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NUISANCE NOTES Private nuisance tries to define the limits of a person's ability to use land in his or her possession when that adversely affects another landholder.  It draws a distinction between behaviour causing physical damage to another's land or materially devaluing it, and behaviour interf...

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NUISANCE NOTES  

Private nuisance tries to define the limits of a person's ability to use land in his or her possession when that adversely affects another landholder. It draws a distinction between behaviour causing physical damage to another's land or materially devaluing it, and behaviour interfering with comfort or convenience (in regards to the latter, law must decide if the D's actions are reasonable or not)

Order of cases:  St Helen's Smelting Co v Tipping  Halsey v Esso Petroleum  Hollywood Silver Fox Farm  Hunter v Canary Wharf Ltd  Wu & BEMA  Sturges v Bridgman  Lawrence v Fen Tigers  Miller v Jackson  Kennaway v Thompson  Matheson v Northcote College  Sedleigh-Denfield  Delaware Mansions  Rylands v Fletcher, Cambridge o Public nuisance summary

St Helen's Smelting Co v Tipping Law: Where the nuisance results in physical damage as oppose to amenity damage the locality is irrelevant FACTS:  The plaintiff bought a large manor house and a large area of valuable land (June 1860)  A mile and a half from his property, the defendants owned land on which were coppersmelting works, where they produced noxious fumes  The fumes caused damage to trees, fruit, and other plants on the plaintiff's property material damage  His cattle also became unhealthy as a result of the pollution (harm as a result of what the defendant was doing DEFENDANT'S ARGUMENT:  The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property.  He argued it was an industrial area. Because it was an industrial area, this should be reasonable o This is about damage to property, so this argument falls down. We shouldn't consider the nature of the area in this instance  However if we are considering the nature of the area, the smelting works provide employment, benefit to the community/trade/employment PLAINTIFF'S ARGUMENT:  The nature of the damage is relevant (cattle, fruit, trees, material damage)  If the wider community has all this benefit, is the plaintiff just a fair cost?

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He also has a farm and could argue that he provides benefit to the community in the form of produce, employment  Plaintiff's land is non-industrial, it is agricultural.  If we do take the nature of the land into account, we have industrial vs agricultural. o The plaintiff was awarded over 361 pounds damages  Held: Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance. o No injunction: Would the plaintiff not have wanted a halt on the production of the smelting works? The Lord Chancellor (Lord Westbury):  With regard to the personal inconvenience/interference with one's enjoyment/quiet/personal freedom/anything that discomposes or injuriously affects the senses or the nerves, must depend greatly on the circumstances of the place where the thing complained of actually occurs. o But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration.  The submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.” Court drew a distinction between two types of nuisance  “My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an, action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort.  Type A: Material Damage o Loss in market value of the farm. Maybe the farm was bought at a specific price, now the noxious fumes are causing the value of the farm to drop in terms of saleability (different concept from dead trees o Does this go to material damage? Or does this border on type B? o We don’t ask questions about locality, convenience, suitable - these questions are not relevant into our inquiry as to whether there is a nuisance with respect to the damage o To prove Type A damage, we have to show causation  Could be other industrial properties spitting out fumes, how does P know that it is the D's property causing harm? o If the Type A damage is trivial, then we cannot say that there is a nuisanc o Remedies for type A may be assessed in dollar terms o YOU MUSN'T BE SUPERSENSITIVE - the person must be reasonable o Unless you have malice, as this malice may turn it into a tort  Type B: Discomfort o E.g. noises, smell o "Sensible personal discomforts" o Sensible = something which affects our senses. E.g. noxious fumes affects our sense of smell. Noise affects our hearing o For Type B remedies, you need to think about the form and type of the remedies, the specific conditions factor in

Halsey v Esso Petroleum [1961] FACTS  From the defendant’s land emanated acid smuts which damaged the claimant’s car ISSUE  Could damages and an injunction be claimed despite the fact that Esso’s nuisance was a public nuisance? PLAINTIFF'S ARGUMENT  The claim was broadly put on two bases: pollution of the atmosphere and noise o More specifically, smells and deposits consisting of acid smuts and oily drops which fell on washing put out to dry, on fabrics inside the house such as curtains, and on paintwork, including that of a car DEFENDANT'S ARGUMENT  "We took reasonable care" (speak to describe non negligence) o This is not a defence o Indeed the defendants have gone to great lengths in some directions to do what they can to minimise causes of annoyance JUDGES REASONING  He takes into equation: o Locality  What people might expect in one area will be different from another area  In Halsey, this was an industrial AND a residential area. How do we assess this factor?  Surely the petrol depot must have to take into account the nature of the neighbourhood, which includes houses o Strength/intensity of what we're considering  A decibel reading can be done for hard evidence to determine if the noise WAS loud  The noise of people operating machines, in particular truck drivers must also be considered  Smell: The pungent smell went far beyond triviality, and is a serious nuisance to local residents o Timing - WHEN is this a problem?  This was all occurring at night. This is relevant to the remedies. One of the remedies is an injunction, which will be tailored to the situation  An injunction in relation to the noise, would not be to stop ALL noise. The injunction will take into account that people need to sleep at night o Frequency  If the interference is not that strong, but very frequent, it may become unreasonable  Vice versa, if it is very intense but not frequent, this may lean the other way  Smell: The frequency of the smell grew over the years. It was a background smell that was not just occasional, most people would be sensitive too it  Injury to health was not a necessary ingredient in the cause of action for nuisance by smell, and, since the particularly pungent smell went far beyond a triviality and was more than would affect a sensitive person, it was, in view of its frequency, an actionable nuisance

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Nature of the interference Sometimes if its just a quiet, constant background noise, this can be reasonable  This was a particularly annoying noise in this case, thus the judge draws attention too it  The nature of the smell was important. It was pungent, and "nauseating". Most people would regard this as unreasonable Reasonable use test o We apply the reasonable use test to assess the person who is going to be affected/who is affected o This test is about how would the reasonable person react to the smells, the smuts the noises  "This inconvenience is more than fanciful, more than one of mere delicacy or fastidiousness  "Not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among ordinary people living in this part of Fulham"  Whilst this plaintiff may be dainty and a nark, even though he himself is odd, nevertheless, other reasonable, ordinary people in the area agree that it has gone too far o Malice: If the actions that the nuisance is based on are being caused with nuisance, this takes it further from what a reasonable use of land is (Christie and Davey) 

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Christie v Davey (p 157) Law: Where the defendant acts out of malice, the actions are more likely to be held unreasonable FACTS  Plaintiff's are seeking an injunction against the D  The Plaintiff was a music teacher. She gave private lessons at her home and her family also enjoyed playing music.  She lived in a semi-detached house which adjoined the defendant’s property.  The defendant had complained of the noise on many occasions to no avail.  He took to banging on the walls and beating trays and shouting in retaliation.  On the 30th of September, the Defendant wrote a letter to the Plaintiff (Mr. Christie) o His Lordship read the letter, and observed that, though the parties had lived next door to each other for three years, no complaint had ever been made previously, either by the plaintiff to the defendant or by the defendant to the plaintiff  The letter was received by the Plaintiff on the 1st of October  On the 12th of October, the Plaintiffs' solicitor wrote a letter to the Defendant: o During the interval between these letters, according to the Plaintiff's evidence, unusual noises had proceeded from the Defendant's house which interfered with the comfort of the Plaintiff's family, the pupils' lesson, and the practice and composition of Miss Kennedy

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The defendant did something that he was not initially doing when he made the loud noises. This was not an increase in the noise in the carrying on of this business either. He did not report this in his letters PLAINTIFF'S ARGUMENT  The Defendant never made any complaints prior to the letters, throughout the three years they lived there  They argued the noises coming from the D's house were unusual, and that they were being made deliberately to annoy them DEFENDANT'S ARGUMENT  If the Defendant's counter-claim statements were true, he would be describing a terrible legal nuisance that would call for the interference of the Court  The D argued that the noise of musical instruments in the Plaintiffs' house goes from morning till night - 13 hours a day - including Sunday o Judge says there is no evidence of this o He goes on to say that from the evidence of the Plaintiff's 17 hours of teaching a week, this does not give the D any legal ground or complaint o The judge says he cannot ignore the fact that for three years no complaints were made by the D to the Plaintiffs.  If he had have made earlier complaints, it is likely this case may have been decided differently. RULING  This did count as nuisance  An injunction was granted to restrain the D from making noises in his house so as to annoy or vex the Plaintiffs JUDGES REASONING  Based on the Plaintiff's evidence, in the interval between 1 October and the issue of the writ in the action, the noises made in the defendant's house were of a very different character from those which had been previously made o The Judge came to the conclusion that the noises complained of did not arise, as had been suggested, in part from anything which had been done in the due course of the defendant's trade  "In my opinion the noises which were made in the Defendant's house were not of a legitimate kind" o In the language of Lord Selborne in Gaunt v Finney, the noises "ought to be regarded as excessive and unreasonable" o I am satisfied that they were made deliberately and maliciously for the purpose of annoying the Plaintiff's  The Judge was persuaded that what was done by the defendant was done only for the purpose of annoyance, which was not a legitimate use of the Defendant's house to use it to vex and annoy his neighbours  Neither on authority nor on principle could the Judge see any ground for saying that what was done in the Plaintiff's house went beyond a legitimate use of the house  The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions. o The Judge states that had there been any evidence that the actions of the Plaintiff's household had been malicious, for any improper purpose, he may have regarded the case with a very different view  The motives of the party whose actions are alleged to constitute an actionable nuisance are relevant to the question whether there is such a nuisance.

Hollywood Silver Fox Farm Law: Where the defendant acts out of malice, the actions are more likely to be held unreasonable FACTS  Hollywood Silver Fox Farm carried on a business of raising silver foxes which are very skittish - if disturbed during breeding they may refuse to breed, miscarry or kill their young.  The defendant was a farmer and animal rights activist who owned land adjoining to the fox farm  He objected to the carrying on of the farm and deliberately encouraged his son to fire his gun in order specifically to frighten the foxes and impair their ability to breed.  It was hoped that this would cause economic harm to the fox farm and cause them to end their operation.  The foxes miscarried and the claimant sued in private nuisance requesting an injunction to prevent this behaviour. o Only 9 cubs were born, where usually 26 would be expected ISSUES  Does a landowner have an absolute right to create noise on his property?  Was this an action capable of constituting a private nuisance considering the unusual sensitivity of the foxes?  Was the unusual sensitivity important considering the defendant’s intention to scare the foxes? DEFENDANT'S ARGUMENT  The D argued he was entitled to shoot on his own land, and that even if his conduct was malicious, he had not committed any actionable wrong  The D's attorney relied mainly on the decision of the House of Lords in the case of Bradford Corporation v Pickles [1895] o In Bradford, the Corporation of Bradford tried to stop Mr. Pickles from sinking a shaf on land which belonged to him because, according to their view, his object in sinking the shaf was to draw away from their land water, which would otherwise come into their reservoirs o The court held that as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives. o Despite the malice, there was no liability  Bradford Corporation v Pickles: Motive is immaterial/irrelevant  This suggest that in some cases, malice will not affect the outcome of the case  It was also argued that in the present case, the defendant had not committed any nuisance, by referring to Robinson v Kilvert (1889) o In this case, a complaint was made by the tenant of the ground floor of a building that the tenant of the basement was making the basement so warm that the brown paper which he kept on the ground floor suffered damage o It was held by the Court of Appeal that no actionable wrong had been committed by the defendant, in that the heating was not of such a character as would interfere with the ordinary use of the rest of the house o If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant will not be liable unless the activity would have amounted to a nuisance to a reasonable person using the land in a normal manner

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This case looks like Type A nuisance, however there was no liability - this is because it was a reasonable use of the land The damage was due to the sensitivity of the paper - this is similar to the delicate nature of the foxes in the present case Malice, may have changed the outcome of this case.  The authority on this is Christie v Davey, and Halsey

RULING  Injunction granted. o Restrained the defendant from committing a nuisance by the discharge of firearms or the making of other loud noises in the vicinity of the Hollywood Silver Fox Farm during the breeding season  The defendant’s actions did constitute a private nuisance even considering the unusual sensitivity of the claimant  HELD: H awarded 250 pounds, and an injunction limited to breeding season. JUDGES REASONING  "In my opinion the decision of the House of Lords in BradFord Corporation v Pickles has no bearing on such cases as this" o They distinguish this case. This is rationalised by saying in these cases where malice was relevant, we are asking what is a reasonable use of the land, weighing up various factors. The outcome is a matter of degree. o Whereas in BradFord, there was a right on the part of Mr Pickles to use the water on his land. It was much more black and white, as opposed to the grey situation in Christie v Davey  The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice  Emmett argued that the plaintiff's business required an extraordinary degree of quiet and therefore should not prevent him from using his land in a way that would not be a nuisance to the general public and, relying on the decision in Bradford, that his right to shoot on his own land could not be made illegal by his motives.  The court held that there was a nuisance and that when considering a nuisance for noise the motive for the production of the noise must be taken into consideration; whether or not he was using the land in a legitimate and reasonable manner.  Citing a previous case, they held that "[n]o proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours".  E Follows Christie v Davey (1893), to say that it is a nuisance.  E's actions were driven by malice and/or spite. E was doing so deliberately for a malicious purpose. o Whilst the foxes were unusually timid and sensitive to noise, the defendant intentionally attempted to frighten the foxes through the firing of his gun on his own land. o This was done with the intention of impairing their ability to breed and to cause the fox farm economic loss as a result. o As it was intentional the defendant’s actions could, and did, constitute a private nuisance. o The injunction could be granted to restrain the defendant from firing guns on his own land because of this. Economic value  This is not limited to only physical damage

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Financial loss, in terms of market value, is just about money. This doesn't fit into the classic Type A scenario Drop in market value could affect our comfort, does this mean it fits into Type B? In this case, this is not a classic Type B case. There is no noxious smells, or typical Type B damage. Hawkes Bay Protein Ltd v Davidson o If there is a drop of market value you want damages/injunction  Injunction may have prevented this financial loss, so the judge did not grant damages  "Damages for capital loss fitted awkwardly into a cause of action focused on transitory interference, traditionally remedied through an injunction. He decided that the plaintiffs had failed to mitigate their loss by bringing proceedings for an injunction before they sold the property" If the use of your land leads to actual damage, like the spotting of the car in Halsey, then this looks like an unreasonable use of land. However in other situations, there will be much more of a weighing up exercise

Social Utility  In a case like Halsey, we noted that there was some social positives in terms of the activities of the defendant's, petrol depots o Should this be taken into account when doing the assessment of whether there is an unreasonable use of land? o Because of the employment and overall general benefit to the community, should this override the 'little man's' complaints? BNZ v Greenw...