AIMS AND OBJECTIVES
After reading this chapter you should be able to:
■ Understand the differences between private nuisance, public nuisance and statu-tory nuisance
■ Understand what determines who the potential parties are in each action
■ Understand the essential elements for proving private nuisance
■ Understand the essential elements for proving public nuisance
■ Understand the scope of statutory nuisance
■ Understand the defences available to a claim of nuisance
■ Critically analyse the tort of nuisance
■ Apply the law to factual situations and reach conclusions as to liability
Nuisance is perhaps the part of tort law which is most closely connected to protection of the environment. As will be seen, action in nuisance can lie for oil spills, nasty smells, noise and anything else which affects nearby land or the comfort and convenience of the occupiers of that land.
The problem of pollution, whatever form it takes, is also the subject of statutory regulation, much of which stems from regulations and directives coming from the European Union. More recently, as seen in Chapter 1, the European Convention on Human Rights and the Human Rights Act 1998 are also having an impact, providing a remedy where either the common law or statute fails to do so.
Nuisance may take three forms:
■ private nuisance
■ public nuisance
■ statutory nuisance.
Nuisance is concerned with the use of land. We have already seen that the word land’ has an extended meaning in law (Chapter 8.3). For the purposes of nuisance a wider meaning is given. Nuisance is concerned with all aspects of land use. This can include:
■ the right to grow crops and graze animals;
■ shooting rights;
■ riparian rights;
■ rights of support from neighbouring land;
■ timber rights;
■ leisure and domestic activity;
■ mineral rights; etc.
(For a full discussion of the meaning of land’, reference should be made to a text on land law.)
It is essential that the interest being interfered with is one recognised by law. In Hunter and Others v Canary Wharf  2 WLR 684 a tower block interfered with television signals. The House of Lords held that this amounted to interference with a ‘purely recreational facility as opposed to interference with the health or physical comfort or well-being’ of the claimant. This may seem odd in the twenty-first century but the judges did take into account the widespread availability of cable and satellite television. The judges also considered whether the fact that a building blocking television signals was capable of amounting to a nuisance. Referring to an old principle Goff LJ said:
‘[I]n the absence of an easement, more is required than the mere presence of a neighbouring building to give rise to an actionable private nuisance…. [I]t will generally arise from some-thing emanating from the defendant’s land.’
A building clearly cannot ‘emanate’ from land and is therefore unlikely to amount to an actionable nuisance. The defendant has a legal right to use the airspace above his land provided such use is reasonable. Building on that land is a reasonable use in the absence of malice. It is difficult to see how a building can be a malicious use of land but perhaps a hoarding or a screen would suffice.
An actionable private nuisance occurs where a person’s use or enjoyment of their land is unlawfully interfered with by activities carried on by another person on their land. In most cases, the two areas of land are likely to be close together. The activities complained of must generally be continuous but it is possible, in rare circumstances, for a ‘one off activity to amount to a nuisance.
The interference must be indirect. A simple example to illustrate this arises from a garden bonfire. The bonfire itself is not a nuisance but the smoke arising from it can mean that neighbours have to take in washing and shut windows. The activity is lighting the bonfire, the indirect consequence of that activity is the smoke. Direct interference may amount to trespass to land (see Chapter 8).
In this way a variety of things which indirectly affect the claimant’s land have been held to be actionable as nuisances including:
■ fumes drifting over neighbouring land, Bliss v Hall  4 Bing NC 183;
■ vibrations from industrial machinery, Sturges v Bridgman  11CH D 852;
■ smuts from factory chimneys, Halsey v Esso Petroleum  1 WLR 683;
■ fire, Spicer v Smee  1 All ER 489;
■ continuous interference from cricket balls, Miller v Jackson  QB 976.
The tort is essentially concerned with balancing the competing interests of neighbours to make lawful use of their own land. The difficulty is that what may be reasonable to the person carrying out the activity, may be perceived as wholly unrea-sonable by a neighbour because of the way it interferes with what the neighbours want to do on their land. The courts are left to conduct a balancing act. Only interference which is found by the court to be unreasonable can amount to a private nuisance. In considering whether or not the interference is reasonable, the courts will have regard to
■ the extent of the harm;
■ the nature of the use interfered with.
The extent of the harm is judged on the basis of the impact on the claimant. This is judged subjectively. Street gives a good example. A defendant who plays a trumpet very loudly objectively causes a nuisance to a neighbour. It will not be perceived subjectively as a nuisance by a neighbour who is deaf and who is therefore unlikely to hear the noise.
The use to which the claimant puts their land is often also relevant to whether he has suffered a nuisance.
Smith v Giddy  2 KB 448
The defendant was liable in nuisance for the branches of trees on his property which overhung the claimant’s land. While this would normally have been an unactionable blockage of light, the fact that the claimant ran a fruit orchard and the interference meant that the fruit trees did not grow properly was decisive in the decision that the defendant was liable.
It will be seen later that the social utility of the defendant’s use of land is only relevant to the remedy which may be awarded.
Private nuisance protects interests in and the enjoyment of land. In order to bring an action, the claimant must have a legal interest in the land. This will normally mean a right to exclusive possession by way of freehold or leasehold title. A licensee, for example a lodger or a member of the owner’s family, has no interest in land and cannot therefore bring an action.
Malone v Laskey  2 KB 141
The claimant lived with her husband who occupied a house as licensee. Vibrations from the use of an engine on the defendant’s adjoining land caused a bracket to fall on to the claimant causing her injury. Her claim in nuisance was dismissed by the Court of Appeal as she had no interest in the land on which to found a claim.
In 1993 it was believed that the apparent injustice suffered by a person in Mrs Malone’s situation had been remedied. In Khomsandjian v Bush  3 WLR 476 a claim by a daughter living with her parents succeeded when the majority of the Court of Appeal recognised that an injunction on the ground of private nuisance could be granted despite the fact that she had no interest in the land. The case concerned harassment by way of telephone calls and was heard prior to the Protection from Harassment Act 1997. It may be that the judges were influenced by the need to find a remedy for what was, on the facts, serious harassment.
The apparent easing of the requirement for the claimant to have a legal interest was later reversed by the House of Lords.
Hunter and Others v Canary Wharf Ltd and Hunter and Others v London Docklands Corporation  AC 655
Two joined appeals were heard together by the House of Lords.
The first case concerned interference with television reception, the second damage caused by dust during the construction of a road. The House of Lords certainly took the view that the Court of Appeal in Khorasandjian had been trying to create ‘by the back door a tort of harassment’. Pointing out that the decision was inconsistent with that in Malone v Laskey  2 QB 141, Goff U stated very clearly:
‘an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right of exclusive possession.’
The position now appears to be clear but the fact is that the injustice suffered by a lodger or some other person without a right to exclusive possession remains. The Protection from Harassment Act 1997 will help some claimants, for example the daughter in Khorasandjian, but not someone who cannot meet the criteria of the statute. It may be that in the future we may see an action under the Human Rights Act 1998 for breach of Article 8 of the European Convention on Human Rights.
A reversioner is the person to whom the land will return after the expiration of the current occupier’s interest, for example at the end of a lease. Such a person can sue if it can be shown that the reversion, i.e. the value of the land after its return, will be diminished by the present nuisance. This tends to mean that the nuisance will be permanent. In Tucker v Newman  11 Ad & El 40 a reversioner was successful when a house had been built on adjoining land. The eaves of the house overhung his land and allowed rainwater to fall on to it.
The creator of the nuisance
The obvious answer, and the one which is usually correct, is the person who causes the nuisance. Unlike the claimant, it seems that the defendant need not have an interest in the land on which the activity takes place. In Esso Petroleum Co Ltd v Southport Corporation  AC 218 (for facts see Chapter 8.6.4) Mr Justice Devlin (as he then was) said:
‘I can see no reason why if the defendant as licensee or trespasser misuses someone else’s land, he should not be liable in nuisance in the same way as an adjoining occupier would be.’
This simple statement is not as straightforward as it might appear. In Thomas v National Union of Mineworkers  2 All ER 1 (for facts see Chapter 13.2.2) it was said by Mr Justice Scott, at first instance, that an activity on the highway which unduly interferes with the right of citizens to enjoy the highway could amount to a ‘species of private nuisance, namely unreasonable interferences with the claimant’s right to use the highway’. However, the statement has apparently also been contradicted in another decision.
Hussain v Lancaster City Council  QB1
Here the claimants were the victims of extreme racial harassment by persons using the highway. It was held by the Court of Appeal that there was no nuisance because the wrongdoing did not involve the defendants’ use of their land. The wrongdoers, who were not the defendants, had no legal interest in the highway.
If Hussain is correct the implications for the law relating to private nuisance are substantial as those in temporary possession of land but with no legal interest in that land, such as independent contractors, may be able to escape liability. The decision in Hussain may have resulted from policy influences. To hold a local authority liable in nuisance for the activities of those using the highway who are responsible for racial harassment would indeed be to open the floodgates. It may be therefore that we shall see in future cases that Hussain is held to apply only to its own very specific facts.
Generally the occupier of the premises from which the nuisance emanates will be liable for that nuisance. This is subject to qualification where the nuisance is caused by
■ independent contractors
■ an act of nature.
An independent contractor’s activities may be the cause of a nuisance. An obvious example is the problems caused to neighbours by building works. In such cases, there are certain ‘non-delegable’ duties which fall on the occupier notwithstanding that the nuisance arises from the activities of the contractor. Such duties relate to activities which carry with them particular danger. In Bower v Peate  1 QBD 321 the defendant employed a contractor to demolish his house. The adjoining house was damaged as a result of the work. The occupier was held liable.
The courts have refined this principle to cover only those activities by the contractor which are extra-hazardous, for instance those acts which ‘in their very nature, involve in the eyes of the law special danger to others’ (per Slesser LJ in Honey will and Stein v Larkin Brothers Ltd  1 KB 191). The essence of ‘special danger’ seems to be that the activity carries with it a special risk that a nuisance may be caused to neighbours. (For a fuller discussion of the potential liability for the activities of an independent contractor see Chapter 7.2.5.)
An occupier may well feel that if the nuisance is caused by a trespasser, then there ought to be no liability on their part for a resulting nuisance. Life is not that simple. The occupier will be liable if the ‘nuisance’ is adopted by using the state of affairs for the occupier’s own purpose or where the nuisance is ‘continued’. This point is illustrated by Sedleigh-Denfield v O’Callagan (Trustees for St Joseph’s Society for Foreign Missions)  AC 880.
Sedleigh-Denfield v O’Callaghan (Trustees for St Joseph’s Society for Foreign Missions)  AC 880
A ditch on the boundary of the claimant’s land belonged to the defendants. A trespasser laid a culvert in the ditch and no grid was put in place to prevent rubbish etc. from blocking it. A grid was in fact placed on top of the culvert where it served no useful purpose. This was known to the defendants. Thereafter, over a three-year period, the ditch was cleaned out twice a year by the defendants. After a heavy storm the culvert became blocked and the claimant’s land was flooded.
‘After the lapse of nearly three years, [the defendants] must be taken to have suffered the nuisance to continue, for they neglected to take the very simple step of placing the grid in the proper place, which would have removed the danger to their neighbour’s land. They adopted the nuisance, for they continued during all that time to use the artificial contrivance… for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.’
Viscount Maugham LJ
It seems that an occupier who knows, or is deemed to know, that the potential for the creation of a nuisance exists, will be held liable even though the original act which created the nuisance was not the present occupier’s act.
Anthony and others v The Coal Authority  EWHC 1654 (QB)
Between 1957 and 1995, first the National Coal Board and as it became the British Coal Corporation, tipped waste from mining on to a tip on its land. In 1995 the tip was partly landscaped and passed into private hands. In 1996 spontaneous combustion of the coal created a fire which continued for three years. The claimant sued the Coal Authority, the body taking over responsibility of the former two bodies, for the interference caused by the fumes and smoke. The defendant was held liable under the principle in Sedleigh-Denfield v O’Callaghan that it became aware of the problem while the tip was still under its control and failed to prevent the nuisance.
An act of nature
Until recently, a nuisance resulting from an act of nature, for example a severe storm which washed topsoil on to a neighbour’s land, would not impose liability on the occupier of the land from which the soil had been washed. This, at first sight, appears to be very reasonable as it may well be impossible to foretell the consequences of an unusual and extreme event. But what about the situation where an occupier is aware, or ought to be aware, of the potential for the nuisance to occur? It would be unjust if the occupier could escape liability in such circumstances.
The matter was first considered by the Privy Council in Goldman v Hargrave  1 AC 645 when Lord Wilberforce explained that the occupier’s duty is in reality more positive, resulting in liability for failure to take positive steps to abate a nuisance of which the occupier is aware.
Goldman v Hargrave  1 AC 645
The defendant dealt with a fire caused by lightning hitting a gum-tree. The tree was felled, cut into sections and left to burn itself out. The weather deteriorated and the fire reignited causing damage to the claimant’s land.
It was held that on the facts the defendant owed the claimant a duty to abate the nuisance which he was, or ought to have been, aware arose from the natural state of affairs on his land.
The principle set out in Goldman v Hargrave has been enshrined in English law in the case of Leakey v National Trust  QB 485.
Leakey v National Trust  QB 485
The defendants owned a hill known as Barrow Mump; the claimants’ homes were at the foot of the hill. The homes were threatened by the possibility that the hill would slip as a result of the action of the weather on the type of clay. From time to time small slips occurred on to the claimants’ land. The defendants had been aware of the problem for more than eight years and had taken no steps to minimise the risk.
Developing the dicta from Sedleigh-Denfield Megaw LJ held that where a potential nuisance exists resulting from an act of nature and the defendant was aware of the danger, it would be an injustice were the occupier not to be under a duty to ameliorate the nuisance. Explaining the scope of the duty, the Judge went on to say:
‘the duty is a duty to do that which is reasonable in the circumstances… to prevent or minimise the known risk of damage or injury to one’s neighbour or his property’.
In considering what can reasonably be done, the court should have regard to what the particular defendant could have reasonably been expected to do. This is not the standard of the ‘reasonable man’ whom we meet in the context of negligence. It takes account of matters such as cost in relation to the defendant’s means; the need for physical exertion in the context of the defendant’s age and state of health. Alongside this the court will have regard to what, if anything, the neighbour could reasonably have been expected to do to protect his own land.
The issue of what is reasonable was further considered in Holbeck Hall Hotel Ltd v Scarborough Borough Council  2 All ER 705.
Holbeck Hall Hotel Ltd v Scarborough Borough Council  2 All ER 705
The hotel stood at the top of a cliff. On 6 June 1993 the lawn between the hotel and the edge of the cliff fell into the sea and the land collapsed beneath the hotel so that it became unsafe and had to be demolished. The coastline was owned by the defendants. It had been known since 1893 that cliff falls occurred along that part of the coastline. Some remedial work was carried out in 1989 but was ineffective in preventing further erosion and collapse. At first instance it was held that the defendants were liable. The matter came before the Court of Appeal.
‘It is the existence of the defect coupled with the danger that constitutes the nuisance; it is knowledge or presumed knowledge of the nuisance that involves liability for continuing it when it could reasonably be abated.’
The important point at issue was what knowledge of the risk could be imputed to the defendants? It was clear that without further substantial geological investigation, the extent of the risk could not be anticipated although it was known that gradual erosion would be likely to continue. Lord Justice Stuart-Smith concluded that the scope of the defendants’ duty was limited to what ought to have been foreseen without further investigation.
Pointing out that Goldman and Leakey were decided prior to Caparo Industries Ltd v Dickman  2 AC 605, Lord Justice Stuart-Smith reminded the Court that the three stage test of:
■ proximity and
■ the need for it to be fair just and reasonable
applies whatever the nature of the damage. He stated:
‘I do not think it is just and reasonable in a case like the present to impose liability for damage which is greater in extent than anything that was foreseen or foreseeable’.
So where does all this leave the potential for liability arising from natural causes? It seems that occupiers who know or ought to know of the potential for a nuisance arising from the state of affairs on their land owe what the judges have described as a ‘measured duty of care’ to do what can reasonably be done having regard to such matters as their resources etc. It is clear that imputed knowledge will not extend to knowledge which could only be obtained by further investigation.
The nuisance must be a foreseeable result of the activity, whether it arises from an activity or from natural causes. The Wagon Mound (No 2) (Overseas Tankship (UK) Ltd v the Miller Steam Ship Co Pty Ltd)  1 AC 617 involved allegations of nuisance as well as negligence. On the nuisance point, the rules as to foreseeability of damage were held to be the same in both negligence and nuisance. Lord Reid put it simply saying:
‘It is not sufficient that the injury suffered… was the direct consequence of the nuisance, if that injury was in the relevant sense unforeseeable.’
(For a full discussion of the principles of The Wagon Mound see Chapter 4.5.1.)
The issue of foreseeability has been further considered by the House of Lords in Cambridge Water Co Ltd v Eastern Counties Leather plc  2 WLR 53. (For the facts of thiscase, see Chapter 10.3.2.) Goff LJ explained that the fact that defendants have taken all reasonable care to avoid the nuisance will not exonerate them from liability but he went on to say:
‘it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee… foreseeability of harm is indeed a prerequisite of the recovery of damages in… nuisance.’
While a tenant who creates a nuisance will be liable, in certain circumstances the landlord may also have liability. A landlord who authorises the activity which creates the nuisance will be liable, if the nuisance is an inevitable result of the permitted activity.
Tetley and others v Chitty and others  1 All ER 663
Premises were leased for the purpose of a go-karting club. The landlord, a local authority, was well aware of the potential problems such use would cause in the way of noise. It was held that as noise was a natural and necessary consequence of the use of go-karts, the landlord was liable for the nuisance which had been authorised.
1. What is the essential purpose of the judges when deciding a claim using the tort of private nuisance?
2. Does the decision in Hunter v Canary Wharf mean that some classes of occupiers may be unable to bring an action for private nuisance thereby suffering injustice?
3. When is a person liable for a nuisance arising from
a. the activities of someone else
b. an act of nature?
It is clear from the definition (section 9.2.1) that there are three elements which must be proved:
(i) an unlawful, in the sense of unreasonable, use of land;
(ii) which causes indirect interference;
(iii) with another’s land.
Everyone has the right to use their land for their own purposes. While this may be subject to other parts of the law, for example town planning legislation, the general right exists and cannot be interfered with by others. Difficulties arise only when the use to which one person puts the land interferes with what a nearby occupier wishes to do on their land. It is always a question of fact but the general rule is that if the use causes interference which is unreasonable, then it is likely to be regarded by the courts as unlawful and a private nuisance.
The essence of unlawfulness for the purpose of this tort is therefore that the use is unreasonable. The judges need the wisdom of Solomon to untangle the respective claims of neighbours. What neighbour A regards as perfectly reasonable use of ‘Blackacre’ may be regarded as totally unreasonable by B when it interferes with B’s use of ‘Whiteacre’.
The activity complained of must result in interference which is more than the inevitable result of ordinary life.
Southwark London Borough Council v Mills and Others, Baxter v Camden London Borough Council  2 WLR 742
Cases were brought by tenants who lived in blocks of flats owned by the councils. The flats were badly soundproofed and the tenants complained that their lives were made miserable by everyday noises coming from next door. As the noises complained of were part and parcel of everyday life, the behaviour of those causing the noise could not be unreasonable. It was not unreasonable activity which was causing the tenants’ problems but lack of sound-proofing.
There are no hard and fast rules as to when use will be regarded as unreasonable but past cases give a good indication of how the courts will approach the task and the issues which will be taken into account. The correct test is whether a normal person would find it reasonable to have to put up with the effects of the defendant’s activities.
Barr v Biffa Waste Services Ltd  EWCA Civ 312
This involved a landfill site near to residential housing in which the defendant tipped ‘pre-treated’ waste (from which recyclables had been extracted) so that it had spent longer before being tipped, had a higher level of organic matter than normal and so was very smelly. The Court of Appeal, allowing the appeal held that the trial judge was wrong to base the test on whether the activity was reasonable because it was under a permit from the Environment Agency and also wrong that this permit had transformed the nature of the locality for the purposes of private nuisance. The trial judge had also introduced a requirement of a threshold level of seriousness and the Court of Appeal felt that this was wrong also.
The basic question to ask is whether the defendant’s act is foreseeably likely to cause the nuisance. If the answer to this question is in the affirmative, the defendant is liable. Matters which will be considered by the courts include:
■ sensitivity of the claimant
but none of these matters is decisive nor is the list exhaustive.
No one reasonably expects the same levels of peace and quiet in urban and industrial areas which are to be found in rural areas. Each has its own characteristics. This means that where the activity occurs is important. As Thesiger LJ said in Sturges v Bridgman  11 Ch D 852:
‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’
It is clear that where actual physical damage is caused as a result of the activity, the issue of locality is not relevant. In St Helen’s Smelting Co v Tipping  11 HL Cas 642 the fact that the industrial use which caused physical damage occurred in an industrial area was held to be irrelevant.
Where, however, the interference is with a person’s comfort, peace or personal freedom, locality is important. In Laws v Florinplace Ltd  1 All ER 659 an injunction was granted to prevent the use of a shop converted to a sex shop and cinema club in a residential area.
It is said that for an activity to amount to a nuisance, it must be continuous. This requirement may be satisfied by an activity which recurs regularly; there is no requirement that it should continue day and night over a period of time!
The fact that an activity is temporary does not mean that it cannot amount to a nuisance. Examples can be most easily found in the context of building work. Such work almost invariably causes annoyance and inconvenience to the neighbours but it would be wholly unreasonable to prevent such work taking place. It must, however, be carried out in a way which is sensitive to the needs of the neighbours.
The extent of the interference is very relevant.
Andreae v Selfridge & Co Ltd  3 All ER 255
Demolition work created an excessive amount of noise and dust which interfered with the business of a hotel. No injunction was granted, as building work is not in itself an unreasonable use of land, but the excessive interference with the business meant that damages were payable.
An injunction will, however, be granted where the temporary interference can reasonably be avoided.
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd  30 TLR 257
Pile driving at night meant that the sleep of the owner of the next door hotel was disturbed. An injunction was granted to prevent the work at night.