Tort of Nuisance - Lecture notes 9 PDF

Preview

Summary

full notes ...

Description

Tort of Nuisance There are two types of nuisance in English law: Public nuisance and Private nuisance. In some instances, the same set of facts can produce liability in both kinds of nuisance, although the two types of nuisance are very much distinct. Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land. The parties to an action in private nuisance are generally neighbours in the popular sense of the word and the courts undertake a balancing exercise between the competing rights of land owner to use his land as he chooses and the right of the neighbour not to have his use or enjoyment of land interfered with. Public nuisance is a crime but becomes actionable in tort law if the claimant suffers 'particular damage' over and above the damage suffered by the public generally.

Private Nuisance This essentially arises form the fact that, whether we are out in the countryside of in the middle of a city, we all have neighbours and the way they behave on their land may affect us on ours. According to Miller v Jackson (1977), ‘ the very essence of private nuisance… is the unreasonable use of man of his land to detriment of his neighbour’. The claimant must prove that that the defendant has caused an interference with the claimant’s use or enjoyment of their land. There are many ways that such interference can be caused, but what they have in common is that they must be indirect, and that they will usually be the result of s continuing state of affairs, rather than a one off incident. In some cases there will be a physical invasion of the claimant’s land, such as: 

the roots of a neighbour’s tree spreading in t the claimants land – Davey v Harrow Corp (1957) - The Plaintiff’s house was damaged by roots penetrating from trees on adjoining land. At first instance, Sellers J found that the damage was caused by the trees, but they were not proven to be the property of the defendants. On appeal and after further evidence it was found that the trees had been growing for some

1

time on the defendants land. Held: The defendants were liable in nuisance for damage caused by encroaching roots whether self sown or planted. Where a boundary hedge is delineated on an Ordnance Survey map by a line, the line indicates the centre of the existing hedge. This accords with the practice of the OS and courts can take notice of that practice as prima facie evidence of what a line on a map indicates. ‘After that Fisher -v- Winch and this, courts in future can take notice of this practice of the Ordnance Survey (that the boundary line on the map indicated the centre of the existing hedge) as at least prima facie evidence of what a line on the map indicates.’ As to damage by roots: ‘once it is established that encroachment by roots is a nuisance, it must follow that if damage is thereby caused, an action on the case will lie.’



Flooding - Sedleigh-Denfield v O’Callaghan [1940] - The council undertook some work on the defendant’s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant’s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance.



Lord Maugham: “My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during

2

all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.”



Smells - Wheeler v JJ Saunders [1995] - The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs can not amount to a nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance.



Bone v Searle [1975] - The plaintiffs were the owners and occupiers of two adjoining properties. They claimed damages for nuisance by smell. The judge awarded over andpound;6,000. to each of the plaintiffs. The Court of Appeal reduced the sum to andpound;1,000. Held: the right to sue in private nuisance is linked to the correct measure of damages. Damages were awarded on a lump sum basis for loss of amenity over twelve years, there being no evidence of any diminution in market value of either of the two adjoining properties. There might be an analogy with loss of amenity in personal injuries cases. But this was only for the purpose of showing that the sum

3

awarded by the judge was much too high. The damages were assessed per stirpes and not per capita.

Elements of Private Nuisance 1. Locality – residential area v business industrial area -

Where the interference takes place will have an important bearing on whether its reasonable: a land owner in the centre of London can not reasonable expect the same level pf peace and quiet as one in the depths of the country.

-

This point was made in St Helens Smelting Co v Tipping Ltd (1865) – the claimant’s estate was situated in an industrial area, and in deciding whether the fumes from the defendants copper works amounted to nuisance, the House of Lords distinguished between nuisances causing actual injury to property, as in in the as in this case and nuisance causing personal discomfort. In the latter case, claimants should be prepared to put up with the level of discomfort common to the area in which they are situated. However the claimants were not expected to put up with actual damage to their land resulting from the normal activities of the locality, and so an injunction was granted.

-

Interference which would be reasonable in one area may be unreasonable in another – Sturges v Bridgman (1879), the claimant was a doctor, who sued confectioner for the noise caused by is industrial equipment. The court took into account the fact that the area in which they both worked consisted mainly of doctors’ consulting rooms in and concluded that there was a nuisance, explaining that what would be a nuisance in quiet residential area would not necessary be so in busy industrial one.

-

Chip shop in residential area – Adams v Ursell (1913) - A house owner complained that his neighbur’s fish and chip shop was emitting odours which impinged on the enjoyment of his house. Held: Such odours might amount to a sufficient interference to constitute a nuisance.

4

-

Printing presses used at night in printing district - Rushmer v Polsue and Alfieri Ltd [1906] - The court considered the question of whether excess noise could constitute a nuisance. Held: The court rejected the argument that a resident of a district specially devoted to a particular trade cannot complained of nuisance by noise caused by the carrying on of a branch of that trade short of proving carelessness and unreasonable use. However, a resident in a noisy district must put up with a certain amount of noise, and the standard of ordinary comfort will differ according to the situation of the property and the class of people who inhabit it. The approach is therefore whether ‘the addition of a fresh noise caused by the defendant’s works may be so substantial as to create a legal nuisance’.

-

London Borough of Southwark v Mills, Baxter v LB Camden [1999] Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council. Held: There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist.

2. Duration and Timing -

How long the nuisance goes on for and when it happens will also affect whether it considered unreasonable or not. Something noisy may be reasonable if it happens in the middle of the day, for example, but not late or early in the morning.

-

In Halsey v Esso Petroleum (1961) the court found that the noise caused by filling petrol tankers was reasonable and so not a nuisance at 10am but a nuisance when it happened at 10pm.

5

-

Nuisance is a continuing state of affairs and generally, the longer it goes on for, the more likely is to be considered unreasonable. However, the facts relating to unreasonableness overlap, and its quiet possible for a relatively short one off incident to be considered for nuisance if all the factors are taken together make unreasonable.

-

In Crown River Crusies Ltd v Kimbolton firework ltd (1996), it was held that a 20 min firework display could amount to nuisance. In this case, the fireworks resulted in sparks and burning debris raining down onto the claimant’s boat, so the nuisance was quite a serious one, which counterbalanced the fact that it did not go on for long.

-

Single occasion - British Celanese v Hunt [1969] - Metal foil had been blown from the defendant’s factory premises on to an electricity substation, which in turn brought the plaintiff’s machines to a halt. Held: The meaning Lawton J would give to the phrase ‘direct victim’ was a person whose ‘property was injured by the operation of the laws of nature without any human intervention’.

-

Spicer v Smee [1946] 1 All ER 489 - A fire broke out on the defendant’s property caused by faulty wiring. The fire spread to neighbouring property owned by the claimant. The claimant’s action for nuisance succeeded. The faulty wiring was classed as a continuing state of affairs.

3. Sensitivity -

Traditionally a defendant is not responsible for damage which occurs solely because the claimant, or the claimants situation is abnormally sensitive.

-

In Robinson v Kilvert (1889) the claimant occupied the ground floor of the defendant’s premises using it to store brown paper. The defendant’s business, carried on in the basement of the same building, involved making paper boxes. This needed a dry atmosphere the heating used by the defendant In the cellar made the claimants floor hot too, which had dried out used by the defendant In the cellar made the claimants floor hot too, which had dried out the brown paper, reducing its value. The claimant

6

sued in nuisance, but the court found that brown paper was exceptionally delicate. As the heat was bot sufficient to damage paper generally and It had not inconvenienced the claimants workmen, the damage was due more to the sensitivity of the paper than to the defendants activities, so there was no nuisance. -

On the other hand, as soon as the claimant has proved that the defendant has infringed the claimants right to ordinary enjoyment, they can also claim protection from any extra problems caused by a unusual sensitivity.

-

In McKinnon Industries v walker (1951), the claimants orchids were damaged and his enjoyment of his land generally affected by fumes and Sulphur dioxide gas form the defendants factory. The defendant claimed that, even if he were liable for the general interference, he should not incur responsibility for the orchids since growing there was difficult and delicate operation, and the plants could therefore be considered abnormally sensitive. The privy council rejected this argument, stating that as the right to ordinary enjoyment had been infringed the claimant could also claim protection for his more unusual and sensitive activities.

7

Public Nuisance The leading definition of public nuisance comes from the case of Attorney General v PYA Quarries Ltd (1957). The defendant used a blasting system in their quay which caused noise and vibrations, and threw out dust, stones and splinters, which affected people living nearby. The Court of Appeal held that this could amount to a public nuisance which it defined by Lord Justice Romer, as an unlawful act or omission which materially affects the comfort and convenience of a class of Her Majesty’s subject who comes within the sphere of its operation; whether the number of persons affected sufficiently large to warrant. This definition had been taken to include a whole range of activities which endangered the public, cause them inconvenience or discomfort or prevent them exercising their rights according to Elliot and Quinn. Examples include: 

Fully or partially blocking a highway - New Group Newspapers v SOGAT [1987] ICR 181- people were on strick they blocked the highway, so nothing could get in or out premise were they worked. The court held it was a public nuisance



Picketing on a road - Thomas v National Union of Mineworkers [1986] Ch 20 - The actions of miners striking were held to constitute a nuisance. Scott J considered that the miners returning to work should be entitled to use the public highway to enter the colliery without harassment and abuse shouted at them by the picketers.



Blocking a canal – Rose v Miles (1815) - The defendant wrongfully obstructed a public navigable creek which obstructed the defendant from transporting his good through the creek. This resulted in the plaintiff having to transport his goods by land, causing him to incur extra costs. It was held that although the act of the defendant was a public nuisance, since the plaintiff was able to prove that he suffered loss over and above other members of the public, he had a right of action against the defendant.

8



Obstructing a highway by queuing on it – Lyons v Gulliver (1914) The defendants operated the Palladium theatre. People wanting to attend queued either along the footpath or along the roadway itself in front of the premises from which the plaintiff neighbour carried on its business as lace merchants and wholesale drapers. At trial, the judge had that the people in the queue were marshalled so as to form a stationary crowd standing on the pavement or in the road by the kerbstone in front of the plaintiff’s premises, sometimes as many as five deep. In consequence ‘pedestrians going from or to the plaintiff’s premises had, at the time when the queue was there, to make their way through the crowd forming the queue or go around by the end so as to get inside the queue; and vehicles were prevented, and necessarily prevented, or hindered, from access to the side of the pavement

immediately

in

front

of

the

plaintiff’s

premises’.

Held: The obstruction was actionable as a private nuisance by the neighbour, and could be restrained by a private injunction. Queuing such as was found constituted ‘a serious nuisance and annoyance, by which the plaintiffs are specially affected’. That the police had failed to clear the obstruction by regulating the queues was not a defence. Nor was it arguable that potential customers could elbow their way through the

crowd,

or

politely

ask

them

to

make

way.

The court specifically said that their decision did not mean that a ‘queue is at all times in all places and under all circumstances necessarily a nuisance’.



Causing noise and disrupting traffic through a badly organized pop festival – Attorney General of Ontario v Orange productions Ltd (1971) - AG looking for injunction to stop rock concert based on a public nuisance claim. Public nuisance constituted due to private interests combined. Tresspass to property. Emantion of loud music as well as pollution. Held: Injunction granted. Ratio: Public nuisance when it “would not be reasonable to expect one person to take proceeding into his own hands to stop it”. Public nuisance if it’s painful

9

and troublesome for all neighbourhood or a large subsection of a neighbourhood. 

Making obscene telephone calls to large number of women – R v Johnson (Anthony Thomas) (1996)



Premises near to highway in dangerous state - Tarry v Ashton [1876] 1 QB 314



Parking coaches on public highway - Attorney-General v Gastonia Coaches- Public Nuisance. One-off events. A coach parking in the street and blocking residents spaces was a public nuisance.



Golf course to close to public road- Castle v St Augustine Links - A golf ball hit from a golf course was a public nuisance and the class affected were road users-In public nuisance, personal Injury can be claimed for.



Driving heavy Lorries through residential streets - Gillingham Borough Council v Medway Dock [1993] QB 343 - 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: "Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the ...