L.O:
- Define private nuisance and identify the main features
- Identify the three types of private nuisance
- Explain the requirement for an interest in the land
- Explain the requirement for unreasonable use of land
- State the importance of showing damage, injury or loss of convenience
- Explain the main defences available
- Identify the remedies available
What is a Private Nuisance?
A private nuisance is an interference with a person's enjoyment and use of his land. It is a civil action.
Nuisance
When the courts and law reports refer to a 'nuisance', they are usually referring to a private nuisance and not a public nuisance.
When statute law refers to a 'nuisance', it usually means both public and private nuisance unless otherwise stated
Types of Private Nuisance
Private nuisances are of three kinds:
- Nuisance by encroachment on a neighbour's land e.g the roots from a tree in a person's garden grow under the ground and into their neighbour's garden, damaging the foundations of their house
- Nuisance by direct physical injury to a neighbour's land e.g Driving a car over a neighbour's garden, damaging it
- Nuisance by interference with a neighbour's quiet enjoyment of his land e.g playing music all through the night and every night preventing the neighbour from sleeping
Key Cases
- Hunter and Others v London Docklands Corporation (1997)
- The case arose from the construction of a tower block at Canary Wharf in East London. An action concerning the effects of the construction work was brought by local residents,
- ISSUE - whether excessive dust could be sufficient to constitute damage to property for the purposes of negligence, and whether an interest in property was required to bring an action (some claimants were children or simply rented their property)
- CA HELD - The mere deposit of dust was not in itself sufficient because dust was an inevitable incident of urban life. In order to bring an action for negligence, there had to be damage in the sense of a physical change of property, which rendered the property less useful or less valuable. Examples given by the court included excessive dust being trodden into the fabric of a carpet by householders in such a way as to lessen the value of the fabric, or excessive dust causing damage to electrical equipment
- Also HELD - only householders with a right to land could bring an action in private nuisance
- In doing this, the House of Lords rejected the decision in Khorasandjian v Bush (1993) but upheld the decision in Malone v Laskey (1907)
- Hunter and Others v Canary Wharf Ltd (1997)
- The claimants complained that the erection of the Canary Wharf tower interfered with their television reception
- ISSUE - whether interference with television reception was capable of giving rise to an actionable nuisance
- HELD - there is no right of action in nuisance for interference with the television reception. It's the same as the obstruction of a view
Side Note
- In property law - one can reserve one's right to something by creating a covenant, which is an agreed clause in a contract or lease that stipulates that one will be able to enjoy these things when one buys a property and can sue if it is infringed
- An easement is likewise a right of access over land that can be enforced in property law
Types of Private Nuisance
Private nuisances are of three kinds:
- Nuisance by encroachment on a neighbour's land: the roots from a tree in a person's garden grow under the ground and into a neighbour's garden, damaging the foundations of the neighbour's house
- Nuisance by direct physical injury to a neighbour's land: driving a care over a neighbour's garden, damaging it
- Nuisance by interference with a neighbour's quiet enjoyment of their land: playing music all night every night, preventing a neighbour from sleeping
What is interference?
There are three elements to proving a private nuisance by interference:
- An indirect interference with the enjoyment of the land
- The interference was unreasonable
- The interference has caused damage
The nature of the interference must be continuous, rather than a one-off event.
- The key is whether the nuisance complained of makes it physically unpleasant for you to remain in your property - which will include things like pig smells
- The more physical the interference, the more likely it is that you will establish your claim or injunction
- You cannot complain about the spoiling of 'things of delight' such as a view. - decided as such in Bland v Mosely (1587)
Cases:
- Davey v The Harrow Corporation (1958)
- Tree root encroachment
- Sedleigh Denfield v O'callaghan (1940)
- A grate negligently placed over a drainage pipe led to blockage which in turn caused damage
- Christie v Davey (1893)
- Defendant's banging on the wall with a tray to disrupt music lessons was deemed malicious
- Wheeler v JJ Saunders (1995)
- Held that the granting of planning permission is one way of doing what you want with the land you own/occupy, but if you cause a nuisance it will not protect you from an action in tort
- Thompson Schwab v Costack (1956)
- Running a brothel in an otherwise respectable street (this would have impacted on property valuations so the nuisance was tangible)
Private Nuisance Claims Against the Occupier
- The occupier of land can be open to a claim for nuisance that they continue or prolong. This is especially the case where hazards occurring naturally are concerned. If an occupier is aware of their existence and does nothing about them or fails to take reasonable precautions, then this is the same as creating a nuisance
- Leakey v National Trust (1980)
- Court had to decide what was reasonable for the defendant to do by way of preventing a landslip occurring that was predictable, and which did happen
- A factor in deciding this was the financial means of the defendant to do something to prevent it. The National Trust had means to act but failed, and their inaction was therefore unreasonable
- Holbeck Hall v Scarborough Borough Council (2000)
- Defendant owned the land between the claimant's hotel and the sea
- Landslip took place
- Council held liable, but deemed not liable on appeal. In assessing the scope of the duty imposed under the principle in Leakey v National Trust (1980) the courts are to take into account the resources of the defendant
- It was decided that laying down a rule which requires every defendant in every case to make a physical and economic effort in unsought circumstances would be unjust and unfair.
- Resources need to be taken into account, but they must be assessed in every case
- Bybrook Barn Garden Centre v Kent County Council (2001)
- Claimant's garden centre damaged by flood water that came through a culvert or drainage pipe that had to deal with increased drainage due to change in land use in the surrounding area
- Held - CoA agreed with the test set out in Leakey v National Trust (1980), but someone with the resources of the Council would probably be obliged by law anyway to resolve the hazard - if there is that kind of state expectation, it isn't unreasonable to suppose they have the resources to do so
When is someone with an interest in the land actually liable as a defendant?
- Where a nuisance existed before the owners rented the land or permitted occupation of it - and they actually knew or should have known about the nuisance
- Where there is an ongoing obligation on the part of the owner to carry out repairs etc
- Where the owner can be said to have actually authorised the nuisance
Even more cases:
- Wringe v Cohen (1940)
- Defendant's house was in structural disrepair and it fell, causing damage to the claimant's shop. Defendant sued for negligence and nuisance. CoA upheld the claim in nuisance
- Tetley v Chitty (1986)
- A council who allowed their land to be used for go-kart racing was liable for the noise nuisance - as they ought to have known of the likely nuisance arising
- Lippiat v South Gloucestershire City Council (1999)
- The council was deemed responsible for the anti-social activities of a group of travelers that it had permitted to use the council land
- The nuisance carried out by guests or licensees must actually be carried out from the land to the detriment of the claimant - it is not enough that the guests are simply noisy or disruptive
- Hussain v Lancaster City Council (1999)
- The council tenants were not actually using the land - their behaviour meant that their occupation of the land was incidental, and not part of the nuisance that they were causing
- The nuisance must involve some connection (physical) with the land
- There has to be a very high probability that the land given over to the tenants or guests will be used for a purpose that gives rise to a nuisance - a mere possibility of this is not enough
- Cocking v Eacott (2016)
- Deals with the issue of whether to sue an occupier or a tenant. The case centred on who was responsible for a dog barking
- There was no formal lease. The daughter merely had permission (license) to stay
- Court held that the mum was still the occupier as she controlled the property and could enter at will
Not all Annoyances are Actionable
Just because something is an annoyance does not mean it is actionable in private nuisance. For example, interference with television signals by a building is an annoyance but is not actionable as a private nuisance
Characteristics of a Private Nuisance
A private nuisance has the following key elements:
- The claimant must have an interest in the land
- There must be unreasonable use of the land which is the source of the nuisance
- The claimant must suffer some harm
An Interest in the Land
- A claimant must have an interest in the land affected by the nuisance in order to make a claim of private nuisance. In effect, an 'interest in land' means a person must own or have a right over the land and can make a claim of private nuisance
- Persons such as visitors, family members and lodgers do not have an interest in the land and cannot make a claim of private nuisance
An Interest in Land: Exclusive Possession
- In effect a person who is in exclusive possession of the land is regarded as having an interest in the land.
- In Foster v Warblington UDC (1906) - the claimant was able to bring a claim of private nuisance because he was in exclusive possession of the land even though he could not prove his title to it
Foster v Warblington UDC (1906)
- The claimant was an oyster merchant who for many years had been in occupation of oyster beds artificially constructed on the foreshore. The claimant excluded everybody from the oyster beds, and nobody interfered with his occupation of the oyster beds or his removal and sale of oysters from them. However, the claimant could not prove ownership of the oyster beds
- Held - the claimant could bring an action in private nuisance caused by the discharge of sewage by the defendants into the oyster beds, notwithstanding that he could not prove his title. Occupation was sufficient
Malone v Laskey (1907)
- A company had rented a house for one of their managers to live in. The wife of the manager was injured when a bracket in a lavatory fell on her head caused by the vibrations of machinery on the defendant's property
- Held - the Court of Appeal decided that the wife could not make a claim of nuisance because she had no interest in the property
Khorasandjian v Bush (1993)
- The daughter of a property owner brought an action to obtain an injunction against a man who was harassing her including making nuisance telephone calls. The county court granted an injunction preventing the defendant from 'harassing, pestering or communicating' with the claimant
- It was argued by the defence that the injunction could prevent the defendant from assaulting or threatening to assault the claimant because that was covered by the tort of trespass to the person
- However, it was argued by the defence that the current wording of the injunction did not reflect any known tort
- The Court of Appela held that the wording of the injunction should remain unaltered. As part of their reasoning they argued that the telephone harassment was covered by the tort of private nuisance because it was an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present
- The Court of Appeal was particularly concerned that at that time there was no alternative action the woman could take. The woman would now be able to obtain protection under the Protection from Harassment Act 1997
Dobson v Thames Water (2009)
- Claimants complained of odours and mosquitoes affecting their properties from the activities of the defendant in the conduct of their adjoining Sewage Treatment Plant
- Issue - the rights of non title holders to damages in nuisance and related causes
- HELD - damages in nuisance are for injury to property and not to the sensibilities of the occupiers
Unreasonable Use of Land
The use of the land which is the source of the nuisance must be unreasonable for a claim of private nuisance to succeed.
In deciding whether the use of land is unreasonable, the courts will consider factors such as:
- The sensitivity of the claimant
- The duration of the nuisance
- The character of the area
- The reasonable foreseeability of the type of damage and
- Any malice on the part of the defendant
Sensitivity of the Claimant
- The standard of tolerance is that of the reasonable person and ordinary land use
- Abnormally sensitive claimants or using land for an unusual purpose that makes it sensitive to disruption, are unlikely to succeed in a claim for private nuisance
Robinson v Kilvert (1888)
- The defendant let a floor of his property to a tenant to be used as a paper warehouse. The claimant brought an action to prevent his landlord from heating the cellar, on the grounds that the rising heat dried his special brown paper, making it less valuable. Ordinary paper would not have been damaged
- Held - There was no private nuisance. CoA argued that a person who carries out an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade
Mckinnon v Walker (1951)
- Defendant manufactured iron products 600ft from claimant's property
- Claimant brought action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers, causing them to die (work in his premises was undermined completely)
- HELD - the defendant's actions constituted a nuisance and the claimant was entitled to damages in respect of the orchids, despite the sensitive nature of the flowers
Network Rail v Morris (2004)
- Claimant ran a recording studio close to a main railway track
- New track circuits were installed that generated an electro-magnetic field which interfered with the use of electric guitars at the studio, which resulted in the loss of several clients
- Brought an action in nuisance for interference
- HELD - defendant not liable. The use of amplified electric guitars fell into the category of extraordinarily sensitive equipment. Furthermore the interference was not foreseeable
Duration and Time of the Nuisance
The duration and time of the alleged nuisance can determine whether a private nuisance has been created
- Halsey v Esso Petroleum Co Ltd (1961)
- The High Court held that a private nuisance was created by noise at night from boilers and road tankers. Apparently the noise caused by filling petrol tankers was reasonable and so not a nuisance at 10am, but was a nuisance when it happened at 10pm. As well as this, there was damage to car bodywork because of the fumes. This is obvious property damage and so it was successful
- Generally speaking the courts require a private nuisance to be a continuing state of affairs
- However, there are exceptions to this requirement. For example, in Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996), a firework display that set fire to some moored barges was held to be a private nuisance
- Spicer v Smee (1946)
- Fire broke out on defendant's property as a result of faulty wiring
- The fire spread to a neighbouring property owned by the claimant. The claimant's action for nuisance succeeded. The faulty wiring was classed as a continuing state of affairs
The Character of the Area
The character of the area in which the alleged nuisance occurred is relevant in deciding whether there is a private nuisance
Sturges v Bridgman (1879)
- The claimant was a doctor who sued a confectioner for the noise caused by his industrial equipment. The court took into account the fact that the area in which they both worked consisted mainly of doctor's consulting rooms and concluded that there was a nuisance, explaining that what would be a nuisance in a quiet residential area would not necessarily be so in a busy industrialised one
Miller v Jackson (1977)
- The claimants moved into a house beside a cricket club. Cricket balls were frequently hit into their garden, and they attempted to get an injunction against the club to stop play. The Court of Appeal agreed that the cricket club had committed a nuisance, but refused to grant an injunction because of the usefulness of the club to the local community, which outweighed the interests of the claimants
St Helen's Smelting Co v Tipping (1865)
- It was held that although the character of the area is important, it did not prevent a successful action in private nuisance for damage to property. In this case, damage caused by vapours from a factory were held to be a private nuisance even though there were many other factories in the neighbourhood that also emitted vapours
- It was held that claimants should be prepared to put up with the level of discomfort common to the area in which they are situated. However, claimants are not expected to put up with actual damage to their land resulting from the normal activities of the locality, and so an injunction was granted
Wheeler v Saunders Ltd (1994)
- The claimant owned a house which was next to a farm. He claimed that a private nuisance had been created by the granting of planning permission for the building of two new pig houses where the smell of the pigs and their excrement was interfering with his use and enjoyment of the house
- The defendant argued that the granting of planning permission changed the character of the area so that what would have once been a private nuisance was no longer a private nuisance
- CoA Held:
- The granting of planning permission did not alter the character of the area and therefore what was once a private nuisance is still a private nuisance
- The granting of planning permission does not authorise the creation of a private nuisance
- The defendants were liable
Gillingham Borough Council v Medway Docks (1993)
- Defendant obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day
- Local residents brought an action in PUBLIC NUISANCE in relation to the noise created by heavy goods vehicles throughout the night
- HELD - not liable. It was decided that where planning permission is given for a development or change of use, the question of nuisance will be decided by reference to a neighbourhood with that development or use and not as it was previously
Lawrence v Fen Tigers (2014)
- Claimant claimed that the noise generated by motor sports at a nearby stadium was a nuisance
- HELD - claim failed. Planning permission had changed the nature of the locality so the noise was not a nuisance
Coventry and others v Lawrence (2014)
- The Supreme court stated that there will be occasions when the terms of a planning permission may be of some relevance in a nuisance case, but defendants cannot rely on this as a defence
Coming to a Nuisance
It is no defence in a case of private nuisance to argue that the nuisance was there long before the claimants came to it
Acts of Malice
An act of malice can lead to a successful action for private nuisance even though the defendant might be abnormally sensitive or if the act would not usually amount to an unreasonable use of land
Hollywood Silver Fox Farm Ltd v Emmett (1936)
- The claimant company was a fox fur farm. The defendant, an adjoining landowner, maliciously caused his son to discharge a shotgun on his own land as near as possible to the fox pens to interfere with the vixens during the breeding season
- Held - the claimant was entitled to an injunction and damages for the private nuisance. Although it was not unreasonable for a farmer to use a shotgun on his own land and the keeping of a fox fur farm might not be an ordinary use of land, the defendant had acted maliciously. It was also irrelevant in this case that the vixens were unusually sensitive to noise during the breeding session
Christie v Davey (1893)
- Claimant gave music lessons and parties. Defendant got annoyed and started to make noise back in retaliation
- Claimant sued in nuisance
- HELD - the court found in favour of the claimant purely because the response of the defendant was guided by malice
Reasonable Foreseeability of Type of Damage
- To succeed in an action in private nuisance it does not need to be shown that the defendant has taken reasonable care to avoid causing a nuisance (i.e harm, damage or inconvenience)
- However, it does need to be shown that the type of nuisance was reasonably foreseeable. This type of foreseeability was established in Wagon Mound (No.1)
- In Cambridge Water Co v Eastern Counties Leather PLC (1994), the House of Lords emphasised that nuisance required foreseeability of the type of damage as established in Wagon Mound (No.1)
Damage
Private nuisance is not actionable per se. There must be some damage, harm, injury or inconvenience
Network Rail Infrastructure v Williams (2018)
- Concerned the spread or encroachment of Japanese knotweed from the defendant's land
- On one hand this was a case where no actual physical damage had occurred; on the other hand the damage was the loss of value of the properties, because the knotweed was so hard to get rid of that it had a direct effect on the attractiveness of the properties to potential buyers
Liability for Private Nuisance: Occupier
An occupier is liable in private nuisance if they bear some personal responsibility for it. This means that:
- If the private nuisance was created by an act of a stranger, the occupier is liable if they know or ought to know about it
- If the private nuisance was created by an act of nature, the occupier is liable if they know or ought to know about it
- If the private nuisance was created by the previous occupier, the current occupier is liable if they know or ought to know about it
Liability for Private Nuisance: Landlord
A landlord is liable in private nuisance if:
- The landlord authorises the tenant to commit a private nuisance
- At the date of letting, the landlord knows or ought to know of the private nuisance
- A private nuisance is created during the tenancy and there is no agreement between the landlord and tenant making the tenant responsible for such repairs needed to remove the nuisance
Defences to Private Nuisance
The main defences to a private nuisance are:
- Statutory authority
- Prescription
Statutory Authority
It is a defence to private nuisance if the claimant can show that his or her conduct was authorised by law
Allen v Gulf Oil Refining (1981)
- Claimant brought an action in nuisance for the smell, noise and vibrations created by an oil refinery which had been constructed on the defendant's land. The defendant's construction of the oil refinery was authorised by an Act of Parliament
- HELD - The defendant was not liable as it had a defence of statutory authority
Barr v Biffa Waste Services (2012)
- The defendants were operating a landfill site that required handling a certain kind of rubbish that was even more unpleasant than usual
- Defendant's said that since they had been able to get a permit, they had statutory authority
- HELD - Courts agreed up to a point, saying that the terms and conditions of the permit had not envisaged the problem and hence the extent of the smell was something that had arisen in excess of the authority given by statute
Watson v Croft Promo Sport Ltd (2009)
- It was argued that planning permission had changed the nature and character of the surroundings, and that it offered a defence of the same kind as statutory authority
- HELD - CoA held on the facts this was incorrect because it was still a largely rural area, but in principle they agreed the point
Prescription
- The defence of prescription is a claim by the defendant that he or she has acquired the right to act in a particular wat because they have done so for 20 years. It is sometimes referred to as an 'easement by prescription'
- However, this defence is based on property law and can be difficult to use in practice
- In Sturges v Bridgman (1879) - prescription could not be used as a defence because although the defendant had used noisy equipment for more than 20 years, the moment the claimant doctor built his consulting room, only then did the noise become a nuisance. In other words it is not based on how long the act has been going on but rather on how long the act has been a nuisance
Reasonable Care and Skill
- Allen v Guld Oil Refinery (1981) said that if the nuisance is the inevitable consequence of your activity then you have a defence
- On the other hand, if a consequential nuisance can be avoided by reasonable care and skill, then any activity falling foul of that will be outside this defence and you will be liable for it
Things that are NOT defences to nuisance
- Where an activity is of public benefit
- this is only relevant insofar as the court will try to decide the case of nuisance fairly, by weighing up reasonableness and foreseeability by comparing the public benefit issue with the infringement of the claimants rights
- At its most effective, the public interest issue may only serve to allow the defendant to continue the activity, but to stop it to the extent that it causes a nuisance and infringes the claimant's rights
- Adams v Ursell (1913)
- Defendant was obliged to move his fish shop to another part of the street so as not to infringe the claimant's enjoyment of his property with unpleasant fishy smells
- The defence of public benefit - in that it was a source of quick and cheap food in an impoverished neighbourhood was deemed not to outweigh the nuisance inflicted on the claimant
- In Miller v Jackson public utility of the cricket club did not offer a defence to nuisance where damages were payable for property damage even though the court decided that an injunction completely preventing the activity would be unfair given its use to the community
- Dennis v Ministry of Defence (2003)
- The social utility of training jet pilots meant that the MOD should not be prevented from carrying out this activity, but it did not mean that they should not pay compensation as and when appropriate because of the noise of the jets
- Care and skill
- Simply because an activity has been carried out with care and skill does not mean that a defendant has a defence to negligence, if the reasonable conduct of an activity results in damages
- You also cannot say that a claimant has come to, or consented to, a nuisance. The courts see this as unfair (Sturges/Miller)
- Coventry v Lawrence said that care and skill were only matters to be taken into account in assessing reasonableness as were the existence of planning permission, the character of an area, and the apparent consent of the claimant
- The court said when an injunction is being sought, the fact that more than just the claimant being affected was also something to consider
Remedies for Private Nuisance
The main remedies for a private nuisance are:
- Damages
- Injunctions
- Kennaway v Thompson (1980)
- Issue was the noise of motorboats
- Claimant sued for an injunction along with damages
- The court decided that the claimant's rights could be adequately compensated for by damages rather than an injunction and felt that an injunction would be excessive on the facts and unfair to the defendant
- On appeal the CoA said that damages and injunctions are not an either or option. If someone clearly requires both to have their rights protected, the courts should keep an open mind
- On the facts, the breadth of the injunction was limited so as not to result in a total ban on power boat racing, but simply to reduce this activity
The Overlap Between Private Nuisance and Negligence
There is an overlap between nuisance and negligence:
- In many cases claimants bring an action for both private nuisance and negligence
- Both require injury or harm to the claimant
- Both require foreseeability of the type of damage
They also have their differences:
- A private nuisance does not need to involve a negligent act
- The remedies for a private nuisance are usually damages and an injunction to stop the nuisance
- The remedy for negligence is damages
Examination Tip
ALWAYS CHECK THE WORDING OF THE QUESTION
Many acts can involve possible liability in negligence, private nuisance, or trespass to land
You will gain few marks if the questions asks you to consider liability for private nuisance and you write an answer on negligence or trespass
Problems with Nuisance of an A03 Nature
- This are of tort can be seen as unsatisfactory. The Hunter decision about the impairment of TV reception has been criticised considerably. Are the rights of wealthy developers being considered over smaller litigants in nuisance claims? Why should being able to watch TV be regarded as a luxury in such places rather than an essential feature of the enjoyment of the property?
- There is some opinion that this case might not withstand the application of the Human Rights Act 1998
- In terms of the HRA 1998, the courts will have to balance rights conferred under Article 8 (right to a home life) with wider policy issues and the protection of the rights of others
- An activity such training jet fighter pilots can be seen as essential to the protection and economic wellbeing of the wider nation - the problem arises when you have to decide as a court whether damages alone will satisfy the breach of rights that such activities sometimes cause
- In such situations, we can see that the public interest can so often trump private ones in the assessment of nuisance