#5369 - Nuisance Notes - Tort Law

• Bradford Corp (1895) – D undertook extensive draining works with motive of making C pay him not to proceed. This would prevent drainage into C’s dam.

Court – use of property that would be legal with a proper motive cannot be classified as a nuisance just because of bad intentions (maliciousness, but now out of date). Owner of land has right to redirect percolating water to deprive neighbour. There is no common law interest in such water pre-collection.

• Victoria Park Racing (1937) – D watched racing on C’s land from roof and broadcast commentary that caused loss to C.

Court – nuisance is an unreasonable and significant interference with the use and enjoyment of property. Simply to commentate on the events on C’s land won’t qualify.

• Hunter (1997) – D built tower on his own land but it interfered with television reception.

Court – analogy of radio signal with a view – thus no interference that is actionable in nuisance since there is no right to a view, or to a signal.

Substantial Interference.

Substantial interference in general:

• Walter (1851) – D burned bricks on own ground so as to be offensive to neighbour.

Knight-Bruce VC –unreasonableness requires the nuisance to be substantial – thus not unreasonable merely according to elegant or dainty modes and habits of living, but “according to plain and sober and simple notions among the English people. “

• St Helens Smelting (1865) – C bought property and then D began extensive smelting nearby. Question whether carrying out activity on land in a convenient or suitable place can prevent it being a nuisance?

Lord Westbury – Distinguish (1) damage cases from (2) cases where nuisance is productive of personal discomfort. In (2) location will effect conclusion, in (1) the fact that activity usual here wont effect result.

• Southwark (1999) – C lacked adequate sound insulation in flats so sued D’s for everyday noises effecting his enjoyment of property.

Lord Hoffmann – Landlord is liable only when he has authorised the tenant to commit a nuisance. Normal use of residential flat can’t be nuisance to neighbour. Use being reasonable prevents liability. Since act of simply living in flat won’t be substantial or unreasonable landlord can’t be liability for authorising it.

Gravity of Interference Assessed Objectively:

• Robinson (1889) – D used cellar in manufacturing process requiring dry, hot air. This increased temperature of flat above and devalued paper stocks.

Cotton LJ – something in itself not noxious will not be held to be a nuisance unless it is interfering with ordinary enjoyment or use of property for private or business use. Wrong to describe something as a nuisance if not ordinarily noxious or ordinarily affecting enjoyment/business use. Assessment is objective and won’t have regard to unusually sensitive uses of property.

• McKinnon (1951) – Fumes from D’s factory damaged particularly delicate orchids that C grew. Thee fumes would have damaged any flowers.

Court – once a nuisance is established it shall extend to delicate and sensitive operations that it is effecting. So if it would be that usual things involved in enjoyment/use would be damaged then it will extend to sensitive ones in damages.

Nature and Extent of Interference:

• Halsey (1961) – D’s plant omitted significant noise, chemicals that damaged car, and pungent smells. Trucks omitted higher noise still.

Veale LJ – nuisance may still be found when activity is suitable to the land – this is one of several factors in the decision as to substantiality when the issue is noise and smell (it’s not taken into account in damage cases). Law to strike a fair/reasonable balance between right to undisturbed enjoyment and right to use for lawful enjoyment. Damage done to property not on their land was included for C (car parked on road). Injury to health not necessary for smell nuisance.

Damages for car and injunction to bring below nuisance level of noise and smell.

Nature of the locality:

• Gillingham (1992) – P granted PP for use of naval dockyard as commercial port. D took a lease – as a result heavy traffic resulted on residential roads so P brought action in nuisance.

Court – PP has the power to alter the character of an area and where it is granted a nuisances existence must be determined on the basis of the character off the neighbourhood after it was granted.

Test of reasonableness + substantiality referred to an area with planning permission for use as a commercial port.

• Wheeler (1996) – D given PP for two pig houses next to C’s holiday cottage. C lost profit.

Court – PP will not always result in a change in the character of the neighbourhood. PP does not equate to the defence of statutory authority. Judges were concerned to prevent PP from becoming a full defence as this would effectively mean that an industrial unit’s own existence would act as a justification for its existence.

• Biffa (2011)- one would expect a run-of-the-mill odour nuisance case such as this to be decided on well-established nuisance principles, with the central issue being whether in all the circumstances the smell was an ‘unreasonable user’, in other words a substantial interference with the residents’ use and enjoyment of their properties. His Lordship acknowledged that on the authorities a development for which planning permission had been granted could in certain circumstances alter the nature of the locality for the purposes of the private nuisance analysis. In any case a waste permit wasn’t covered by this rule on PP.

• Lawrence (2011) – Case where racing circuit was noisy but had PP and Jackson LJ - (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. (iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then: (a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character; (b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.

[Failed to bring out idea that a ‘grant of planning permission was only capable of changing the character of a neighbourhood if it was ‘a strategic planning decision affected by considerations of public interest’ in Wheeler.]

Reasonableness of Defendant’s conduct:

• Harrison (1891) – D sunk shafts and in process took reasonable care and used reasonable skill in choosing the pumps he used. Pumps created come noise.

Vaughan Williams J – Defendants have a good defence by reason off their use of reasonable skill and care, and the absence of negligence.

• Christie (1893) – D annoyed by C’s music lessons so retaliated by knocking on the wall, blowing whistles, shrieking and generally interrupting with noise.

North J – This is nuisance on the basis of his malice. “If what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case”.

Court – where D interferes with legally protected interest of C malice will have bearing on his reasonableness. Not a factor if right not legally protected. D’s conduct must be unreasonable to satisfy needs of nuisance.

• Hollywood Silver Fox (1936) – D deliberately caused guns to be fired near C’s land to disturb silver foxes’ mating season. He knew how nervous females were. D driven by malice.

Court – in judging reasonableness D’s motive shall be taken into account. [The case shows an interplay between objective gravity factor of foxes being unusually sensitive and the need to take account of D’s motives]. Nuisance made out here.

• Miller (1977) – D around for 100 years and houses developed around it within range of ball (cricket ground). 15ft fence built but C’s garden still hit and thus unusable during games.

Court – In judging reasonableness of an activity the court would have regard to the public interest in its performance and continuation in comparison to the nuisance it causes C. Here there would be no injunction – however if physical damage had been the issue then the public good shall not exonerate D from liability.

Denning (dissent) – this should also be used in answering question of whether a nuisance existed at all, not just in whether an injunction should be granted.

• Biffa (2011) - The question of reasonable user is neither what is reasonable in the eyes of the defendant or even the claimant … but what objectively a normal person would find it reasonable to put up with. Question was whether the disposal of the waste in question in an area with a history of quarrying and tipping created an amount of discomfort in excess of that which ‘an ordinary person could reasonably be expected to put up with.???

Remoteness of the Damage.

• Cambridge Water (1994) – D used and stored chlorinated solvent a mile from C’s borehole where domestic water was abstracted. It seeped into ground below and was conveyed into borehole by percolating water.

Lord Goff – no liability where the possibility of interference which actually occurred could not reasonably have been foreseen by a person in D’s position when doing acts.

Who Can Sue?

• Hunter (1997) – Only those with exclusive possession or title to the property...