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NUISANCE & RYLANDS v FLETCHERPrivate Nuisance?A private nuisance may be defined as an unreasonable interference with use and enjoyment of land or with some right over, in connection with it.Public Nuisance?By contrast it is a crime and is actionable by the A-G in the public interest.Basi...

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NUISANCE & RYLANDS v FLETCHER Private Nuisance? A private nuisance may be defined as an unreasonable interference with use and enjoyment of land or with some right over, in connection with it. Public Nuisance? By contrast it is a crime and is actionable by the A-G in the public interest.

Basis of liability in private nuisance is not straightforward. Main concern is NOT the quality of D’s conduct but it is the reasonableness and lawfulness of interference with C’s interests in land. A nuisance is an unlawful interference with such interests. Only those with an interest in the land may bring an action.

1. Private Nuisance Nuisance is separate from the tort of negligence. 1.2 The basis of liability: placing private nuisance on the ‘map’ of tort law ‘Private nuisance may be described as an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’ per Scott LJ Read v Lyons 1945 It is different from negligence because the definition of protected interests in nuisance is both narrower (relating only to interests in or rights over land) and within that field in some senses broader (including losses that would be regarded as intangible and probably some that would be regarded as purely economic in negligence terms). In terms of relevant conduct – no requirement that the conduct of D should be careless. In some instances, nuisances can arise from perfectly careful, deliberate behaviour. Lord Goff clearly put it in a key modern case: Cambridge Water v Eastern Countries Leather plc 1994 “if the user is reasonable, D will not be liable for subsequent harm to his neighbours enjoyment of land; but if the user is not reasonable, D will be liable, even though he may have used reasonable care & skill to avoid it” ‘Continuing Nuisances’    

Nuisances may be and often are continuing. The core concern is with deliberate activities causing interference, rather than with momentary carelessness causing loss. Continuing nuisances requires looking to the future (negligence more retrospective) They key question in cases of continuing nuisance is whether there should be an injuction to stop the unreasonable interference: it is normally thought that only in rare instances would damages be award ‘in lieu’ of the injunction in such a case, although damages may also be sought to compensate for past interference.

In summary, nuisance requires that the interference must be judged to unreasonable (assessment of all circumstances). However there is no general requirement that conduct should be unreasonable. In particular, lack of due care will not be essential.

1.3 Elements of actionability 1. Type of interference which may be involved? In Hunter v Canary Whard Lord Llloyd: “private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbours land (2)nuisance by direct physical injury to a neighbours land (3) nuisance by interference with a neighbours quiet enjoyment of land”  

Quiet enjoyment complaints make up the bulk of nuisance claims e.g noise, dust, vibration or smell. Physical encroachment – e.g tree roots & cases of physical damage to the land.

There is also another category of case not mentioned by Lord Lloyd  interferences with specific rights over land e.g easements. Midtown v City of London Real Property Co Ltd (2005) 

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C’s established that they had acquired a right to light by prescription pursuant to s.3 of the Prescription Act 1832: a right to light to a building is absolute and indefeasible if it ‘shall be naturally enjoyed therewith for a period of 20years without obstruction’ In this particular case, the interference amounted to a nuisance.

Lord Goff Hunter v Canary Wharf – needs to be some sort of ‘emanation’ from D’s land “.. generally arise from something emanating from D’s land. Such as noise, dirt, fumes, a noxious smell, vibrations. Occasionally activities on D’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance as in Thompson-Schwab v Costaki [1956] where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into category. Such cases must however be relatively rare. In one New Zealand case, Bank of New Zealand v Greenwood [1984] the glass roof of a building deflected the suns rays so that a dazzling glare was thrown onto neighbouring buildings was held prima facie a nuisance… such a case can be distinguished from one concerned with mere presence of a building as the dazzling light was too much for the human eye to bear. At all events the mere fact that a building on D’s land gets in the way and so prevents something from reaching C’s land is generally speaking not enough for this purpose” Interference with television reception (which Hunter v Canary Wharf was about) could ever amount to a nuisance in English law? In this case no, however if it is capable it will be on basis that there is a substantial interference with ‘an important incidence of ordinary user of property’

2. Unreasonableness of Interference Relevant interference must also be judged to be ‘unreasonable’. Unreasonableness is one of the key concepts in nuisance law.

Some cases discuss the issues in terms of whether D’s use of land constitutes a ‘reasonable user’. The meaning of ‘reasonable user’ is introduced here through two influential 19th century cases: Bamford v Turnley 1862   

C complained of interference from smoke and smell arising from the burning of bricks by D. Issue? Is it a defense to say D was using land in a reasonable manner? Bramwell B, Synopsis of Rule of Law. Even if activity performed on one’s land is necessary or for the public benefit, one cannot infringe on the rights of another individual. If one does, they must compensate the other for damages.

St Helens Smelting Co v Tipping –public interest/local prosperity vs established property rights    

C brought an action in respect of damage allegedly (damage to trees) being caused to his property by copper smelting works on neighbouring land Land that was purchased was in an area which industrial smelting of copper was wellestablished activity. (suggested negotiated price was affected by the construction of the smelting works) Tipping successfully applied for an injunction to restrain smelting works & equitable remedy was granted despite knowing of the construction plans.

HoL was asked to set aside the judgement of the courts on the important but narrow ground that the neighbourhood was one devoted to the manufacturing process. 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. 

This case & Lord Westbury seem to lay down that the ‘locality principle’/’character of the neighbourhood principle’ is only relevant to certain cases of nuisance, namely those which to relate to a mere interference with comfort and convenience.

Summary: unreasonableness and reasonable user Our general statement of private nuisance referred to ‘unreasonable interference’. The idea of a ‘reasonable user’ introduces slightly different terminology, focusing on D’s use of the land, rather than the effect on C. Because of the accepted interpretation of St Helens v Tipping, reasonable users applies to those nuisances falling short of ‘material physical damage’ Reasonable user is not the same as reasonable conduct, since some activities in some places are destined to be judge unreasonable no matter how carefully they are carried out. UNREASONABLENESS: SPECIAL CONSIDERATIONS Sensitivity In the case of ‘amenity’ type nuisances, private nuisance will not protect unduly sensitive claimants. Private nuisance protects only ordinary use and enjoyment of land. Knight Bruice V-C in Walter v Sele [1851] was cited in Vanderpant v Mayfair Hotel Co Ltd [1930] “it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among English people”

Cases of physical damage?? Robinson v Kilvert [1889]  Hot, dry air in a cellar caused damage (by D’s tenant) to paper stored by C.  Ordinary paper would not have been damaged.  Action in nuisance failed  C could not prevent D from making use of the cellar in reasonable way nor convert than into a nuisance by choosing a sensitive use of the premises. Therefore, even in cases of physical damage, the remoteness rules applies in nuisance. But, if C’s sensitivity affects only the extent of damage suffered, then D must compensate to the full extent of the loss. Canadian case – McKinnon Industries v Walker [1951]  Emissions from D’s factory foreseeably damaged Cs plants.  These happened to be valuable orchids, thus increasing the sum payable in damages.  C’s sensitivity had not caused D’s activities to constitute a nuisance, but had merely increased the size of the losses suffered. (i.e – ‘any’ orchid would have been damaged by the fumes, but as these orchids happened to be valuable  higher damage suffered)  distinguishable from Robinson v Kilvert.

MALICE Turning from the claimants use, to D’s use, bad motive on the part of D will sometimes tip the balance decisively in C’s favour. Christie v Davey [1893]  D deliberately created a noise nuisance  Solely in retaliation against his neighbours (C)  C provided music lessons – semi detached home shared a wall  Since there was no legitimate reason for the noise interference from D’s, in contrast with the innocent (perhaps raucous) activities of C, D would be restrained from continuing. North J – “if what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case…” But was purely done in the purpose of vexing and annoying the neighbour & not legitimate use of the land. Christie v Davey was followed in Hollywood Silver Fox Farm v Emmet [1936]  C kept silver foxes  D arranged for guns to be fired near to his boundary with Cs land  As near to the female foxes (vixens) pen as possible, solely in order to prevent successful breeding of the animals  Macnaghten J awarded damages and an injunction to prevent such behaviour during the foxes breeding season. Compared to these 2 authorities, an opposite result was obtained in the very different case of Bradford Corporation v Pickles [1895] HoL  C supplied water to the city of Bradford.  Supplied from a spring on the land owned by C  D who owned land above the spring.  Ds land acted as a sort of natural reservoir for water which flowed

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It was common ground that neither party had any legal interest over the water itself. HoL refused the injunction as there is no ownership in underground water from undefined channels.  C claimed D had done it maliciously to hike up the price of land.  HoL was not persuaded of this. Lord Halsbury “I am not certain that I can understand …. The D did something maliciously that he had the right to do” ---Planning permission & the character of the neighbourhood Coventry v Lawrence 2014 UKSC         

C bought a house situated close to a sports stadium used for various motor sports These uses were the subject of planning permission CoA focused on ‘character of locality’ SC focused on ‘public interest matters’ Coming to a nuisance is no defence Planning permission also not a defence Award of damages instead of an injunction Prima facie remedy is injunction… D has to show why damages should be awarded instead of injunction.

In the present case, the injunction would be restored (albeit stayed because the house was yet to be rebuilt after a fire) but if the matter were to go back before a judge then that judge should be able to consider whether to award damages instead.

Lord Neuberger “the decision whether an activity causes a nuisance to C is not for the planning authority, but for the court” The conclusion that planning permission cannot be taken to authorise a nuisance, even by changing the nature of the neighbourhood. Who may be sued? Occupiers who do not create the nuisance  Some occupiers clearly benefit from states of affairs which were created by someone else. Sedleigh-Denfield v O’Callaghan [1940]  A pipe was laid on D’s land without their knowledge or consent, by a trespasser (Middlesex County Council laid It for the benefit of neighbouring occupier)  Occupiers subsequently became aware of the existence of the pipe  During a heavy rainstorm , pipe became blocked & water overflowed onto C’s land  HoL held: D’s had sufficient connection with the nuisance to be treated as both adopting it, and continuing i. Viscount Maughan “ an occupier of the land “continues” a nuisance if with knowledge or presumed knowledge of its existence he fails to take any reasonable steps to bring it to an end though with ample time to do so” Goldman v Hargrave [1967] Privy Council

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Tree on D’s land was struck by lightening and caught fire Tree was cut down to help fight the blaze D did nothing to put the fire out, just allowed it to burn out itself. Found D could have extinguished it Change of weather caused the fire to blaze up and spread to C’s land.

^ Sedleigh-Denfield v O’Callaghan [1940] applied Lord Wilberforce “support the existence of a general duty upon occupiers in relation to hazards occurring on their land, whether natural or man made”

Leakey & Others v National Trust 1980  C’s two houses had been built at the foot of a large mound of earth  This land owned and occupied by D  Due to natural weathering & other factors debris had fallen on the houses over a number of years  Further years later there was a large crack in the soil above their houses and further damage. CoA – reaffirmed Goldman that the occupier of land owes positive duties to a neighbour in respect of a nuisance arising on his land through the operation of natural forces. Also re-affirmed that the duty in goldman was subjective! “so the steps which ought reasonably to be taken would vary depending on the resources of D”

Holbeck Hall Hotel Ltd v Scarborough BC [2000] CoA Coastal erosion case  D owned the undercliff between the grounds of C’s hotel & sea.  Had been 2 landslips on D’s land below the hotel in 1980s – some repair work after  1993 a major landslip caused loss of support to the hotel and grounds and the hotel itself had to be demolished. Raised questions about the extent of measured duty of care CoA determined that Sedleigh & Leakey applied to a case of loss of support & considered if D’s ought to have known of the danger to C’s land, and thus whether a duty of care arose? Stuart Smith LJ drew a distinction between patent dangers and latent dangers Patent = easily observed “if the defect is latent, the landowner or occupier is not held to be liable simply because, if he had made further investigation he would have discovered it” “it is in my view that Scarborough did not foresee a danger of anything like the magnitude that eventuated” Nuisance created by tenants and licensees Baxter v Camden LBC [2001] HoL

 C claimed she suffered serious interference in her enjoyment of the flat as a result of the normal day-to-day noise generated by her neighbours  Noise not unusual , but was made worse by poor sound installation during conversion of the house into flats  Claim in nuisance was dismissed  The lessor is liable for nuisances created by the tenant only if he or she has authorised that nuisance. If the tenant does not create a nuisance, landlord didn’t authorise  not liable Hussain v Lancaster CC [2000] CoA    

Tenants carried out a series of acts including racial harassment of neighbours and acts of vandalism against their properties The council as landlords subject to actions of negligence and nuisance for failing to control the tenants Both claims failed Hirst LJ held : acts of the tenants ‘did not involve the tenants’ use of the tenants land and therefore fell outside the scope of the tort.

(reference to the fact that they left their own homes in order to carry out their actions) Lawrence v Fen Tigers [2015] HoL – Lord Neuberger suggesting that for a land lord to be liable they ‘must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property’ Cocking v Eacott [2016] – Voss LJ summarised the position “there had to be actual, active or direct participation by the landlord or his agents, and the fact that a landlord does nothing to stop or discourage a nuisance cannot amount to participating in it”. Licensees Lippiatt v Gloucestershire CC [2000]

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Travellers had congreagated on D (council) land C were tenant farmers – land situated on other side of the road They complained to C that the travellers frequently trespassed on their land & carried out further damage (such as throwing rubbish and theft) First instance judge – following Hussain, the nuisance had not arisen from the licensees’ use of the council’s land. CoA: ruled however that the action should not be struck out. Council was liable as they allowed the licensees to congregate. Ought to have taken steps to remove them from the land.

WHO MAY SUE?? Hunter v Canary Wharf 1997– HoL affirmed that nuisance is to be regarded as a tort against property, and not a tort against the person.   

C lived in London Dockland area – designated by secretary of state as an urban development area and enterprise zone. Amounted to an effect of general grant of planning permission. Some of the claimants were property owners or leaseholders ; others were mere occupiers. (including children in occupier group)

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They claimed against the interference, following the construction of Canary Wharf, to their television reception/signal. 1) Interference with television signal not a private nuisance 2) Could all the claimants sue in nuisance? No – Lord Hoffman “it is plain that in such a case only a person with an interest in the land can sue” Wives and children as occupiers do not have interests in the land.

Article 8 ECHR a right to respect for one's "private and family life, his home and his correspondence – MAY BE AN ISSUE NOW? DEFENCES 1. Prescription – 20 years consecutively created the ‘nuisance’ 2. Coming to the nuisance? it is well established that D cannot argue by way of defence that C came to the nuisance Sturges v Bridgman leading authority & reaffirmed in Coventry v Lawrence 2014 UKSC 3. Public interest? Public interest in the activities of D is not generally considered to be a defence to an action in nuisance. Dennis v Ministry of Defence 2003 – discussed this Buckley J – “For example the local cricket club case: Miller v Jackson 1977 … “ Buckley J considered the case law not to determine the answer to his simple question of whether the public interest could amount to a defence. The case of Miller v Jackson appears to be unique in stating clearly that the public interest – in preserving the playing of cricket on village greens – outweighed the private interests of neighbours such that they could have no action in nuisance. Instead of a defence…now means it can vary the remedy awarded. There will be a nuisance… but damages can be awarded in lieu of an injuction. Coventry v Lawrence adopted same approach. REMEDIES 1. Abatement Burton v Winters 1993 gives an indication of the types of case in which abatement will be appropriate. “the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or an encroaching root, which would not justify the expense of legal proceedings and urgent cases which require an immediate remedy” 2. Injunctions In cases of continuing nuisances, the majority of claimants will seek an injunction. Court has a lot of flexibility – instead of fully prohibiting activit...