Nuisance Lecture Notes

Nuisance

Private Nuisance

• Part 1 of nuisance.
• Definitions and origins
  • Trespass to land: Intentionally entering, remaining on, or placing something on someone else’s land without consent. Characterized by directness.
  • Nuisance: An indirect interference with the use and enjoyment of the claimant’s land.
  • Private and public nuisance
  • Definition of private nuisance: A continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.

Standing to Sue

• Who can sue?
  • Nuisance as a property-based tort – protecting interests in property (and not in e.g. the person).
  • Traditionally, only those with a legal interest in the land affected can sue in private nuisance.
  • Case Law Examples:
    • Malone v Laskey [1907] 2 KB 141
    • Hunter v Canary Wharf [1997] 2 All ER 426
      • 'The plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land’, per Lord Hope.
  • Question: Is this too restrictive (especially post-HRA 1998)?
• McKenna v British Aluminium Ltd [2002] Env LR 30 per Neuberger J [53]
  • Argued that Article 8.1 may not be properly addressed if someone without interest in the home, but has lived there for some time with disrupted enjoyment of it, is at the mercy of the homeowner.

Categories of Private Nuisance

• What types of harm amount to nuisances?
  • Actionable nuisances interfere with the use and enjoyment of property.
  • This interference may be due to:
    • Physical damage
    • ‘Sensible discomfort’ (noise, smells etc.)
    • Encroachment
  • Three types of private nuisance cases:
    • Physical damage (tangible nuisance) cases
    • Amenity nuisance (intangible nuisance) cases
    • Encroachment cases
  • Case Law Examples:
    • St Helens Smelting Co v Tipping (1865) 11 HLC 642
    • Lord Lloyd in Hunter v Canary Wharf [1997] AC 655 (at 695)

Means by Which Nuisance is Caused

• There is no need for a physical emanation from the defendant’s land for an interference to be a nuisance.
• “Anything … which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance” [12] per Lord Leggatt, Fearn v Tate (Supreme Court)
• Gives examples where there is no physical emanation from a neighbour, but where an activity might nevertheless amount to a nuisance.
  • Thompson-Schwab v Costaki [1956] interim injunction to restrain the use of the house next door as a brothel.
  • Laws v Florinplace Ltd [1981] sex shop on a residential street).
  • Foley v Harris (1982) US cases - keeping of numerous abandoned vehicles on D’s land held to be a nuisance.
• Looking out at something offensive can be a nuisance, but so too can extreme examples of looking in, as on the facts of Fearn itself [15]-[17].
• Limits, Fearn [36]:
  • Principle - “anyone may build whatever they like on their land, unless this violates an agreement … or an acquired right to light or to a flow of air through a defined aperture”
  • Interference with the use of the claimants’ land caused by the mere presence of a building on D’s land can’t give rise to a claim for private nuisance (Hunter v Canary Wharf office tower’s interference with TV reception).
  • “(S)ame principle explains why no claim lies for interference with a view”.

Need for Damage/Harm

• Nuisance (unlike trespass) is not actionable per se (i.e. without proof of damage. But damage in nuisance has been described as an ‘elastic concept’
• Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514; Fearn v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104
• Physical damage – harm usually easier to establish:
  • E.g. Halsey v Esso [1961] 1 WLR 683 - harm to washing from acid smuts
• Amenity nuisance (e.g. from smells or noise)
  • More obviously a matter of degree. One can’t say that any noise, or any smell will constitute damage, however trifling. It will be necessary for the interference with the claimant’s use or enjoyment of their land to be substantial:
    • The inconvenience must be “more than fanciful, more than one of mere delicacy or fastidiousness” (Walter v Selfe (1851) 4 De G & Sm 315, at 322).
  • Whether something is substantial is an objective test – it’s not enough for the claimant to subjectively assert that the interference was substantial to them (Fearn, [23]).

Recoverable Types of Harm

• Personal injury is not recoverable as a type of damage in private nuisance:
  • Hunter (obiter), per Lord Lloyd, at 696: “if the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment.”
  • Professor Newark, endorsed by Lord Leggatt in Fearn [11]: “the interest of the plaintiff which is invaded is not the interest of bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens.”
• Pure economic loss (cf. negligence) is recoverable in private nuisance in some circumstances: Dunton v Dover DC (1977)
  • But cf. Network Rail Infrastructure Ltd v Williams [2018] EWCA Civ 1514
    • Not in terms of a drop in the market value of C’s domestic property, arising from blight (here from Japanese Knotweed)
    • I.e. you can’t claim that a drop in value is itself a loss of amenity.
    • What you can claim is that invasion of knotweed that has not yet caused physical damage to the building, is nevertheless itself recognisable as damage in nuisance because its presence negatively affects your use and enjoyment of the property.

Continuing State of Affairs

• Generally speaking the nuisance must arise from a continuing state of affairs: SCM (UK) Ltd v WJ Whittal & Son Ltd [1970] 1 WLR 1017:
  • “While there is no doubt that a single isolated escape may cause the damage that entitles the plaintiff to sue for nuisance, yet it must be proved that the nuisance arose from the condition of the defendants' land or premises or property or activities thereon that constituted a nuisance. I am satisfied that one negligent act that causes physical damage to an electric cable does not thereby constitute a nuisance.” Per Thesiger J, at 1030.
• Cf. Stone v Bolton [1950] 1 KB 201:
  • “I do not think a single isolated act causing direct damage, such as the striking of a person on the highway by a cricket ball hit from adjacent premises, can properly be brought under the head of nuisance.” Per Jenkins LJ, at p. 208.
• A one-off event may nevertheless give rise to liability under Rylands v Fletcher.
• R v F has been described (in Cambridge Water) as a sub-branch of nuisance applicable to isolated escapes.
• Suggests that isolated escape cases, even if stemming from a continuing state of affairs, cannot now be brought in nuisance, but must be brought in R v F (or negligence).

Nature of the Liability

• The question arises of whether liability in nuisance is strict or fault-based. The answer is a bit of both.
• Reasonable care
  • In the ‘normal’ nuisance cases liability is strict in the sense that a defendant can have taken all reasonable care (in a negligence, breach, fault sense) and yet still be liable in nuisance:
    • “It is still the law that the fact that the defendant has taken all reasonable care will not of itself exonerate him from liability, the relevant control mechanism being found in the concept of reasonable user”. Per Lord Goff in Cambridge Water v Eastern Counties Leather [1994] 2 AC 264
• Foreseeability of harm
  • Liability in nuisance is not completely strict though, in that the harm or damage must be foreseeable. I.e. there will be no liability if the damage is too remote (in a Wagon Mound sense).
  • "Liability for nuisance is not, at least in modern law, a strict or absolute liability." Per Lord Wright in Sedleigh-Denfield v O'Callaghan [1940] AC 880.
• "It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts or omissions, and in many negligence in the narrow sense is not essential. An occupier may incur liability for the emission of noxious fumes or noise, although he has used the utmost care in building and using his premises. The amount of fumes or noise which he can lawfully emit is a question of degree, and he or his advisers may have miscalculated what can be justified….. But although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability … ." Per Lord Reid in Overseas Tankship v Miller Steamship( The Wagon Mound) (No2) [1967] 1 AC 617

How Courts Decide Nuisance Cases

• What overall general, principled approach do the courts adopt in private nuisance?
  • Used to revolve around the concept of the ‘reasonable user’ of land. An activity would not be considered a nuisance if it constituted a reasonable use of one’s land.
    • NB. this was not the same as asking whether the defendant’s conduct was unreasonable (as with negligence). Nuisance is concerned with outcomes or consequences.
  • Lord Goff in Cambridge Water described the principle of reasonable user as one of ‘give and take’ between neighbours.
  • The CA in Fearn described it as a principle of “reasonableness between neighbours” [36]
• The Supreme Court in Fearn moves away from reasonable user, as previously endorsed by the House of Lords (per Lord Goff) in Cambridge Water
  • Sees it merely as a shorthand for the principled approach it prefers for determining whether a particular interference with the use and enjoyment of land is unlawful.
  • That involves considering “whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land” [21].
• We have already covered the need for the interference to be substantial.
• What then of the ‘ordinary use’ part?
  • Drawing on Bramwell B in Bamford v Turnley (1862) 3 B&S 66, Lord Leggatt in Fearn states that courts must consider:
    • Whether the acts complained of were (i) necessary for the common and ordinary use and occupation of land, and (ii) “conveniently done” - that is to say, done with proper consideration for the interests of neighbouring occupiers.
• Common and ordinary use, and conveniently done
  • Where these two conditions are both satisfied, no action in nuisance will lie even for substantial interference.
  • Lord Leggatt cites with approval the facts of Southwark London Borough Council v Tanner [2001] 1 AC 1
    • Adjoining flats had been built without sound insulation, meaning that the tenants could “hear not only the neighbours’ televisions and their babies crying but their coming and going, their cooking and cleaning, their quarrels and their love-making.”
    • But “the neighbours were doing no more than making normal use of their own flats”, and so the two conditions were satisfied.
• But if one condition is not satisfied, then there will in principle be an actionable nuisance.
  • So e.g. a washing machine may be necessary for the common and ordinary use and occupation of a house, but it may not be regarded as ‘conveniently done’ if it’s set up right on a party wall causing significant vibration and noise to come through to the neighbours (Fearn, CA, [40]).
  • On the facts of Fearn, use as a public viewing gallery by the Tate was held by Lord Leggatt not to be a common or ordinary use of the land (whereas the flat users were using theirs in a common or ordinary way).
• The above is now the starting point.
• It’s the general or overall approach (a bit like you have studied in negligence for example where the courts have chopped and changed in their general approach to that tort, from two to three stage ‘tests’ and back to a more category of cases, principled approach more recently).

Other Important Principles

• We now move on to look at some other key principles that the courts deploy in private nuisance cases in answering those two important conditions above.
• As we’ll see, whether these other principles apply often turns on what type of nuisance case a court is considering.
• They are mostly considered by the courts in amenity nuisance cases (although there are also occasional physical damage examples like the Robinson paper case below).
  • Locality – the so-called ‘locality doctrine’ (NB. planning permission)
  • Malice (on D’s part)
  • Sensitivity (on the part of P)? But see now Fearn.

Locality (character of the neighborhood)

• Fearn, per Lord Leggatt:

  • “It is … well settled that what is a “common and ordinary use of land” is to be judged having regard to the character of the locality” [38]

• This shows that this other principle (the locality doctrine, or location) helps in the assessment by the judge of whether something is a “common and ordinary use of land” (one of the two important core general principles above).

• With regard to the … personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality … But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. Per Lord Westbury LC in St Helens Smelting Co v Tipping (1865) 11 HLC 642.

• "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturer in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private or actionable wrong". Per Thesiger LJ in Sturges v Bridgman (1879) 11 Ch D 852.

• Lord Leggatt, Fearn [38]: “In saying this, he was not, as is sometimes mistakenly supposed, suggesting that inhabitants of an upmarket neighbourhood are entitled to greater legal protection than those of a poorer neighbourhood - an approach which would be entirely contrary to equal justice.”

  • Claimant Dr Sturges, a doctor in Wimpole Street London, built a consulting room at the end of his back garden.
  • On the other side of the party wall from the new consulting room was D’s (Bridgman, a confectioner) kitchen.
  • C complained that D’s pestles and mortars were causing serious noise and vibrations.

• Lord Leggatt, Fearn [41]: “The fact that the claim in Sturges v Bridgman succeeded reflects the fact that in 1873, when Dr Sturges built his consulting room, it could not be said that the locality was one devoted to manufacture, as Wimpole Street was primarily residential, with professionals, including many members of the medical profession like Dr Sturges, conducting business from their homes.”

  Malice

• Can D’s motive have any bearing on the issue of whether an activity is reasonable?

  • "In my opinion the noises which were made in the Defendant's house were not of a legitimate kind … I am satisfied that they were made deliberately and maliciously for the purpose of annoying the plaintiffs. If what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case. But I am persuaded that what was done by the Defendant was done only for the purpose of annoyance, and in my opinion it was not a legitimate use of the Defendant's house to use it for the purpose of vexing and annoying his neighbours." Per North J in Christie v Davey [1893] 1 Ch 316.
  • Cf. Lord Halsbury - far more sceptical regarding the relevance of motive:
    • "If it was a lawful act, however ill the motive might be, he had a right to do it. If it was an unlawful act, however good his motive might be, he would have no right to do it." Per Lord Halsbury LC, Mayor of Bradford v Pickles [1895] AC 587.

Sensitivity

• Fearn has clarified that this is not really a ‘defence’ as such, arising where the claimant or their use of land is sensitive (which this classic statement in Robinson v Kilvert 1889) 41 Ch D 88 might suggest: "A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade").
  • Fearn [65]: “It does not follow, however, and is not correct, that where a person is using land (in Bramwell B’s phrase) not “in a common and ordinary way, but in an exceptional manner,” it is a defence to argue that a neighbour would not have suffered material inconvenience were it not for the fact that she occupies an “abnormally sensitive” property”; with Lord Leggatt noting too at [67] “the hopeless uncertainty and endless scope for argument that would arise if the sensitivity of the claimant’s property were in general regarded as itself giving rise to a defence to a claim for nuisance.”
• It is, rather, about whether the use of land is an ordinary use in line with the earlier Fearn general, two conditions approach.
• This question has to be asked of the claimant too, and not just the defendant. So, “an occupier cannot complain if the use interfered with is not an ordinary use” Fearn [25].
• Robinson is thus about the fact that the heat from the defendant’s premises, while it damaged the claimant’s delicate and sensitive paper, would not have affected ordinary paper and thus could not be said to have interfered with “the ordinary use of property for the purposes of residence or business” [25].
• Network Rail Infrastructure v Morris [2004] - CA had questioned whether this ‘defence’ was of relevance today given the need to establish foreseeability of harm following Cambridge Water. Lord Leggatt, Fearn [26] rejected this, asserting the continuing validity of the relevant principle (albeit as part of the general conditions approach as not as a separate ‘defence’).

TV Reception and Sensitivity

• Fearn discusses Hunter and Bridlington on this [36]:
  • “A second issue raised [in Hunter] was whether interference with television reception is capable of giving rise to a claim for nuisance … The law lords did not exclude the possibility that the ability to watch television might be regarded as so important a part of the ordinary enjoyment of property that interference with it could amount to an actionable nuisance.”
  • “That might have been so where the interference was caused by a special or particular use of the defendant’s land, as was claimed in Bridlington Relay … In Hunter, however, the cause of the interference with television reception was the size and design (with metal cladding) of a building erected on the defendant’s land.”
  • “The House of Lords reaffirmed the general rule … that anyone may build whatever they like on their land … It followed that interference with the use of the claimants’ land caused by the mere presence of a building on the defendant’s land could not give rise to a claim for private nuisance.”
• Facts of Fearn (floor to ceiling windows as sensitive?)
  • D argued that they were unduly sensitive and that they should therefore have used e.g. shutters or net curtains.
  • Lord Leggatt [88]: “The claimants cannot be obliged to live behind net curtains or with their blinds drawn all day every day to protect themselves from the consequences of intrusion caused by the abnormal use which the Tate makes of its land.”
  • In circumstances where the claimants are doing no more than occupying and using their flats in an ordinary way … it is no answer for someone who interferes with that use by making an exceptional use of their own land to say that the claimants could protect themselves in their own homes by taking remedial measures”.

Defenses

Coming to the Nuisance

• Generally, no defense that the claimant "came to the nuisance"
  • Sturges v Bridgman (1879) 11 Ch D 852
  • Miller v Jackson [1977] QB 966
  • Fearn [51]: “it would not have mattered if the viewing gallery had already been operating when the Neo Bankside flats were built or when the claimants acquired their flats”
  • “The claimants all bought their flats in 2013 or 2014. The Blavatnik Building including the viewing gallery was first opened to the public in June 2016.”
  • “I cannot see how this information could be relevant to whether or not the Tate is liable in nuisance; and counsel for the Tate have not argued on this appeal that it is.”

Prescription

• In order for the defendant to establish a defense of prescription he would have to show that the activity had been conducted for at least 20 years without any complaint from his neighbor. However, the clock does not start running until the neighbor arrives upon the (precise) scene.
  • Sturges v Bridgman (1879) 11 Ch D 852
  • Coventry v Lawrence [2014] UKSC 13; [2014] 2 WLR 233

Public Benefit

• Can D argue that the harm caused to his neighbor is outweighed by the public benefit arising from his land use?
  • No, public benefit is not in itself a defense.
  • Adams v Ursell [1913] 1 Ch 269
  • Miller v Jackson [1977] QB 966
  • Fearn [47]: “it is not a defence to a claim for nuisance that the activity carried on by the defendant is of public benefit”
  • Manchester Ship Canal Company v United Utilities (No 2) [2024] UKSC 22
  • While not work a defense, public benefit may be considered at the remedies stage:
    • Dennis v Ministry of Defence [2003] EWHC 793 (injunction withheld and damages awarded in lieu on public interest grounds)

Statutory Authority

• Nuisances are not actionable if they are the inevitable result of the use of statutory powers or the implementation of statutory duties.
  • Manchester Corporation v Farnworth [1930] AC 171
  • Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353:
    • “It confers immunity against proceedings for any nuisance which can be shown… to be the inevitable result of erecting a refinery upon the site – not, I repeat, the existing refinery, but any refinery – however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated.” Per Lord Wilberforce.
  • Barr v Biffa Waste Services [2012] EWCA Civ 312
  • Manchester Ship Canal Company v United Utilities (No 2) [2024] UKSC 22

Remedies

• Damages
• Injunctions
• Damages in lieu of an injunction
• Abatement: self-help to stop the nuisance

Public Nuisance

• Part 2 of nuisance

Definition

• An act or omission ‘which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’.
• Distinction between public and private nuisance: while private nuisance seeks to protect private rights in land, public nuisance acts as a general measure of public protection.
• An individual can bring an action in public nuisance only where he has suffered particular harm arising from a nuisance that has materially affected the reasonable comfort and convenience of life of a sufficiently large number of citizens. The individual must have suffered particular damage over and above the damage sustained by the public generally – but there is still a need to establish widespread harm.

Concerns

• Concerns inconveniences which affect a large number of people, whether or not they have an interest in land, e.g. road users.
• Public nuisance also gives rise to criminal liability and is actionable by the Attorney General or local authorities.
• However, public nuisance provides a separate civil cause of action in tort for the benefit of individuals who have suffered loss which is over and above that suffered by the class.

Standing

• Unlike private nuisance, there is no need for a claimant to have an interest in the land. However …
  • The nuisance must have affected a sufficient class/number of citizens.
  • For an individual to claim in tort, s/he must show that they have suffered ‘special damage’.
  • The nature of the (special) damage that is recoverable is more extensive than in private nuisance.
  • Public nuisance may apply to isolated (non-continuing) cases.

Public Nuisance and Personal Injuries

• Corby steel works land reclamation project
  • Pre-natal exposure to teratogens released by land reclamation project.
  • Claims brought in negligence, breach of statutory duty AND public nuisance.
  • Court of Appeal held that, notwithstanding position under private nuisance, personal injury claims may be available under public nuisance:
    • Re Corby Group Litigation [2009] QB 335