Private Nuisance

Question 1

Davey v Harrow Corporation
Sedleigh-Danfield v O’Callaghan
Christie v Davey
Adams v Ursell

Answer 1

Anything which caused actual physical damage of the land is sufficient to interfere with claimant’s use and enjoyment of land.

Davey v Harrow Corporation: roots of trees spreading onto the claimant’s land

Sedleigh-Denfield v O’Callaghan: water flooding onto claimant’s land as a result of something done by a neighbour

Christie v Davey: something intangible: noise, eg: blowing whistles and hitting trays

Admas v Ursell: smells, eg: fast food

Question 2

Thompson-Schwab v Costaki

Answer 2

The Court of Appeal held that running a brothel in respectable residential street-nuisance.

Question 3

Hunter v Canary Wharf

Answer 3

1. There must be indirect interference with the use or enjoyment of land or property.
   Lord Lloyd: private nuisance was of three kinds and overlap each other:
   > Encroachment
   > Direct physical injury to a neighbour’s land
   > Interference with a neighbour’s quiet enjoyment of land.
2. The court will concentrate on damage to the land itself rather than the landowner. This means that the landowner must find a way of demonstrating how their land has been affected by the unreasonable activity.
3. Confirmed the principle in Malone v Laskey.
   > The Court of Appeal dismissed the action relating to the interference of television signals because, on the facts, the interference was not capable of being a nuisance.
   > Action relating to dust was allowed to proceed.
   > A majority of the House of Lords held that it was necessary for the claimant in a nuisance action to prove an interest in the land affected.
   » Occupation of the property as a home was not sufficient to bring a claim.
   > An action in nuisance can be brought by the owner or tenant or by a person who enjoyed exclusive possession but lacked any proprietary interest.
   > A licensee without exclusive possession cannot bring a claim; in this instance, spouses and children of tenants of a property affected by the dust that had become a nuisance did not have a successful claim.
4. The Court of Appeal held that loss of this kind of recreational facility was not sufficient interference to give rise to an action in nuisance.

Question 4

Southwark London Borough Council v Mills

Answer 4

The ordinary use of the flat was not a nuisance, as there was nothing unusual about the way in which the building had been converted.

The noise was normal for this type of residential building.

Question 5

Malone v Laskey

Answer 5

The claimant must have a proprietary interest in the land, so only the owner or tenant of land can sue for nuisance.

Question 6

Khorasandjian v Bush

Answer 6

Arguments arise over whether members of the household who do not have a proprietary interest can claim in nuisance.

The court found in favour of the daughter of the house who had no legal interest in the property. The decision can be seen as a way of providing remedy when there appears to be no alternative action.

Question 7

Thomas v National Union of Mineworkers (South Wales Area)

Answer 7

The creator of the nuisance can be sued even when they no longer occupy the land from which the nuisance originates.

triking miners picketing on the roadside outside a factory were liable for private nuisance.

Question 8

Matania v National Provincial Bank

Answer 8

An occupier (can be tenant) is liable for nuisances created by themselves and their employees (vicarious liability), but is not generally liable for independent contractors or trespassers.

They only liable for nuisance caused by independent contractors where activities of contractors involve ‘a special danger of nuisance’.

Question 9

Wringe v Cohen

Answer 9

Owners who leased land to tenants are usually not liable for nuisances created by tenants subject to exceptions:
> Nuisance already existed when the land was let and they knew or ought to have known about it.
> Lease provides that the landlord has an obligation to repair premises, or right to enter to do repairs.
> Landlord authorises the nuisance.

Question 10

Tetley v Chitty

Answer 10

A person who authorises the nuisance can be sued.

The local council granted a planning permission for the track on its land and granted a lease to a go-karting club. The council was no longer in occupation of the land, the club was.

The council was made liable because excessive noise was a foreseeable consequence of the use for which the land had been let.

An injuction was granted.

Question 11

Sedleigh-Denfield v O’Collaghan

Answer 11

1. If an occupier becomes aware of a nuisance arising out of a natural condition on their land, they must take positive action to prevent it.
2. Anyone who adopts the nuisance may be sued as they have allowed the nuisance to carry on.
   > The defendant was aware of the trespass and the ditch was cleaned out twice a year.
   > The defendnat was liabe for the nuisance because they were aware of its presence, and therefore should have taken reasonable steps to prevent it.

Question 12

Jones Ltd v Portsmouth City Council

Answer 12

Controller of the hazard can be sued for private nuisance.

Hampshire County Council had made an agreement with Portsmouth City Council (PCC) to maintain the trees and shrubs.

PCC is not the occupier but the Court of Appeal held if PCC had sufficient control over the hazard that caused the damage, PCC will be liable for nuisance.

Question 13

Soltau v De Held

Answer 13

Nearly always unreasonable to cause physical damage to a neighbour’s property, but otherwise who uses his land in a reasonable way is unlikely to be committing a nuisance even if his neighbour is annoyed by the occupiers behaviour.

Allowing the claimant’s claim and granting a partial injunction, the judge said that while a peal of bells might be a nuisance to some people, it was pleasant to others: whether it was a private nuisance in law would depend for example on the size and number of the bells, and their proximity to the claimant’s property. It all depended on reasonableness.

Question 14

St Helen’s Smelting v Tipping

Answer 14

Locality rule to determine whether the activity is reasonable is not apply in cases where the interference causes physical damage to property.

Although the defendant argued that the whole neigbourhood was devoted to similar manufacturing processes and that smelting should be allowed to continue as it was not a nuisance, the defendant was liable as the court distinguished between nuisances causing physical damage and those causing personal discomfort.

A claimant who suffers property damage is more likely to have a claim in nuisance.

Question 15

Sturges v Bridgman

Answer 15

1. The court took into account the fact that the area was one dominated by the doctors’ consulting rooms, and so many industrial activity would be a nuisance.
   > Thesiger J: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.
   > This judgement can make it difficult for those who live in industrial areas to succeed in nuisance claims.
2. The fact that the defendant had been there first was no answer; had a nuisance been allowed to continue for twenty years, it could have become an easement by prescription, but until the consulting room was built, there was no actionable nuisance.
3. It was not enough for the defendant to show that the activity has been carried out for 20 years; the interference must have been actionable as a nuisance for that period of time.

Question 16

Gillingham Borough Council v Medway (Chatham) Dock Co.

Answer 16

1. The character of a locality can be changed when planning permission is granted. This means that activity that might have been conidered unreasonable before the change occurred is now considered reasonable.
   > The court held that just because planning permission had been granted for a specific activity, it did not mean that the activity could not become a nuisance. However, planning permission had changed the character of the area, the alleged noise nuisance was now considered to be reasonable, so there was no liability on the part of the defendant.
2. Planning permission is unlikely to amount to statutory authority, but may have an effect. If it changes the character of the neighbourhood, the courts look at the locality factor after it has changed.
   > The court held that it was not a nuisance because this is now the character of the neigbourhood - the neighbours cannot simply hold back changes because they do not like it.

Question 17

Barr v Biffa Waste Services Ltd

Answer 17

At trial, the court found in favour of the defendant, stating that, in the absence of negligence or a breach of operating permit, the company should not be liable for the inevitable consequences of its actions.

The Court of Appeal applied a more traditional approach, finding that it was not a defence to a nuisance claim to show that the activities causing the nuisance were authorised by the operating permit. The court made it clear that it is a question of degree whether the interference with the enjoyment of the claimant’s land was sufficiently serious to create a nuisance.

The Court of Appeal held that the granting of an environmental permit for a particular use does not have the same effect on what is and is not to be considered the reasonable use of land in a particular area.

This decision is important because it means that waste-disposal companies can still be liable for nuisance even if they are operating in accordance with their permit.

Question 18

Miller v Jackson

Answer 18

The court of Appeal said that the claimant should succeed; it was no defence that she had come to the nuisance rather than vice versa. However, since she had knowingly come to the nuisance, she should be awarded only damages for past and future nuisance rather than the injunction she sought.

Cumming-Bruce LJ supported Geoffrey Lane LJ in finding the defendant liable in nuisance, but then joined Lord Denning MR in holding that no injunction should issue because the defendant’s activities were socially beneficial, and because the claimant had come to the nuisance with her eyes open.

Question 19

Bolton v Stone

Answer 19

There can be liability for a short interference if it causes substantial harm.

The claim was unsuccessful because the interference with people outside the hround was a rare event (6 times in 30 years) that there was no ‘dangerous state of affairs’.

Question 20

Crown River Cruises Ltd v Kimbolton Fireworks Ltd

Answer 20

The unreasonable interference only lastes a short priod of time (20 minutes), but there was an actionable nuisance because of the amount of damage caused.

Question 21

Robinson v Kilvert

Answer 21

The defendant will not be liable for damage caused to another person’s property that occurred only because of its unusual sensitive character.

Lopes LJ: a man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade.

Question 22

McKinnon Industries v Walker

Answer 22

If the nuisance had harmed a person or property that was not abnormally sensitive, the defendant would be liable.

The claimant was able to recover the full extent of his loss, including the damage to the sensitive orchids.

Question 23

Christie v Davey

Answer 23

Behaviour that is motivated by malice may make an otherwise reasonable act into a nuisance.

The court granted an injunction to the defendant to prevent his actions from continuing to be a nuisance, indicating that it may have taken a different view of the situation had the defendant’s actions not been motivated by malice.

Question 24

Hollywood Silver Fox Farm Ltd v Emmett

Answer 24

The court considered the intention of the defendant to be relevant in nuisance. Therefore, both an injunction and damages were awarded to the claimant.

The court made it clear that, in general, shooting guns on a person’s own land was not a nuisance, but as the defendant had acted maliciously, he had behaved in an unreasonable way.

Question 25

Harrison v Southwark Water Co.

Answer 25

The court said that since this interference (noise and vibration caused when the defendant sank a shaft beside the claimant’s house) was temporary and for a useful object, it did not constitute a nuisance.

Question 26

Bland v Moseley

Answer 26

Blocking a neighbour’s pleasant view could not be considered a nuisance.

Question 27

Leakey v National Trust

Answer 27

Naturally arising hazards from the defendant’s land will make the occupier of the land to be liable if the defendant is aware of their existence and fail to take reasonable precautions (continuing a nuisance rather than creating one).

The court held that the defendant is liable for nuisance even though they did not do anything to cause it, but because they had failed to prevent it.

Where the defendant has not actually caused the problem by only failing to do something about it, the law will take into account that fact in what it requires the defendant to do and the defendant’s resources.

Lord Wilberforce: standard expected of the occupier with respect of his resources is what is reasonable to expect of him in his individual circumstances.

Question 28

Holbeck Hall Hotel v Scarborough Borough Council

Answer 28

The issue is whether allowing physical support for the neighbour’s land to fall away could give rise to an action for nuisance.

The Court of Appeal held that a landowner who knows or ought to have known that there is a risk that their property will cease to support a neighbour’s may be liable in nuisance if they do not take precautions. Such precautions might be as little as informing the neighbour. The defendant is not necessary to remove the risk of withdrawing the support.

The council was not liable since they did not foresee the damage without an expensive survey.

Question 29

Cambridge Water v Eastern Counties Leather

Answer 29

1. In cases where the claimant is seeking an injuction, strict liability still applies.
   > House of Lords held that the very fact that case is being brought means that the defendant knows behaviour is causing interference with the claimant’s enjoyment of land and is refusing to stop.
   > If that behaviour is found to amount to nuisance, there is no further fault requirement to be satisfied.
2. Where the claimant is seeking damages, compensation for a past wrong rather than prevention of current one, the issue is more cloudy.
   > Recent cases established that strict liability no longer applied.
   > Lord Goff: if a defendant’s use of their land was reasonable, they are not liable for any damage caused to claimant’s use and enjoyment of their own land. However, if the use was not reasonable, the defendnat is liable even if they have used reasonabe care to avoid damaging the claimant’s enjoyment of their land but the damage must be foreseeable damage.
3. As with negligence, it must be proved that the defendant’s nuisance caused the harm suffered.
   > This means applying the Wagon Mound test for remoteness of damage, the damage must be foreseeable.
   > At the time it was not realised the chemicals were present, only later when an EU directive provided for stricter rules.
   > The House of Lords held that for all three torts (negligence, nuisance, Rylands v Fletcher), the Wagon Mound test applies. Defendant is not liable for unforeseeable damage.

Question 30

Metropolitan Asylum District v Hill

Answer 30

If an Act of Parliament authorises the defendant’s activity, the defendant will not be liable for interferences of enjoyment that are an inevitable outcome of that activity.

In this case, the authority would have been used without committing a nuisance by putting the hospital in a less-populated area.

Question 31

Allen v Gulf Oil Refining

Answer 31

When deciding if the defendant had the authority to commit a nuisance, the court considered the preamble to the Act, the public demand for oil and the fact that Parliament would not have authorised the building of the refinery without also authorising its use.

The defendant was entitled to statutory immunity in respect of any nuisance that they were able to prove was an inevitable outcome of building the refinery, which conformed to the intention of Parliament when it passed the Act.

There was implied authorisation for the latter.

The claimant lost their claim.

Question 32

Wheeler v Saunders
Wheeldon v Burrowswas

Answer 32

Whether there was an implied grant of right of way over the access to the farm and whether planning permission was a valid defence against a claim for nuisance.

It was held that the grant of the easement over the access strip could not have been implied in the covenant because there were two entrances.

The reasoning of Wheeldon v Burrowswas applied in determining whether the implied easement was necessary for the enjoyment of the land, and it was found that it was not. Further, the covenant to erect a stock proof boundary fence was inconsistent with any argument for an implied right of way as it acted as an obstruction, as opposed to an access, to the property.

The smell nuisance claimed by Wheeler was an inevitable result of implementation of planning permission granted by the local council.

Planning permission did not afford a defence to the claim and so the nuisance should be restrained.

Question 33

Marcic v Thames Water Utilities

Answer 33

A statutory scheme may exclude an action in nuisance.

The Court of Appeal found the sewerage company to be liable.

The House of Lords allowed appeal as Water Industry Act 1991 made a provision for enforcement by an independent regulator whose decisions were subject to judicial review by the courts, to allow a common law right would supplant this regulatory role, which the claimant chose not to use.

As there was a statutory scheme, he could not rely on common law (nuisance).

Question 34

Coventry v Lawrence

Answer 34

The defendants argued that they had planning permission to hold the speedway races and the events had taken place for years.

The claimant argued that this was irrelevant and the defendants were making far too much noise.

Locality issue: the court held that the defendnat could not rely on their wrongdoing to change the nature of the locality. A noisy activity or activities may be relevant to the character of a locality, but the character of a locality could not be used to justify noises that were so loud that it amounted to a nuisance.

Presciption issue: can be a defence if the noise has been bad for more than 20 years. Here, the defendant could not prove the noise throughout the 20 years before the claim was started was enough to amount to a nuisance.

Question 35

Midwood v Manchester Corporation

Answer 35

Damages were awarded even though thenuisance was short-lived and unlikely to be repeated.

Question 36

Kennaway v Thompson

Answer 36

Lawton LJ: grant injunction against the organisers of the racing, limiting both the number of days on which racing could take place and the number and power of boats allowed to take place.

Question 37

Shelfer v London Electric

Answer 37

Smith LJ: such an injunction would normally be granted unless the circumstances were exceptional.

Question 38

Delaware Mansions v Westminster City

Answer 38

The House of Lords held that continuing nuisance of which the defendant knew or ought to have known, an owner who had spent money in an attempt to remedy the problem may recover reasonable expenditure.

The tree was close to the property, so a real risk of damage was foreseeable.

The authority had plenty of notice before the work was done and was liable to pay the cost.

Question 39

Human Rights Act 1998

Answer 39

Article 8: gives a person the right to a private and family life.