Private nuisance - human rights

Question 1

Doctrine of wide indirect horizontality

Answer 1

o Judges should develop private law in ways that conform with higher order public law
o Fundamental right to privacy means private nuisance expanded to protect privacy

Question 2

Qualified rights in private nuisance

Answer 2

• Could we use qualified right ECHR Article 8 right to privacy to drive private nuisance law?

Question 3

Fair balance doctrine

Answer 3

o Private rights can sit along matters of broad public interest
o Judges should develop the law in ways that adequately develop both matters of private and public concerns

Question 4

Proportionality

Answer 4

o Grounds on which we can justify decision to override private interests in pursuit of public interest

Question 5

Margin of appreciation

Answer 5

o Each of signatory states in convention is a distinct cultural entity – law should be developed in ways that are attuned in ways individual to specific culture – encourages ECtHR to not get involved as domestic courts are better capable to respond

Question 6

Human rights cases (3)

Answer 6

• Marcic v Thames Water Utilities
  o Drainage system became inadequate due to increasing demand
  o C suffered repeated flooding – C sues in private nuisance
  o C argued Thames Water should build more sewers – CofA held D liable
  o ‘Thames have failed to demonstrate by way of defence that it was not reasonably practicable for them to prevent the nuisance’
  o To strike balance between individual and general community, those who pay to make use of sewerage system should be charged sufficient to cover cost of paying compensation to the minority who suffer damage as a consequence of operation of the system
  o Fair balance alongside distributive justice - a fair allocation of benefits (sewerage services) and burdens (the costs of providing such a service)
  o Thames Water better prepared to make decision than the courts in this situation – know how to best manage their resources to better the public interest – courts should not interfere to render a decision contrary to Parliament
• Hatton v United Kingdom
  o Noise generated by night flights – were the flights compatible with ECHR Art 8?
  o Held – no breach of Art 8
  o Authorities must strike fair balance between those whose homes are affected and the public interests (commerce of fights)
  o National authorities enjoy a wide margin of appreciation – national politicians have ‘direct democratic legitimation’ which members of ECtHR do not have so are better placed to decide national matters
• Dennis v Ministry of Defence
  o Sustained and extreme noise from Harrier jet fighters
  o Actionable private nuisance
  o Injunction to stop the flights would be contrary to public interest (fighter jets trained for if country ever went to war) but to not award a remedy would be unfair – damages awarded in lieu of injunction
  o Aircraft noise and impact on market-value of property was an interference with Art 8

Question 7

Coventry v Lawrence

Answer 7

o D operated a speedway stadium – hosted speedway events and motocross
o C bought cottage 600 yards from stadium
o Private nuisance action – trial judge granted injunction confining site to 12 noisy weekends per year
o CofA – reversed decision – trial judge should have taken account of planning permission and certificates of lawful use when making assessment of the locality
o Supreme Court – actionable noise nuisance – injunction restored
o The relevance of D’s activities to the character of the neighbourhood/locality
 D’s activities are relevant to the character of the neighbourhood except where they constitute actionable private nuisances.
 The Court would accept actual levels of interference as characterising the neighbourhood. Here, D had intensified the interference beyond the established level
o The Supreme Court on Private Nuisance and Planning permission
 Lord Neuberger identified planning permission as irrelevant to the question as to whether an activity constitutes a private nuisance.
 Contradicts Gillingham BC approach that planning permission can reduce level of amenity of neighbourhood
o Remedies
 Agreed that planning permission can influence the remedy C is able to obtain and that the existence of a planning permission could justify the refusal of an injunction and the award of damages in lieu.

 Howarth (academic)
* ‘although the public interest rarely if ever determines actionability, it can influence remedy’
* Restrictive approach (Shelfer rule) is no longer a part of the law and to instead consider broad matters of public concern
* American approach of Boomer v Atlantic Cement Co has arrived in England