#3548 - Nuisance Notes - Tort Law

Public Nuisance

• Act/omission which “materially affects the reasonable comfort & convenience of life of a class of Her Majesty’s subjects” – Romer LJ in AG v PYA Quarries

• Key: is the number of people affected sufficient to constitute a class? question of fact

• Nuisance so widespread or indiscriminate in its effect that it’s unreasonable to expect one person to put a stop to it, but instead it should be borne by whole community(AG v PYA Quarries)

• C doesn’t need to have an interest in any relevant land(Tate & Lyle v GLC)

• Main uses

1. Obstructing public highways / navigation rights

• Tate & Lyle GLC - D’s ferry terminals caused silting which obstructed large vessel’s access to C’s jetty & C had to spend money dredging. Private nuisance failed (jetty itself unaffected and no property right in river bed), but public nuisance succeeded (silt interfered w/public navigation right and C’s expenditure was special damage)

• Obstacle on the highway constitutes actionable nuisance only if D did something that was unreasonable in circs electricity repairs, deliveries not unreasonable, unless very long.

2. Objects falling onto highway from adjoining premises

• Liable if know / ought to have known of danger (Wringe v Cohen- D liable when his roof collapsed (owing to a want of repair) and fell onto C’s house next door)

• Not liable should damage results from “secret and unobservable operation of nature, such as subsidence or the acts of TP” –Wringe

3. Carrying on an offensive trade

4. Throwing fireworks about the street

5. Holding a rave

• Remedies

1. Prosecution by AG on behalf of the public [public nuisance is a crime]

2. Private citizens who suffer special damage over & above that suffered by the rest of the public

• E.g. obstruction of public right of navigation causing special damage to the use of C’s vessels

• “Particular damage” – pecuniary loss, inconvenience and delay (if appreciably dif in nature or extent to that suffered by general public

• Claims for PI are allowed(Corby Group Litigation)

9. Private Nuisance

• Recoverable in privatelaw

• Preserve a balance b/w conflicting interests – occupier to use his land &neighbour’s quiet enjoyment of his

• Activity/state of affairs causing substantial & unreasonable interference (need assessment of individual circs) w/C’s land, use or enjoyment of it

• Not actionable per se (unlike trespass) C must first prove damage through tangible/ intangible interference with his use or enjoyment

• Range of activities w/potential to constitute a nuisance

• noxious fumes

• smoke

• noise

• heat

• generation of violent vibrations

• Doesn’t include PI (though it did for a while)

• In practical terms, C normally has a choice in which terms to phrase his action – negligence or nuisance (usual remedy in nuisance is injunction while in negligence it’s damages)

1. Was there interference

1. Encroachment onto neighbour’s land

2. Direct physical injury to land

3. Interference w/quiet enjoyment of land

• Found:

• Noise – Kennaway v Thompson (motor boat racing)

• Smell – Wheeler v JJ Saunders (pig farming)

• Emotional distress (brothel in neighbourhood)

• Trespassers

• Not found:

• Blocking a view - Bland (otherwise no towns)

• TV interference – Hunter v Canary Wharf – “man must be entitled to build on his own land”

• Hunter v Canary Wharf - private nuisance actions by large no of Docklands residents re nuisances caused by Canary Wharf development; i.e. y dust during completion of the development &interference w/TV reception by the presence of completed tower. Unsuccessful – there may have been nuisance if TV reception was affected by activities on Ds’ premises (e.g. electrical discharges) but mere presence of a building was insufficient. Acceptance that C needs only a “substantial link” w/property affected would transform nuisance into negligence.

2. Can C sue?

• Must have proprietary interest or de facto exclusive possession in the land – Hunter v Canary Wharf

• Reasoning: the law isn’t remedying personal discomfort of persons affected, but diminution in value of the land (capital or just amenity value)

• Can claim:

• Owner

• Occupier

• Tenant w/de facto exclusive possession

• Owner of easement of profit (sue for disturbance of his right)

• Can’t claim:

• Family/guests of the owner

• Employees

• Licensees

• Must show he suffered damage

• Material (i.e. property damage)

• May infer damage w/out the need to prove it

• Non material (i.e. amenity damage – personal discomforts; e.g. noise, smell and dust)

• Need to prove (w/evidence) substantial annoyance b/c amenity damage is purely personal and personal sensitivity varies considerably

• Can’t sue for PI b/c nuisance is a purely property tort (Hunter v Canary Wharf)

• There must be a continuing state of affairs

• Isolated escapes – try Rylands (no natural user) or negligence (prove fault)

• Private nuisance claim can be maintained where damage was caused by isolated escape but it must be proved this arose from circumstances that themselves constituted a nuisance – SCM v Whittal

3. Can D be sued?

   1. Occupier of the land where nuisance exists(e.g. tenant)

1. Basic liability lies w/occupier of land (e.g. tenant)

2. Simple case occupier created the nuisance

3. Difficult cases nuisance was created by:

1. Someone else lawfully on the premises

• Occupier vicariously liable for employees

• Unless an independent contractor except where owes “non-delegable” duty of care –when the work involves a special danger of nuisance

2. Trespasser, acts of nature, original owner

1. Occupier liable, if he continues or adopts the nuisance:

1. “continues" – w/actual or constructive knowledge of its existence fails to take any reasonable steps to end it (have regard to his individual circs – e.g. resources) though had ample time to do so

• requirement of fault makes the claim more like negligence; but nicer to D b/c takes his resources into acc when assessing reasonableness

2. "adopts" - makes any use of the erection, building, bank or artificial contrivance which constitutes the nuisance

• Assess reasonable steps from POV of knowledge of extent of risk as D knew it

• Hoelbeck Hall Hotel – landslide leading to collapse of hotel situated on a cliff top. LA owned the underlying land, knew of minor landslides danger but not ones to that extent. Not liable as took reasonable steps considering the knowledge had (only a geological expert could have foreseen the extent).

2. Trespasser

• Sedleigh-Denfield – LA went w/out D’s permission into commune and put a pipe in w/out a grip to prevent blocking. Drain got blocked, caused flooding on C’s land. D liable as were aware of its presence – should have taken reasonable steps to abate it

3. Acts of nature

• Leakey v National Trust – we autumn, debris on the steep bank of D’s hill, landslide into C’s property. D was aware of this risk but didn’t act. Liable b/c had duty to take reasonable steps to prevent it.

4. With someone from whom occupier acquired the property

   1. Landlord himself

• If he knew or ought to have known of the nuisance b/f letting

• If authorised his tenant to create the nuisance (expressly or impliedly)

• Hussain v Lancaster – LA tenants racially harassed shopkeepers. LA not liable as tenancy agreement instructed tenant “not to discriminate against or harass any residents”

• Southwark LBC v Mills –covenant for quiet enjoyment didn’t impose obligation on landlord to rectify acts/ omissions pre-dating the grant of a tenancy. Law imposed no obligation, whether express or implied, on him to install sound proofing in existing dwelling & there could be no extension of common law, given the extent of Parl. legislative provisions in this area. Tenant took premises in the condition in which he found them & subject to uses which parties contemplated would be made of those parts retained by landlord. Absence of sound insulation was inherent structural defect for which LBC could not be held responsible. Impossible to hold that landlord can be liable in nuisance for conduct which isn’t a nuisance on the part of the tenant. Nuisance involves doing something on adjoining or nearby land which constitutes unreasonable interference w/utility of C’s land. Here: sounds emanating from neighbours' flats – court didn’t think normal use of residential flat can be a nuisance to neighbours. If it were, would have absurd position that each, behaving normally and reasonably, was a nuisance to the other.

  1. Creator of the nuisance

• Query: must D have an interest in land? If a homeless man walked into my field and started a fire every night, blowing smoke into your house, could you sue the homeless man as creator?

4. Was D engaged in an unreasonable use of his land?

• May be unreasonable even if all care is taken (differs from negligence)

• Factors:

1. Extent and duration of interference

• Common sense that D will have to endure some inconvenience (e.g. drilling)

• Unreasonable if occurs frequently (e.g. drilling everyday) or very loud

• Physical damage more seriously interferesw/enjoyment so more likely to be unreasonable

2. Locality (relevant to intangible harm only, not physical - St Helens Smelting v Co Tipping)

• Depends on where it occurs (industrial v residential locations) - what counts as nuisance in Belgravia square wouldn’t necessarily be so in Bermondsey

• St Helens Smelting- A bought estate in neighbourhood w/many manufacturing works, incl. copper smelting company. Vapours from it were injurious to trees on A's estate. Held every man must use his own property as not to injure that of his neighbour but the law doesn’t regard trifling inconveniences as nuisance - must look at everything from...