For the purposes of an action in tort a nuisance may be either private or public. In addition, there is a large number of statutory provisions aimed at the control of conduct which is damaging to the environment, some of which impose civil liability in respect of certain hazards. Enforcement of these provisions is in the hands of public bodies, which means that the plaintiff may save a good deal of time and expense by directing his complaint to the relevant body.
Judges develop the common law of nuisance to accommodate changing conditions to the detriment of individual claimants. It was during the peak of the industrial revolution, with the development of the railways and construction works, that judges were first required to establish means of obtaining remedies in cases of environmental pollution. These were derived from the law of nuisance.
DEFINITION
Walter v Selfe (Knight-Bruce V.-C.): “An inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober, simple notions among the English people.”
Though nuisance may be defined but it is better to classify it and define them separately.
TYPES OF NUISANCE
1. Public.
2. Private.
3. Statutory.
1. PUBLIC NUISANCE
DEFINITION
A public nuisance is committed by anyone “who does an act not warranted by law, or omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects” (Archbold’s Criminal Pleading and Practice).
In a similar fashion Romer LJ in A-G v P.Y.A. Quarries Ltd. (1957) held that “…any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.”
Public nuisance is basically a crime but the case of Nottingham City Council v Z (A Minor) CA 2001 could be considered below .
ELEMENTS OF PUBLIC NUISANCES
1. PUBLIC OR SECTION OF THE PUBLIC
“The sphere of the nuisance may be described generally as ‘the neighbourhood’, but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case” {per Romer LJ A-G v P.Y.A. Quarries Ltd. (1957)}.
Romer LJ also suggested that “it is not necessary, in my opinion, to prove that every member of the class has been affected; it is sufficient to show that a representative cross-section of the class has been so affected…”.
In the same case Denning LJ declined to provide an “answer the question how many people are necessary to make up Her Majesty’s subjects generally.” But at the same time he held that where “only two or three property owners are affected by it …then they ought to take proceedings on their own account to stop it and not expect the community to do it for them…”.
Jan de Nul (UK) Ltd v NV Royale Belge (2000 EWCA):
Even if the infringed rights are used by very small section of people that may also amount to a matter of public nuisance.
In this case a siltation caused in the estuary by Jan de Nul’s dredging operations, which had affected some of the berths of yacht clubs and wharves, was held to have had a sufficiently significant effect on access to parts of the estuary to amount to a public nuisance.
2. SPECIAL DAMAGE
For establishing a tortuous claim of public nuisance C has to prove special damage, affecting the public or section of the public. In the absence such proof he can make an application to the Attorney General to grant permission (known as a fiat) to an individual to allow that individual to commence proceedings (known as relator proceedings).
What kind of damage must the claimant show?
Professor Kodilinye, “Public nuisance and particular damage in the modern law” offers the following classification of the heads of special or particular damage:
a. Physical injury to person or property;
b. Land depreciation;
c. Loss of custom or business;
d. Delay and inconvenience causing expense.
The preponderance of authority in England suggests that delay and inconvenience cannot amount to special damage unless it is accompanied by some pecuniary loss ( Winterbottom v Lord Derby). Kodilinye suggests that this limitation may stem from an accidental confusion of terminology.
Professor Markesinis and Deakin suggested that probably the prevailing view for the time being in English law is whenever the claimant can show that the right he shares with others has been appreciably more affected, than the others, by the defendant’s behaviour, would have a claim {Rose v Miles) (1815)}.
In Tate Lyle Industries v GLC Ferry terminals (1983 HL) constructed by the defendants in the Thames caused silting which obstructed large vessel’s access to the claimants’ jetty and claimants had to spend large sums in dredging operations. Their claim in private nuisance was dismissed because the jetty itself was unaffected and they had no property in the river bed. But it was held that the silting had caused interferences with the public right of navigation which the claimants enjoyed along with other river users. Thus, the expenditure incurred by the claimants was considered as a special damage to entitle them to bring an action in public nuisance.
EXAMPLES OF PUBLIC NUISANCE
At common law, public nuisances cover a wide variety of activities such as:
1. carrying on an offensive trade.
2. keeping disorderly house.
3. selling food unfit for human consumption .
4. obstructing the highway.
5. throwing fireworks about in the street.
6. holding an ill-organised pop festival.
7. telephone calls.
DOES THE DEFENDANT HAS TO PROVE TO BE AWARE OF THE NUISANCE?
Generally, fault is an ingredient action of public nuisance. But it would be sufficient to show that D had either actual knowledge or constructive knowledge. That is to say either he knew or ought to have known of the consequence of the nuisance.
Wandsworth London Borough Council v Railtrack plc CA 2001: Where feral (untamed) pigeons roosting under a bridge fouled the pavement beneath and passing pedestrians with their droppings, thereby interfering with the right of the public to use and enjoy the public highway, the owner of the bridge was liable to the highway authority in public nuisance if it knew of the nuisance, had the opportunity and means to abate it but had failed to do so.
Delaware Mansions Ltd and Another v Westminster City Council (2001 UKHL): Where there is a continuing nuisance of which the defendant knew or ought to have known, reasonable remedial expenditure might be recovered by the owner who had had to incur it. The owner of a mansion block in London was therefore entitled to recover damages for the cost of remedial work made necessary by damage caused by the encroachment of the roots of a tree on an adjoining highway before it purchased the property in 1990 because, although there had been no new damage after that date, the highway authority had declined to remove the tree and was therefore continuing the nuisance.
One point could be mentioned that if the claimant ask for an injunction the fault principle could be irrelevant (Markesinis and Deakin 2003, p 490). However, the HIGHWAY scenario should be considered carefully.
LANDLORD AND NUISANCE
In R v Shorrock (1994 CA), D let a farm on his land to three persons for a weekend for f 2,000. D did not know the purpose for which the field had been let. The field was used for an acid house party lasting 15 hours and attended by between 3,000 and 5,000 people who paid f 15 admission fee per person. Many local people complained about the noise and disturbance caused by the party. D and the organiser of the party were charged with public nuisance (as criminal offence). It was held that it was not necessary to show that D had actual knowledge of the nuisance but merely that he knew or ought to have known of the consequences of activities carried out on his land.
A CASE STUDY - NUISANCE ON THE HIGHWAY
Nuisance on the highway may be defined as any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the highway {per Lord Simon in Jacobs v London County Council (1950)}.
It can be ramified into two categories viz:
1 Obstruction of the highway 2. Condition of the highway.
1 OBSTRUCTION OF THE HIGHWAY
Perhaps the most common instance of public nuisance is an unlawful obstruction or interference with the public’s right of passage along the highway.
For example, in Castle v St. Augustine’s Links (HC 1922), the defendant golf club was held liable for so sitting one of its fairways that golf balls were frequently sliced on to the highway, with the result that the plaintiff was injured while driving along the road when a ball crashed through the windscreen of his car.
WHAT OBSTRUCTIONS ARE ACTIONABLE?
Every obstacle on the highway does not constituting an actionable nuisance. The defendant is liable only if he creates an unreasonable risk. If the obstruction is reasonable in terms of duration and degree, such as a van delivering goods to a shop, it is generally not actionable.
Whether an obstruction is unreasonable will be a matter of opinion based on facts {Trevett v Lee (1955)}
To conduct one’s trade in such a manner as to cause a foreseeable obstruction is actionable, and if such obstruction causes loss of custom to other traders, that is special damage (Lyons, Sons & Co. v Gulliver (CA 1914)).
But the defendant is not liable for an obstruction, such as a queue outside his shop, which is beyond his control. Such as shortage of supplies in consequence of war.
PROJECTIONS OVER THE HIGHWAY
Where damage is done by a projection over the highway, there may be a distinction between natural and artificial things.
1. NATURAL PROJECTION
Whereas in the case of natural projections (for example, trees) it seems that negligence must be proved. Even though the source of the nuisance is plain to see the occupier will not be liable until he knew or should have known that it is a danger {Noble v Harrison (1926); British Road Services Ltd v Slater (HC 1964)}.
2. ARTIFICIAL PROJECTION
Whereas in the case of artificial projections (for example, a protruding lamp-bracket) the liability may be strict if D erects it or which has been occurred due to D’s omission {Wringe v Cohen (CA 1940)}.
But it appears from the case that if the damage has been caused by an unforeseeable act of trespasser or by a secret and unobservable operation of nature, the liability would only be imposed if D is negligent.
In a recent Court of Appeal decision it has been reflected that negligence liability, as opposed to strict liability should be the norm of the modern law in this regard {Rowe v Herman (1997)}.
2. CONDITION OF THE HIGHWAY
A highway authority is under a duty to maintain the highway and may be liable in negligence, nuisance or for breach of statutory duty under the Highways Act 1980.
The claimant may claim for personal injury and property damage. However, this right of action for non‑repair does not extend to claims for pure economic loss where vehicle could not get to its destiny for the condition of the highway {Wentworth v Wiltshire County Council (CA 1993}.
The Act provides that it shall be a defence to prove that the authority had taken such care as in all the circumstances was reasonably required to make sure that the part of the highway to which the action relates was not dangerous for traffic.
S 58 of The Highway Act 1980 provided that the following factors are to be taken into account:
1. the character of the highway and the traffic which was reasonably to be expected to use it;
2. the standard of maintenance appropriate for a highway of that character
3 the state of repair in which a reasonable person would have expected to find the highway;
4. the highway authority’s knowledge (actual or constructive) will be among circumstances which will be weighted by the courts in deciding whether the authority is in breach of its duty;
5. where the highway authority could not reasonably have been expected to repair that part of the highway before the cause of action arose, what warning notice of its condition had been displayed.
The authority does not owe a duty of care to exercise its statutory powers for the benefit of road users as to alleviate known dangers impairing visibility on land adjoining the highway {Stovin v Wise (HL 1996)}.
REMEDIES
DAMAGES
INJUNCTION
.
An action could be brought by a local authority exercising its power to seek an injunction to prevent the commission of any crime in its area (Local Government Act 1972, s. 222).
Nottingham City Council v Z (A Minor) CA 2001
A local authority was entitled to try to put an end to all public nuisances in its area for the promotion or protection of the inhabitants, and to apply for an injunction against those committing such nuisances whether or not they were also breaking the criminal law.
PRIVATE NUISANCE
DEFINITION
Read v Lyons & Co. Ltd (1945): Private nuisance may be described as unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.
The key common law principles can be summarised succinctly:
1. the complainant must have a proprietary interest in the land affected (save for some anomalous exceptions);
2. there must be an interference with the use and enjoyment of his land; and
3. the interference must be material (which is to say that it must be more than merely trivial).
When these criteria have been satisfied, the burden switches to the defendant.
INTEREST MUST BE WITH LAND
Hunter v Canary Wharf (1997): The House of Lords considered two issues:
First it held that, although interference with television reception could in some circumstances amount to an actionable nuisance, there could be no claim where the defendants had constructed on their own land a tall building which deprived their neighbours of reception.
Secondly, it reasserted the principle that private nuisance was a tort which protected interferences with the use and enjoyment of land, and therefore only a person with an interest in land could bring an action. Kohorasandjian v Bush was overruled.
Pemberton v Southwark London Borough Council (2000 CA): A former tenant against whom a possession order had been made but not yet enforced was a tolerated trespasser and had sufficient interest in the property to bring a suit in nuisance. Hunter was distinguished.
Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1999 ): Claimant’s mooring right may be sufficient to amount a claim for private nuisance.
EXAMPLES OF PRIVATE NUISANCE
1. Encroachment on the claimant’s land eg by spreading roots or overhanging branches (Davey v Harrow Corporation 1958).
2. Physical damage to the property
3. Interference with the C’s use or enjoyment of land through smells, smokes, dust, noise etc {Halsey v Esso Petroleum Co Ltd (1961)}.
4. Interference with an easement or profit.
REASONABLENESS AND TWO KINDS OF HARM/DAMAGE
The concept of reasonableness calls for an ad hoc balancing of the rights and interests of neighbouring landowners. On the one hand, the court must consider the extent of the interference with the plaintiff's use and enjoyment of land. The greater the interference, the more likely it is to be considered a nuisance. On the other hand, it must consider the legitimacy and value of the defendant’s activities. Interference resulting from activities of no social utility may give rise to liability where interference from useful activities would not:
“..(W)e must all put up with the rattle of early morning milk deliveries, though probably not with the same amount of noise made by drunken neighbours” (Winfield & Jolowicz, p. 512).
.
Lord Loreburn famously noted, in St Helen’s Smelting Co v Tipping (1865), a clear distinction between nuisances occasioning material damage to property and nuisances in which “the thing alleged to be a nuisance is productive of sensible personal discomfort”.
Thus, harm or damage may be ramified into two parts viz:
1. physical damage to the property and 2. amenity damage.
1. physical damage to the property
“The very essence of a private nuisance ... is the unreasonable use by a man of his land to the detriment of his neighbour” (Lord Denning M.R. in Miller v Jackson (CA, 1977).
If the alleged nuisance causes physical damage to the property the claimant will usually have little difficulty in establishing an unlawful interference with his rights.
This is either
because, in the case of such damage, many of the factors involved in the balancing exercise to determine whether the defendant’s user of land is reasonable are irrelevant, or
because, such damage usually tips the balance irreversibly in the plaintiff’s favour. On the other hand, in the case of amenity damage the plaintiff must prove a substantial interference with the ordinary comfort and convenience of living such as would adversely affect the average person, and it is in this context that the balancing exercise becomes more critical.
2. amenity damage
Unlike the physical damage to the property, the amenity damage the reasonableness would have greater involvements. In deciding the issue of reasonable user, the court may have regard to the following matters:
i) Nature of the locality
ii) Duration of interference
iii) Abnormal sensitivity
iv) Malice
v) Public benefit
vi) Fault
i) Nature of the locality
In St Helen’s Smelting Co v Tipping (1865) it was held that the character or nature of the locality was not to be taken into account in cases of physical damage to property, but might be a relevant factor in cases of interference with enjoyment or use.
Halsey V Esso Petroleum (1961 HC):
1. It is a question of degree as to whether the interference is sufficiently serious, and a good illustration exists in this case, where the defendants were held liable for, inter alia, nuisance caused by a nauseating smell emanating from their factory and by the noise at night both from the plant at their depot and from the arrival and departure of petrol tankers.
2. A nuisance could be created not on the land of the land of D but elsewhere eg on a highway adjoining C’s land (p 60 of Salmond & Heuston, Law of Torts 1992) .
Murdoch v Glacier metal (1998 ): Murdoch claimed that the nighttime noise from Glacier’s factory was a nuisance. The court held that as the factory was based on an industrial estate, no actionable nuisance was established.
Thompson-Schwab v Costaki (CA 1856):
The plaintiffs complained of the defendants’ use of a neighbouring town-house as a brothel. The defendants, both prostitutes, used the house as a so-called ‘resort’ to which they would return with customers whom they had attracted from near-by streets. The house, although not far distant from streets with an unsavoury reputation, was in a good class residential street. The Court of Appeal approved the award of an interlocutory injunction pending full trial of the matter. It provisionally rejected the submission that a nuisance must affect the reasonable enjoyment of premises in a physical way and held that the perambulations (movement) of the prostitutes, and their use of the building as a brothel, constituted a prima facie private nuisance even if it could not be shown to be criminal.
“One could well imagine”, declared Romer L.J., “the effect of that activity on the minds of young people in the plaintiff households, to say nothing of the feelings of visitors.”
In Thompson-Schwab v Costaki Evershed M.R. expressly referred to the case of a “kept woman... living there in sin with one man” (which he regarded as a form of prostitution) and declared that such activity might well not constitute a nuisance.
However, it should also be noted in this context that the definition of harassment under the Protection from Harassment Act 1997, section 7 includes alarming another person or causing him or her distress. Under section 3, damages may be awarded for (amongst other things) any anxiety caused by the harassment.
Laws v Florinplace Ltd (1981 ): Sex shop in a residential area could constitute a private nuisance.
Blackburn v ARC Ltd (1998 ): A question may be posed to the court to determine that whether the acts complained of are more than can be tolerated in modern living conditions. If so, they will constitute a nuisance.
ii) Duration of interference
The shorter the duration of interference, the less likely it is that the use will be found to be unreasonable. Normally private nuisance are interferences for a substantial length of time by D with the use or enjoyment of neighbouring property. What amounts to ‘substantial length’ is a matter of fact {Talbot J in Cunard v Antifyre(1933)}.
Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1999 HC): A firework display on a moored vessel which lasted for about a quarter of an hour and caused a fire to another vessel moored nearby was deemed capable of giving rise to liability in nuisance.
iii) Abnormal sensitivity
In the words of Lord Robertson, “A man cannot increase the liabilities of his neighbour by applying his own property to special uses, whether for his business or pleasure {Eastern and South African telegraph Co v Cape Town Tramways (1902)}.
In determining whether an interference is reasonable or not generally the courts will refuse to take account of any abnormal sensitivity of the claimant’s himself or his property.
Knight-Bruce V.-C. suggested in Walter v Selfe (1851) “ An inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober, simple notions among the English people.”
Thus, the test is objective one.
Heath v Mayor of Brighton (1908 ): The vicar and trustees of a church sought an injunction to stop the noise emanating from the defendant’s power station which was allegedly to disturb the vicar’s deliberations over his sermons, but as no-one else appeared to have been bothered. The injunction was refused.
Robinson v Kilvert (1889 ): Kilvert heated his premises for his trade of making paper boxes. Robinson, who was the tenant of Kilvert, occupied the floor above, complained that the heat affected the brown paper he ware-house there, drying it and considerably reducing its value. The court refused to make an injunction. It could be noteworthy that at the time of the contract the landlord did not know that the plaintiff intended to store a very sensitive kind of paper.
Gandel v Mason (1953 ):If a defendant knew of peculiar sensitivity of claimant’s property and failed to take reasonable and practicable precaution, he might be liable for private nuisance.
Bridlington Relay Ltd v Yorkshire Electricity Board (1965): Interference with the signals received by a television broadcast relay station, caused by a nearby power station did not amount to a private nuisance.
However, once a nuisance is established, the plaintiff can recover even in respect of delicate operations, such as the cultivation of orchids {McKinnon Industries Ltd v Walker (PC, 1951)}. But this is only relevant with the test of remoteness of damages.
Southwark London Borough Council v Mills; Baxter v Camden London Borough Council HL 1999: Where premises had been constructed with inadequate sound insulation, with the result that a tenant was disturbed by the ordinary and reasonable activities of neighbouring tenants, the landlord was neither obliged by the covenant for quiet enjoyment to improve the premises by installing soundproofing nor liable for damages in nuisance.
iv) Malice
Bradford v Pickles (1895 HL): In order to induce the plaintiffs to buy his land, the defendant abstracted percolating water, which flowed his undefined channels beneath his land and which fed the plaintiffs’ reservoir. His motive was held to be irrelevant and he was therefore not liable.
Hollywood Silver Fox Farm Ltd v Emmett (1936): The defendant deliberately maliciously procures his son to fire his gun near the boundary of the plaintiff’s land in order to disturb the breeding of the plaintiff’s silver foxes. Many of the vixens aborted, for which damage the defendant was held liable.
Emmett could be distinguishable from Pickles on the ground that in the latter the plaintiff had no right to receive the water, so that there was no interest to be protected. The right to make noise on one’s land, however, is qualified by the right of one’s neighbour to the quiet enjoyment of his land. A landowner’s right to abstract subterranean water flowing in undefined channels, regardless of the consequences to his neighbour and of his motive. It was affirmed in Popplewell v Hodkinson (1869); Stephens v Anglian Water Authority (CA 1987).
Christie v Davey (1893): An injunction was granted against hammering and the beating of trays against a party wall to make life intolerable for the plaintiff. This was so because D acted maliciously to annoy P. If the defendant prosecutes his activity with the express purpose of annoying his neighbour, he will be liable, even though the degree of interference would not constitute a nuisance if done in the ordinary and reasonable use of property.
v) Social utility
The mere fact that‑ the defendant’s act is of benefit to the community will‑not in itself relieve the defendant of liability. Since nuisance is concerned with a balancing of conflicting interests, however, it may be that the plaintiff will have to bear minor disturbances. Once again it is a question of degree and if there is physical damage or the interference is substantial, the public interest’ should not be allowed to prevail over private rights (Kennaway v Thompson (CA, 1981).
In Adams v Ursell (HC 1913) the smell from a fried-fish shop was held to constitute a nuisance to nearby residents, notwithstanding the defendant's argument that he was providing a valuable service to poor people in the neighbourhood.
Marcic v TWUL (2003 UKHL 2003), which concerned external flooding suffered since 1992 as a result of an overloaded public sewerage system. The complainant succeeded at first instance and in the Court of Appeal both in nuisance and under HRA 1998. He lost in the House of Lords, on the basis that there was a statutory scheme of enforcement in the hands of the Secretary of State and the General of Water Services, and that the existence of this scheme meant that neither avenue of redress was available to Mr Marcic.
Again, however, Mr Marcic relied on HRA 1998. In considering the claim, Lord Nicholls followed the conclusion reached by the European Court in Hatton: a fair balance must be struck between the interests of the individual and public interest as a whole. In this case, the House of Lords unanimously decided that a reasonable balance had been struck.
vi) Fault/ negligence
Generally, it could be assumed that the law of nuisance is not a fault-based liability. Whether it is a strict or fault-based liability ie negligent liability, is a matter of academic debates. However, the present position might be summarised as follows:
1. where C is claiming an injunction to prevent or suppress a nuisance from D’s land, it is immaterial whether the nuisance is D’s fault or not.
2. where nuisance was created by the D himself or by a person for whose actions he is responsible, “it is still the law that the fact the (he) has taken all reasonable care will not itself exonerate him from liability, the relevant control mechanism being found within the principle of reasonable user {Lord Goff in Cambridge Water Co. Ltd v Eastern Counties Leather plc (1994 HL)}. This principle has been robustly applied in Savage v Fairclough (2000 CA).
3. where the nuisance is caused by natural causes or by the act of persons for whom the D is not responsible, the liability of the latter (D) will be determined by test of nuisance but in reality the test is similar of negligence as evidenced from Leakey v National Trust for Places of Historic Interest or Natural Beauty (1980); Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council CA 2000.
Holbeck Hall Hotel Ltd and Another v Scarborough Borough Council CA: The owner or occupier of land owed a measured duty of care to prevent danger due to lack of support of a claimant’s neighbouring land caused by erosion by natural forces, where the owner or occupier knew, or was presumed to know, of the defect or condition on his land giving rise to the danger, and where it was reasonably foreseeable that the defect or condition would, if not remedied, cause damage to the claimant’s land. For liability to arise, the defect had to be patent.
The landowner or occupier was not to be held liable for latent defects discoverable only upon further investigation.
Interestingly, Stuart-Smith LJ suggested the three stage test for duty of care as to negligence ie foreseeability, proximity and the need for it to be fair, just and reasonable is also applicable in such cases of nuisance.
WHO CAN SUE?
The general rule is that only a person with a proprietary or possessory interest in the land can sue {Malone v Laskey (CA 1907}.
Thus, a freeholder, a tenant in possession and a licensee with exclusive possession may sue, as may a landlord out of possession whose reversionary interest is adversely affected. Even a person in exclusive possession of the land but who can not prove title to it has a right to sue.
However, mere visitor/licensees, such as a lodger, hotel guest or, in some cases, an un-married spouse have no sufficient interest and are thereby precluded from maintaining an action.
Pemberton v Southwark London Borough Council (2000 CA): A former tenant against whom a possession order had been made but not yet enforced was a tolerated trespasser and had sufficient interest in the property to bring a suit in nuisance.
It appears from the judgment that the Court of Appeal was greatly influenced by the Article 8 of European Convention on Human Rights 1950 ie right to private and family life and housing.
In an obiter of McKenna v British Aluminum (2002 HC), Neuberger J echoed the similar theme.
If the plaintiff does have the requisite interest he can recover in respect of a continuing nuisance even though the damage occurs before he acquires his interest and he is aware of it {Masters v Brent London Borough Council; Delaware Mansions Ltd. v Westminster City Council (2001); see p 474-475 of Markesinis &Deakin, Hedley 2002, p 203}.
WHO CAN BE SUED?
1. CREATOR OF NUISANCE
2. OCCUPIER
a) Persons lawfully on premises:
i) Persons under his control/employee. ii) Independent contractor. iii) Licensee
b) Trespasser.
c) Predecessor.
d) Acts of nature.
3. LANLORD.
1. CREATOR OF NUISANCE
Southport Corporation v Esso (1954 HL): The creator of the nuisance is liable whether or not he occupies the land whence the interference emanates.
In Hussain v Lancaster City Council (2000 CA), P owned a shop and lived on council housing estate and had been subjected to a severe and prolonged campaign of harassment, often racial, by other tenants on the council estate which was owned by D. The Court of Appeal held that there was no nuisance because the acts did not involve the wrongdoer’s use of his land, even though it affected the P’s enjoyment.
Professor Winfield & Jolowicz, Markesinis & Deakin strongly criticised it as an unnecessary restriction to the existing authorities. They suggest the Southport Corporation v Esso (1954 HL) as a contrary House of Lords authority in this regard. There view is also preferable otherwise an independent contractor may be exempted from their due liabilities of nuisance if Hussain is preferred.
2. OCCUPIER
Liability is not limited to those who cause unreasonable interference through their own activities. In certain circumstances, it may extend to those occupiers who fail to prevent the creation of a nuisance by the acts of third parties or by natural forces.
a) Persons lawfully on premises
i) Persons under his control/employee:
Servant of the occupier would be liable according to the rules of vicarious liability.
ii) Independent contractor
As a general rule, an occupier cannot be liable for the acts or defaults of an independent contractor.
But where nuisance (eg noise and dust) is an inevitable or foreseeable consequence of work undertaken by the independent contractor, the occupier would be liable: Bower v Peate (1876).
In Matania v National Provincial Bank Ltd (CA 1936) the occupier of premises who employed contractors to carry out alterations was held liable for nuisance by dust and noise caused to other occupants in the building.
On the other hand, in Spicer v Smee (HC 1946) it was said that where danger is likely to arise unless the work is properly done, there is a duty to see that it is properly done. In other words the court appears to support the proposition that it is the general rule in nuisance that the occupier is liable for his contractor’s negligence.
In a Scottish case it was held that an occupier may not be liable if he can show that his independent contractor had exclusive control of the premises at the time of the of the occurrence of the nuisance (Gourock Ropework Co. v Greenock Corp. 1966). The court also suggested that the rule represented the English law also.
iii) Licensee
White v Jamieson (1874): Occupier will be answerable for those whom he allows on to his land (eg as guests) if he had knowledge or means of knowledge and failed to take steps to control the licensee. In this case the licensee is not on the premises for do any work.
b) Trespasser
Sedleigh-Denfield v O’Callaghan. The plaintiff’s land was flooded after a heavy rainstorm in which rainwater overflowed from a ditch on the defendants’ land. Three year's earlier, a drainage pipe had been laid in the ditch by local authority workers; they had done so without the defendants’ permission and were therefore trespassers on the land. The workers had neglected to place a grid at the mouth of the pipe to keep it clear of refuse. It was this failure which resulted in the flood, for the pipe was so obstructed with refuse that the rainwater was unable to drain away.
The plaintiff sued and was met with the defence that the nuisance was caused by the act of a trespasser. This was rejected by the House of Lords.
Liability may be attached to the occupier for his failure to rectify the unreasonable conduct or state of affairs created by a trespasser if he knew or ought to have known of it.
c) Predecessor
Where the nuisance existed before the occupier acquired the property he will be liable if it can be proved that he knew or ought to have known of its existence (St Anne’s Well Brewery Co v Roberts 1929).
An old authority suggested that a predecessor may remain liable if the injury is done by after he disposes of the land (Roswell v Prior 1701).
d) Acts of nature
If an occupier becomes aware of the nuisance that arose on his land from natural cause and fails to remedy it within reasonable time, he may be liable for any damage for any damage it may cause. But the court is entitled to consider the occupier’s individual circumstances {Goldman v Hargrave (1967)}. This principle was formally accepted by the Court of Appeal in Leaky v National Trust (1980).
See also “Fault/ negligence” above at p .
In LE Jones (Insurance Brokers) Ltd v Portsmouth City Council (2002), up to and including 31 March 1997 Hampshire County Council was the highway authority responsible for maintaining the entire street trees in Portsmouth. Pursuant to an agency agreement with Hampshire, Portsmouth City Council provided an arboricultural service for Hampshire, which included the inspection and maintenance of those trees. From 1 April 1997 Portsmouth, on becoming a unitary authority, became the relevant highway authority.
The Court of Appeal held in dismissing an appeal brought by the defendants, Portsmouth City Council, against the decision of Judge Havery QC in the Technology and Construction Court on 11 March 2002 when he found that the defendants were liable in nuisance and negligence to the claimants, LE Jones (Insurance Brokers) Ltd for damage to their property for tree root subsidence.
The lawful exercise of control over trees, in the absence of ownership, was sufficient to make the defendant capable of liability in nuisance to the claimant.
The potential liability of the defendants in negligence was not dependent on ownership or occupation of the relevant land. Nor was it excluded by potential liability of the highway authority for the same negligence.
3. LANLORD
Where the premises are let the usual person to sue is the tenant. The landlord will, however, be liable in the following circumstances:
First, if he expressly or impliedly authorises the nuisance, as where the interference arises as a result of using the land for the very purpose for which it was let (Harris v James (HC 1876).
In Hussain v Lancaster City Council (CA, 1999) the council was not liable in respect of a long term campaign of racial harassment on a shopkeeper by the local authority's tenants because the acts complained of did not involve the use of the tenants’ land. Hussain was distinguished in Lippiatt v South Gloucestershire Council (1999) where the council allowed trespassers to park their caravans on a piece of its land bordering the claimant's farm. The council could have evicted the travellers from its land but had failed to so and was therefore held liable for the travellers’ repeated acts of interference.
Secondly, the landlord is liable if he either knew or ought to have known of the nuisance before letting the premises .
Tetley v Chitty (HC 1986): Even where it is the ordinary and necessary consequence of the permitted act or even where the nuisance is the foreseeable consequence.
Thirdly, if the premises fall into disrepair during the period of the lease, he is liable if he has reserved the right to enter and repair (WilChick v Marks and Silverstone).
The Landlord and Tenant Act 1985 which provides that, where a dwelling‑house is let for less than seven years, there is an implied covenant by the landlord to keep in repair the structure and exterior of the premises, and certain installations for the supply of essential services.
The landlord is clearly liable where he is under an express ‘covenant to repair, but was held in Brew Bros Ltd v Snax (Ross) Ltd, (CA, 1970) that he does not escape responsibility by extracting that obligation from his tenants, provided that he knows or ought to know of the nuisance.
Apart from these common law obligations the landlord may also be liable under the s 4 of Defective Premises Act 1972. This provides that if the landlord is under an obligation to his tenant to repair, or has an express or implied power to enter and repair, he owes a duty to take reasonable care to see that all who might reasonably be expected to be affected by defects in the state of the premises are reasonably safe from personal injury or damage to their property.
A right to repair will be implied where the landlord could, if necessary, obtain an injunction to enter and effect repairs (McAuley v Bristol City Council (CA, 1992)).
Southwark London Borough Council v Mills; Baxter v Camden London Borough Council (HL 1999): Where premises had been constructed with inadequate sound insulation, with the result that a tenant was disturbed by the ordinary and reasonable activities of neighbouring tenants, the landlord was neither obliged by the covenant for quiet enjoyment to improve the premises by installing soundproofing nor liable for damages in nuisance.
DEFENCES
The following mat be considered as defences to a claim in nuisance:
1. Inevitable accident
2. Act of trespasser
3. Ignorance of the state of affairs
4. Prescription
5. Contributory negligence
6. Statutory authority
1. Inevitable accident
It is a defence in cases where negligence is essential to liability. Where negligence is not essential, only act of God or secret operations of nature will suffice (Nichols v Marsland 1876). However the practical significance of the defence is minimal.
2. Ignorance of the state of affairs
If D was unaware of the existence of the circumstances and could not reasonably have been expected to know of it he may get this defence {Ilford Urban District Council v Beal (1925)}.
3. Prescription
No liability will arise if the defendant has acquired a prescriptive right to commit a nuisance after having done so for 20 years without objection from the plaintiff.
In Sturges v Bridgman (CA, 1879) a physician (P) built a consulting room at the end of his garden and complained of noise from the defendant’s premises. The defendant’s argument that he had been pursuing his trade for more than 20 years failed, because the interference did not become actionable as a nuisance until the plaintiff extended his premises.
4. Consent or Contributory negligence
Where the plaintiff voluntarily assumes the risk of interference, or is contributorily negligent, then liability will be negated or reduced {Trevett v Lee (1955)}
6. Statutory authority
Generally no liability will arise if the defendant is empowered by statute to carry out a certain activity which inevitably results in the interference with the claimant’s use and enjoyment of land. Whether a statute provides a defence in nuisance depends upon its construction.
In Allen v Gulf Oil Refining Ltd (1980), the defendants had authorisation to build an oil refinery on land that they had acquired compulsorarily, but the statute made no mention of putting the refinery to use. The plaintiffs alleged that the legislature’s failure specifically to mandate use of the refinery prevented a defence of statutory authority. This was rejected by the House of Lords on the grounds that the use of the refinery was authorised by necessary implication.
The House of Lords held that as a matter of statutory interpretation a provision in a private act (which ostensibly dealt merely with the compulsory purchase of land for the construction of a huge refinery) impliedly authorised the defendant to commit acts of nuisance, since the refinery could not carry out its ordinary activities without necessarily perpetrating environmental pollution.
Marcic v TWUL (20031 UKHL 2003), could be seen as just another example of the straightforward development of the law of nuisance by the House of Lords. A new category of defence to a nuisance action has been introduced, as effective as statutory authority. The House of Lords has always been remarkably conservative in interpreting the law of nuisance (See above p ).
REMEDIES
ABATEMENT OR SELF-HELP
The right of self-help against a nuisance is termed the right of abatement. In its simplest form, it allows victims of a nuisance to take steps on their own land to put an end to the interference, e.g. by trimming the overhanging branches of an neighbour’s tree. Traditionally, it is assumed that claimant has the right, after giving notice, to abate the nuisance, that is to enter D’s land and use the minimum force reasonably necessary to stop it, or to curb its effects.
THE REMEDY DEPENDS UPON THE FOLLOWING PRINCIPLES:
1. while abatement may take the form of removing an obstruction or other nuisance emanating from neighbour’s land (eg cutting off intruding roots), it can not normally take the form of other positive acts such as erecting structures on the D’s land {Campbell Davys v Lloyd (1901)}.
2. abatement ought only be allowed in clear cases of nuisance where the injury is apparent at the first view of the matter {Kirby v Sadgrove 1757)}.
The abator must in all cases ensure that his action does not affect the property of the other in excess of what is absolutely necessary in the circumstances {Roberts v Rose (1865)}.
A recent Court of Appeal decision also asserted that the defence is narrow one {Burton v Winter (1993 CA)}. In this case the Winters’ garage, built by the people from whom they bought the land, protruded some 4.5 feet onto Burton’s land. Burton applied for, but was refused, an injunction to have it knocked down. Could Burton knock it down herself?. The court held that she could not.
The court in that case seemed to think that the right to abate was available in two cases:
a) where the case was a simple one where legal proceedings would have been inappropriate or
b) where urgent action was plainly necessary.
But where a legal action not only could have been, but actually was, brought before the court, there was no longer a right to private self-help.
In Co-operative Wholesale Society Ltd v British Railway Board (1995), it was held that the right to abatement was confined to cases where the security of lives and property requires immediate and speedy action or where such action could be exercised simply without recourse to the expense and inconvenience of legal proceedings in circumstances unlikely to give rise to argument or dispute. Where an application to court could be made, the remedy of self help was neither appropriate or desirable. (?)
3. if abatement requires, as it may often do, the abator to enter another person’s land, he must generally give notice to that person. However, no notice is required for a man to cut off branches overhanging his own land {Lemmon v Webb (1895)}.
DAMAGES
Damages can be awarded in nuisance to deal with losses already incurred by the plaintiff. Ordinary principles governing the award of damages apply: it makes no difference in principle whether the suit is brought in negligence or nuisance or some other tort, or whether the plaintiff sues for property damage or loss of enjoyment.
The plaintiff may recover damages for any resulting loss which is of a reasonably foreseeable kind {The Wagon Mound (No. 2) (PC 1967)}.
One commonly recurring problem is whether compensation for damaged property should be awarded on a cost-of-cure or diminution-in-value basis.
In Hunter v Canary Wharf (1997 HL), Lord Hoffmann said that damages should be fixed by reference to the diminution to the capital value of the property. (?)
LOSS OF AMENITY
If there is no pecuniary loss to the plaintiff, there is no damage to his property. So, the court may award damages on a basis analogous to that adopted in cases of loss of amenity in personal injury cases {Bone v Seale (1975)}.
But aforesaid approach has been convincingly criticised by Lord Hoffmann in Hunter v Canary Wharf (1997 HL), where he suggested that the damages in nuisance should be calculated:
either by reference to the diminished capital value of the land
or by calculating the diminution in the amenity value of the property during the period for which the nuisance persisted.
Lord Hoffmann gave the rationale for the principle by holding that the damage to the utility of the land caused by the nuisance was unrelated to the plaintiff’s personal discomfort of distress.
The courts also developed a jurisdiction of equity to award damages in lieu of an injunction. This jurisdiction, first put on a statutory footing by the Chancery Amendment Act 1858 (“Lord Cairns’s Act”) is now to be found in section 50 of the Supreme Court Act 1981.
According to Shelfer v City of London Electric Lighting Co Ltd (1895 CA) the damages should only be awarded in lieu of injunction where:
a) the injury to the plaintiff’s legal rights is small and
b) the damage is capable of being estimated in money and
c) the damage can be adequately compensated by a small money payment and
d) the case is one in which it would be oppressive to D to grant injunction.
The principles laid down in that case were applied in laggard v Sawyer (CA 1995) where the fact that the defendants had acted openly and in good faith, and that the plaintiff had delayed in seeking interlocutory relief, were considered to be relevant (though not conclusive) factors in deciding that the grant of an injunction would be oppressive.
INJUNCTION
The remedy of an injunction is an equitable one and will therefore only be granted where damages would be inadequate.
If the interference is trivial or temporary it is unlikely to be granted, but it should not be refused simply on the ground that the defendant's activity is in the public interest.
PUBLIC INTEREST
The majority decision in Miller v Jackson (CA 1977) not to grant an injunction in respect of the frequent escape of cricket balls from the defendant’s land because the cricket club was a valuable local amenity.
In Kennaway v Thompson (CA 1981) the court expressly disapproved the consequence of Miller, though they did not actually say that the principle in Miller was wrong. It appears that the court compromised with the Miller principle as they partially reduced the activities of nuisance not the whole. So, a balance was aptly struck down.
In, Nottingham City Council v Z (A Minor) (CA 2001), a local authority was entitled to try to put an end to all public nuisances in its area for the promotion or protection of the inhabitants, and to apply for an injunction against those committing such nuisances whether or not they were also breaking the criminal law.
But the position would be different if the defendant themselves are public authorities, where court would not be so readily prepared to grant an injunction if they are carrying their duty with public interest.
DIFFERRENCES BETWEEN PRIVATE AND PUBLIC NUISANCE | |
PUBLIC NUISANCE | PRIVATE NUISANCE |
1. public nuisance does not concern itself exclusively with interference with land use. | 1. Generally private nuisance concerns with land. |
2. It is primarily a crime though, it gives rise to liability in a private tort action. | 2. It is only a tort. |
3. For establishing a tortuous claim C has to prove special damage, affecting the public or section of the public. | 3. Generally C has to prove damage which has been occurred to him. |
4. damages for personal injury may be recovered. | 4. It seems that damages for personal injury may not be recovered. |
5. No defence of prescription. | 5. Prescription is a defence. |
3. STATUTORY NUISANCE
Many public and private nuisance can today be remedied by a local authority issuing an abatement notice under ss 80 and 80 A of the Environmental Protection Act 1990. Such a notice may be issued where a ‘statutory nuisance’ exists. Section 79 (1) of the Act sets out a number of matters that may be deemed to be statutory nuisances provided they are in such a state or condition as to prejudicial to health or a nuisance.
The matters include:
1. the state of the premises: 79 (1) (a),
2. smoke: 79 (1) (b),
3. fumes or gases from private dwellings: 79 (1) ( c),
4. industrial dust, steam smell or effluvia (vapour or unpleasant smell): 79 (1) ( d),
5. any accumulations and deposits: 79 (1) (e),
6. keeping animals: 79 (1) (f),
7. noise emitted from premises: 79 (1) (g),
8. noise that is emitted from or caused by a vehicle, machinery or equipment in a street: 79 (1) (ga), and
9. any other matter declared by any enactment to be statutory nuisance: 79 (1) (h).
.
Where abatement notice has been issued, the party to whom it is addressed commits an offence if it is not complied with s 80 (4) of the Act.
In certain circumstances the local authority may abate the nuisance itself and recoup the cost from the appropriate person.
Hounslow London Borough Council v Thames Water Utilities Ltd (2003 EWHC): Under s 80 of the 1990 Act on the ground that the odour emitted by the Mogden Sewage Treatment Works was a matter constituting a statutory nuisance under s 79(1) (d) of the 1990 Act as “arising on industrial, trade or business premises and being prejudicial to health or a nuisance”.
It should also be noted that there are now a large number of statutes relating to the environment regulating conduct which might amount to a nuisance . In addition to the Environmental Protection Act 1990, these include the Clean Air Act 1993, the Water Industry Act 1991, the Water Resources Act 1991, and the Noise and Statutory Nuisance Act 1993.
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