#4659 - Private Nuisance - GDL Tort Law

• Bamford v Turnley:– ‘any continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or his use or enjoyment of that land’

• Must prove damage (not actionable per se) but can be ‘sensible personal discomfort’ as well as actual physical damage

• Must have some duration and must be more than trivial

Who can sue?

• Must have a legal interest in land (possessionary or proprietary – (freehold/leasehold))

• Mere permission to use/occupy is insufficient

• Basis for this is that a claim in nuisance arises from ‘interference with one’s land’

  • Malone v Laskey: land occupied by a manager and his wife was injured – she had no interest in the land and so no right to sue Hunter v Canary Warf

  • Position reaffirmed in

• Scrutiny of the rule after the HRA 1998 – (McKenna v British Aluminium) – issue was whether there was an infringement of A6 and A8

  • Dobson v Thames Water Utilities Ltd – confirmed position in Hunter v Canary Warf – C must have interest in the land to have a right to sue

Who can be sued?

The creator of the nuisance

• Even if not in a position to end the nuisance and even if not the occupier of the land (Thomas v NUM)

The occupier of the land from where the nuisance is taking place

• Can be liable for nuisances created by himself as well as those created by others – responsibility derived from the fact that he has control over the land and the occurrences upon it

• Leakey v National Trust – NT liable for a large mound of earth which it had accumulated on its land, which collapsed onto the C’s neighbouring land – they had been aware of it and did nothing

• Liable for nuisances caused by third parties in exceptional circumstances:

• Independent contractors

  • If occupier has instructed them to perform tasks which cause reasonably foreseeable nuisance: Matania v National Provincial Bank: foreseeable excessive noise and dust caused by contractors altering his property – unusual as building doesn’t usually cause basis of a nuisance claim – people are expected to put up with the ‘live and let live’ in their daily living (Bamford v Turnley)

• Predecessors in title

  • Liable of the successor continued or adopted predecessor’s nuisance

• Trespassers

  • Liable if the occupier adopts the nuisance caused by trespasser

    • Sedleigh-Denfield v O’Callaghan –D used poorly maintained pipe that had been unlawfully put under his land, so liable when it leaked

  • But an occupier may escape liability if he takes reasonable steps to abate the nuisance

• Naturally occurring nuisances or natural condition of the land

  • Law traditionally absolved the occupier from liability

    • But Goldman v Hargrave – PC - occupier liable for naturally occurring nuisance where he knew or ought reasonably to have known of a danger and failed to take reasonable steps to abate it

      • However - a duty to abate is limited: will not be expected to bankrupt himself in the process of abating nuisance naturally occurring nuisance - Holbeck Hall Hotel v Scarborough BC

The landlord

• Not usually be liable for a private nuisance unless he has created it, or authorised it, or knew or ought to have known at the time of letting the property, or if he has expressly or impliedly reserved the right to enter or repair (Lippiatt v South Gloucestershire Council vs. Hussain v Lancaster City Council)

• Tetley v Chitty – Landlord was held liable for leasing premises to a ‘go-cart’ club

Elements of private nuisance

1. Indirect interference

• Sounds, smells, fumes, vibrations etc.

• Sedleigh-Denfield v O’Callaghan – flood of water held to be capable of constituting a private nuisance

• Nuisance starts on the D’s land and then causes damage to some aspect of C’s use/enjoyment of land

2. Damage

• Not actionable per se - must establish that they have endured damage

• Only reasonably foreseeable recoverable (Cambridge Water Company v Eastern Counties Leather)

• Not possible to claim for personal injury in private nuisance (Hunter v Canary Warf)

• HL in St Helens Smelting CO v Tipping – distinguished btw 2 types of damage – (a) physical damage to property and (b) sensible personal discomfort (SPD):

  • ‘the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves’

  • Personal damage (Lemmon v Webb – overhanging tree branches causes physical damage)

  • Or SPD – where the senses of the C are affected– ‘amenity damage’ (Horsey and Rackley)

• However – not all interference with the enjoyment value can be claimed– e.g. Hunter v Canary Warf – refused to recognise claim for interference with TV signal – nothing had been emitted from D’s land

3. Unlawful interference

• C must show ‘unlawful interference with his enjoyment or use of the land’ – (Bamford v Turnley)

• ‘unlawful’ – unreasonableness more than illegality

• Cambridge Water Company v Eastern Counties Leather

  • ‘although liability has usually been regarded as strict…if the user is reasonable, the D will not be liable for consequent harm to his neighbour’s enjoyment of his land’

• Sedleigh Denfield O’Callaghan – ‘a balance has to be maintained btw the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with…but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society’: reasonable in a particular context

Factors to be considered for unlawful interference

Factors with ARE relevant

1. Time and Duration

• When the alleged nuisance takes place, how long it continues and how frequently it is repeated: determined with reference to all the circumstances

• No liability for an isolated incident

  • Single incident could be a nuisance if it illustrates underlying state of affairs – Spicer v Smee – fire started in bungalow with defective wiring

  • British Celanese v AH Hunt Ltd: Power cut caused by bits of tin foil (used in industry) – only one bit hit generator but one but courts said it was a continual state of affairs

• Crown River Cruises Ltd v Kimbolton Fireworks Ltd: firework display of 20 minutes (usually too short) but was be a nuisance (fire liability) – fire is a major nuisance so courts are strict

2. Character of a neighbourhood of ‘locality’

• St Helen’s Smelting – character of the neighbourhood IRRELEVENT where damage is physical

• But relevant in relation to SPD

  • Sturges v Bridgman – doctor complained that his surgery was disturbed by the noise and vibrations coming from the D’s premises

    • Thesiger LJ – ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’

  • Adams v Ursell – fumes caused by fish and chip shop were held to constitute a nuisance in a residential area

  • Laws v Florinplace Lrd – location of a ‘sex shop’ in a residential area

• Planning permission will not authorise a nuisance (Wheeler v JJ Saunders but it may alter the character of the area, from residential to industrial (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd) – so that what was once a nuisance in that area is no longer a nuisance

  • Watson and others v Croft Promo-Sport Ltd – planning permission to build a motor circuit held not to have changed the nature of the rural area even after the circuit had been running for over 40 years

3. Abnormal Sensitivity

• Cannot claim that activities that would not interfere with the ordinary occupier are a nuisance

  • Robinson v KIlvert : heat emitted from the D’s part of the premises damaged the C’s heat sensitive paper : paper was abnormally sensitive – ordinary paper wouldn’t have been affected

  • Heath v The Mayor of Brighton- sensitivity to humming noise (hearing sensitivity)

• Mckinnon Industries: if you are particularly sensitive but can prove that someone else wouldn’t put up with the nuisance then you can still claim (orchids very sensitive – but he could prove that normal vegetation was also destroyed)

• Broadcasting reception – such action could not constitute a private/public nuisance (Brindlington Relay v Yorkshire Electricity Board) confirmed in Hunter v Canary Warf

  • More flexible approach – Network Rail Infrastructure Ltd v CJ Morris : railway signalling system interfered with C’s recording studio: such cases should be viewed in terms of foreseeability rather than abnormal sensitivity: recognised that use of electronic equipment was now a feature of modern life

  • In Canada - interference with TV signal can be a nuisance – but Hunter still good law in UK

4. Malice

• If D caused nuisance maliciously then court is more likely to interfere

• Christie v Davey – C music teacher – every time she had a lesson the neighbour would throw pots and pans and shout/scream with malice

• Hollywood Silver Fox Farm v Emmett – C operated a fox breeding farm – after a dispute the D instructed his son to fire shot near the C’s land with the intention of frightening the vixen – Macnaghten J ‘use of the D’s house to use it for the purpose of vexing and annoying his neighbours’

5. Defendant’s Lack of Care

• If the D has shown lack of care – this is likely to count in the C’s favour - Andrae v Selfridge

6. Excessive Behaviour

• If the D has behaved in an excessive manner – may indicate that he is being unreasonable and creating a nuisance (Farrer v Nelson where the D owned hundreds of pheasants – excessive)

7. Natural Condition of the Land

• See ‘naturally occurring nuisances’ above

Factors which the D may argue, but which will NOT justify the commission of a nuisance

1. Utility/Public benefit: does not justify a...