Tort Law Nuisance - Lecture notes PDF

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NuisanceThere are three main categories of nuisance: Private Nuisance Public Nuisance Statutory (don't worry about this one) PrivateA Private nuisance is an unlawful act which indirectly causes; Physical damage to land Interferes with enjoyment of land Interferes with interests in land and which is ...

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Nuisance There are three main categories of nuisance: 1. Private Nuisance 2. Public Nuisance 3. Statutory (don't worry about this one)

Private A Private nuisance is an unlawful act which indirectly causes; 1. Physical damage to land 2. Interferes with enjoyment of land 3. Interferes with interests in land and which is unreasonable taking into account all the circumstances The harm caused by the defendant must be indirect rather than a direct result of the act.

Physical damage: The claimant must suffer ‘material injury’ to their property. St Helens Smelting Co v Tipping [1865] Fumes from the defendants copper smelting works caused damage to trees growing in the claimants garden. The House of Lords held that the claimant had to prove physical damage to the land and the defendant was liable in nuisance. The courts said that the fact it was an industrial area was irrelevant if there was physical damage to the land.

Interference with enjoyment of land The law has to balance the right of a land owner to use their land as they wish with the right of a neighbouring land owner to use their land. An activity only becomes a nuisance if it is unreasonable in all the circumstances. The law protects certain well-established interests but new ones may be recognised from time to time: 1. Noise 2. Smoke 3. Smells 4. A sex shop on a residential street. Hunter v Canary Wharf [1997] it was held that a deposit of dust is capable of giving rise to an action in nuisance. You should note here that the tort of nuisance exists for the protection of interests in land and therefore an action for pure personal injury cannot be taken in private nuisance.

Test of Unreasonableness (5 steps) In deciding if a person's use of land is unreasonable, the courts take a number of factors into account. The 5 parts include:

1. 2. 3. 4. 5.

Locality Sensitivity Duration Public utility Malice

Locality This is relevant to a claim for interference with enjoyment of land. a lower standard applies in a poor or industrial neighbourhood. Where the act occurs is relevant in deciding if there is nuisance . A factory in an industrial area will not be a nuisance to neighbours, but will be a nuisance if it was in a residential area. Sturges v Bridgman [1879] The claimant doctor worked in a residential area which had a number of other doctors. He built a consulting room, but complained about the noise from the defendants biscuit factory next door. It was held that the defendants actions were a nuisance because it was an area of medical specialists. Thesiger LJ said ‘...what would be a nuisance in Belgrave Square would nit necessarily be so in Bermondsey’ The character of an area can also change and this can happen naturally or through planning permission Gillingham Borough Council v Medway Dock Co (1992) The Council gave planning permission to change a naval dockyard to a commercial port which operated 24 hours a day. Some years later the council wanted to restrict operations because it was a public nuisance. Were heavy lorries going into and out of the port a nuisance? HELD the planning permission had changed the nature of the area and the noise was not a nuisance. Wheeler v Saunders [1996](CA) The defendant was given planning permission for two more pig units on his pig farm of 800 pigs. These were next to the claimant’s holiday homes and he complained of the smell. The defendant argued there was no nuisance because he had planning permission. HELD The Planning permission did not change the character of the area, the smell of the pigs was a nuisance. Coventry v Lawrence [2014] UKSC 13 The claimants bought a bungalow about 500 metres from a stadium where speedway and stock car racing took place. The claimants argued that the noise was a nuisance. HELD (SC) The planning permission by itself did not change the nature of the locality.

Sensitivity If a person or their property is abnormally sensitive, then they cannot complain about something which would not have affected an ordinary person or ordinary property. Robinson v Kilvert (1889)(CA)

The defendant's manufacturing plant gave off heat which damaged sensitive brown paper which belonged to the claimant on the floor above. The claimant was a tenant. The heat would not have damaged ordinary paper. HELD D’s activities did not interfere with the ordinary use of property for residential for business purposes . Not a nuisance. If a person does establish a nuisance they can claim for sensitive things. Mc Kinnon Industries v Walker (1951)(PC) The claimant was an orchid grower whose orchids were damaged by sulphur dioxide gas from the defendant’s factory. Orchids are a delicate flower. HELD the fumes would have damaged ordinary plants, so it didn't matter that the claimants plants were sensitive But note the decision of the Court of Appeal in the following case Network Rail v Morris [2004] (CA) M claimed that electromagnetic interference from NR’s signalling system affected his music recording studio 80 metres away. The court said that the test should be what was reasonable and to decide this, a test of ‘foreseeability’ should be used. HELD that it was not foreseeable that interference from the signalling equipment would affect M’s activities 80 metres away. C claims failed

Duration of the interference How long the nuisance lasts for is relevant in deciding if the interference was substantial. If the interference is for a short time this may (but not necessarily) show it is reasonable. Midwood v Manchester Corp (1905) Gas accumulated in the defendant's mains and exploded setting fire to the claimant's house. The court said that the buiold-up of gas was a 'state of affairs', meaning that they could sue the defendant for private nuisance. This is quite a creative judgment but it does not really reflect what is going on as the owners did not foresee the explosion nor did they know there was a build-up of gas. It is likely that if this case were decided today it would not fall within the remit of private nuisance Crown River Cruises v Kimbolton [1996] 2 Lloyd’s Rep 533 The defendant held a firework display which lasted 20 minutes. Some of the fireworks landed on the claimant’s boat on the River Thames causing damage.The High Court held that the claimant should succeed against both defendants in negligence. It was a foreseeable and unacceptable risk that debris may cause fires on boats. The same was true of the danger failure to put out the fires.

Public Benefit There may be a conflict between the public usefulness of the defendant's act and the private interests of the claimant. The more public benefit there is the more likely the act is reasonable and not a nuisance.

Adams v Ursell (1913) The defendants opened a fish and chip shop in a residential street. The claimants lived in the house next door and they complained that vapours like ‘fog or steam’ filled their house. The defendants argued that they were providing a public service. It was held that even though there was some benefit to the public, it was a private nuisance

Malice Malice does not in itself make an act a nuisance.If you do an act maliciously it does not make it a nuisance if the act cannot be a nuisance. Mayor of Bradford v Pickles (1895) Water flowed downhill from the defendant’s land into the claimant’s reservoir. The defendant blocked the flow of water to the claimant’s land because he wanted the claimant to buy his land. But malice is relevant in deciding if someone acted reasonably. Christie v Davey (1893) The claimants and defendant lived in adjoining semi-detached houses in Brixton. The claimants were a musical family and all except the father sang or played musical instruments. The defendant complained that the noise disturbed him. Eventually whenever he heard music he would bang on the party wall with trays and blow a whistle. HELD

Natural Condition of Land Can the natural condition of the land amount to a nuisance? The original rule was that an occupier had no duty to abate (lessen or stop) a nuisance which naturally arose on his land. This rule was changed in the next case. Leakey v National Trust (1980) (CA) The claimant had a house at the bottom of the defendant's hill. Natural subsidence threatened the claimant's house. HELD If the defendant knew of the risk (or ought to know) the defendant had to do what was reasonable to prevent or minimize the risk. The courts apply a subjective standard. Holbeck Hall Hotel v Scarborough Council (2000) The claimant's hotel was on cliffs overlooking the defendant's land. A landslide on the defendant's land caused the hotel to fall down the cliffs. HELD (CA) Appeal allowed, the Council were not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant.

Who can sue in nuisance? The aim of nuisance is to protect interests in land. The traditional rule was that you must have an interest in land to sue: 1. Owner 2. Tenant 3. Landlord 4. Lodger Malone v Lasky (1907) Mr Malone was the tenant of a house. Mrs Malone was injured when a lavatory cistern fell on her as a result of vibrations from next door. Mrs Malone sued for nuisance. HELD ,her claim failed as she had no interest in her land, she had no name to the property, the husband did. Hunter v Canary Wharf [1997] it was held that a deposit of dust is capable of giving rise to an action in nuisance. You should note here that the tort of nuisance exists for the protection of interests in land and therefore an action for pure personal injury cannot be taken in private nuisance.

Who can be sued? 1. A creator of nuisance a. Anyone who creates a nuisance by their actions is liable. 2. Occupier a. The occupier is liable for nuisances the occupier creates b. The occupier may be liable for: i. Those the occupier controls ii. a nuisance caused by the previous occupier in certain circumstances iii. nuisances created by trespassers in certain circumstances

Sedleigh-Denfield v O'Callaghan (1940)(HL) The defendants owned a ditch which ran along the claimant’s land. Without the defendant’s permission the local authority trespassed and laid a pipe in the ditch but forgot to put a grid over the end of it. The defendants knew about the pipe and used it to drain water from their land. The pipe became blocked and flooded the claimant’s land. HELD by using the pipe the defendants had continued or adopted the nuisance were liable

Cocking v Eacott [2016] EWCA Civ 140 W owned a terraced house which she let her daughter E live in rent free. The neighbours complained about E’s dog barking and about E’s abusive shouting. HELD w had possession and control of the house w was liable for the barking but not for the shouting which she did not know about

3. Landlord As a general rule a landlord who has parted with possession of the land is not liable.

But the landlord could be liable if he authorised the nuisance or the nuisance started before the land was let. Tetley v Chitty and Others(1986) The local authority let land in a residential area to another to be used for a go-karting club. Neighbours brought an action in nuisance because of the noise. HELD The noise was a necessary result of letting the land for go karting. the local authority was liable in nuisance

Trespassers The occupier is not liable for a nuisance created by a trespasser unless they adopt or continue it. Lippiatt v South Glocs Council (1999) The defendant council allowed travellers to stay on the defendant's land for 3 years. The travellers trespassed on neighbouring land owned by the claimant. The defendants knew about these continuing acts. The defendant council argued that they were not liable for the acts of the Third Party, the travellers. HELD (CA) the travellers could be seen as ‘licencess’ of the land and if the occupier knew about their activities the occupier could be liable. D had power to move them off the land and were liable in nuisance.

DEFENCES Prescription If someone carries on a private nuisance for 20 years they will acquire a legal right to commit that nuisance by prescription. The interference must be a nuisance for 20 years and it is not enough for the defendant to show that they did the act for 20 years. Sturges v Bridgman (1879) The defendant had been making biscuits for 20 years before the doctor built the consulting rooms. The defendant claimed he had a prescriptive right to make a noise. HELD the nuisance did not start until the surgery was built, therefore the defendant could

Statutory Authority If the defendant’s act is authorised by statute the defendant will not be liable for a nuisance which is an inevitable result. Allen v Gulf Oil (1981)(HL) A statute gave power to build an oil refinery but said nothing about operating it. The claimant said that the operation was a nuisance. HELD power to operate an oil refinery was implied from an act of parliament not a nuisance. Wheeler v Saunders (1996)(CA) The defendant had a pig unit and obtained planning permission for two more units. The defendant argued that he was not liable for nuisance because of the pp.

HELD the planning permission had not changed the nature of the locality and the defendant was liable in nuisance.

Public Benefit Difficult to establish as a defence. Is there any public benefit of the nuisance. Adams v Ursell (1913)

Dennis v Ministry of Defence (2003)

Consent It is not a defence that the claimant knew about the nuisance but came to it. Miller v Jackson (1977)(CA) The defendant cricket club had played cricket for 70 years and then houses were built nearby. The claimant had bought one of the houses and claimed nuisance because balls landed on his property 8 or 9 times a year. HELD no defence for d that c came to the nuisance . Damages awarded but an injuction was refused....