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Nuisance

Previous: Occupiers’ liability

There are two types of nuisance: public nuisance and private nuisance. The former is a criminal offence, while the latter is a tort between land owners.

Public nuisance

The criminal offence of committing a public nuisance was defined in R v Rimmington [2005] as an act not authorised by law which omits to discharge a legal duty as endangering life, health, property, comfort or public rights of a class of persons in a common way. On the facts of the case, sending 538 racist letters was not classed as a public nuisance. Winfield and Jolowicz defined a public nuisance as an interference materially affects the comfort and convenience of life of a class of the public.

Injunctions

Public nuisances may be restrained by an injunction applied for by the Attorney General. They may be applied for directly, or on behalf of a local authority under s 222 of the Local Government Act 1972. For example, in A-G (on the relation of Glamorgan CC) v PYA Quarries [1957], where an injunction was successfully granted to prevent the defendant causing vibrations, dust and noise. Wandsworth LBC v Railtrak [2002] concerned a public nuisance caused by pigeon excrement on the defendant’s railway bridge.

Liability in tort

As aptly summarised by Winfield, it is possible for a person to sue for damages caused by a public nuisance if that person has suffered ‘special damage’ above others. For example, in Rose v Miles [1815], a canal blockage was a public nuisance, and the costs of alternative transport could be awarded. More recently, in Jan De Nul v NV Royal Belge [2002], the costs of remedial dredging were awarded where the defendant’s deposits affected the claimant’s ability to trade. Where public nuisance is concerned, according to Halsey v Esso Petroleum [1961], damages may include those for pure economic loss and inconvenience, something which is not usually awarded in negligence claims. Corby Group Litigation v Corby BC [2008] ruled that damages can include compensation for personal injuries (deformities), while many grounds of liability were found in Colour Quest Ltd v Total Dominion UK Plc [2009]. Fault is not required in public nuisance.

Statutory nuisance

Sections 79-82 of the Environmental Protection Act 1990 provides for a statutory nuisance regarding the state of one’s premises if that premises becomes a danger to health due to the production of smoke, smells, fumes or noise.

Private nuisance

Who may sue?

Private nuisance is a tort between the occupiers of land. Hunter v Canary Wharf [1997] concerned an interference with TV reception caused by the construction of a tower. It was said that to sue in private nuisance, one must have a legal interest in the land: they must be a licensee with full control, a tenant or have possession without title. Children may not sue. The case also allowed the ‘buying off’ of potential claimants regarding claims for property damage or losses of amenity, to be calculated using a ‘loss of rent’ calculation. Finally, the case required that personal injury claims are made in negligence, not in nuisance. The exception to the legal interest rule can be found in Foster v Warblington UDC [1906], where damage were awarded for the presence of sewage on an oyster bed to a claimant without a legal interest in the land. Tolerated trespassers, according to Pemberton v Southwark LBC [2000], may also sue.

Elements

  1. An unreasonable effect on the claimant must be present in all nuisance claims. This is not the same ‘reasonableness’ as may be found in negligence claims.
  2. Damage to property in a material or substantial way is one source of a claim in nuisance. In Crown River Cruises v Kimbolton Fireworks [1996], debris from fireworks was found to be unreasonable. Hunter v Canary Wharf [1997] said that dust, if significant to the point that it changes the value of the claimant’s land, could be compensated in nuisance. According to Robinson v Kilvert [1889], there will be no liability where the claimant’s land is particularly sensitive. This was confirmed in Network Rail Infrastructure v CJ Morris [2004].
  3. Interference with the comfort and convenient with an occupier’s use of land is the other source of a claim in nuisance. In the aforementioned case of Network Rail Infrastructure v CJ Morris [2004], which concerned the hypersensitivity of recording equipment to railway communication systems, it was said that when assessing a claim for an interference with comfort and convenience, the court should look at the intensity, duration and frequency of the claimed nuisance. In Hinrose Electrical v Peak Ingredients [2011], locality was also considered: food smells were not a nuisance on an industrial estate. Coventry v Lawrence [2014] described how public and private nuisance overlap with each other: claims for unreasonable noise can be either, for example.
  4. The nature of the defendant’s conduct will also assist in determining whether a nuisance has occurred. If there is a right, as there was in Hunter v Canary Wharf [1997], in this case to obstruct TV signals, there will be no liability. In Mayor of Bradford v Pickles [1895], the defendant mailciously diverted undefined water channels under his house to deprive the claimant of water to his land. There was still no claim to be heard as the defendant had a right to divert such channels. A defendant’s conduct may affect the award of a discretionary injunction if a nuisance is found. In Christie v Davey [1893], maliciousness was the reason for the award of an injunction; there would have been no nuisance otherwise. This was also the case in Hollywood Silver Fox Farm v Emmett [1936] where the defendant had no right to walk along his land boundary shooting a shotgun into the air to prevent the breeding of foxes. An injunction was awarded.
  5. Usually, a nuisance must be continuing; however Colour Quest v Total Dominion UK [2009] did allow claims in both negligence and nuisance for a one-off event. In Northumbiran Water v Sir Robert McAlpine Ltd [2013], after a claim in negligence failed where the defendant filled some holes with concrete, stopping a water supply, a nuisance claim also failed where the event was an isolated incident.
  6. A nuisance must arise by a defendant acting on his own land (a tort between land owners). Therefore, in Hussain v Lancaster CC [2000], a nuisance claim was not actionable where secure tenants caused a nuisance from a street, rather than from on their land (at the edge of a street). May considered this decision wrong, therefore it was distinguished in Lippiatt v South Gloucestershire CC [2000] as gypsies did not need to walk to a highway to cause a nuisance; the Council’s adjoining land was used as a base for a nuisance caused on the claimant’s land.

Who can be sued?

The creator of the nuisance

The most obvious person to sue is the creator of the nuisance. According to Thompson v Gibson [1841], liability can even be found where a defendant has no power to stop a nuisance’s continuing effect (the land had been sold).

For the award of an injunction, no fault is required, as held in Rapier v London Tramways [1893], where there was no defence of reasonable care against a claim in nuisance to prevent the smell generated by the keeping of 200 horses.

For damages to be awarded, there must be fault: the defendant must have knowledge of the nuisance. This was ruled in The Wagon Mound (No. 2) [1967]. In Cambridge Water v Eastern Counties Leather [1994], there was no knowledge nor foreseeability of the leaking of chemicals through a concrete floor to then affect the claimant’s borehole 1.3 miles away, therefore no damages were awarded. Ellison v MoD [1996] ruled that the test of remoteness in nuisance is foreseeability. Of course, if the defendant’s use of land is reasonable, as it was in Stockton BC v British Gas [2001], fault cannot be found. In Anthony v Coal Authority [2005], a nuisance claim for omitting to prevent spontaneous combustion was successful.

The occupier of land from which the nuisance emanates

The occupier of land from which a nuisance emanates may be liable if that occupier: is responsible for the creator; has continued a nuisance; has omitted to prevent a naturally created nuisance; or has omitted to stop a nuisance created by the occupier’s predecessor in title.

An occupier was responsible for the creator in Ellis v Sheffield Gas Consumers [1853], where the claimant tripped over a pile of rubble which had been left with the authorisation of the occupier. In Alcock v Wraith [1991], liability was found where there was a non-delegable duty. Bower v Peate [1876] found liability in removing support for the natural state of an adjoining neighbour’s land, and in Penny v Wimbledeon UDC [1899], liability was found where rubble was left by a highway operator.

An occupier will not be liable for collateral negligence, such as in Padbury v Holiday & Greenwood [1912], where a tool was blown off the occupier’s window ledge; although there will be liability for extra-hazardous acts, such as in Honeywill & Stein v Larkin [1934], where a magnesium flash was used in a flammable environment.

Where an occupier, continues a nuisance, or adopts it as his own, there will be liability. In Sedleigh-Denfield v O’Callaghan [1940], trespassers had installed a pipe in the previous owner’s land which helped flood water drain through the land. The new occupier was liable for flooding caused by the pipe’s blockage. In Lippiatt v South Gloucestershire CC [2000], it was found that the Council was liable for a nuisance created by its licensees.

If a nuisance is created by nature, an occupier may be liable for failing to take steps to prevent the nuisance. This has been illustrated by the cases of Goldman v Hargrave [1967] and Leakey v National Trust [1980]. In both cases, the defendant’s had the resources to prevent the ‘spreading’ of fire and land respectively. In Rees v Skerrett [2001], there was liability for not weatherproofing an adjoining terrace, and most recently, in Vernon Knight Association v Cornwall CC [2013], liability was found for flooding where the council had a duty to prevent such an occurrence, even given consideration for resources, policy and public benefit: a person had been assigned to specifically monitor the land in question. No liability is assumed for natural objects projecting from an occupier’s land over a highway, as held in Noble v Harrisson [1926].

Where a nuisance was created by an occupier’s predecessor in title, in order to be liable, the new occupier must know of the nuisance and then fail to take reasonable steps to stop it, according to St Anne’s Well Brewery v Roberts [1929].

There are two anomalies to the general rules on occupier’s liability for nuisance here: the first can be found in Tarry v Ashton [1876], which said that liability can be assumed for artificial (not natural) projections over a highway; the second can be found in Wringe v Cohen [1940], which imposed strict liability for dangerous premises on highways.

Landlords

If a landlord authorises a nuisance, he may be liable. This was the case in Tetley v Chitty [1986], where go-karting was authorised; and in Smith v Scott [1973] where there was no liability for noisy tenants. In Brew Bros v Snax [1970], a landlord and tenant were jointly liable for a tilting wall which caused an obstruction. Although the tenant was under an obligation to repair the wall, the landlord knew of the wall prior to the tenancy starting.

A landlord may also be liable where he has a right of entry and repair to the premises. This was the scenario in Mint v Good [1951]. The Landlord and Tenant Act 1985, s 11, provides that in a tenancy which lasts for fewer than 7 years, the landlord is responsible for the structural repair work needed on the premises.

Defences

Private nuisance claims can be defended in a number of ways: notably through 20 years’ prescription or statutory authority.

20 years’ prescription

In Sturges v Bridgman [1879], it was said that for the 20 years’ prescription defence to be effective, the nuisance must actually be actionable for 20 years. The claim succeeded, as although the nuisance causing act had been ongoing for more than 20 years, it had only been an actionable nuisance for a much shorter period; since a reasonable act by the claimant. The defence was therefore unsuccessful. Coventry v Lawrence [2014], the defence was said to still be effective where there were lapses of time in the 20 year period, as long as the nuisance had in total been actionable for 20 years.

Statutory authority

Where statute permits a nuisance, it will not be actionable. An oil refinery in Allen v Gulf Oil Refining [1981] had been set up by statute, therefore a nuisance caused by the refinery was not actionable.

If a nuisance claim would undermine a statutory procedure, as was the case in Marcic v Thames Water Utilities [2003], it will not be actionable.

Where planning permission is concerned, if such permission changes the nature of the locality of the area, a nuisance claim will be barred due to statutory authority. An example of this can be found in Gillingham DC v Medway Docks [1993], where permission granted a small dock to be turned into a commercial port. However, where the nature of the locality of an area is not changed, such as in Wheeler v JJ Saunders [1996], where more pigs were permitted on a farm, the defence of statutory authority will be unavailable.

A permit to carry out an activity, such as in Barr v Biffa Waste [2011] will not allow the defence of statutory authority, but may contribute to a finding of reasonableness in carrying out the activity concerned.

Ineffective defences

‘Coming to a nuisance’ is an ineffective defence. In Miller v Jackson [1977], the claimants moved into a house near a cricket ground and subsequently claimed that the cricket ground was a nuisance. Damages were awarded. Lord Denning dissented on this idea, saying that ‘coming to a nuisance’ should be a viable defence. Coventry v Lawrence [2014] agreed that ‘coming to a nuisance’ should not be a general defence to a nuisance claim, however the Supreme Court respected Lord Denning’s dissent and said that where an act of the claimant preceding their coming to the area which makes the defendant’s activity a nuisance, there may be a successful defence.

Usefulness is not an effective defence. In Adams v Ursell [1913], the benefit of a fish and chip shop to the local community was not enough to prevent a nuisance claim against it.

Claiming that a nuisance is due to many is also an ineffective defence. In Lambton v Mellish [1894], there was no defence to say that as a competing merry-go-round ride owner, the noise generated by the competition was far louder. Both competitions contributed to the totality of a nuisance.

Remedies

In a successful nuisance claim, damages and injunctions are possible remedies. In Kennaway v Thompson [1981], it was said that in private nuisance, injunctions are almost a certainty; though in this case, conditions were attached. In the aforementioned case of Miller v Jackson [1977], an injunction was not awarded as the court considered the social value of the defendant’s actions. The social value consideration was re-highlighted in Coventry v Lawrence [2014]. Planning permission was said to form part of this consideration. In Dennis v MoD [2003], no injunction was awarded where it would benefit the public to have fully trained RAF pilots; damages were satisfactory. It was also said that damages is a satisfactory outcome to an article 8 ECHR breach. Dobson v Thames Water Utilities [2007] clarified that damages may compensate for an article 8 claim, but my not be suitable where other rights are concerned.

Rylands v Fletcher

Introduction

In the case of Rylands v Fletcher [1868], the defendant flooded the claimant’s colliery during the construction of a reservoir. Negligence liability was not found, however, the court created a new ‘Rylands v Fletcher’ tort of strict liability for mischievous items which escape and cause damage if the escape is not due an ‘act of God’ or the claimant. Cambridge Water Co v Eastern Counties Leather [1994] analysed this liability in the same way as nuisance liability, given it such a relation. In Transco v Stockton MBC [2003], Lord Bingham rephrased the tort, both either explanation is acceptable to reference.

Elements

For a successful claim in the tort of Rylands v Fletcher, the claim must be made between landowners; mischievous items must have been collected; there must have been an escape; foreseeability; damage and a non-natural use of that land.

Between landowners

Just as in nuisance, a claim under Rylands v Fletcher must be made between landowners. A successful claim was made in Shiffman v Order of St John [1936] where a flagpole fell on the claimant.

Collection of mischievous items

The idea behind Rylands v Fletcher is if you keep items which would cause damage if they escaped on your land; you keep them at your peril. A-G v Corke [1933] did consider the possibility of storing ‘noxious people’. Transco v Stockton MBC [2003] said that it is not easy to bring a claim under Rylands v Fletcher and there must be serious and exceptional circumstances if a claim is succeed. Domestic water was not actionable as a mischievous item. In Stannard v Gore [2012], the claim failed where fire caused by dangerous items damaged the claimant’s property as the items hadn’t actually escaped.

Escape

If there is no escape, the claim will fail. In Read v J Lyons [1947], a munitions inspector was injured where a shell exploded. There was no liability as the shell hadn’t escaped and the claim was not between landowners.

Foreseeability

The claim in Cambridge Water v Easter Counties Leather [1994], there was no foreseeability, therefore no liability. It is important to stress that escape need not be foreseeable, however damage assuming an escape occurs must be foreseeable.

Damage

Hunter v Canary Wharf [1997] ruled that personal injury cannot be compensated under Rylands v Fletcher liability, only property damage.

Non-natural land use

Rickards v Lothian [1913] required that there must be a special use of the defendant’s land with increased danger. An ordinary use will not give rise to Rylands v Fletcher liability. As such, the claim in Transco v Stockport MBC [2003] failed as it was reasonable to have a water pipe on the defendant’s land.

Defences

Rylands v Fletcher claims can be defended in a number of ways; the first is through consent. Secondly, if there is an ‘act of God’, a claim may be defended. In Nichols v Marsland [1876], extraordinary rainfall caused the defendant’s pools of water to flood the claimant’s land. There was no liability. A claim may also be defended if the escape was caused by an unreasonable act of a stranger. In Rickards v Lothian [1913], flooding of a bathroom was caused by the act of a stranger, and in Perry v Kendricks Transport [1956], a child threw a match at a petrol tank. In both cases, the defence was successfully used.

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