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NUISANCE A good preliminary definition can be found in Miller v Jackson. Case in Focus: Miller v Jackson [1977] QB 966 The claimants lived next to a cricket ground, and their garden was only 100 feet away from the nearest batting crease. This meant that several cricket balls were hit onto their property, causing minor property damage and constituting a risk to the claimants. Whilst the cricket ground attempted to take several measures to abate the issue, cricket balls continued to be hit into the housing estate where the claimants lived. They thus sought an injunction against the cricket club. The claim was successful – the cricket ball risk constituted nuisance. Of note is the description of nuisance from Denning MR at 980: “The very essence of private nuisance […] is the unreasonable use of man of his land to the detriment of his neighbour.” There are two primary features of nuisance – firstly, it involves the protection of the use of land (or property). Secondly, that protection is from unreasonable interference. This can cover a wide range of neighbour-neighbour relationships. There is no requirement that the claimant and defendant properties be adjoined – so a neighbour two doors down can be a defendant in a case of nuisance. Conversely, there is no need for the properties to be separate buildings, so claimant and defendant can live in flats in the same block. Nuisance does not have to be artificial – it can be naturally occurring, so encroaching branches can constitute nuisance, or a neighbour could plant a nursery of extremely smelly corpse flowers. As seen in Miller v Jackson, it can cover activities which take place on a piece of land. A factory might pour acrid smoke into a residential area – but it should also be noted that private nuisance does not just protect residential rights, but all land uses. A residence can, thus, cause nuisance to an industrial site. Property Interests and Private Nuisance Since nuisance deals with property rights, it is necessary that a claimant has a proprietary interest in the property which is interfered with. This might be as an owner, leaseholder or tenant. Further details on the concepts of proprietary interests and beneficial interests can be found within property law resources. The need for proprietary interest stems from Malone v Laskey. Case in Focus: Malone v Laskey [1907] 2 KN 141

The claimant lived next door to a business which used heavy machinery. She lived with her husband, who was allowed to live in the property because he was a manager employed by the business which let the property. In property law terms, he was a licensee. One day, the vibrations from the machinery next door caused the toilet cistern to fall from a poorly installed bracket, injuring the claimant. Her claim in private nuisance failed – she lacked a proprietary interest in the property, and thus the tort was unavailable to her as a claimant. For a brief period of time in the mid-90s, this requirement was removed, in the case of Khorasandijan v Bush [1993] QB 727. The claimant, an 18year-old woman, was subjected to a campaign of harassment by a 23year-old man. He threatened her with violence and behaved aggressively towards her, even spending time in prison for threatening to kill her. An injunction was obtained against the defendant on the basis of private nuisance. On the basis that it would be absurd to not extend the protection of private nuisance to the claimant on the basis of her lacking proprietary rights, this requirement was overturned, and the injunction remained in place. This stance changed in 1997, however. It should be noted that the Protection from Harassment Act 1997 came into force, providing a nonnuisance basis for injunctive protection from Khorasandijan v Bush type behaviour. The proprietary right requirement was reinstated in Hunter v Canary Wharf [1997] AC 655. A number of residents living in the Canary Wharf area experienced interference with their television signals due to the construction of the 800-foot Canary Wharf Tower. Some of the claimants were homeowners and leaseholders, whilst some were family members, lodgers, and others who lacked a proprietary interest. The House of Lords reinstated the proprietary interest requirement of Malone v Laskey, although added an amendment that a spouse’s beneficial interest (another property law concept) conferred upon him or her a proprietary interest. This means that, as in 1907, private nuisance remains a matter of property rights, rather than personal rights. What Constitutes Unreasonable Interference? The second key element of private nuisance is that of unreasonable interference - that is, use of land or property in a way which would foreseeably interfere with the claimant’s quiet enjoyment of their own land. There are five main factors which, to date, have been used to determine unreasonableness – character of neighbourhood, claimant sensitivity, nuisance duration, public benefit, and defendant malice. Character of Neighbourhood Character of neighbourhood refers to what might reasonably be expected of a particular area – so whilst it would be unreasonable for a factory to

cause a lot of noise in the middle of an idyllic countryside setting, the same noise would likely be found reasonable if found in an industrial estate. Thus, the relative amplitude of a nuisance depends on its context. This principle can be found in Sturges v Bridgeman [1879] 11 Ch D 852. The defendant ran a confectionary shop, and used a noisy pestle and mortar in his kitchen for the purpose of grinding up ingredients. A physician moved into the neighbouring property, and built a consulting room next to the noisy kitchen. The claimant brought an action in nuisance against the defendant, aiming for an injunction against the noise. The claim succeeded on the basis that the activity was unreasonable, given the character of the area. In giving his judgement Thesiger LJ provided the principle of neighbourhood consideration: “…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;” 

Thesiger LJ, at 865.

It should be noted that the factor of neighbourhood character only comes into play when the nuisance is one which causes inconvenience to the claimant, rather than physical damage. So, if the subject of the complaint is noise or smell, then the defendant will be able to refer to the character of their neighbourhood as a demonstration of how their behaviour is not unreasonable. If the nuisance causes physical damage (such as acid discharge damaging a claimant’s trees, or cricket balls damaging paint and roof tiles), then neighbourhood character will not form a valid defence. Physical damage remains an unreasonable nuisance, regardless of neighbourhood context. This principle can be seen in St Helen’s Smelting Co v Tippings [1865] 11 HL Cas 642. The claimant owned a manor house and some 1300 acres of land. This was situated nearby to the defendant’s copper smelting business. Discharge from the smelting process caused damage to greenery on the claimant’s land. The defendant argued that his business was located amongst a number of other heavy industrial processes, including an alkali processing plant, and that the claimant had purchased the property in the knowledge of this. The claim succeeded – neighbourhood character had no bearing on claims in tort of the nuisance of property damage. Sensitivity of the Claimant Whilst claimants will by definition be annoyed by a nuisance (else why would they bring a claim?), this is not the test for private nuisance. Instead, the existence of nuisance will be judged against its effect on a reasonable person. If it is held that the claimant is simply unusually sensitive to a nuisance, or is using their property for an unusual purpose (which in turn is disrupted by the nuisance), then the nuisance will not be legally recognised.

This can be argued to be a theoretical inconsistency within the tort of nuisance – the claimant who brings the case to court must have a personal (and thus subjective) proprietary interest, but in examining their claim the courts take an objective, rather than a subjective view of nuisance. This can perhaps be explained by reference to the fact that whilst the need for a proprietary interest is a personal hoop the claimant must jump through, it provides a convenient gatekeeping mechanism to prevent all-comers from lodging claims (and by extension, stops businesses from using nuisance as a way to stop competitors’ operations.) The use of the reasonable person/ordinary land use test can be seen in Robinson v Kilvert [1889] 41 Ch D 88. The defendant ran a business which manufactured boxes. This process required that the basement of the defendant’s property was kept at a warm, dry temperature. The defendant let out the room above the basement to the claimant, a paper merchant, who stored his stock in the room. Due to the heat of the basement operation, the claimant’s stock was damaged, and he brought a claim in nuisance. The claim failed – it was held that the nuisance was not one which would affect the reasonable claimant, and it was only the claimant’s particular business which caused the nuisance to manifest. It should be noted that there exist circumstances in which the claimant’s annoyance will be because a particular activity of theirs is affected by a nuisance, but it is nonetheless one which would still interfere with the ordinary person. So in the case of Robinson, if the room above the heated basement was uncomfortably warm at all times of the day so that an ordinary person wouldn’t have been able to spend their time there, then the claim would likely have succeeded. It should also be noted that the relevant standard is that of ‘ordinary use’. This should not be taken as meaning that the disruption of a specific activity is not grounds for nuisance, as long as that activity is considered by the courts to constitute normal use. So it might be that a nuisance prevents rugby from being played in a field – as long as the court holds that playing sport in the field constitutes ordinary use, then the claim will likely succeed. Duration of Nuisance There must be some continuity to the duration of the nuisance. ‘Continual’ is a distinct concept from ‘constant’ as far as private nuisance goes. So whilst loud trucks five days a week leaves an occupier with two days of peace, the fact that the nuisance reoccurs means it is actionable, since it will be regarded as continual for the purpose of nuisance. This is a practical principle – it wouldn’t be sensible to allow a defendant to point to brief periods of non-nuisance as a defence. At the same time, the law is usually only concerned with dealing with nuisances that will likely reoccur: a one-off music festival might annoy the neighbours, but there’s nothing for the law to do once it has been and gone forever. There have been rare exceptions to this rule, however, as in Crown River Cruises v Kimbolton

Fireworks [1996] 2 Lloyds Rep 533. The defendant put on a firework display, during which some burning debris from the display landed on the claimant’s barge, setting it aflame. Despite the nuisance of burning debris only continuing for 20 minutes, the claim succeeded. This case should be considered an eccentricity, however – the judiciary even noted that the finding of nuisance was an attempt to avoid applying the Rylands doctrine (see Potter J’s judgement in this case, and the discussion of Rylands below.) Although the courts will look for an ongoing nuisance, that ongoing nuisance can be instigated by a single act. This can be seen in Spicer v Smee [1946] 1 All ER 489. The defendant installed faulty wiring on his property, which eventually caused a fire to break out which damaged the claimant’s property. Although the act of installing faulty wiring was a oneoff, the ongoing threat of fire from that wiring was considered an ongoing state of affairs, and thus satisfied the test for nuisance. It should be noted that temporary nuisances can still be considered continual – so a month-long music festival which goes on all night can be considered a nuisance. An example of both the continuance principle and of temporary nuisance can be seen in De Keyser’s Royal Hotel v Spicer Bros(1914) 30 TLR 257. The defendants were using a noisy pile driver to complete a construction project. The claimants – hoteliers, had complaints from their guests that they could not sleep, and that after-dinner speakers could not be heard. The claimants sought an injunction against the defendant’s activity. The claim was successful – the interference was of an unreasonably nature, and its temporary nature was not obstacle to a finding of nuisance. Exam Consideration: A useful tool to judge ‘continuance’ can be to simply ask how many times a nuisance will be annoying. So in De Keyser, the noise from building annoyed guests over a number of nights. Public Benefit The courts will also consider the public benefit of the nuisance action – much as they will in an action for negligence. This is a key mechanism for distinguishing between reasonable and unreasonable conduct – a neighbour playing thrash metal loudly all day is doing little to benefit the public, but a hospital which is carrying out building works to create a new treatment wing is. The courts will generally hold that construction is of public benefit – after all, everywhere you’ve ever lived, and every shop or business you’ve ever used had to be built at some point! Of course, defendants are rarely given free rein to annoy their neighbours; they will still have to act reasonably in carrying out their publicly beneficial activity. Building a new library is great, but not if work continues 24/7 in a residential area without good reason.

Malice If it is found that the defendant is acting with deliberate hostility or spite, this makes it far more likely that their actions will be found to be unreasonable. In a similar manner to the way in which the law will look favourably upon a claimant with ‘clean hands’, in nuisance cases it will treat defendants with ‘dirty hands’ less favourably. This can be seen in Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2 KB 468. The claimant was engaged in the (now banned) practice of fox fur farming. Silver foxes are particularly timid, and if disturbed whilst pregnant are especially prone to miscarriage. They are also prone to infanticide if they are disturbed whilst they have cubs. The defendant took issue with the claimant’s farm, on the grounds that he thought it devalued his neighbouring property. He, therefore, took to firing his shotgun regularly in order to disturb the claimant’s foxes. The claim succeeded – whilst it was ordinarily reasonably for a farmer to fire his shotgun on his land, and the claimant’s activity was out of the ordinary, the fact that the farmer’s actions were malicious rendered them unreasonable. Exam Consideration: Unless a defendant is particularly foolish, they will rarely spell out the intent of their actions. However, it is sometimes possible to find malice if the defendant is acting in a particularly inexplicable manner. Private Nuisance Must Cause Harm Once it has been established that a claimant has a proprietary right, and the defendant’s actions are unreasonable, the claimant must demonstrate that there has been some harm from the defendant’s actions. Three types of recognised harm were laid down in Hunter v Canary Wharf (described above.) The first category is encroachment – where the defendant’s activity or land directly affects the claimant’s property. The classic scenario here will be where subsidence is caused in the claimant’s property, usually by tree or hedge roots from the defendant’s property. Secondly, where the defendant’s use of their land causes physical damage to the claimant’s property, as in St Helen’s Smelting Co v Tippings, discussed above. Thirdly, where there is an interference with the claimant’s enjoyment of their property. This category includes cases involving noise or odour. De Keyser provides an example of the former category. Certain scenarios will present a combination of these harms, so Miller v Jackson (above) involved both property damage and the prevention of the claimants being able to safely use their garden. Public Nuisance

There exists a second category of nuisance cases, distinct from private nuisance. This category of cases is called public nuisance. Public nuisance is first and foremost a matter of criminal law - a common law offence which a party can be cited for. However, if an individual can demonstrate that they, as an individual, have been especially affected by a public nuisance, then they can make a claim in tort. A working definition for public nuisance can be found in Attorney General v PYA Quarries Case in Focus: Attorney General v PYA Quarries [1957] 2 QB 169. The defendant owned a quarry, which emitted large amounts of dust and grime into the surrounding residential area. The equipment also caused damage via vibration to the surrounding properties. Romer LJ provided the following description of public nuisance at 184: “any nuisance is 'public' which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. […] It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.” Thus, the key to public nuisance is that a class of persons are affected by a nuisance (but not all of them, just a substantial proportion.) This can be regarded as an extension of the ethos of private nuisance – just as tort law will seek to ensure an individual can enjoy their property in relative peace, the criminal law will seek to extend this protection to a group of people. This also recognises the fact that there will often be nuisances which affect more than one individual. Rather than several individual cases in nuisance, public nuisance deals with activities which are so anti-social in nature that they become criminal. Since criminal sanctions will do little to aid the individuals affected, a tort case can thus be appended to the criminal case so that individual claimants can seek compensation for their harm. What Constitutes a ‘Class of People’? A sufficiently large class of people is required before a public nuisance case can succeed. At a bare minimum, the affected group of people must be so large that, in the words of Lord Denning in Attorney General v PYA Quarries: “it would not be reasonable to expect one person to take proceedings […] to put a stop to it but that it should be taken on the responsibility of the community at large.” This doesn’t give us a direct number, however. This is because whether a class is large enough will depend on the facts of the case at hand. There are several examples of note, however. In R v Ruffel [1991] 13 CR App R the organiser of a rave in a field was held criminally liable for public nuisance – the loud music and litter was held to have caused a public nuisance to local residents. It can, thus, be seen that a local community can constitute a class of people.

In R v Ong [2001] 1 Cr App R (S) 117 a betting scam was orchestrated in which the floodlights at a Premiership football ground were sabotaged so that they could be turned off via remote, causing an abandonment of the match. This meant that the defendant could profit from a rule of their betting syndicate which stipulated that the result of an abandoned match would be recorded as it stood at the point of abandonment (so if the bookie’s favoured team was winning, they could effectively end the match at will.) This was held to be a public nuisance to the spectators, who had their enjoyment of the match impaired. Thus, a group of people with a common interest can constitute a class of people. A group of road users can be a class of people, as in Castle v St Augustine’s Links [1922] 38 TLR 615. Golf balls were regularly hit onto the road from a nearby course – constituting a public nuisance...