Private Nuisance

Question 1

Definition of nuisance

Answer 1

Substantial and unreasonable interference with the use and enjoyment of one’s land.

Question 2

Hunter v Canary Wharf [1997]

Answer 2

Laid down 3 types of damage that can be caused in private nuisance:

1) Nuisance by encroachment on a neighbour’s land
2) Nuisance by direct physical injury to a neighbour’s land.
3) Nuisance by interference with a neighbour’s quiet enjoyment of his land.

Case is key modern case on private nuisance - challenge by local residents against development of Canary Wharf tower.
HELD; INTERFERENCE WITH TV RECEPTION IS NOT INTERFERENCE WHICH THE TORT OF PRIVATE NUISANCE WILL ADDRESS.
+ Private Nuisance does NOT protect the right to enjoyment of a view.

Question 3

Cambridge Water Co Ltd v Easter Countries Leather Plc

Answer 3

Lord Goff - “the principle of give and take as between neighbouring occupiers of land.”

Court recognised reality that neighbourhood will never be perfect and untethered. - There is a level of interference that a neighbour will naturally put up with. Where that interference crosses the boundary of what is reasonable, the tort of private nuisance offers remedies.

Question 4

Problem Question Stucture

Answer 4

(1) Title (who can sue/be sued?)
(2) Interference (what type - Hunter v Canary Wharf + is it substantial enough?)
(3) Unreasonable user - explore the factors.
(4) Reasonable foreseeability of the type of damage/remoteness (akin to legal causation)
(5) Defences
(6) Remedies

Question 5

Malone v Laskey [1907]

Answer 5

Authority for old position of law - COULD ONLY SUE IN PRIVATE NUISANCE IF YOU HAD A DIRECT POSSESSORY OR PROPRIETARY INTEREST IN THE LAND.

Couldn’t claim as was just the wife of the named tenant.

Case affirmed that:

(1) Cannot sue in PN for personal injury.
(2) Can only bring a claim with a direct possessory or proprietary interest - so property owners, named tenants and landlords (but only so far as landlords are affected - e.g. permanent damage to their property.)

Question 6

Khorasandjian v Bush [1993]

Answer 6

Law departed from limitations on who can sue set down in Malone v Laskey
Girl living in parents’ property was allowed to recover in private nuisance from the harassment of the defendant, even though she had no direct proprietary right or interest.
Treat with caution - judgement influence by wanting claimant to recover for harassment and was pre the Protection from Harassment Act 1997

Question 7

Hunter v Canary Wharf Ltd

Answer 7

Reversed Khorasandjian v Bush, reaffirming Malone v Laksey, with a qualification:
CAN ONLY CLAIM IF YOU HAVE DIRECT TITLE TO THE AFFECTED LAND, UNLESS CLAIMANT IS IN EXCLUSIVE POSSESSION OF THE LAND BUT CANNOT PROVE TITLE TO IT.

(H of L)

Question 8

Pemberton v Southwark LBC

Answer 8

Held; that a ‘tolerated trespasser’ had standing to bring a claim in PN.
(she broke terms of possession order after failing to pay rent - but had legal status of a ‘tolerated trespasser’ - council agreed not to evict her in exchange for regular payments on the debt.
Became infested with cockroaches.
Was ALLOWED to sue (locus standi)
Held; a tolerated trespasser’s right to occupy premises was exclusive and not unlawful.

Question 9

Smith v Scott [1973]

Answer 9

Not able to sue the landlord responsible for your obnoxious neighbours who are his tenants.
By allowing ppl to live there, landlord is not permitting all of their actions - no improper motive.

Question 10

Tetley v Chitty

Answer 10

Landlord permitted go karting track to be built near to residential area.
Held; where a landlord expressly or impliedly gives his consent to a use o land which, as a necessary and natural consequences of that use, will cause sufficient noise and interference capable of amount to nuisance, landlord can be so liable in tort of PN.

Question 11

Hussain v Lancaster CC

Answer 11

Same principle as in Smith v Scott (obnoxious tenants)
In this case, they were harassing the claimants.

Held (re PN) a landlord is generally not liable in PN for nuisances committed by his tenant(s) unless he had authorised the tenant(s) to commit the nuisance.

Question 12

Lippiat v South Gloucestershire Council [2000]

Answer 12

Distinguished from Smith v Scott and Hussain v Lancaster CC

Held; a landowner can be liable for repeated acts constituting nuisance committed from his/her land by those people he/she knew were in occupation, and where no steps were taken against them to evict them

Question 13

Sedleigh-Denfield v O’Callaghan [1940]

Answer 13

Authority: D can be liable if he ‘adopts the nuisance’
i.e. doesn’t have to create it - can merely continue it.

(Pipe overflowing case)

An occupier of land “continues” a nuisance if, with knowledge or presumed knowledge of its existence, he fails to take reasonable means to bring it to an end when he has ample time to do so, and he ‘adopts’ it if he makes any use of the erection or artificial structure causing the nuisance.

Question 14

Leakey v National Trust [1980]

Answer 14

There can be liability in PN when damage/nuisance is caused by NATURAL PROCESSES, but the defendant, knowing of the nuisance, and (IN BREACH OF DUTY) fails to take reasonable steps to abate the nuisance.

Question 15

Factors relevant to ‘unreasonableness’ of a nuisance

Answer 15

Locality
Extent
Duration and frequency
Social utility
Practicality of avoiding interference
Malice
Sensitivity of claimant

Question 16

St Helen’s Smelting Co v Tipping (1865)

Answer 16

Established ‘locality’ principle.
P bought house and soon after, D started smelting works in factory 1 mile away.

Lord Westbury - a man living in a particular town subjects himself to the operations of trade that are necessary for the locality…
Locality principle comes into play when the interference causes plaintiff ‘sensible personal discomfort’.
HOWEVER- LOCALITY IS NOT RELEVANT IF THE NUISANCE AMOUNTS TO ‘MATERIAL INJURY TO PROPERTY’.

Question 16

Sturges v Bridgman (1879)

Answer 16

D - confectioner - for many years using grinding machines
Neighbour - a Dr - built a consultant room at back of garden -
Dr complained the noises and vibrations from machines made him unable to concentrate and examine patients.
Judgement for plaintiff (Dr)
Held; ‘whether anything is a nuisance or not is not a question to be determined, not merely an abstract consideration of the thing itself, BUT IN REFERENCE TO ITS CIRCUMSTANCES.

THESIGER LJ
‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey……..when a locality is devoted to a trade or manufacture that in an established manner that does not constitute a public nuisance…judges and juries would be justified in finding that it is not a private or actionable wrong’

Question 17

Halsley v Esso Petroleum [1961]

Answer 17

Said that locality factor must be weighed up against other factor - a balancing exercise.
A D’s activity may still amount to an actionable nuisance even if it is an activity that is suitable for the locality. - Locality principle does not provide immunity just because the activity causing nuisance is commonplace in the town.

Reinforced Thesiger LJ:
‘What might be a nuisance in one area is by no means necessarily so in another.’ Per VEALE J

Question 18

Baxter v Camden LBC (No. 2)

Answer 18

Claim against landlord council for nuisance caused by neighbours in council flat.

Dismissed:
Tucker LJ:
‘occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises’.

Question 19

Gillingham BC v Medway (Chatham) Dock Co Ltd [1993]

Answer 19

Held; a claimant complaining of conduct that was authorised by planning consent - nature of locality should be judged by reference to the character of the locality AFTER the relevant planning permission and its effects.

In case:
planning permission to build a dock on an abandoned site - planning authority considered the impact this would have on nearby homes (lorries at night etc.) - granted permission anyway due to economic benefits it would have on the locality.
Caused more nuisance than expected - council sought injunction against noise/lorries during the night.
(Amalgamated public nuisance claim, but locality principle relevant here)

Held; A PLANNING AUTHORITY HAS POWER TO ALTER THE CHARACTER OF A LOCALITY - THEN THE QUESTION OF NUISANCE IS TO BE DETERMINED BY THE CHARACTER OF THE LOCALITY AFTER THE PERMISSION HAS BEEN GRANTED.

Question 20

Wheeler v JJ Saunders Ltd [1996]

Answer 20

Distinguished from Gillingham BC v Medway (Chatham) Dock Co. Ltd

Planning authority had granted permission for D’s pig farm
Plaintiffs claim in PN for the smell caused by the pigs.
Tried to rely on defence of statute authorising nuisance.

Not allowed - held; planning authorities have the power to ALTER THE CHARACTER of a neighbourhood (locality) - DONT HAVE THE POWER TO AUTHORISE A NUISANCE, like an Act. of Parl. can.

Question 21

Barr v Biffa Waste Management Services Ltd [2012]

Answer 21

Affirmed Wheeler v JJ Saunders Ltd [1996]

Waste Management License held not to authorise the D’s nuisance.
ONLY STATUTORY AUTHORITY could limit private law rights.

Question 22

Coventry v Lawrence [2014] UKSC

Answer 22

Speedway racing track had been authorised by planning permission.
Later - claimant sued in PN for the noise nuisance.
On issue of planning permission; held that the fact that an activity has been authorised by planning permission will be of no assistance to a defendant in a PN claim.
Lord Neuberger PSC: - not for planning authority to decide the private law rights of neighbours.

Question 23

Tetley v Chitty [1986]

Answer 23

Noise from go karting track held to be substantial enough to amount to nuisance - ANOTHER FACTOR = EXTENT.

Question 24

British Celanese Ltd v AH Hunt Ltd 1969

Answer 24

Duration and frequency a factor in assessing unreasonableness.

Metal foil strips that had been stored on D’s factory premises were blown away and hit an electricity sub-station on P’s estate - halting all of P’s business.
P limited remedies in negligence as most of economic loss was consequential and hence unactionable.
Held; had good cause of action in PN - even though it seemed like an isolated incident - it resulted from a continuous state of affairs which D had failed to abate.

Question 25

SCM (UK) Ltd v WJ Whittal & Son Ltd [1970]

Answer 25

Ds - working on road and damaged electricity capable - causing consequential economic loss at plaintiff factory.
Failed in PN claim - British Celanese distinguished - nuisance must normally occur more than once (as a general rule) or result from a continuous state of affairs on the defendant’s land/premises that D fails to abate.

Question 26

Dennis v Ministry of Defence [2003]

Answer 26

SOCIAL BENEFIT/UTILITY of MoD airbase meant that its continued presence took precedence over the claimants’ private law rights/
So no injunction.
But, held; that would not be proportionate not to compensate the claimants - given £950,000.

Question 27

Andreae v Selfridge & Co Ltd

Answer 27

PRACTICALITY OF AVOIDING INTERFERENCE

P - hotel owner - complained of noise and dust coming from the demolition of one of selfridge’s stores

Held; no cause of action in PN arises in respect of operations such as a demolition and buildingwork, so long as they are reasonably carried out and all reasonable steps are taken to ensure than no undue inconvenience is caused to neighbours.

Question 28

Leakey v National Trust

Answer 28

Occupier of land owes positive DoC to neighbour to prevent nuisances from occurring on his land - includes if occupier doesnt cause nuisance but becomes aware of it - positive duty to take steps to abate it - take reasonable steps to prevent or minimise risk of injury/damage.

What steps are reasonable in the circumstances?

• How practicable is it?
• Time taken to take steps?
• Cost of taking steps?

Question 29

Christie v Davey [1893]

Answer 29

Musical family case
D - maliciously produced annoying noise non stop.

Authority - recognising factor of malice in assessing whether D’s actions were unreasonable.
Suggests that if some conduct would not normally be substantial enough to amount to nuisance, the element of malice may sway the courts opinion.

Question 30

Hollywood Silver Fox Farm Ltd v Emmett [1936]

Answer 30

Reinforces Christie v Davey - re malice

Question 31

Bradford Corporation v Pickles [1895]

Answer 31

malice - distinguished from Christie v Davey

Not malicious if action/behaviour is within D/occupier’s legal rights - in the case, the D owned the water spring that he was using in a malicious way that caused a nuisance to P.

Question 32

Robinson v Kilvert

Answer 32

EXAMPLE WHERE SENSITIVITY OF THE CLAIMANT COMES INTO PLAY.

Special brown paper case.
Heat from landlord’s factory below rose into P’s paper factory and dried up the paper - lost weight and value.

“A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something that is lawful.”

Question 33

Cook v Forbes (1867)

Answer 33

Before Robinson v Kilvert but distinguishable
- D’s gas emissions were particularly noxious and would’ve caused damage to any business.
Therefore - particular sensitivity of the plaintiff (coconuts mats) was immaterial.

Question 34

Network Rail Infrastructure Ltd v Morris [2004]

Answer 34

Rail track + electric guitars case.

C of A allowed D’s appeal
But doubted the continuing utility of the sensitivity of the claimant factor, when assessing whether D’s actions/use of his property was unreasonable.

Fact that only 2 out of 3200 rail installations caused interference.
Suggested that it would be better asessed by a RF/remoteness of damage test.

Question 35

Cambridge Water Co Ltd v Eastern Counties Leather Plc [1994]

Answer 35

REASONABLE FORESEEABILITY OF THE !TYPE! OF HARM IS A NECESSARY ELEMENT OF A CLAIM IN ALL 3 NUISANCE TORTS.

In case - D used a chemical on its factory premises that spilt on floor.
Over time - chemical seeped through ground and into underground water flow.
P was producer of natural drinking water - water from Ds factory went underground several miles and into P’s borehole - contaminating all drinking water.

NOT LIABLE
TYPE OF HARM MUST BE RF

Olihant and Lunney: ‘a defendant will only be liable for the reasonably foreseeable consequence of the unreasonable user.’

Question 36

Nichols v Marsland

Answer 36

Act of God defence

Extremely high rain does not meet this threshold.

Question 37

Sturges v Bridgman

Answer 37

Relates to the defence of PRESCRIPTION.

Common law and statutory defence - if a nuisance is being committed for over 20 years and no complaint is made, the person committing the nuisance has acquired in law a right to continue committing it without incurring any liability.

In the case (confectioner - doctor) - try to apply defence of prescription, as had been working there a confectioner for over 20 years.
BUT - held that the nuisance being committed to the Dr was only since he built the consulting room - less than 20 years.
FOR DEFENCE OF PRESCRIPTION - MUST BE ACTUALLY CAUSING A NUISANCE FOR 20 YEARS.
___________

COURT ALSO REJECTED A DEFENCE THAT THE CLAIMANT ‘CAME TO THE NUISANCE’.

Question 38

Coventry v Lawrence [2014]

Answer 38

Confirmed Sturges v Bridgman
NO DEFENCE that claimant ‘came to the nuisance.’

However, could be relevant as a defence if it only amounts to a nuisance because of what the claimant is doing/has changed the use of their land.

Question 39

Allen v Gulf Oil Refining Ltd [1981]

Answer 39

Defence of STATUTORY AUTHORITY
D given power to build and operate oil refinery by Gulf Oil Refining Act 1965.
Nuisance claim dismissed by H of L - Act of Parl. gave D immunity from any nuisance claims.

NB: planning permission can change character of a locality but does NOT work as the statutory authority defence.
BUT S.158 of the Planning Act 2008 - planning permission of ‘nationally significant infrastructure projects’ WORK AS DEFENCE AS IF THEY ARE STATUTORY AUTHORITY.

Question 40

Senior Courts Act 1981 S. 50

Answer 40

Give court power to award damages in lieu of an injunction.

Question 41

Shelfer v City of London Electric Lighting Company [1895]

Answer 41

‘In my opinion, it may be stated as a good working role that-

1) if the injury to the plaintiff’s legal rights is small
2) and is one which is capable of being estimated in money
3) and is one that can be adequately compensated by a small money amount,
4) and the case is one which it would be oppressive to the defendant to grant an injunction -

Then damages in substitution for and injunction may be given.

Question 42

Kennaway v Thompson (1981)

Answer 42

Case was the one involving the motor boat racing and waterskiing been carried out since the early 1960s by a club owned by the defendants.
The p moved into a house near the lake.
Sort injunction against becomes activities because it caused lots of noise
On appeal, held; that the public interest should not prevail over the private interest and P was entitled to an injunctio
Where a continuing actionable nuisance this proved only in exceptional circumstances should damages to be awarded in lieu of an injunction.

Question 43

Coventry v Lawrence

Answer 43

The Supreme Court moved away from the restrictive approach in Shelfer.
Held; that it is the court’s discretion to award damages in lieu of an injunction.
Held that the four tests in Shelfer should not fetter the discretion of the court.
However in the absence of additional relevant certain started pointing out the way it would normally be right to refuse and Conson if the four tests and sofa satisfied.
Even if the 4 tests are made out that doesn’t mean that an injunction should not be granted. an injunction would normally be granted before damages.

Question 44

Article 8 ECHR

Answer 44

(1) Right to respect for privacy, family life, home and correspondence etc.

BUT - IMPACT OF HRA ON PN IS LIMITED BY…

(2) ‘There shall be no interference by a public authority with the exercise of this right EXCEPT such as is in accordance with the law is necessary…in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Question 45

Dennis v Ministry of Defence [2003]

Answer 45

Airforce base case.
Refused to grant injunction in PN claim due to social utility, but awarded damages in lieu of.
Held; DEFENCE BASED ON PUBLIC BENEFIT SHOULD NOT BE ALLOWED TO SUCCEED IF IT WOULD BE BREACH OF HUMAN RIGHTS (IF TRIED AT ECtHR)
Brought Article 8 HRA claim.

Court interestingly brought in the ‘social benefit’ factor at the DAMAGES stage, and NOT, the ‘unreasonable user’ stage.
Example of HRA working as a gap filler.
Reason why court decided to award damages whilst allowing activity to go on: ‘a fair balance would not be struck in the absence of compensation’.
Held; public interest > private law rights of Dennis, but NOT proportionate not to compensate them.

Question 46

Marcic v Thames Water Utilities Ltd

Answer 46

M’s property flooded due to overloaded sewers owned by D (for natural reasons - not at fault of Thames Water)

Water Industry Act 1991 set out statutory claim scheme for individual householders in such circumstances.
Claimant brought claim in common law PN and under HRA Art. 8

H of L HELD;
- No cause of action in PN - would be contrary to the statutory scheme already in place.

• HRA claim was ill-founded. The statutory scheme under 1991 Act balanced all stakeholders’ interests appropriately by trusting enforcement to an independent regulator.
  M chose not to use the scheme.
  The Act was HR compliant.

Question 47

Dobson v Thames Water Utilities Ltd

Answer 47

About title - who can bring a claim.

Error in D’s sewage management systems - nuisance…very bad odours (not actionable in negligence, although tried.)

Parents succeeded in nuisance claim - damages.
BUT - ISSUE: Children did NOT succeed as did not have proprietary/possessory right/interest.
Children brought HRA claim - AS HR APPLY TO ALL - NOT JUST THOSE WITH TITLE TO PROPERTY ETC.

C of A - considering what ECtHR would do to avoid Strasbourg involvement.
Held; fact that parents had already been compensated under common law meant that, at the damages stage, ECtHR would be unlikely to give further sum due to Article 8 - as expected that the compensation to the parents would be passed on to the children.
C of A: doesn’t mean that you are always prevented from recovering further damages, but the award of damages at common law will normally constitute ‘JUST SATISFACTION’. - No additional compensation to children required under HRA claim.

Shows impact of HRA, but that it is limited.