Nuisance PDF

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Nuisance In a nutshell, Nuisance is concerned with reasonableness, in particular the reasonable user of land and reasonable expectations. Nuisance is basically unreasonable use of land. An actionable private nuisance occurs where a use of enjoyment of their land is unlawfully interfered with activit...

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Nuisance In a nutshell, Nuisance is concerned with reasonableness, in particular the reasonable user of land and reasonable expectations. Nuisance is basically unreasonable use of land. An actionable private nuisance occurs where a person’s use of enjoyment of their land is unlawfully interfered with by activities carried on by another person on their land. In most cases, the two areas of land are likely to be close together and the activities complained of must generally be continuous, but it is possible in rare circumstances, for a ‘one-off activity’ to amount to a nuisance. Assessing Nuisance: the primary test is reasonableness; the court will try to balance each party’s rights to use the land as they wish.  Damage in nuisance can lie for: oil spills.  Nasty smells  Noise and anything else, which affects nearby land or the comfort and convenience of the occupiers of that land  There are few overlaps btw nuisance and negligence but, this is a separate tort Elements of the tort are:  Unreasonable use of land  Which causes indirect interference with another’s land (Three typesLlyods quote)  Causing damage Nuisance is concerned with the use of land in the broad sense, can include: the right to grow crops and graze animals; shooting rights; fishing rights; timber rights; leisure and domestic activity; and mineral rights Land is key to the tort of nuisance

We are dealing with private nuisance: this is unreasonable use of land which causes interference with another’s land Hunter v Canary Wolf:

This case provides us with a useful idea as to what constitutes a main type of private nuisance. Lord Lloyd stated: “Private nuisances are of three kinds. They are: (1) nuisance by encroachment on a neighbour’s land; (encroachment – poisoning fish in a pond, releasing poisonous fumes etc) (2) nuisance by direct physical injury to a neighbour’s land; (building a structure on your land which may damage your neighbours land) and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land. (this refers to noise and social activity) ”

Nuisance requires some kind of fault… This is what is meant by unreasonable – (the use of land has been faulty due to acting unreasonably). Fault in nuisance can be negligent or intentional. okay, so in Rylands v fletcher you don’t need to have used your land in an unreasonable way, the damage just needs to occur. There needs to be some fault and it is not a tort of strict liability(- no need to establish fault on the part of the defendant, just need to show that the tort occurred-). There must be some kind of damage. It is not actionable damage per se but there needs to be damage for actionable nuisance. This has to be damage to land and needs to connect to land. It cannot be personal injury. If you are injured through protecting your property you sue in negligence. When it comes to the remoteness of damage we follow the same rules in negligence – the wagon mound test of reasonable foreseeability. Nuisance protects your enjoyment of that land. It does not protect absolutely everything connected with land. There is no such thing for example a right to a view. Likewise there is no right to unlimited TV reception.

Structure for answering nuisance: 1. who can sue whom 2. in what tort, for what damage 3. are there any defences

who can sue:

Claimant needs to have a proprietary interest in the land –exclusive possession or (non resident landlord if the nuisance is likely to cause to permanent damage to the property), as per Hunter v Canary Wharf. Elaboration the traditional view is that the claimant had to have an interest in the land affected by the private nuisance in order to succeed in an action. This would normally mean a right to exclusive possession by way of a freehold or leasehold. is there a but….(come back to clarify this, if the test has changed) So a person who only had the use of land without exclusive possession or any other proprietary interest (e.g licensees, guests, member of the owner’s family were deemed to have no interest in land and therefore no cause of action) Malone v Laskey FACTS: A company manager a licensee, lived with his wife the claimant, in a house owned by the company. A falling bracket injured the wife. This was shaken out of place by vibrating machinery on the defendant’s adjoining land. She sought to sue in nuisance. HELDL: The Court of Appeal said the wife had no case: even her husband was merely a licensee in occupation of the house. The wife had no legal or equitable interest in the premises on which to found a claim in nuisance. The damage was personal injury and nuisance only protected the use of land. You can use this case to distinguish in a problem question

Hunter v Canary Wharf (concerned who can sue whom). Facts: When the canary wharf tower was built, local residents complained of interference with their TV reception because of the construction work HELD: The Court of Appeal decided that loss of this kind of recreational facility was not sufficient interference to give rise to an action in nuisance. The House of Lords said there might be a nuisance if reception was affected by activities (e.g. involving electrical discharges) on DD's premises, but the mere presence of a building was not capable of constituting a nuisance. The House of Lords held that this amounted to interference with a ‘purely recreational facility as opposed to the interference with the health or physical comfort or well-being’ of the claimant. Nuisance does not protect a right to TV reception in the same way it does not protect a right to a view. Lord Goff stated: “An action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession.” This decision restated private nuisance as a tort concerned with property rights and not one which protected against nuisance caused to individuals independently as it can only be

brought by a person with rights to exclusive possession of the property such as an owner or tenant (or non resident landlord if the nuisance is likely to cause permanent damage to his property)

Analysis: this leaves a lacuna and arises in the problem of people who happen to live in a property (without proprietary interests). This was addressed in the case of: Dobson v Thames Water Utilities Facts: The claimants brought a Group action against Thames Water. The proprietary claimants brought claims in nuisance on the basis that their land was affected by smells and mosquitoes emanating from the Works. The nonproprietary claimants brought claims for damages under the HRA alleging that Thames Water was a public authority, and that the smells and mosquitoes constituted an unjustified interference with their right to respect for their “home” under Article 8 of the ECHR. Held: The claimants who had legal rights sued successfully. The claimants who had no legal rights sued successfully under Article 8. One problem with this is that under the Human Rights Act an individual can only sue a public authority. This means you cannot sue your private neighbour because they have no obligations under HRA.

Who can be sued? 1) Creators: (Any person who creates the nuisance can be sued, whether or not that person is the occupier of the land at the time of the action. They must have physically created the nuisance even if they have nothing to do with the land for example independent contractors). 2) Occupiers: (occupiers who adopt and continue to allow nuisances on their land may also be liable, even if such nuisances were created by predecessors in title, trespassers or third parties) 3) Landlords: (A landlord may be liable for nuisances emanating from land, e.g. if the landlord had knowledge of the nuisance before letting, or where the landlord reserved the right to enter and repair the premises).

Continuing a nuisance: applies to occupiers only –a situation when you have not created the nuisance but failed to take reasonable steps to inhibit it.

Sedleigh – Denfield V O’ Callaghan FACTS: The defendants occupied some land where there was a ditch. The local authority had built a pipe which took water away from, the ditch; this was done without the defendants’ knowledge and, in legal terms, the workers who built it were considered trespassers. The pipe had a grate to keep out leaves, but it was wrongly placed and eventually some three years after the pipe had been laid, it became completely blocked with leaves. As a result, neighbouring land owned by the claimant became flooded. HELD: By this time, the defendants knew that the pipe existed, because it drained their own land. Legal principle: HL held that an occupier who knows of a danger and allows it to continue is liable, even though they have not created the danger in the first place. The defendant was liable in nuisance, because he derived some benefit from it.

Elements the tort: (Unreasonable use of land) Factors relevant to unreasonableness: There is no straightforward answer as to what is meant by unreasonable use of land. It is context based: decided on a case by case basis. The courts have developed factors to decide whether this particular use of land has been reasonable and unreasonable. These factors are     

Locality Duration and frequency Social utility Malice Sensitivity of the claimant

Factor 1: Locality: primarily concerned with issues of amenity The nature of the locality is irrelevant where physical damage is caused, but is significant where the complaint is based on loss of enjoyment. Locality is

important when dealing with amenity issues only…where this took place is important. The consequence is that interferences, which would be reasonable in one area, may be unreasonable in another. Definition of Amenity: interference with the use, comfort or enjoyment of land. This results in the feeling of discomfort whereby one is unable to live peacefully and comfortably on one’s owns land arising from D’s activity. For example: a person who chooses to live in a busy commercial or industrial area must expect more traffic noise than one who lives in a remote village. No one reasonably expects the same level of peace and quiet in urban and industrial area which are to be found in rural areas. Sturges v Bridgman Facts: the claimant was a doctor, who sued a confectioner (candy maker) for the noise caused by his industrial equipment. He had done this for 20 years. Nobody seemed to complain until this doctor. Held: The court took into account the fact that the area in which they both worked consisted mainly of doctors’ consulting rooms and concluded that there was a nuisance, explaining that that which would be a nuisance in a quiet residential area would not necessarily be so in a busy industrialised one. Thesiger LJ stated: “whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong.”

The case of Baxter v Camden LBC (No 2) confirmed this principle in Sturges v Bridgman. Tucker LJ stated: “occupiers id low cost, high density housing must be expected to tolerate higher levels from their neighbours than other in more substantial and spacious premises”

Locality & Planning Permission The character of locality can be changed by decisions on planning permission. The nature of locality is determined with reference to the present. Gillingham Borough Council v Medway (Chatham) Dock Co [1993] Can the permission of the planning permission be used as a defence to nuisance? Facts: the dock company had been granted planning permission for the operation of commercial port.  Access to the port was only possible via residential roads, which caused a lot of traffic noise, and so  In the 1998, the same council (Gillingham) initiated proceedings in public nuisance in respected of noise affecting local residents at night  So the council sued in nuisance to try to get traffic limited at night… arguably this used to be a quiet area Held: The court held that the fact that planning permission had been granted for a particular activity did not mean that that activity could not give rise to liability in nuisance; however, the existence of planning permission could mean that the character of the neighbourhood had changed (for example from primarily residential to commercial) which could mean that what might not have amounted to a nuisance before the change could now be considered reasonable Legal reasoning: Buckley LJ put it, the defendant council had ‘changed its priorities’ at para 363 “In short, where planning consent is given for a development or change of use (alters the character of a neighbourhood), the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously.” NB: planning permission will not provide immunity from a nuisance action

Wheeler v Saunders ltd [1996] Concerned: the use of planning permission (altering the character of the neighbourhood as a defence)

Facts: the defendants had obtained planning permission to build 2 pig houses close to the claimant’s land, resulting in strong smells drifting across the claimant’s property. The defendant argued the nature of the locality changed Held: The Court of Appeal confirmed that planning permission could only be taken as authorisation of nuisance if its effect was to alter the character of the neighbourhood so that the nuisance could not be considered unreasonable. The planning commission in this case did not have that effect. Why? Because the land in question was a very small piece of land. it wouldn’t suffice to be interpreted as changing the character of the neighbourhood. ‘it would in this case not be possible to refer to the planning permission, for a change of use of a very small piece of land, as a ‘change in the character of the neighbourhood’. Nor was it, as Staughton LJ put it, ‘a strategic planning decision affected by considerations of public interests’ You need to add Coventry v Lawrence: come back to this (text and cases materials) pg 610-611 Coventry v Lawrence [2014] UKSC 13 NB: Other important aspects of the tort of private nuisance determined, see in particular (Defences) & (Remedies) Facts: In 2006, the claimants bought a house situated close to a sports stadium -used for various motor sports, and a further track used for motocross  These uses were the subject of planning permission  The claimants complained about the noise generated by the use of the defendants’ land for motorsports and the local planning authority served ‘abatement notices’ requiring noise reduction works to be carried out.  Those works having been completed, the planning authority took no further action  The claimants commenced proceedings in Nuisance.  The CoA (2012), considered that this was a case where, as in Gillingham, the noise was an established part of the ‘character of the locality’ that it should be taken into account when assessing whether the interference constituted a nuisance. Held: The Supreme Court disagreed, deciding that the approach in Gillingham was incorrect. Why? Legal reasoning: Lord Neuberger para 94- 96

“…a planning authority has to consider the effect of a proposed development on occupiers of the neighbouring land, but that is merely one of the factors which has to be taken into account. The planning authority can be expected to balance various competing interest, which will often be multifarious1 in nature (i.e political and economic considerations which properly may play a part in the thinking of the members of a planning authority), would play no part in the assessment of whether a particular activity constitutes a nuisance- unless the law of nuisance is to be changed fairly radically. Furthermore, Lord Neuberger went on to say, while the decision of whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even, no evidential value, and in other cases rather more (All in all, he’s saying the evidential value of the panning authority’s existence and terms will assessed contextually). Critique: Although Lord Neuberger’s approach is now authoritative, it has been criticized as ‘far-fetched’ and blurring the distinction between ‘strategic’ and ‘non-strategic’ planning permission as a recipe for uncertainty. Lord Carnwath’s interpretation of ‘strategic’ [para 223], “I read Staughton LJ’s use of the word strategic as equivalent to Peter Gibson LJ’s reference to a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted”.

Lord Carnwath in CoA decision of Biffa Waste: -whose judgement Lord Neuberger approved- took a different view to Lord Neuberger’s view on the evidential value of planning authority. Lord Carnwath proposed that some grants of the planning permission were of such scope that they could not be ignored in assessing the character of the neighbourhood. Moreover, while Lord Neuberger’s remarks generally gained the agreement of his colleagues, Lord Carnwath’s remaks in (para 223) were also supported by Lord Clarke. In para [169] in HL decision, Lord Clarke stated that, “as Lord Carnwath has shown, the facts of such cases are so varied that it is difficult to lay down hard and fast rules”. 1 Multifarious: many and of various types

Lord Carnwath in decision in [para 223] “I would accept however that in exceptional cases a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses, which cannot be sensibly ignored in assessing the character of the against which the acceptability of the defendant’s activity is to be judged.

EXAM USE: Quite apart from this, when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights. Para 95 Coventry v Lawrence is also important in the question of remedies for nuisance, particularly the question of when damages are available in place of injunction, wbich was one of the most important aspects of the decision in Lawrence. (you will deal with this below, but it is worth noting that the supreme court recommended a much greater flexibility in remedy than has hitherto been recognized in the law of nuisance).

St Helens Smelting Co V Tipping Ltd (HELP) Facts: Noxious vapours were coming from smelting which damaged plants and trees. The defendant argued the whole neighbourhood was almost devoted to copper smelting and therefore such activities were permissible thus the nature of the locality was in the defendant’s favour. Issue: whether an instruction to the jury that there was no liability in nuisance if the defendant’s activity was carried on in a ‘convenient’ or ‘suitable’ place was correct in the law. Held: The nature of the locality is relevant if we’re talking about personal discomfort. If we are talking about noise and smells something which people suffer from this is physical injury in the land. When this happens locality can never be an excuse.

Lord Westbury empha...