Private Nuisance - Lecture notes all PDF

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Private Nuisance Lecture notes Lecture outline What conditions need to be met in order for there to be a successful claim in private nuisance? How does Rylands v Fletcher liability relate to liability in private nuisance? What are the requirements of public nuisance? What is private nuisance? In Rea...

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Private Nuisance Lecture notes Lecture outline •

What conditions need to be met in order for there to be a successful claim in private nuisance?

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How does Rylands v Fletcher liability relate to liability in private nuisance?

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What are the requirements of public nuisance?

What is private nuisance? In Read v Lyons, Scott LJ defined it as: ‘…an unlawful interference with a person’s use or enjoyment of his land, or some right over, or in connection with, that land.’

What constitutes as an unlawful interference?

1) There must be an interference with the plaintiff’s use or enjoyment of land. For example, physical injury to the land, but it doesn’t have to be damage, it can just be something that affects your enjoyment. 2) The defendant’s actions must constitute an unreasonable use of their land – biggest factor to consider 3) The plaintiff must have the required interest in land in order to have capacity to sue – human rights dimension 4) The defendant must be responsible for the interference in order to be found liable. 5) There must be an absence of any defence.

6) A number of remedies may be available.

What constitutes an interference with the use or enjoyment of land? •

Typical situation: the defendant does something on their land that causes something to be emitted (e.g. noise, fumes etc), continuously or intermittently, onto the neighbouring land of the plaintiff and this either causes physical damage to the land or interferes with the plaintiff’s enjoyment of their land (i.e. amenity nuisance).

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Private nuisance is not actionable per se so there needs to be some loss – different to trespass of the land

Case example of physical damage: St Helens Smelting Co v Tipping (1865) 11 HL Cas 642 The claimant was the owner of a large country house with over a thousand acres of land. This land was close to a copper smelting factory which had long been in operation. The smelting factory discharged noxious gases as a result of its operation, which were considered to be a normal part of the smelting operation. As a result, trees on the claimant’s land were damaged by the fumes and noxious gases. The claimant sued in nuisance.

Held

The claim was allowed. It was no defence to say that the claimant ‘came to the nuisance’ and the defendant could not be said to have acquired a right through prescription to continue to discharge noxious fumes. Whilst smelting and the discharge of these fumes was not in itself unlawful, and in a locality in which this was to be expected there could be no nuisance. However, in nuisance cases like this, it is necessary to distinguish between

nuisance alleged to have caused loss of amenities and comfort, and nuisance which is said to have caused physical damage to property. Where there had been physical damage to the claimant’s property as had occurred in this case the question of the character of the locality itself was irrelevant, where it may have been relevant if the alleged nuisance was only in the form of discomfort.

Case example of amenity nuisance Hunter and Others v Canary Wharf Ltd [1997] 2 WLR 684 A large tower was constructed in the Docklands area of East London which now goes by the name of One Canada Square. It was constructed by Canary Wharf Ltd. The tower was 250 metres tall and was completed near the end of 1990. Its location was very close (less then 10 kilometres away) to the primary television transmitter of the BBC, which is located in Crystal Palace. As a result, the tower interfered with the television reception of a group of residents of the Isle of Dogs. This interference was fixed by April 1991 through the installation of a broadcast relay in Balfron Tower. The claim in the case argued private nuisance for the period during which interference was felt. 690 claims were made against Canary Wharf Ltd on those grounds. Further, 513 claims were started against London Docklands Development Corporation for damages suffered from excessive dust emanating from the construction site. Some of the claimants were either owners or tenants, but others did not have any property interests.

Held

It was held that interference with one’s television reception through the construction of a neighbouring structure could not and does not amount to an actionable nuisance. Further, it was held that only claimants with property rights can launch actions for private nuisance. Khorasanjian v Bush [1993] 3 WLR 476 was overruled in the parts holding that a mere licensee can start a private nuisance action.

It was observed by the court that:

“In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs’ homes and the Crystal Palace transmitter, cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner’s right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land.” (Lord Hoffman).

Interference – Objective Test Walter v Selfe (1851) Is the interference ‘…materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among English people.’?

Interference – emanation •

In Hunter v Canary Wharf Lord Goff stated:

‘…for an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike.’ Lord Goff: ‘..the mere fact that a building on the defendant’s land gets in the way and so prevents something from reaching the plaintiff’s land is generally speaking not enough for this purpose.’

Exception to emanation requirement? Thompson-Schwab v Costaki (1956) ‘Occasionally activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v Costaki…Such cases must however be relatively rare.’ (Hunter, per Lord Goff)

Emanation case Pusey v Somerset County Council [2012] EWCA Civ 988 •

People urinating in a nearby layby did not constitute a nuisance as the plaintiff only had a partial view and had to make a special trip to the end of his driveway to see anything.

Strict liability Cambridge Water v Eastern Counties Leather (1994) The Defendants were engaged in leather tanning at Sawston. During their work, as a result of the process of degreasing pelts, small quantities of a solvent known as Perchloroethene (PCE) was spilt on the floor of the building in which the Defendants carried out their activities. These solvents eventually seeped through the building floor and into the soil, which eventually meant that they contaminated the Claimant’s borehole at Sawston Mill near Cambridge, some 1.3 miles away. The borehole was used to extract and supply water to local residents and consequently this meant that the water available for extraction as contaminated and to such a degree that it could not be safely used by the Claimants. The Claimants brought a claim against the Defendants on the grounds of nuisance, negligence and the rule in Rylands v Fletcher.

Held

It was held that the necessity to prove foreseeability of the type of damage suffered and to deal with remoteness of damage more generally applies equally to cases based on negligence, nuisance and the rule in Rylands v Fletcher. It was held further that the damage in this case was too remote as it was not possible for the Defendants to reasonably foresee a spillage which would eventually lead to contamination of a water borehole so far away. The Defendants were therefore not liable for the damage.

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Nuisance differs from negligence

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Lord Goff: ‘…the fact that the defendant has taken all reasonable care will not exonerate him from liability.’

Needs to be reasonably foreseeable

Strict liability BUT Reasonable foreseeability

Defendant may be liable even if they’ve taken all reasonable care

Liability is not entirely strict…

Claimant has to show that the damage they have suffered was reasonably foreseeable

Lord Goff continues: ‘But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee…a requirement [of] foreseeability should be a prerequisite of liability in damages for nuisance, as it is of liability in negligence.’

Case for reasonable foreseeability Network Rail v Morris (2004) The claimant ran a recording studio in Croydon. The studio was situated 80 metres from the London to Brighton main line railway track. In 1994, new track circuits were installed which operated the signalling system on the rail track. This circuit system generated an electro-

magnetic field which interfered with the use of the electric guitars on the claimant’s premises. This resulted in him losing several clients. The claimant brought an action in nuisance for the interference. Held: The defendant was not liable. The use of amplified electric guitars fell into the category of extraordinary sensitive equipment. Furthermore, the interference was not foreseeable.

When is the interference unreasonable?

Balance

Balance

Rights of the claimant to enjoy their land

Rights of the defendant to enjoy their land

Unreasonable use of land Physical Damage

i.e. material injury to property = no need to engage in the balancing exercise St Helen’s Smelting v Tipping

Amenity nuisances

i.e. interference with use and enjoyment of land = use balancing exercise to establish whether unreasonable user or not

Lord Westbury: •

‘With regard to [nuisance productive of sensible personal discomfort] whether that may or may not be denominated a nuisance must undoubtedly depend greatly on the circumstances where the thing complained of actually occurs. If a man lives in town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce...and for the benefit of the inhabitants of the town and the public at large.’

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‘But…in a case of [material injury to property] 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 property.’

Requirement 2: Unreasonable user ii) the relevant factors Range of factors for courts to consider when assessing whether the defendant’s use of land is unreasonable

1

Nature of locality

2

Abnormal sensitivity

3

Duration

4

Public benefit of defendant’s activity

5

Malice

a) Locality – St Helen’s Smelting v Tipping

Defendant’s activity appropriate for the area?

Defendant’s activity inappropriate for area?

More likely to be reasonable user

Less likely to be reasonable user

Some examples: •

Sturges v Bridgeman (1879) 'a nuisance may be merely a right thing in the wrong place, like a pig in the parlour

instead of the barnyard' per, Thesiger LJ

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Halsey v Esso Petroleum (1961) The character of the neighbourhood is very relevant and all the relevant

circumstances have to be taken into account. What might be a nuisance in one area is by no means necessarily so in another. In an urban area, everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours, and the law must strike a fair and reasonable balance between the right of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his property for his own lawful enjoyment.‘

per, Veale J •

Baxter v Camden LBC (No.2) (2001)

'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.'

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Coventry v Lawrence (2014) SC

Prior to Coventry in the SC... •

Gillingham BC v Medway (Chatham) Dock Co Ltd (1993)

The defendant had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night. It was held that where planning permission is given for a development or change of use, 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. The claimant’s actions therefore failed. •

Buckley J: ‘where planing consent is given for a development or change of use, 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.’

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Barr v Biffa Waste Services Ltd [2012]

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Licence to operate = could not make activity reasonable where it caused serious and continuing interference with the claimants’ land.

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Licence had not changed the nature of the locality

Coventry v Lawrence (2014) The claimants brought a nuisance action against the defendant in respect of the noise generated by motor sports conducted on their land. The motor sports included speedway racing, stock car racing banger racing and motorcross. Planning permission had been granted in 1975 for the construction of a speedway stadium and for the construction of a further motorcross stadium in 1992. The defendant held a certificate of lawful use under the Town and Country Planning Act 1990. The claimant purchased a house 864 meters from the track in 2006. The trial judge found for the claimants and awarded damages and an injunction. The defendants appealed contending: 1) the judge had failed to properly take into account the effect of planning permission on changing the character of the locality 2) The claimants had come to the nuisance which had been operating for many years 3) the defendants had acquired a right by prescription to causes such nuisance. Lord Neuberger: ‘Accordingly, I conclude that a defendant faced with a contention that his activities give rise to a nuisance, can rely on those activities as constituting part of the locality, but only to the extent that those activities do not cause a nuisance...’ [para. 74]

‘I consider the mere fact that the defendant’s activity had been given the benefit of planning permission is normally of no assistance to a defendant in a claim brought by a neighbour who contends that the activity causes them loss.’ [para. 94]

b) Abnormal sensitivity

Basic principle Examples

Not unreasonable user where the claimant is abnormally sensitive

Robinson v Kilvert (1889) Heath v Mayor of Brighton (1908)

Robinson v Kilvert (1889) The defendants operated a factory which made paper boxes. This required the factory to be continually warm and dry to ensure that the paper boxes were in good condition. The claimant rented the ground floor and used this area to store special brown paper. The heat from the defendant’s factory damaged this brown paper, which was unusually sensitive to heat, and the claimant sued in nuisance.

Held

The claim was dismissed as there was no nuisance. The conditions in the factory were not particularly unusual, and the claimant’s operation of the factory in these conditions was not unlawful. The defendants had acted as reasonable tenants of their property. It had been shown that the heat from the factory would not have damaged ordinary paper. Instead the defendant’s brown paper happened to be unusually sensitive to the heat, and it was this which caused the damage rather than anything that the defendants had done wrong. Accordingly, this could not be considered a nuisance caused by the defendants. Where one carries on an unusually delicate trade, they cannot then complain because they are injured by the defendant’s carrying on their lawful business on their property if this would not have injured anything but an unusually delicate trade.

Heath v Mayor of Brighton (1908)

Facts: A church was next to the local electricity generator and the church was complaining about the noise.

Held: The court said, if you are having quiet prayer of course you are going to hear that noise, but if you are going about your life in a normal everyday way then you won't hear the noise and it won't bother you. Thus, the court said that this wasn't nuisance. The church was being unusually sensitive - it is their unusual need for silence that is causing the problem.

BUT

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Where damage of relevant kind to the ordinary claimant was foreseeable the defendant will be liable for full extent of damage to the extra-sensitive claimant

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‘Eggshell skull’ principle

McKinnon Industries Ltd v Walker (1951)

The defendant manufactured steel and iron products 600 feet from the claimant’s property. The claimant had a dwelling house and also a commercial florists and nursery. As part of his business he specialised in growing orchids which are known for their particular sensitivity. The claimant brought an action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers causing them to die. Held: The defendant’s actions constituted an unlawful nuisance and therefore the claimant was entitled to recover damages in respect of the orchids despite the sensitive nature of the flowers.

c) Duration of interference If the interference has a long duration than it is more likely that the defendant’s use of land is unreasonable.

d) Public benefit Will a public benefit arising from the defendant’s use of land make that use reasonable? •

Miller v Jackson (1977)

Public benefit may point towards the activity being reasonable…

BUT

Will not make all activities reasonable

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Kennaway v Thompson (1981)

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Dennis v MOD (2003)

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Coventry v Lawrence (2014)

e) Malice

 Defendant’s use of land motivated by malice? = likely to be unreasonable use  Christie v Davey (1893) North J: 'that what was done by the defendant was done only for the purpose of annoyance, and in my opinion it was not a legitimate use of the defendants house to use it for the purpose of vexing and annoying his neighbo...