#17348 - Private Nuisance - GDL Tort Law

Read v Lyons [1945] per Scott LJ: “... an unlawful interference with a person’s use or enjoyment of his land, or some right over, or in connection with, that land.”

• C must prove that there was:

  • (1) an unreasonable interference; (property damage, noise, smoke, smells)

  • (2) with C’s use or enjoyment of his or her land;

  • (3) for which D is responsible.

Who can bring a claim:

• Claimant must have a proprietary interest in the land (Hunter v Canary Wharf [1997], per Lord Lloyd – claimants argued that erection of Canary Wharf Tower caused a nuisance interfering with TV signal)

  • Malone v Laskey [1907] – wife of man employed on land injured when engine vibrations from adjoining property shook a cistern loose. No interest therefore no claim.

  • Khoransandjian v Bush [1993] – Dillon LJ stated that a personal licence was sufficient to sue for an harassment claim.

    • Harassment Act has made this unnecessary and was overruled in Hunter.

• Impact of HRA 1998

  • Issue of whether this condition affected article 6 (right to fair trial) right to enforce Article 8 (Right to Respect ones Family and Private Life)

  • McKenna v British Aluminium Ltd [2003] - Over 30 claiamants sued in nuisance over the noise and fumes, some of the children had no interest in the land.

    • Strike out request failed in the light of the extension of Human Rights law to common law

  • Dobson v Thames Water Utilities [2009] - It was not possible to rule out some damages being awarded under s 8 to a person other than the owner of the land, but damages in nuisance are for property damage not for not the injury to the sensibilities of the occupiers.

  • Area of law needs clarity.

Who can be sued:

• The creator of a nuisance:

  • Thomas v NUM [1986] – miners had abuse shouted at them by picketers. Shouting was a nuisance and picketers s creators could be sued.

  • Hussain v Lancaster CC [2000] – tenants racially abused claimant (another tenant). Held unless landlord authorises nuisance they are not generally to be sued but the person who created the nuisance should.

• Occupiers of the land who order the work done which involves a risk to C

  • Matania v National Provincial Bank [1936] Building work carried out by independent contractors caused excessive noise and dust. It was ordered by the defendant, D liable.

• Occupier who adopts or continues the nuisance created by a trespasser

  • Sedleigh-Denfield v O’Callaghan [1940] Defendant didn’t create the nuisance (council put a water pipe unlawfully under their land and it was poorly maintained) but they knew about it and were using it for three years.

  • Lippiatt v South Gloucesteshire C [2000] – Council failed to prevent travellers from using their council as a launchpad to interfere with Claimant’s land.

• Occupier who adopts or continues the nuisance created by an act of nature

  • Goldman v Hargrave [1967] – tree was struck by lightening. D had opportunity to put it out, didn’t and the fire spread causing property damage.

  • Holbeck Hall Hotel v Scarborough BC [2000] – land slip caused hotel to become unsafe, meaning it had to be demolished. Bought claim against owner of the land that slipped.

    • Held that council were not liable as the cost of abating the risk was too onerous and the damage far greater than that anticipated.

  • Network Rail Infrastructure v Williams [2018] – Japanese knotweed spread from D’s land to land of claimants. Held NRI had failed to take reasonable steps to prevent the knotweed spreading to the claimants land.

• Landlord are not generally liable unless:

  • They have created it, authorised it, knew or ought to have known of the nuisance at the time of letting the property, or if they have expressly or impliedly reserved the right to enter and repair.

  • Harris v James (1876) – Landlord let land for purpose of mining and burning lime. he landlord was held liable because the nuisance was the natural and necessary consequence of the letting.

  • Tetley v Chitty [1986] – Noise created by go-cart club. Defendant owned the land the club was using and authorised the use.

    • Landlord could be liable as they had authorised the use of land that created the nuisance.

  • Hussain v Lancaster CC [2000] – facts above. Council had not authorised abuse.

  • Lippiatt v South Gloucestershire [2000] Travellers camped on council land, without permission of council, but in their knowledge. They were using the council’s land as a launchpad to unreasonably interfere with Claimant’s land

    • Council liable for failing to take reasonable steps to stop travellers.

For the damage to be unlawful it must be unreasonable

• Cambridge Water v Eastern Counties [1994] – Lord Gough: people must be entitled to a reasonable use of their own land.

  • This is an objective standard. But liability is strict: if the use is unreasonable then the defendant will be liable even if they have exercised reasonable care and skill to avoid harm.

• NB there is automatically a nuisance if there is physical damage.

  • St Helens Smelting Co v Tipping (1865) – Claimant bought estate near factory. Pollution damaging trees. Automatically a nuisance if there is damage.

Five factors used to determine what is unreasonable:

• 1) Locality of the alleged nuisance

• 2) Sensitivity of claimant’s use of land (not relevant)

• 3) Extent of the interference

• 4) Public Benefit (relevant only when considering remedy)

• 5) Malice

1) Locality of the alleged nuisance

• Sturges v Bridgman (1879) – “a nuisance in Belgrave Square would not necessarily be a nuisance in Bermondsey.” Factory was unreasonable in a residential area.

• Coventry v Lawrence [2014] – Claimants bought a house near motorsports stadium. Moved in and found there was lots of noise pollution. Council had granted planning permission.

  • Held when the council is looking to grant planning permission it is not taking into account tort law rights, therefore just because you have planning permission does not mean you can necessarily do what you had planning permission to do.

2) Sensitivity of claimant’s use of land (not relevant)

• There is no ‘thin skull rule’

• Robinson v Kilvert (1889) – heat sensitive paper was damaged by neighbouring boiler. The defendant was not liable. The damage was due to the special sensitivity of the paper.

• Can claim if ordinary occupier would also have been affected:

  • McKinnon v Walker [1951] – rare orchids were died. Ordinary flowers would also have died. Could claim for full damage.

3) Extent of the interference

• Look to both intensity and duration of the interference.

• Bolton v Stone – Cricket ball was hit out of ground an injured claimant. No nuisance as balls had only escaped six times in previous thirty years.

  • Miller v Jackson [1977] - Eight balls a year were being hit in the vicinity of the claimant’s house. Damages awarded.

• Crown River Cruises v Kimbolton Fireworks [1996] – 20-minute firework display set fire to barge. Nuisance despite short length.

4) Public Benefit (relevant only when considering remedy)

• Miller v Jackson [1977] – Refused to grant injunction as the cricket being played was for public benefit. Thus only damages awarded.

• Dennis v Ministry of Defence [2003] Using airbases to practice flying harriers. Pilots practicing low level flying. Noise levels were deafening. Claimant received 950,000 compensation. But MoD allowed to continue practice.

• Art 8 right to respect for one's ‘private and family life, his home and his correspondence’

  • Marcic v Thames Water [2003] - Parliament passed Water Industry Act 1991 that took away rights to sue caused by flooding. Claimants tried to argue that the statute was an infringement of Article 8,

    • HoL held it was compliant.

5) Malice actions are always unreasonable

• Christie v Davey [1893] – C was music teacher. D complained and took to banging on the walls and beating trays and shouting in retaliation. Claimed that he was ‘practicing his music.’

  • Motivated by malice therefore nuisance....