Private Nuisance (WS 9)

Question 1

How to answer a private nuisance problem question?

Answer 1

STEP 1: Heading: C v D
STEP 2: State: C can consider suing D in the tort of private nuisance for [insert type of harm]
STEP 3: Define “Private Nuisance”: an unlawful interference with a person’s use or enjoyment of land , or some right over, or in connection with it (definition from Winfield & Jolowicz on Tort, but adopted by Scott LJ in Read v Lyons & Co Ltd)
STEP 4: Consider what C has to prove
STEP 5: consider who can be sued
STEP 6: Are there any defences?
STEP 7: What are the available remedies?
STEP 8: Conclusion (Will it succeed? If any grey areas, consider negligence claim as well)

Question 2

Definition of private nuisance?

Answer 2

an unlawful interference with a person’s use or enjoyment of land , or some right over, or in connection with it (definition from Winfield & Jolowicz on Tort, but adopted by Scott LJ in Read v Lyons & Co Ltd)

Question 3

What does C have to prove? Main stages…

Answer 3

1) Does C have locus stand?
2) Has there been an actionable interference with C’s land?
3) Is the interference unlawful?
4) Has C suffered damage that is recoverable?
5) Causation and remoteness
6) Was the kind of damage reasonably foreseeable to someone in D’s position at time acts were done?

Question 4

When does C have locus stand?

Answer 4

a. C must have a proprietary interest in the land – freeholders and tenants and occupier in exclusive possession e.g. squatter, not licensee (Hunter v Canary Wharf)

Question 5

Malone v Laskey

Answer 5

i. Neither children nor wife (Malone v Laskey) of owner-occupier of land can sue in private nuisance

Question 6

When can Landlords sue in tort of private nuisance?

Answer 6

ii. A LL who owns land but has parted with possession to a tenant can also sue in private nuisance if permanent damage is being done to his property, such as vibrations causing structural damage.

Question 7

What case can persons without proprietary interest try and bring?

Answer 7

S.6 HRA 1998 courts should develop our law so as to be consistent with ECHR. Art 8 provides for freedom of family and private life. Does our common law, as in Hunter, breach Art 8? Dobson v Thames Water Utilities – Court of Appeal – should damages in nuisance be awarded to person without prop interest but who lived in property, as well as prop interested person, under s.8(3) HRA. Thought it highly unlikely Strasbourg would require the additional payment. Thus award of damages at common law to owner is usually ‘just satisfaction’ – ALTHOUGH use of usually leaves this decision open to question.

Question 8

Marcic v Thames Water Utilities

Answer 8

ALTHOUGH use of usually leaves this decision open to question. See also Marcic v Thames Water Utilities

Question 9

Three heads of interference

Answer 9

Hunter v Canary Wharf:

a. Encroachment on neighbour’s land (must be permanent) – e.g. branch overhanging neighbours land
b. Direct physical injury to neighbour’s land
c. Interference with neighbour’s quiet enjoyment of the land (AKA loss of amenity) (inc: smells, dust, vibration, noise)

Question 10

Issue with interference with neighbour’s quiet enjoyment of the land?

Answer 10

i. This last interference is potentially very wide indeed. Will also include interference with rights enjoyed over land (e.g. right to light acquired by prescription)

Question 11

What about actionable nuisances based on personal discomfort?

Answer 11

ii. Courts generally slower to find actionable nuisances based on personal discomfort than where there has been actual damage to the land

Question 12

What are the non-actionable interferences?

Answer 12

. Disruption to TV reception: Hunter v Canary Wharf [1997]
. Disruption to view
. Interferences with “elegant or dainty modes of living”: Walter v Selfe

Question 13

Walter v Selfe [1851]

Answer 13

Sir Knight-Bruce VC said that to be actionable in nuisance the interference had to be something that materially interfered with ‘ordinary comfort’ not ‘elegant or dainty modes of living’

Question 14

Alfred’s case [1610]

Answer 14

loss of prospect from your homes is not an actionable interference

Question 15

Meaning of “unlawful”

Answer 15

a. Unlawful means “substantial and unreasonable” (Sedleigh-Denfield v O’Callaghan)
i. State test for unlawfulness = “What is reasonable according to the ordinary usages of mankind living in…a particular society”

Question 16

Whether unlawful interference or not is a question of fact. What factors are relevant?

Answer 16

1) Frequency and duration
2) Excessiveness of conduct/extent of harm
3) Abnormal sensitivity
4) Character of neighbourhood
5) Public benefit
6) Malice on part of D

Question 17

Miller v Jackson

Answer 17

1. The longer the duration and frequency of the interference, the more likely the court will consider it to be unreasonable (Miller v Jackson – cricket ball case)

Question 18

Spicer v Smee [1946] Kings Bench - Facts

Answer 18

Plaintiff and D respective owners of two adjoining leasehold bungalows. Under the terms of her lease, the D was under an obligation to keep her bungalow in good repair and condition. In 1934, the D installed electric lighting. 1942 she let the bungalow to T. Under the terms of the agreement with T, the D retained the right and power of repair. 1943, bungalow completely destroyed by fire which originated in the D’s bungalow owing to defect in the electric wiring. Plaintiff brought action against the D for damages for nuisance. On the evidence, the judge found that, owing to the negligence of the contractor who did the work, the wiring had been installed so that part of live wire was inadequately protected, and bungalow had been let to T with this defect. HELD – state of electric wiring was a nuisance. Since the fire which destroyed the plaintiff’s bungalow was due to this nuisance, the D was liable to the plaintiff in damages.

Question 19

Rule from Spicer v Smee

Answer 19

An isolated event will be unlawful, ONLY if it emanates from a continuous state of affairs on D’s property

Question 20

What is the test for excessiveness of conduct?

Answer 20

Objective test: How far removed from ‘normal’ was the behaviour of the D?

a. Matania v National Provincial Bank – noise caused by renovation work on behalf of D, from 8am-5pm is excessive
b. Courts will look at extent of harm and impact on claimant. Viewed subjectively – e.g. if return home late each evening
c. Physical damage to the land is usually excessive

Question 21

Mantania v National Provincial Bank

Answer 21

noise caused by renovation work on behalf of D, from 8am-5pm is excessive

Question 22

Test for impact on C?

Answer 22

subjective test

Question 23

Abnormal sensitivity rule

Answer 23

1. C’s claim will only succeed if the interference in question would have affected a normal user (Robinson v Kilvert – claim failed because the interference would not have affected a normal user – brown paper in factory on top floor was more sensitive to the heat from below than normal paper. Because it was sold by weight.)

Question 24

Mckinnon Industries v Walker

Answer 24

2. If (i) can be shown, C can recover for all loss, even if it is greater than normal person due to his abnormal sensitivity (McKinnon Industries v Walker – claim succeeded because fumes would have damaged regular plants, not just C’s sensitive orchids, so C recovered for his loss;

Question 25

Character of neighbourhood

Answer 25

1. Sturges v Bridgeman – what might be considered a nuisance in a well-to-do area, might not be in another area (e.g. does the area have an undue amount of noise anyway?) Thesiger LJ: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”
2. But, is only relevant to an interference which causes personal discomfort – Veale’s judgement in Halsey v Esso makes comparison with St Helens Smelting Co (i.e. if C has incurred physical loss, character of neighbourhood is not considered) (Halsey v Esso)
   a. Therefore, if C has suffered interference with personal discomfort but not physical damage, whether the interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality.
3. Where planning permission has been given, this may be deemed to have changed the character of the neighbourhood: an interference that would have been unlawful in the old neighbourhood is now lawful (Gillingham v Medway Docks)

Question 26

Sturges v Bridgeman

Answer 26

what might be considered a nuisance in a well-to-do area, might not be in another area (e.g. does the area have an undue amount of noise anyway?) Thesiger LJ: “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”

Question 27

Halsey v Esso

Answer 27

2. But, is only relevant to an interference which causes personal discomfort – Veale’s judgement in Halsey v Esso makes comparison with St Helens Smelting Co (i.e. if C has incurred physical loss, character of neighbourhood is not considered) (Halsey v Esso)
   a. Therefore, if C has suffered interference with personal discomfort but not physical damage, whether the interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality.

Question 28

Gillingham v Medway Docks

Answer 28

3. Where planning permission has been given, this may be deemed to have changed the character of the neighbourhood: an interference that would have been unlawful in the old neighbourhood is now lawful

Question 29

Adams v Ursell [1913]

Answer 29

1. A ‘smelly chip shop’ can have a benefit to the community (Adams v Ursell [1913])

Question 30

View of courts on public benefit?

Answer 30

2. But, public benefit is more likely to be considered by the court during the discussion of remedies, as courts consistently take the view that public benefit cannot exonerate D of liability for private nuisance (see below)
3. Therefore, rarely a relevant factor when in deciding whether the D’s use if unreasonable

Question 31

Malice on part of D

Answer 31

1. If D has been trying to annoy C, interference more likely to be considered unreasonable and therefore unlawful (Hollywood Silver Fox Farm v Emmett – sole purpose of D’s shooting was to annoy the C and more particularly, to upset the C’s silver foxes during breeding time. Interference carried out with malice, therefore could not be considered a reasonable one)

Question 32

Christie v Davey

Answer 32

2. Malice likely to tip balance in C’s favour. Making an interference unlawful that would have been reasonable (and lawful) if done without malice (Christie v Davey)

Question 33

Reasonableness and Negligence v Nuisance?

Answer 33

The reasonable person test, although central to Negligence, has no part to play in the analysis of whether the interference is unreasonable.

Question 34

Has C suffered damage that is recoverable?

Answer 34

a. Nuisance is not actionable per se – C must prove he has suffered any damage to land itself/buildings, or any interference with quiet enjoyment of the land
b. No claims for personal injury (Lord Hoffmann in Hunter v Canary Wharf), or for personal property (sometimes exceptions – see Halsey v Esso). In reality, C would run negligence claims for both.
c. Can recover for consequential economic loss, where has flowed from damage to property and/or personal discomfort (Andreae v Selfridge – loss of profits where a nuisance prevents a business from operating normally)

Question 35

Is nuisance actionable per se?

Answer 35

No - C must prove he has suffered any damage to land itself/buildings, or any interference with quiet enjoyment of the land

Question 36

Is damage to personal property recoverable?

Answer 36

No (although some exceptions - Halsey v Esso)

Question 37

Can claims be made for personal injury?

Answer 37

b. No claims for personal injury (Lord Hoffmann in Hunter v Canary Wharf),

Question 38

Andreae v Selfridge

Answer 38

Can recover for consequential economic loss, where has flowed from damage to property and/or personal discomfort. E.g. loss of profits where a nuisance prevents a business from operating normally.

Question 39

Causation?

Answer 39

But for test (Barnett) & Novus Actus Interveniens

Question 40

Remoteness?

Answer 40

6) Was the kind of damage reasonably foreseeable to someone in D’s position at time acts were done? (The Wagon Mound No 1 test for remoteness, as confirmed by Cambridge Waters Co v Eastern Counties Leather plc [1994]

Question 41

Cambridge Waters Co v Eastern Counties Leather plc [1994]

Answer 41

Lord Goff: “Foreseeability of harm is indeed a prerequisite to the recovery of damages in private nuisance” – type of harm [contaminated water] was not reasonably foreseeable as at the time the D acted, the properties of the chemical involved were not known).
a. Goff also said that liability in nuisance does not depend on the D’s fault. DIFF TO NEGLIGENCE Therefore “the fact that the D has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user.”

Question 42

Creator can be sued where…

Answer 42

1. The CREATOR of the nuisance (liable, even if land now occupied by someone else) – but may not be able to find this person, or may not be financially worth suing

Question 43

Occupier can be sued where…

Answer 43

2. The current OCCUPIER of the land – liable for nuisances he created (either positively or by failing to take steps); also, liable for the following nuisances created by other persons:

Question 44

Where is the occupier liable for nuisances by other people?

Answer 44

a. Nuisance created by employee acting in the course of his employment (vicarious liability)
b. Nuisance created by independent contractor, provided the nature of the work carries a special danger of the nuisance being created (Matania)
c. Nuisance created by visitor (Lippiatt v Gloucestershire), predecessor in title (St Anne’s Well Brewery v Roberts), trespasser or natural event (Leakey v National Trust), where occupier has adopted the nuisance (i.e. made use of it) or continued it (i.e. failed to take reasonable steps to end nuisance) (Sedleigh-Denfield v O’Callaghan

Question 45

General rule for landlord’s liability?

Answer 45

general rule: tenant is liable. But

Question 46

Exceptions to general rule on Landlord’s liability?

Answer 46

a. He has impliedly/expressly authorised through letting out the premises (Tetley v Chitty)
b. Existed at the start of tenancy that he ought reasonably have known about
c. He has covenanted to repair, but fails to repair (Payne v Rogers [1794]) – although does not exonerate the tenant who may be liable as well

Question 47

Tetley v Chitty

Answer 47

Tetley v Chitty – local council let a piece of land to a go-kart racing club for use as a racing track. Court found that the inevitable consequence of this letting was the creation of a noise nuisance to neighbours. LL was liable

Question 48

Defences to private nuisance?

Answer 48

Effective:

1) Prescription
2) Statutory authority
3) Contributory negligence
4) Consent
5) Act of God

Ineffective:

1) C came to the nuisance
2) Public benefit
3) Contributory actions of others
4) Planning permission

Question 49

Prescription

Answer 49

Actionable nuisance has been continued against C for at least 20 years (Sturges v Bridgman)

Question 50

Statutory authority

Answer 50

provided D can show nuisance was inevitable consequence of doing what statute authorised) (Allen v Gulf Oil Refining – Oil company authorised by Act of Parliament to construct an oil refinery in a particular location. Local residents complain about the noise and vibrations emitted from the refinery

Question 51

Contributory negligence

Answer 51

Normal principles apply. Partial defence.

Question 52

Consent

Answer 52

Claimant specifically agreed to accept the interference

Question 53

Act of God

Answer 53

Wringe v Cohen: (if a ‘secret unobservable force of nature’ then D not liable unless he has adopted or continued the nuisance)
2. Ineffective

Question 54

C came to the nuisance

Answer 54

i. Even if nuisance existed before C, say, built his house on the polluted land, C can still sue (Miller v Jackson) – use of adjoining land would be severely restricted if it were not for this rule. Would also restrict the property market as a land owner could essentially block sale.
ii. Although maybe a relevant factor in granting an injunction

Question 55

Public benefit

Answer 55

i. C may be deprived of an injunction where the public benefit in question is considered to prevail over C’s private interests (Miller v Jackson; Kennaway)

Question 56

Contributory actions of others

Answer 56

no defence to say that nuisance results from actions of several others. D cannot argue that his or her act alone would not constitute an actionable nuisance.

Question 57

Planning permission

Answer 57

i. Only Parliament has the right to take away private rights to sue. Therefore, will not legitimise a nuisance (Wheeler v Saunders)
ii. May operate to change character of neighbourhood (see above – Gillingham BC v Medway Cocks Co Ltd – consideration when determining whether the interference with personal comfort was unlawful.

Question 58

Wheeler v Saunders

Answer 58

a farmer obtained planning permission to build a pig unit on his land. The owners of some holiday cottages on adjacent land complained of the smell and noise emitting from the pig unit. Farmer was not allowed to claim in his defence that he had planning permission

Question 59

Gillingham BC v Medway Cocks Co Ltd

Answer 59

The planning authority granted planning permission for a former naval dockyard to be converted into a busy container port. Local residents complained about the noise and vibration. When deciding whether this amounted to an unlawful interference, the court said you had to consider the character of the neighbourhood as it was after the grant of the planning permission, not as it was before. Residents now lived in an area that was a container port – the level of noise was not unlawful

Question 60

Time periods for remedies?

Answer 60

Distinguish between past and future nuisances. For example, if C has put up with the nuisance for (1) two weeks, but anticipates the nuisance lasting (2) two years, there are two claims in question. First he may want to claim damages for the past nuisance. Second, he may want an injunction to prevent future nuisance. N.B. Negligence claims always relate to past nuisances, and so there is no scope for an injunction, only damages.

Question 61

Damages

Answer 61

1. Damages for: [damages will be awarded for any loss already suffered by the claimant by the date of trial]
   a. Physical damage to C’s land
   i. Damages to reflect cost of repair, or if not possible, loss in value of land
   b. Personal discomfort:
   i. Difficult to assess. Hoffmann suggested might be based on loss of amenity value of the land – i.e. land with nuisance being worth less than land with nuisance (Hunter v Canary Wharf)