#16166 - Nuisance - Tort Law

Summary 3

Emanation causing material injury to property 3

Emanation causing sensible personal discomfort/loss of amenity value 3

Both 4

Encroachment 4

Obstruction 4

Affront 5

Responsibility 5

Must the nuisance emanate from D’s land for private nuisance? 5

What is necessary for “authorizing”? 5

What is necessary for “adopting/continuing”? 6

Defences 6

Damages 6

Damages in lieu of injunction 7

When they should be given 7

Exemplary damages? 7

Easement to make noise 7

Extent that D’s own activity is to be taken into account 8

Who Can Sue? 8

Should wider class of people be allowed to sue? 9

Rylands v Fletcher Liability 9

Rule: 9

Rationale 9

Is Rylands v Fletcher a species of private nuisance? 10

Scope of Liability 10

Defences 12

Remedies 12

Commentary 12

| Gearty, 48 CLJ 214 12

| Cross (1995) 111 LQR 445 13

| AWB Simpson, Leading Cases, (OUP 1995) Chs 7 15

| Newark, 65 LQR 480 16

| *Ogus & Richardson, 36 CLJ 284 17

| *Lee (2003) 119 LQR 298 17

Textbook 19

Winfield and Jolowitz (Nuisance) 19

The offences 19

Reasonableness 20

Standard of Liability 21

Who can sue? 21

Who can be sued? 21

Defences 22

Remedy 22

Winfield and Jolowitz (Rylands v Fletcher) 23

THe Principle 23

Requirements 23

Defences 24

Remoteness 24

McBride & Bagshaw (5^th Edition) 25

Private Nuisance 25

The Rule in Rylands v Fletcher 34

Cases 37

Chapter I - PRIVATE NUISANCE 37

| *St Helen’s Smelting Co v Tipping (1865) 11 HLC 642 37

| Bradford Corporation v Pickles [1895] AC 587 37

| *Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 38

| Halsey v Esso [1961] 1 WLR 683 38

| *Hunter v Canary Wharf [1997] AC 655 38

Robinson v Kilvert (1889) 40

Leakey v National Trust (1980) 41

*Coventry v Lawrence [2014] UKSC 13, [2014] AC 822 41

What is Private Nuisance? 41

Relevance of Planning Permission 44

| Marcic v Thames Water (2004) 47

Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in Nolan and Robertson (eds), Rights and Private Law (2012) 459 48

| Steel, ‘The Locality Principle in Private Nuisance’ (2017) 76 CLJ 145 48

A - Who can sue? 48

| *Hunter v Canary Wharf [1997] AC 655 48

B - Who is liable? 51

| *Sedleigh-Denfield v O’Callaghan [1940] AC 880 51

| *Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705 51

C - Remedies 51

Damages 51

| *Wagon Mound (2) [1967] 1 AC 617 51

| * Dobson v Thames Water Utilities Ltd. [2009] EWCA Civ 28, [2009] 3 All ER 319 52

Injunction 52

| **Coventry v Lawrence (No 1) [2014] UKSC 13, [2014] 1 AC 822 52

Andreae v Selfridge [1938] Ch 1; 55

Chapter II - THE RULE IN RYLANDS V FLETCHER 55

*Transco plc v Stockport MBC [2003] UKHL 61, [2004] 2 AC 1 55

| Bagshaw, ‘Rylands Confined’ (2004) 120 LQR 388 57

| Nolan, ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 LQR 421 58

Examples:

• Hunter v Canary Wharf: (CoA) deposit of excessive dust on a carpet can amount to physical damage

• Blue Circles v Ministry of Defence: (CoA) intermingling of plutonium with soil so that it couldn’t be removed amounts to property damage

St Helen’s Smelting v Tipping: Characteristics of locality is irrelevant because just because the neighbourhood is devoted to manufacturing purposes of a similar kind to D’s doesn’t mean that it may be carried on with “impunity” resulting in “injury and destruction to” C’s property, except where prescriptive right acquired by lengthened use

Consider:

1. Emanation was created/authorized/continued/adopted by the defendant

2. Emanation was from land over which D had sufficient control (analysis required)

3. Emanation caused injury to the property

4. Damage wasn’t trivial/hypersensitive (Halsey v Esso)

5. Defences

St Helen’s Smelting v Tipping: Characteristics of locality/established patterns of use relevant to the question of reasonable use

To establish unreasonable interference:

• Ignore amplification based on hypersensitivity

  • Unless there is malice: Hollywood Silver Fox v Emmett

• Consider characteristics of locality (if applicable)

  • Broad brush categorization (Gaunt v Fynney) or finer distinctions (Adams v Ursell) – latter preferred in light of Coventry v Lawrence: problematic areas are usually not homogeneous but contain various coexisting patterns of use (Carnwath) and thus “established patterns of use” is preferable to “character of locality” (Neuberger). This consideration may not be absolute; Lord Loreburn, as quoted by Veale J in Halsey v Esso, remarked that a person living in a relatively comfortable abode in the manufacturing part of Sheffield may still have a right to complain if a steam-hammer is introduced next door.

  • Planning permission relevant insofar as it doesn’t permit the actual nuisance complained of or amount to a nuisance (Neuberger), and where it offers a “benchmark” on issues such as time where noise is permitted (Carnwath). In exceptional cases (Gillingham v Medway) planning permission can change character of a locality to make an actionable nuisance innocent but this is very rare (Wheeler v Saunders, Coventry v Lawrence).

• Consider significance of interference with regards to time, duration, regularity and intensity

  • Rushmer v Polsue, Halsey v Esso: unreasonable to interfere with sleep with excessive noise (remedy: close down plant at night)

  • Sedleigh-Denfield v O’Callaghan: one-off or isolated events can only be actionable if they arise from an underlying state of affairs

• Consider reasons for interference (malice, negligence, pursuit of legitimate purpose)

  • Although Bradford v Pickles held that malice didn’t render an innocent action actionable, Hollywood Silver Fox v Emmett distinguished the case and held that it was a relevant factor in considering reasonableness. Bradford v Pickles shouldn’t be relied on as authority because it could be decided on the alternate ground that C had no right to percolating water (the object obstructed), and even in that case Lord MacNaghten (who decided Emmett), said “He is churlish, selfish and grasping… But where is the malice?”, suggesting that D’s conduct did not amount to malice without ruling out the relevance of actions that do, in fact, amount to malice.

Robinson v Kilvert: Interference must be so as to materially interfere with the ordinary comfort of human existence, not merely according to elegant or dainty modes of living

Southwark London BC v Tanner: Interferences resulting from acts necessary for the common and ordinary use and occupation of land and houses do not constitute a nuisance as long as they are conveniently done

• eg. noise of daily activities (quarrelling, babies…) don’t constitute nuisance in flats with thin walls even if they are “intolerable”

• “conveniently done” is an important qualification because if D could put the washing machine elsewhere but chose to put it where walls are thinnest, then it can be actionable

• All encroachments violating boundaries of C’s land automatically amount to unreasonable interference

• C needs to show that D is responsible for the interference

• Lemmon v Webb: C allowed to cut off protruding branches etc. but can only sue if further damage is caused by the encroachment

• C can only sue if obstruction is related to some right over the land; otherwise can’t sue even if the obstruction reduces C’s use and enjoyment/causes physical damage

• Bradford v Pickles: (D stopped water that was percolating under his land from continuing onto C’s reservoirs out of malice/to persuade C to buy his land/pay him fee) Claim failed because C couldn’t prove that he had the right to the water.

• Hunter v Canary Wharf: Building of Canary Wharf tower blocked Cs’ access to television signal. Though in Bridlington v Yorkshire Electricity Board it was held that such interference wasn’t nuisance because it constituted a purely recreational facility and not health/physical comfort, HL in Hunter disputed the validity of this reasoning in light of growing social importance of television. However HL held that C had no right to television signals coming from neighbor’s land just like he has no right to a view of neighbor’s unobstructed field

• When will C be able to prove he has a right:

  • Light – prescription (Prescription Act 1832 fixed period of acquisition at 20 years) may give rise to freedom from future obstruction; right to a view can only be negotiated for a restrictive covenant that the other party not build on their land (Lord Blackburn, Dalton v Angus)

  • Air – no general right to receive air/wind that but for obstruction would have come onto C’s land, but where air flows to a defined aperture (eg. ventilator) he may have an easement

  • Water – right to receive water from adjacent stream subject to reasonable use by people upstream (can claim if upstream diverts most of flow/pollutes the water); no right to water like in Bradford v Pickles

• However two views in Hunter v Canary Wharf contradict assertion that C must prove violation of right:

  • Cooke: real reason why C wasn’t entitled to TV signal was ‘give and take’ and that neighbors are expected to deal with such interference (however malicious erections for purpose of blocking neighbour’s TV signal is actionable like Christie v Davey)

  • Hope (support?): The tower wasn’t maliciously constructed in order to interfere with C’s reception

• Suggests that maliciousness is an alternative for proving rights, however, majority of HL didn’t agree and it contradicts Bradford v Pickles

• Principally used against brothels, pornographic cinemas and sex shops

• Laws v Florinplace: residents sought injunction...