlapped with nuisance was “a question of classification which need not here be resolved”.
Thus their Lordships (rightly) steered away from Sedleigh-Denfield (which treated a similar hazard as a problem of nuisance – though the original writ claimed in negligence but this was not proceeded with because of difficulty establishing a duty of care) → why did Sedleigh-Denfield treat it as a nuisance claim?
o “Continuance” allowed the court to suggest that D was engaged in an activity and didn’t simply fail to act?
o Meant they didn’t have to confront negligence and its dislike of liability for omissions?
o Relied heavily on cases that used the word “nuisance” loosely and unreflectively…
Then, Leakey v National Trust followed Goldman but fell into the Sedleigh-Denfield trap – the pleadings referred only to nuisance, and Megaw LJ was consciously indifferent as to whether it was nuisance or negligence… But where was the nuisance?
- Megaw LJ said that it was “the duty arising from a nuisance which is not brought about by human agency does not arise unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created” → this would mean that every defect capable of doing damage would be nuisance with only those giving rise to reasonably foreseeable danger attracting the duty of care… So negligence…?
Result = conceptual confusion…
Intro
Cross (1995) 111 LQR 445
Authors who criticize private nuisance because of its uncertainty criticize two things:
- Criterion of unreasonable user of land
- Uncertainty as to the circumstances proof of carelessness is a prerequisite of finding liability
Thesis: nuisance is not being absorbed by negligence but is an independent, sharply defined tort of strict liability. But it fails fully to incorporate the “polluter pays” principle because of its remoteness rules, so that it leaves risks not yet sufficiently identified by science to be carried by injured parties.
The problems:
I - Definitional problem
Cross (1995) 111 LQR 445
(because the vast majority of cases involve two occupiers of land because the nuisance arose from the defendant’s land so that some judicial dicta even suggest that it is a prerequisite)
II - Reasonable user test
Cross (1995) 111 LQR 445
Lord Goff in Cambridge Water v Eastern Countries Leather said that nuisance liability “has been kept under control by the principle of reasonable user” and notes the “striking” comparison between this and principle of natural use in RvF, drawing attention to a “similarity of function” between them) → IAO this to be rejected and results from a mistaken view of the reasonable user principle and its origins in nuisance – it has never been a general prerequisite of nuisance liability, but is a test developed out of a need to establish (in a limited category of cases) whether the alleged interference surmounts the threshold of interference necessary to give rise to an action in nuisance
Example: reconciling Bradley Corporation and Hollywood Silver Fox:
- Absolute right to extract water from beneath his land vs. relative right to make reasonable levels of noise (motivation being relevant only to the latter) → wrong because why is an occupier’s right to make a level of noise consonant with the nature of the locality any less absolute than his right to abstract groundwater?
- Interference by noise is sui generis and subject to own rules of liability → whether right or wrong no support for Lord Goff’s view that unreasonable user is a general requirement
- Interference with a legally protected interest (Christie, Hollywood Wilver Fox) so the issue is whether they acted unreasonably, wheras in Bradford there was no infringement on any such right or interest so motives were irrelevant → this means that an occupier has a legal though legally unenforceable right to silence in the enjoyment of their property whereas caselaw posits no existence of such a right and the only legally protected interest of occupiers is to be free from unreasonable levels of noise
Thus, either 1) conflicting and irreconcilable decisions and Bradford should prevail, or 2) nuisance by noise is an isolated situation where the motivation of the defendant is relevant → either way no support for Lord Goff’s view that reasonable user test is general.
Danger of comparing reasonable user test with non-natural use requirement = nuisance might be assailed by the same difficulties as RvF because of the uncertainties of the non-natural use requirement
III – Requirement of reasonable foreseeability
Cross (1995) 111 LQR 445
Is nuisance no longer a strict liability tort, but has come to require a finding of fault on the part of D?
Firmly established that reasonable foreseeability is a requirement:
- Cambridge Water
- Wagon Mound (No. 2): “Although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, e.g., in cases like Sedleigh-Denfield v. O’Callaghan … the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour.” (Lord Reid)
But what must be reasonably foreseeable? That the consequences are reasonably foreseeable result of the operation/activity? Or of the causative event (discharge of chemicals, escape of gas…)?
IAO it is merely the causative event that has to be foreseeable, so that private nuisance is indeed a strict liability tort: “it appears from Lord Reid’s statement of the law that he regarded it essentially as one relating to remoteness of damage.” (Lord Goff, Cambridge Water) meaning that the Wagon Mound’s reference to “fault” being necessary must be merely tangential because it relates to liability not remoteness.
IV – Conclusion
Cross (1995) 111 LQR 445
A proper understanding of the modern tort of nuisance depends upon an awareness that its development has been significantly influenced by the fact that in the overwhelming majority of cases the interference complained of emanates from the land of the defendant. Except in situations where the interference is due to natural hazards or the actions of strangers–in which case the occupier is required to take reasonable measures to avoid the damage or abate the interference–the tort continues to be one of strict liability. Liability attaches by virtue of occupancy not of fault. The taking of reasonable care does not provide a defence.
However, the occupier remains liable in nuisance only for those consequences which are a reasonably foreseeable result of the “escape” which gave rise to them. In respect of consequences which are not foreseeable–as a result for example of the limitations of current scientific knowledge or unusual natural conditions of which the occupier could not be expected to be aware–the loss continues to lie where it falls, the risk to be borne by the innocent third party.
Finally, it is submitted that a degree of uncertainty is introduced into the situation by Lord Goff’s elevation of the reasonable user test to the status of a general prerequisite of liability in nuisance.
AWB Simpson, Leading Cases, (OUP 1995) Chs 7
I – The problem of social cost
The problem of social cost (Coase) = actions of business firms that have harmful effects on others (ex. smoke from factories) is an economic problem that calls for an economic solution. Drawing on Pigou’s idea that there are situations where the pursuit of private self-interest and the needs of the public welfare diverge in terms of both benefits or harms, and focusing on harms, he argues that “externalities” must be entered into the equation (through taxes) so as to correct the divergence between private self-interest and public welfare.
He argues that rather than the factory being the cause of the harm, the social cost is a reciprocal one – if the factory can pollute without paying for damage to laundry next door, he harms the launderer; if the launderer who chooses to hang washing on a line can recover compensation, then he is harming the factory owner. Since someone will be harmed anyway, the real question is how to minimize harm → since the smoke only harms the laundry if the launderer hangs it, both cause the harm.
Both parties can sort out their problems by making a contract (whatever the state of the law), so Coase argues that in a world where everyone behaved with economic rationality, and where there were no transaction costs, the parties would reach an economically efficient solution, and tort would have no function. In the real world, however, neither is true, and though Coase’s argument was to highlight the importance of transaction costs, the idea got around that it is best to leave conflicts to be sorted out by the market and not government regulation (and legal proceedings will merely function as steps in a bargaining process).
AWB Simpson, Leading Cases, (OUP 1995) Chs 7
II – The doctrinal context of Tipping
To settle the relevance of public benefit to liability for private nuisance.
Sir John Byles in Hole v Barlow (landowner sued over a nuisance caused by brick burning): not everybody’s enjoyment of life and property is rendered uncomfortable by the carrying out of an offensive or noxious trade in the neighbourhood, otherwise, great manufacturing towns would be full of persons bringing actions for nuisance to the great injury of the manufacturing and social interests of the community.
Vs.
Bramwell B in Bamford v Turley: a thing is only to the public benefit when it is productive of good to those individuals, on the balance of loss and gain to all. It is for the public benefit that trains should be run, but not unless they pay their expenses. It would not be for the public benefit that there should be railways unless the railway was sufficient to compensate the loss occasioned by the use of land required for the site. Thus, no one things it would be right to take an individual’s land without compensation to make a railway. If one of these expenses is the burning down of a wood of such value that the railway would not run the train and burn down the wood if it were their own, neither is it for the public benefit that they should if the wood is not their own.
Though Coase doesn’t refer to this, this can be seen as anticipating Coase’s idea on the proper relationship between law and economic theory.
The conflict between the two cases led to the challenge in Tipping.
AWB Simpson, Leading Cases, (OUP 1995) Chs 7
III – Conclusion
Was Tipping correctly decided, by essentially giving Tipping the power, through his vindication of the right of private property, to insist that he was entitled to choose to use his land as a gentleman’s residence and form, and to prevent his neighbour engaging in any incompatible land use? Coase doesn’t discuss it so uncertain as to how he would take the rejection of the public good defence (though probably in favour). Coase argues against the view that the mere fact than an industrial enterprise causes damage to third parties is a reason for imposing liability – if this closes down the enterprise, more may be lost overall than gained → this could have been the case in Tipping, if you take into account all third party effects (unemployment, moving costs, loss to local pubs, litigation costs, costs involved in Tipping moving elsewhere…).
But the court doesn’t engage in this cost benefit analysis – this would have taken it too long as there is no limit to the amount of information which would be of potential relevance. + Cost benefit analysis would yield no general rule – it inevitably follows from Coase that imposing liability will sometimes make things better and something worse.
But Coase’s thesis leads to the conclusion that from an economist’s point of view, general rules of tort liability are a mistake – the court should investigate the economic consequences and go for the allocation that leads to the most wealth nationally. But courts neither do nor can do this – it is wholly at odds with the idea of private property we have – in allocating private rights, private law treats economic efficiency as irrelevant.
AWB Simpson, Leading Cases, (OUP 1995) Chs 7
Newark, 65 LQR 480
- Tort of nuisance is least satisfactory part of tort mainly because its boundaries are blurred
- Historical origins of nuisance was inextricably connected to land, so idea of extending it to physical injury never occurred to lawyers until an “incautious obiter dictum” in 1535
- Private nuisance was also concerned with interference with easements, most commonly the right of way, but the blocking of highways (as opposed to private ways) was a crime against the King and thus a new public nuisance category was developed
- So far so good – the Courts rejected time and time again attempts to assimilate private way and highway blockage to keep the two distinct (rejecting a private individual’s claim to inconvenience caused by highway blockage though it is as troublesome as private way blockage)
- However then there was a highway blockage case where Fitzherbert refused the action but gave the wrong reason: instead of saying that the criminal sanction barred private compensation, he said that to allow it to one would mean to allow it to a hundred (this is no reason – if a hundred private wrongs are committed then a hundred actions will ensue). Then he distinguished this case from the case where one man has suffered a greater hurt.
- Two lines of cases emerged: one where C suffered greater hurt/inconvenience than everyone else where compensation was awarded (satisfactory) and another (unsatisfactory) where Cs suffered physical injury and were able to recover compensation despite the nuisance being public
- Until end 18C there was just a stray case but Payne v Rogers led to a succession of cases where people claimed for falling through gratings and logs left on highways etc. but these cases were treated like negligence cases and the use of ‘nuisance’ was rare and incidental
- In c.1840 the word ‘nuisance’ was used more often and ‘cellar flap cases’ began to creep from negligence to nuisance, for unknown reasons (IAO perhaps because Cs thought that by using nuisance they could recover damages for injuries caused by independent contractors); whatever the cause the result was unfortunate:
a. One thing lying on highway would not be nuisance but another would; led to irreconcilable distinctions
b. Cellar flap cases entailed stricter liabilities than when they were negligence
c. In the same way “cross infections” brought negligence principles into nuisance
d. This blurring of distinction between nuisance and other torts led to Rylands v Fletcher being misinterpreted as a landmark/revolutionary decision though the judges thought they were just restating established principles and that it was a simple case of nuisance rather than an exception
i. NOTE: Supports contention by Lee that the most controversial and greatest developments in the law of nuisance are accidental and due to a misconception/disagreement as to what constitutes the basic principles of nuisance
e. Cellar flap cases led to erroneous belief that personal injury could be recovered under nuisance - One can restore the law from its point of departure in Fitzherbert J’s judgment:
a. ‘Nuisance’ only applies to interference with enjoyment by C of his rights in land
b. Interference must be of some degree of permanence (exception: where D accumulated something on his land that is likely to do damage if it escapes – Rylands v Fletcher)
c. Damage to the person or chattels cannot by itself amount to a nuisance (these are dealt with in trespass and negligence)
d. Anyone maintaining anything near highway owes duty to those lawfully using it to prevent damage to their person and chattels. Appropriate remedy is action in negligence.
Ogus & Richardson, 36 CLJ 284
- Nuisance actions are not very useful in any system of pollution control where the objective is social welfare:
a. Principle of justice that postulates that existing property rights must be protected even if it will impose greater costs on society at large
b. Private law’s ability to deal with environmental deterioration is limited as it depends on perceptible change (damage)
c. Enforcement standards are likely to be selective: it often assumes that those with rights will know about them and be willing to enforce them, and that those who don’t will apply to the relevant authorities for these rights
NOTE: Link this with the commentary on acid smuts where although pollution of this kind was a widespread problem not limited to C’s property D was nevertheless held liable because damage in this particular instance was traceable - Broad areas of statutory regulation testament to policy maker’s awareness of private law’s limited role
Introduction
*Lee (2003) 119 LQR 298
- Private nuisance decisions are impossible to reconcile: court must determine whether there is a nuisance in any particular case and are free to use value judgments at a number of stages. Most particularly, the notion of “reasonableness” both in relation to D’s use and to interference with C defies any attempt at definition
- Amenity cases are inherently relative and necessarily involve “weighing up” of interests. Since 19C through to Environmental Protection Act 1990 limitations to private enforceability of nuisance relating to public health and living conditions have been recognized, and as more statutory schemes were put in place and resolution depended less and less on civil courts, the court have moved away from a balancing act towards identification of type of harm or type of activity that attracts strict liability/conduct that attracts fault-based liability
- Three different torts developed under private nuisance:
a. Fault-based tort: applies to harms caused by natural events or third parties on D’s property (here key to liability is D’s conduct and damage required is physical damage). IAO this should be addressed in negligence not nuisance.
b. Strict liability (Rylands v Fletcher) tort: IAO right now nuisance and RvF seem to be interchangeable terms; should abandon RvF terminology to allow a stronger tort of strict liability within private nuisance to develop
c. Amenity harm: assessed in traditional unpredictable way involving all the circumstances - A greater distinction between the second and third tort should be developed so as to allow a strict liability tort to co-exist alongside the “reserve option” amenity tort
a. NOTE: Author refers to amenity nuisance as a “reserve option” perhaps in light of the development of statutory schemes – perhaps these torts will become less and less relevant as more structured schemes emerge to govern construction - Recent cases (Hunter v Canary Wharf and Cambridge Water v Eastern Counties Leather) took conservative approaches to nuisance. In the latter case HL held that RvF is just a part of the law of private nuisance that applies to one off events rather than ongoing activity; HL explicitly rejected extending the rule into a special strict liability tort for ultra-hazardous activities
- Developments seem surprising considering how conservative these decisions were, but the “enduring subtlety” of private nuisance has allowed it to evolve in unexpected directions, sometimes as a result of the court trying to bring it back to its foundations
Relationship with Negligence
*Lee (2003) 119 LQR 298
- Recently controversy developed as to whether physical property damage belongs to nuisance at all (which deals with enjoyment of property)
- Gearty argued that physical damage should be dealt with under negligence and non-physical interference in private nuisance; this allows a strict liability tort to be maintained without allowing reasonable conduct/negligence concerns to infect nuisance (conclusion supported by HL in Hunter v Canary Wharf that confines nuisance to a tort against land, and Hirst LJ in Hussain v Lancaster CC in observing that both Smith v Littlewood and Hunger v Canary Wharf suggest assimilating physical damage cases into negligence)
- However Court has in nuisance cases analysed conduct along negligence lines (breach of duty/fault): Sedleigh-Denfield, Goldman v Hargrave, National Trust v Leakey (leading to conclusion that requirement of negligence has been accepted in certain nuisance cases)
- Calling a fault-based analysis “nuisance” (which connotes stricter liability) is dangerous: Holbeck v Scarborough BC extends encroachment under Leakey to provision of support, and CoA analysed the nuisance case wholly based on “duty of care”
- Common factor in all these cases is that they concern physical damage, but holding that only amenity cases can be nuisance would be artificial
- Narrow conception of Sedleigh-Denfield cases focuses on intervention by third parties and natural events; nuisance is called on because negligence usually doesn’t address omissions. Even accepting that certain nuisance cases are fault-based, Court has not drawn a proper distinction between nuisance and negligence: Marcic – CoA said categorization was a merely “academic” question; however, this risks confusing the interests engaged (while that case compensated the property damage caused by flooding, the amenity interests of inconvenience by repeated flooding must also be great)
- Confusing the two also gives rise to danger that nuisance will be swallowed by negligence; maintaining the distinction requires the torts to be accurately defined, and the situations that require the Leakey subjective analysis to prevail over the objective analysis
Cambridge Water
*Lee (2003) 119 LQR 298
- Fault-based analysis in nuisance depends on third party/natural event intervention
- Since St Helens there’s been a distinction between physical damage (doesn’t depend on characteristics of locality) and sensibilities nuisance, suggesting that physical damage nuisance doesn’t depend on relative interests of the parties (thus more absolute liability)
- However not every activity attracts strict liability as per Cambridge Water: only “non-natural” use does (comparable to “reasonable user” in nuisance per Lord Goff)
- Court refrained from defining “non-natural” use but rejects Lord Moulton’s definition in Rickards v Lothian that the use must not “merely be the ordinary use of the land or such a use as is proper for general benefit of the community” (wide interpretation of general benefit of the community makes it hard to keep principle within bounds)
- Cross argues that it is a mistake to compare “natural user” to “reasonable user” because reasonableness depends both on D’s activity and C’s interference, while “natural use” depends solely on D’s action
- Thus Cambridge Waters relaxes “non-natural” which until then was interpreted in a very defendant-friendly manner
Strict liability
*Lee (2003) 119 LQR 298
- Instead of abandoning strict liability courts have seemed to identify types of activity to which it applies, but this is subjective, involves much value judgment and can be inconsistent
- Trend seems to be that industrial, waste management and farming uses attract strict liability while residential and allied uses are usually reasonable
- Saying that an activity is unreasonable that isn’t unreasonable in the negligence sense can appear strained: important activities that had been granted an explicit license (as in Graham v Rechem) shouldn’t be termed unreasonable except in a technical sense.
Also since the main remedy is an injunction, it would be inappropriate to issue one when the activity is “reasonable” in the conventional sense (i.e. desirable)
Conclusion
*Lee (2003) 119 LQR 298
- Strength of private nuisance lies in focus on activity itself rather than manner of carrying it out: certain permitted activities are expected to cause harm even if reasonably carried out but that doesn’t mean permitting losses to fall where they may
- Identification of discrete categories of activity that attract strict liability is consistent with statutory approaches. However labelling them as “unreasonable” or “non-natural” is unsatisfactory because the Court is not assessing either, but rather whether strict liability is appropriate
- We should concentrate on conscious reform rather than apparently unintentional developments
a. Foreseeability inroad places the risks associated with new technologies on the victims without any real debate as to policy
b. Historical limitations restrict our considerations to land though that is also unaccompanied by policy reasoning - More considered and comprehensive reform preferable to current ad hoc approach
- A political consideration of which activities attract strict liability is needed
- Cambridge Water led to strict(er) liability for dangerous activities, which is surely not what the HL intended in its focus on “doctrinal purity”. Private nuisance is a vulnerable tort (to negligence and to its own unpredictability and uncertainty) and in this respect the case has potential to breathe new life into the tort
NOTE: Essentially saying that it is in trying to be conservative that the Court will effect the greatest change because of how unexpected the tort is. Seems to suggest that the greatest changes happen by accident. This is surely undesirable
Winfield and Jolowitz (Nuisance)
i. Public Nuisance
⇒ Definition: something that materially affects the reasonable comfort and convenience of life of a class of the public who come within the neighbourhood of its operation
o Whether a sufficient class is affected is a question of fact
o Vague – covers a “multitude of sins, great and small” (Denning LJ – Southport v Esso Petroleum)
⇒ Private individuals cannot bring an action in public nuisance unless they have suffered special loss above and beyond the ordinary inconvenience suffered by the public at large
o Justification: to prevent multiplicity of actions
o Special loss must be substantial, direct and not consequential, and appreciably different in nature or extent to that suffered by the general public
⇒ Does not require any interest in land
⇒ Can sue for personal damage (Corby Group v Corby BC – though Lord Goff expresses doubt in Hunter v Canary Wharf at 692 (AC))
Winfield and Jolowitz (Nuisance)
ii. Private Nuisance
⇒ Definition: unlawful interference with a person’s use or enjoyment of land, or some right over/in connection with it
⇒ Three forms:
o Encroachment
o Direct physical injury to land
o Interference with enjoyment of land
⇒ Must be continuous or recurrent
⇒ Mere presence of a building cannot constitute nuisance: Hunter v Canary Wharf
⇒ Nuisance over easements: Colls v Home and Colonian Stores – Lord Macnaghten said that the action for interference with an easement is sui generis, the function being to remedy the infringement of a right rather than to compensate for the commission of a wrong – the nature of the defendant’s conduct is less relevant than in other nuisance cases
Winfield and Jolowitz (Nuisance)
Reasonableness
⇒ Definition: is the defendant’s conduct reasonable “according to the ordinary usages of mankind living in… a particular society” (Sedleigh-Denfield v O’Callaghan)?
⇒ Different standard than negligence reasonableness, which treats the victim’s rights as absolute; nuisance reasonableness treats the balance as from both sides, as an attempt to balance the competing rights of neighbours – a rule of “give and take, of live and let live” (Bamford v Turnley)
⇒ Always a question of fact determined by reference to all the circumstances: time and place of commission, malice, seriousness of harm, manner of commission etc.
Winfield and Jolowitz (Nuisance)
Type of harm and character of locality
⇒ Irrelevant to “material injury” but relevant to personal discomfort: St Helens Smelting v Tipping – “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”
o Though even the inhabitants at Bermondsey are entitled to legal protection – there must be something over and above the everyday inconveniences inevitable to that locality
o Consequences seem to lack full investigation, though it has been reiterated: Halsey v Esso, Miller v Jackson
⇒ Relevance of D’s own activity (Coventry v Lawrence)
o Lord Neuberger: relevant, but not to the extent that they constituted a nuisance to the claimant (circular – but he considered it preferable to alternatives of ignoring them altogether or taking them into account without modification (as the CoA did) as it would mean that there would rarely be a successful claim for nuisance)
o Lord Carnwath: in earlier cases involving noise, courts didn’t undertake an “interactive process” but rather proceeded on the basis that a “change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity” – whether it did so was a question of fact
⇒ Relevance of planning permission
o Lord Neuberger (Coventry): permission is “normally of no assistance to the defendant” for noise or other loss of amenity – sometimes the terms of a permission may be relevant
o Lord Carnwath: in “exceptional cases” (those where the project is exceptional in scale and permission the “result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses”) permission cannot sensibly be ignored when assessing the character of a locality
Winfield and Jolowitz (Nuisance)
Utility of defendant’s conduct
⇒ Can rescue a defendant up to a point, as anything above that would be to require an individual to carry the burden of an activity from which many others benefit
Winfield and Jolowitz (Nuisance)
Abnormal sensitivity
⇒ Not relevant:
o Sensitive property: Robinson v Kilvert – a person who carries out an exceptionally delicate trade cannot complain because it is inured by his neighbour doing something lawful on his property
o Sensitive persons: Heath v Mayor of Brighton
⇒ However once nuisance is established, remedies (damages/injunction) will extend to delicate and sensitive operations (eg. growth of orchids – McKinnon Industries v Walker)
Winfield and Jolowitz (Nuisance)
Limits to Protection
⇒ No natural right to a view: Dalton v Angus
⇒ No natural right to light
⇒ No natural right to the free passage of air: Bryant v Lefever
⇒ Though light and free passage of air can be acquired by prescription: Clerk and Lindsell on Torts
Winfield and Jolowitz (Nuisance)
Temporary Injury
⇒ Injunctions will not be issued against temporary nuisances except in exceptional circumstances (eg. De Keyser – because it was decided that undertaking the work by night was unreasonable) because injunctions are a discretionary remedy and will only be issued where damages would not be adequate
⇒ Damages are assessed taking into consideration the duration of the nuisance – all other circumstances must be taken into account to determine whether there has been an actionable nuisance: injury must be “of a substantial character not fleeting or evanescent” (Benjamin v Storr). Temporary nature is evidence (but inconclusive) that injury is too trivial to be considered a nuisance.
⇒ A “continuing state of affairs” is normally necessary for nuisance: Thesiger J in SCM v Whittal – a single isolated escape will not constitute a nuisance unless it arose from the “condition of the defendant’s land” which constituted a nuisance (though this rule is of little practical importance as a single isolated escape can satisfy Rylands v Fletcher)
Winfield and Jolowitz (Nuisance)
Malice
⇒ Christie v Davey: malice did turn a lawful action into an actionable nuisance – North J: “if what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case”
⇒ Bradford v Pickles, reaffirmed in Allen v Flood, came to the opposite conclusion, but neither case mentioned Christie v Davey
⇒ Hollywood Silver Fox Farm v Emmett followed Christie v Davey and considered the intention of the defendant relevant to determining liability – Winfield and Jolowitz think that this represents the better view because acts done maliciously with the object of injuring a neighbour are devoid of any social utility and cannot be regarded as “reasonable”. Perhaps Bradford v Pickles can be regarded as a ‘no rights’ case because there is no right to percolating water, so intention is irrelevant – however, it then becomes difficult to defend Lord Cooke’s view in Hunter v Canary Wharf that the construction of a building with the purpose of interfering with a neighbour’s TV reception would be actionable.
Winfield and Jolowitz (Nuisance)
i. Is liability in private nuisance strict?
⇒ Often said that it is, but the courts haven’t explored the meaning of the expression and have created conflicting dicta
⇒ Injunction: more concerned with whether the defendant should be allowed to continue, than whether liability is strict (thus we should be slow to transport what is said in injunction cases to other cases)
⇒ Continuing a nuisance: no liability unless aware or ought to be aware of the nuisance and fails to take reasonable precautions to abate it
⇒ Nuisances involuntarily created: no liability in damages where the possibility of interference of the type that occurs could not reasonably have been foreseen by someone in the defendant’s position when he did the acts (thus no liability for ‘historic pollution’ (acts that seem harmless but due to advances in knowledge become known to be hazardous)) – Cambridge Water.
⇒ Known risks carried out with reasonable care: in Transco, it was accepted that Rylands v Fletcher was a subspecies of nuisance, concerned with liability for exceptional risks created by the use of land. Thus it is unlikely that ordinary nuisance would attract liability for such risks; if they don’t fall into Rylands v Fletcher, then it is difficult to say how it might be unreasonable.
⇒ Therefore it seems that liability is not strict
Winfield and Jolowitz (Nuisance)
Who can sue?
⇒ Only those with an interest in land (Hunter v Canary Wharf) – only occupiers (owners, tenants and those in de facto exclusive possession) and not their family, guests, lodgers or employees, can sue
⇒ As damages are attached to injury to property, they are not modified to reflect the number of occupants, nor are they increased if there are multiple occupiers: Lord Hoffmann – Hunter v Canary Wharf
⇒ No claim for personal injury
⇒ Article 8 ECHR grants a right to respect for private and family life and one’s home irrespective of proprietary interests – so where a public authority is concerned, non-occupiers can recover damages from there, but not under common law.
⇒ In public nuisance anyone who has suffered special damage can sue, irrespective of interest in land
Winfield and Jolowitz (Nuisance)
Who can be sued?
⇒ Creator of the nuisance (whether or not the nuisance was created by the use of defendant’s land)
o Hussain v Lancaster CC held that the Ds weren’t liable because they didn’t have any interest in the land, but principally this is unnecessary and would inconveniently insulate from liability people like independent contractors – CoA in LE Jones v Portsmouth CC later said that there was no authority for the proposition that D has to have legal interest in the land.
⇒ Occupier of the premises where the nuisance exists (for creating, continuing or adopting the nuisance)
o Nuisance created by those lawfully on the premises:
♣ Servants – occupier liable vicariously
♣ Independent contractors – ordinarily not liable vicariously, but may owe a non-delegable duty of care
♣ Licensees – probably not liable unless occupier had knowledge or means of knowledge of the nuisance and failed to take steps to control the licensee
o Nuisance created by a trespasser/act of nature:
♣ Occupier may be liable for adopting or continuing (after becoming aware of the nuisance he doesn’t take steps to abate it) the nuisance: Sedleigh-Denfield v O’Callaghan (trespassers) and Goldman v Hargrave (acts of nature)
♣ In assessing standard of care the court must take into account the circumstances of the occupier – can’t impose obligations on occupiers, whose own interest may be modest or immaterial, to excessive expenditures or efforts of which they are not capable; “the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances”: Lord Wilberforce, Goldman v Hargrave.
♣ Scope of liability – only liable for damage that is reasonably foreseeable: Holveck Hall Hotel v Scarborough BC, reaffirmed in Lambert v Barratt Homes
⇒ Landlord (for authorizing/knowing about/ought to have known about nuisance created by tenants)
o Authorizing: a landlord is deemed to have authorized a nuisance if he let the premises to tortfeasors to carry out an activity in the way that it constituted a nuisance: Southwark v Mills. However, merely providing him with the means of perpetrating a nuisance is insufficient (failure to remove tenants, or even letting for a purpose without direction as to the manner of carrying it out, is insufficient)
o Knowing/ought to have known of the nuisance before letting: previously landlord could escape liability if he signed a covenant to repair with the tenant though he foresaw that the tenant would likely perpetrate a nuisance: this was rejected in Brew Bros v Snax
Winfield and Jolowitz (Nuisance)
i. Non-defences
⇒ Coming to a nuisance
o Qualified by the principle that for sensible personal discomfort the nature of the locality is important
⇒ Usefulness to people generally
o Relevant to determining whether a nuisance has occurred but is no defence once nuisance is proved (Adams v Ursell)
⇒ Nuisance due to many (D is liable even though his action alone wouldn’t have constituted an actionable nuisance – rationale is that whether something is a nuisance is assessed with reference to surrounding circumstances)
Winfield and Jolowitz (Nuisance)
ii. Defences
⇒ Conduct permitted by statute (usually public authority)
o Must be intra vires: substantial interference will not normally be intra vires unless it is inevitable consequence (onus on D to prove inevitability)
o Subject to HRA
⇒ Prescription (20 years’ continuance will legalize a private nuisance but not a public one)
o Period commences when the nuisance is known the C to exist: Sturges v Bridgman
⇒ Consent of the claimant
⇒ Contributory negligence
Winfield and Jolowitz (Nuisance)
Remedy
⇒ For past nuisance: damages
⇒ For future nuisance: injunction, or damages in lieu of injunction
o Injunction is the prima facie position, subject to Shelfer test as approved by Lord Neuberger:
♣ Damages in lieu may be given where 1) injury is small, 2) estimable in money, 3) adequately compensable with small money payment and 4) oppressive to D to grant an injunction
o After Coventry public interest is a much stronger factor and planning permission is allowed greater influence:
♣ Lord Neuberger – planning permission should have “real force in cases where it was clear that the planning authority had been reasonably and fairly influenced y the public benefit of the activity”
♣ Lord Sumption – “it may well be that an injunction should as a matter of principle NOT be granted in a case where a use of land to which objection is taken requires and has received planning permission”
Winfield and Jolowitz (Rylands)
The Principle
⇒ Rule:
o Blackburn J, Rylands v Fletcher (Court of Exchequer): “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
o Lord Cairns (HL) said that liability resulted from “non-natural use” of D’s land, but agreed with Blackburn J and said that his reasoning came to essentially the same conclusion
o However subsequent cases appear to treat the two statements as separate requirements
Winfield and Jolowitz (Ryalnds)
⇒ New principle or application of nuisance to isolated escapes?
o Blackburn J drew from nuisance cases for authority
o Winfield: Rylands laid down a new principle governing “exceptional” or “unusual” risks
o US: case led to creation of a category of liability for damage caused by ultra-hazardous/abnormally dangerous activity that present an unavoidable risk even when due care is taken (though English law has declined to do the same – an ‘escape’ is required)
o Many connections with nuisance:
♣ There must be an escape (only applicable to damage occurring outside place where dangerous thing is kept)
♣ Probably inapplicable to personal injuries
o Newark: Rylands merely applies a general rule of strict liability in nuisance to situations of single escapes and not ongoing state of affairs – merely single escape cases place into focus the strictness of liability because in ongoing state of affairs cases the nuisance was usually noticeable so the question of liability without knowledge is punishable is avoided (accepted by HL in Cambridge Water: rule should be regarded as an “extension of the law of nuisance to isolated escapes from land”)
Winfield and Jolowitz (Rylands)
⇒ No general strict liability for exceptional risk
o Cambridge Water: though it might be economically/morally/socially justifiable, it is for Parliament and not the courts to impose strict liability for exceptional risk, because Parliament can identify the relevant activities and people can “know where they stand”
o This approach can be objected to because it leaves without redress those suffering injury from activities not subject to legislation, whether because of commercial/political pressure, mere inaction, lack of foresight etc.
o On the other hand modifying it would greatly undermine certainty and conflict with the ‘fault’ concept
Winfield and Jolowitz (Rylands)
Requirements
⇒ D must be owner/occupier of land
o Interest in land unnecessary (can be mere licensee): facts of Rylands v Fletcher
o D can have a mere statutory right (eg. to lay pipes or cables: Charing Cross v Hydraulic Power Co)
o Anyone who collects the dangerous thing and has control of it at the time of escape may be liable: Rainham v Belvedere, even if the thing escapes from the highway: Powell v Fall
o Landowner not in occupation probably only liable if authorized the accumulation: Rainham v Belvedere
⇒ Keep/collect an exceptionally dangerous/mischievous thing on the land
o Dangerous thing
o Wide variety of things: fire, gas, blasting and munitions, electricity, oil and petrol, noxious fumes, rusty wire from a decayed fence, poisonous vegetation, flag pole, noxious persons
o Thus no point in characterizing a “Rylands v Fletcher object” but rather assess the degree of risk presented, assessed with ‘non natural use’ of land (one box of matches won’t be enough, but a thousand boxes maybe)
⇒ Recognized/ought reasonably to have recognized (judged by the standards appropriate at the relevant place and time) that there is an exceptionally high risk of danger if the thing should escape (however unlikely an escape may be)
o Camridge Water – no liability unless it can be foreseen that the relevant type of damage would occur (no liability if damage is scientifically unknown at the time of escape)
⇒ Use of land must (having regard to all circumstances of time and place) be extraordinary and unusual
o It must be a use of land i.e. positive action (permitting a spontaneous accumulation of eg. rain, vegetation, birds doesn’t count: Giles v Walker; inducing such an accumulation as an undesired by-product of normal working of land also doesn’t count: Wilson v Waddell)
o Definition of non-natural use:
♣ Lord Moulton, Rickards v Lothian: “it must be some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community”
♣ Lord Porter, Read v Lyons: “all the circumstances of time and practice of mankind must be taken into consideration so that what may be regarded as dangerous or non0natural may vary according to the circumstances”
o Relevance of public benefit
♣ Early caselaw suggests its relevance: Rainham said that the manufacture of military explosives during WWI was non-natural, but Read v Lyons said that this might no be so during WWII because of the urgent public necessity for munitions
♣ However Cambridge Waters rejects this – the rule would not be excluded merely because it generates employment and is therefore worthy of encouragement (also: storing large quantities of chemicals on industrial premises is “an almost classic case of non-natural use” even if it would be common or ordinary in the industry in question)
⇒ Thing must escape from D’s property onto the property of another
o Requirement firmly entrenched by HL in Read v Lyons, defined as “escape from a place where D has occupation or control over land to a place … outside his occupation or control”
o Probably inapplicable to deliberate release of harmful substance (though this would be trespass)
⇒ Escape must cause damage of a relevant kind to the rights and enjoyment of C’s land
o C must have an interest in land because RvF is a subspecies of nuisance (so earlier cases suggesting otherwise appear to be wrongly decided on this basis)
⇒ Damages for death/personal injury are NOT recoverable
o Decisively established in Transco, because of connection with nuisance
⇒ NOT necessary to establish D’s negligence, but there are defences
Winfield and Jolowitz (Rylands)
Defences
⇒ Consent of claimant (express or implied) – volenti non fit injuria
⇒ Common benefit of claimant and defendant (this category is probably redundant as it can be subsumed within consent – and to hold that it applies to common provision of services would be inconsistent with what was decided in Cambridge Water)
⇒ Act of stranger
o Wholly unforeseeable act of stranger: no liability
o Foreseeable act of stranger: liability in negligence (onus on D to show that he wasn’t negligent in failing to foresee the act)
o Act of employee or independent contractor: liable unless the act is wholly collateral
⇒ Statutory authority: question of proper construction of statute whether RvF was excluded
⇒ Vis major
o Extraordinary act of nature without human intervention in “circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility” – Lord Westbury, Tennent v Earl of Glasgow, as adopted by Blackburn J in Rylands v Fletcher
⇒ Default of the claimant (damage caused solely by the act of claimant)
o Conflicting dicta as to whether hypersensitivity can negative liability, though this dicta was all before Transco so arguably it would negative liability
Winfield and Jolowitz (Rylands)
Remoteness
⇒ D only liable for damage that is the “natural consequence of its escape” (Blackburn J, RvF)
⇒ Though Wagon Mound I said that remoteness analysis should not be applied to RvF, Cambridge Water did analyse it in terms of remoteness, with reasonable foreseeability being the test
McBride & Bagshaw (Nuisance)
i. Introduction
- Protects interests in land (noise, pollution, blockage of right of way)
- Definition: A created, authorized, adopted or continued a state of affairs on land other than land in which B has sufficient interest and this unreasonably interfered with the use and enjoyment of B’s land or some right of B’s associated with it
McBride & Bagshaw (Nuisance)
ii. Ways of committing the tort
- Many ways because:
o Different ways where D can be responsible for state of affairs affecting C’s land (creating, authorizing, adopting/continuing)
o Different ways where state of affairs can have an effect on C’s land (emanation (smoke, smells, noise), encroachment (branches, roots, leaning walls), obstruction (light, water, TV signals), affront (prostitution, drug dealing near C’s land))
o Different kinds of effects on C’s land that are regarded as harmful for the purposes of the tort of private nuisance (violation of boundaries, physical damage, reduction of amenity value, interference with rights associated with the land)
McBride & Bagshaw (Nuisance)
iii. Emanation cases
- Reduction of amenity value (day-to-day usefulness of land, eg. if noise makes it difficult to sleep in a house or nauseating smells makes it difficult to relax there)
o Amenity value is different from price; injunction stopping the practice makes the price go back up but C can nevertheless claim damages for amenity loss suffered
o St Helen’s Smelting v Tipping: Lord Westbury referred to emanations producing “sensible personal discomfort” rather than reducing amenity. IAO shouldn’t use this:
♣ Though emanations often cause discomfort they can reduce usefulness in other ways (eg. electromagnetic waves interrupting mobile signal)
♣ Damages doesn’t depend on how many people suffer discomfort
o Hunter v Canary Wharf: Lord Hoffmann said that though measure of damages may be affected by size, commodiousness and value of property, it cannot be increased merely because more people are in occupation and therefore suffer more collective discomfort
o Question: can C argue reduction of amenity value even if she uses the land in a way that she is not inconvenienced? IAO yes – no consequential loss may affect the measure of damages, but if C were to seek injunction, D won’t be able to rely on the fact that C is not personally inconvenienced
o C can still claim even if he doesn’t personally use the land but allows others to
Andreae v Selfridge: D’s building operations unreasonably interfered with amenity value of land used by C as hotel; C didn’t have to prove she was personally disturbed
McBride & Bagshaw (Nuisance)
- Physical damage to land
o Definition: land under goes a physical change which renders it less useful or valuable (including damage to things attached to the land)
o Examples: debris breaking roof tiles, acid smuts killing trees, emanations resting on C’s land or intermingling with it)
o Hunter v Canary Wharf: CoA held that deposit of excessive dust on a carpet could amount to physical damage (deposit of mud or oil on paved area probably will be treated the same way)
o Blue Circles v Ministry of Defence: CoA held intermingling of plutonium with soil so that it couldn’t be removed amounted to property damage
o Probably can’t argue physical damage if movables (cars, animals, clothes) on the land are damaged (eg. if C uses land for dog breeding and neighboring factory emits a sound too high pitched for humans to hear but that drives the dogs crazy, C would probably have to claim loss of amenity (making land less useful for breeding dogs) and not physical damage)
McBride & Bagshaw (Nuisance)
- Personal injury
o Hunter v Canary Wharf: C cannot sue in private nuisance for physical injury to the person as a result of emanation (eg. acid smoke blinding C in her garden so that she can’t do any more gardening or enjoy the view – here D didn’t make the land any less useful, just C’s ability to use the land)
o Advantages:
♣ Holding otherwise would produce anomalies (easier for C to sue if injured in her garden than at work or on the street (no need to prove D acted carelessly); only people with interest in the land would be able to claim in private nuisance, so two people injured maybe only one can claim)
♣ Hunter v Canary Wharf rejected allowing people without interest to sue because it is inconsistent with the function of the tort (protect interest in land)
o Disadvantages:
♣ Creates anomaly (if foul smelling acid smoke drifts into C’s yard, he would find it easier to sue for the smell which reduces amenity than for any injuries that he suffers (would have to prove carelessness))
♣ Seems to protect land against being made less useful than protecting people’s welfare
McBride & Bagshaw (Nuisance)
- Reasonable interferences (will not lead to liability)
o Insubstantial interferences (if an ordinary occupier of land in the locality would regard it as tolerable)
♣ For an interference to be actionable it must materially interfere with the ordinary comfort of human existence, not merely according to elegant or dainty modes of living
• Robinson v Kilvert: C complained that brown paper he had been storing had been damaged by D’s over-heating below. Court held against liability because such interference could only have a detrimental effect on an “exceptionally delicate trade”
• McKinnon Industries v Walker: PC held that C could obtain remedy for noxious fumes emanated from D’s factory that would have damaged any reasonably robust neighboring trade, so it didn’t matter that C’s trade was a delicate trade of growing orchids
♣ Nature of locality important when interference causes reduction in amenity
• St Helens v Tipping: Suggested that where there was interference with personal sensibilities (noise/smell) question of reasonableness must take into account nature of locality, though this is irrelevant in cases of physical damage
• Problems with the case:
o Unclear whether “material injury to property” or “sensible injury to the value of property” makes locality irrelevant; if the latter then distinction disappears, therefore former preferred. Hunter v Canary Wharf refers to the distinction as between “material injury to the property” and “sensible personal discomfort”
o How we should identify and classify localities when necessary. Byles J observed that swine-style might not be a nuisance in Bethnal Green but would be in Grosvenor Square (this doesn’t help)
♣ Gaunt v Fynney: broad brush categorization – eg. Leek as a “manufacturing town”
♣ Adams v Ursell: finer distinctions – eg. districts of a lower/higher character within a town
♣ Lawrence v Coventry: Neuberger: Sometimes it may be difficult to identify the precise extent of the locality for the purpose of assessment, but any attempt at guidance is likely to make it worse. Carnwath: problem is that areas where conflicts may arise don’t usually conform to a homogeneous identity but consist of varied patterns of uses that co-exist (this case was difficult because it concerned a long established practice of motor-car racing in a locality of otherwise rural nature – disregarding the long-standing status of the practice is unfair for D but ruling that it is reasonable just because it has been going on for years is unfair on C
♣ Conaghan and Mansell: setting different standards for localities is concealed judicial prejudice and is a class-based device
McBride & Bagshaw (Nuisance)
- Reasonable interferences (will not lead to liability)
o Resulting from acts necessary for the common and ordinary use and occupation of land and houses so long as these acts are conveniently done
♣ Southwark London BC v Tanner: C were tenants in a house with inadequate soundproofing so they could hear everything their neighbours did. HL held that though the interference was “intolerable” and substantial, it wasn’t actionable because it wasn’t unreasonable for neighbours to make noise in cooking, cleaning, quarrelling, love-making etc.
♣ “Common and ordinary use” is weaker than necessity – babies and television are not necessary for occupation but still fine
♣ “Conveniently done” is an important qualification because if D could put the washing machine elsewhere but chose to put it where the wall is thinnest, it could be actionable
McBride & Bagshaw (nuisance)
- Establishing an unreasonable interference
♣ Consider character of locality
o Ignore amplification of the degree of interference caused by C’s hypersensitivity
o In assessing whether interference reduces amenity value:
♣ Consider character of locality
- Sometimes refer to planning authorities, but planning permission cannot authorize a private nuisance because parliament didn’t give authorities the power to remove private rights)
- Wheeler v Saunders: case involved huge swine-styles built with planning permission 11 metres away from C’s holiday home. Court held that it would be wrong to acquiesce to extinction of private rights as a result of administrative decisions that cannot be appealed and are difficult to challenge
- Hunter v Canary Wharf: third party private rights shouldn’t be taken away simply because of planning permission
- Coventry v Lawrence: Neuberger – the mere fact that an activity has planning permission normally won’t relieve D of liability (‘normally’ because in exceptional circumstances planning decisions set a ‘benchmark’ and sometimes evidence of planning process might be relevant)
- However: Gillingham BC v Medway: The council claimant himself had authorized the activity at issue. Held that though council couldn’t directly authorize a nuisance it could through decisions alter the character of a neighbourhood rendering innocent activities that were once actionable. Subsequent cases sought to confine the principle; majority in Hunter sought to reject the principle and treat planning permission relevant only in determining what damages to award
- Is this position defensible or ought Courts to recognize that planning authorities are more expert and democratically legitimate when choosing between competing uses of land?
- The latter would lead to planning permission being able to take away private rights; Parliament didn’t intend this. Also, planning decisions are made without all parties being present and are difficult for private individuals to challenge
McBride & Bagshaw (nuisance)
- Establishing an unreasonable interference
♣ Measure significance of interference by considering matters such as time, duration, regularity and intensity
- Rushmer v Polsue: Asked Court to close down printing press at night (unreasonableness of interfering with sleep)
- Metropolitan Properties v Jones: electric motor that starts at 8am is a nuisance because people can reasonably stay in bed
- However Vanderpant v Mayfair: judge only granted injunction between 10pm and 8am
