#3077 - Private Nuisance - GDL Tort Law

Introduction

- Nuisance: unlawful activity that is harmful/noxious + which interfered with another person’s rights, use or enjoyment of their land – Read v J. Lyons [1947].

- 3 related torts: unreasonable use of d’s land damage/loss to another.

• 1. private nuisance: most significant.

• 2. public nuisance: also crime.

• 3. rule in Rylands v Fletcher.

- Private nuisance: any continuous activity or state of affairs causing substantial + unreasonable interference with c’s land or c’s use/enjoyment of that land – Bamford v Turnley [1862].

• not actionable per se: c. must prove damage – actual property damage or sensible personal discomfort.

Parties

Who Can Sue?

- C. must have proprietary or possessionary legal interest in land – Hunter v Canary Wharf Ltd [1997; HoL].

• rationale: basis of tort is interference of use/enjoyment of land c. must have interest.

• licence insufficient – Malone v Laskey [1907]: land occupied by tenant’s employee + employee’s wife; wife injured by falling cistern (made loose by d’s activity next door) no right of action (wives: no legal interest in 1907).

  • but blip: Khorasandijan v Bush [1993; CoA]: child allowed to sue (for harassment) overruled by Hunter – now covered by Protection from Harassment Act 1997.

- Human rights challenge to requirement c. have interest in land.

• McKenna v British Aluminium [2002]: breach of Art 6 (right to fair trial) + Art 8 (right to respect for family life)?

• but: Dobson v Thames Water Utilities Ltd [2009; CoA]: Hunter v Canary Wharf confirmed need interest.

  • but solution: if no interest, can bring claim under human rights law directly – Art 8.

Who Can Be Sued?

- Creator of nuisance: liable even if not in position to end nuisance / not occupier – Thomas v NUM [1986]: NUM encouraged miners to picket highway liable.

• but practical difficulties: may be difficult to find.

- Occupier: liable for nuisances created by self + others (has control over land) usual d. – BUT EXCEPTIONS:

• 1. independent contractors: unless c. authorises contractor to perform certain tasks + tasks cause reasonably foreseeable/inevitable nuisance – Matania v National Provincial Bank [1936]: building contractors cause excessive noise + dust occupier liable.

  • but N.B.: building work usually NOT nuisance – part of ‘give + take’ of daily life.

• 2. previous owners: unless c. continued or adopted nuisance.

• 3. trespassers: unless c. continued or adopted nuisance – Sedleigh-Denfield v Callaghan [1940]; or fails to abate – Page Motors Ltd v Epson and Ewell BC [1982].

  • but: if c. takes reasonable steps to abate no liability.

• 4. act of nature / natural condition of land: unless d. knew + failed to take reasonable steps to abate – Goldman v Hargrave [1967; PC].

  • Leakey v National Trust [1980]: earth mound accumulated on d’s land + capsized onto c’s land; d. aware + took no steps to prevent d. liable.

  • but: duty to abate subject to means of occupier not expected to bankrupt self – Holbeck Hall Hotel v Scarborough BC [2000]: part of c’s hotel collapsed because of coastal erosion d. not liable: could not afford to prevent erosion, had done reasonable checks.

- Landlord: generally NOT liable, unless: created/authorised, knew/ought to know, reserved right to enter + repair.

• Tetley v Chitty [1986]: d. leased to ‘go-kart’ club with full knowledge liable.

• Southwark LBC v Mills [1999]: noisy council tenants; c. sued council not liable: d. did not deliberately choose noisy tenants.

- Party in control: Jones Ltd v Portsmouth CC [2002]: d. in charge of land (but did not own) liable.

Elements

- 3 elements to private nuisance:

• 1. indirect interference: with use/enjoyment of land (cf. trespass: direct interference).

• 2. damage: physical injury to property or interference with enjoyment.

  • remoteness: reasonable foreseeability test – Cambridge Water Co v Eastern Counties Leather [1994].

• 3. unlawful interference: i.e. unreasonable – question of ‘give + take’ / ‘live + let live’ – Bamford v Turnley [1862].

  • objective test: reasonable man / sensible person discomfort.

Indirect Interference

- Indirect interference with use/enjoyment of c’s land.

• not direct: trespass – Bernstein v Skyviews [1978].

• indirect interference: nuisance starts on d’s land, then damage to some aspect of c’s use/enjoyment of his land.

  • e.g. sounds, smells, fumes, vibrations.

  • e.g. flood of water – Sedleigh-Denfield v O’Callaghan [1940].

Damage

- Nuisance not actionable per se: c. must prove damage – 3 types.

- 1. actual damage to property.

• Lemon v Webb [1895]: overhanging tree branches damaged c’s land.

- 2. sensible personal discomfort: anything that discomposes or injuriously affects senses/nerves – St Helen’s Smelting Co v Tipping [1865] – e.g. health, comfort, convenience: noise, smoke, smells etc.

• St Helen’s Smelting Co v Tipping: fumes from d’s factory physical damage (trees/shrubs) + SPD.

• Leeman v Montagu [1936]: cockerels crowing excessively d. liable.

• people can be a nuisance:

  • Laws v Florinplace Ltd [1981]: d. opened sex shop in Pimlico customers a nuisance.

  • Page Motors Ltd v Epsom and Ewell BC [1982]: gypsies trespassing on council land; damaged c’s neighbouring business; d. knew + did not abate nuisance.

  • Lippiatt v South Gloucs CC [1999]: group of travellers on d’s land nuisance.

• NOT interference with recreational facilities (inc. TV/radio reception):

  • Bland v Moseley [1578]: d. built on land, blocking c’s view not nuisance – view = ‘thing of delight’.

  • Bridlington Relay v Yorks Electricity Board [1965]: d. installed sub-power station, interfered with c’s reception not nuisance.

    • rationale: nothing emanating from d’s land to interfere with c’s land; merely blocking.

  • vs. other jurs: Nor-Video Services Ltd v Ontario Hydro [1978; Can]: blocking reception = nuisance.

  • Hunter & Ors v Canary Wharf Ltd [1997; HoL]: building of Canary Wharf interfered with cs’ reception old position reaffirmed – not nuisance (planning law: better avenue for complaint).

• N.B. personal injury NOT recoverable in private nuisance (negligence instead) – Hunter v Canary Wharf.

  • (but old cases: had been allowed).

- 3. interference with c’s servitudes (rights over land): e.g. rights of way or support.

- Test of remoteness: reasonable foreseeability – Cambridge Water Co v Eastern Counties Leather [1994].

Unlawful Interference

- Unlawful interference: d’s activity must be unreasonable use of land.

• principle of reasonable user – Cambridge Water Co v Eastern Counties Leather: if reasonable d. not liable.

• test: what is reasonable according to ordinary usages of mankind living in a particular society – Sedleigh Denfield v O’Callaghan.

  • aim: balance – occupier’s right to do what he likes on land vs. neighbour’s right not to be interfered with.

• dep. on type of damage:

  • physical damage: locality not considered – St Helen’s Smelting Co v Tipping.

    • usually easy to demonstrate unreasonable interference.

  • SPD: all factors inc. locality considered.

- Factors considered to determine unlawful interference:

• time + duration: longer activity more likely to be nuisance.

  • consider when, how long, how frequent – Kennaway v Thompson [1981].

  • Bolton v Stone [1951]: c. hit by cricket ball; sued cricket ground not nuisance: only 6 balls in 30 years beyond fence.

  • Castle v St Augustine’s Links Golf Club [1922]: c’s car hit by golf ball; balls frequently being hit onto highway nuisance.

  • need continuing state of affairs: isolated incident usually insufficient for private nuisance – but: isolated incident may illustrate underlying state of affairs.

    • Spicer v Smee [1946]: defective wiring in d’s property caused fire; spread to c’s property nuisance: wiring.

    • British Celanese Ltd v AH Hunt Ltd [1969]: strips of tin-foil on d’s land being blown around; 1 hit power line + caused power-cut nuisance.

    • Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996]: 1 firework in 20-min display caused fire damage to d’s boat nuisance: courts strict when risk of fire.

• character of neighbourhood / locality.

  • Sturges v Bridgman [1879]: d. used premises near Harley St to manufacture confectionary; c. (doctor) disturbed by vibrations in consulting-rooms nuisance.

    • [Thesiger LJ]: ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’.

  • Laws v Florinplace [1981]: sex shop in Pimlico nuisance.

  • Adams v Ursell [1913]: fumes caused by fish + chip shop in residential area nuisance.

  • effect of planning permission:

    • does not authorise a nuisance – Wheeler v JJ Saunders Ltd [1996]: d. expanded pig farm with planning permission; c. sued for nuisance from smell nuisance: permission no defence.

    • but: may alter character of area – Gillingham BC v Medway (Chatham) Dock Co Ltd [1993].

    • Watson + Ors v Croft Promo-Sport Ltd [2009]: planning permission to build motor circuit NOT change character of rural area, even after 40 years.

  • physical damage: locality NOT considered – St Helen’s Smelting Co v Tipping.

• unusual/excessive acts: Farrer v Nelson [1885]: d. kept many pheasants nuisance (but few would be OK).

• utility/public benefit: not decisive – can be outweighed by burden on c.

  • Adams v Ursell [1913]: public benefit to d’s fish + chip shop, but outweighed by locality nuisance.

  • Bellew v Irish Cement...