Nuisance is one of the oldest actions in the common law. The object of nuisance is to protect a person's proprietary interest in land, as opposed to protecting any personal interests. There are two types of nuisance: public and private. Public nuisance is a crime which will be prosecuted by the appropriate authority though individuals can sue for damages if they have suffered special damage (damage above what the public has suffered). Most of this tutorial is concerned with private nuisance. Private nuisance requires that the Defendant is using his land in an unreasonable manner. If a Claimant is successful at trial they can claim damages and/or an injunction to prevent the nuisance from continuing or occurring in the future.
It is important to be able to distinguish between public and private nuisance. Private nuisance is a tort which protects an individual's enjoyment of their property whereas public nuisance is a broad criminal principle where an act/omission endangers life, health, morals, property or comfort of the public. A person who commits a public nuisance may incur some civil liability as well (in the same way that someone who commits an assault occasioning actual bodily harm can be sued for compensation). Though, as mentioned above, this is only possible where the Claimant suffers some special damage which goes beyond what the public at large has suffered. For example, the obstruction of a highway will affect everyone but it may particularly affect the person who owns commercial premises whose entrance is blocked.
In Attorney General v PYA Quarries [1957] 2 QB 169, an injunction was granted against the Defendant in respect of its quarrying operations. It reduced vibration and dust and then appealed against the order. It was argued that the trial judge had not distinguished between public and private nuisance and the quarrying was only a private nuisance for which the Attorney General was not permitted to seek an injunction. The Court said that a nuisance will be public if enough people are affected by it to constitute a class of the public. It is not necessary to show that every member of the class has been affected but that a representative cross-section have. A public nuisance is widespread and indiscriminate. The court held that the nuisance in this case was wide enough to be a public nuisance.
Another good example is Tate & Lyle Industries v GLC [1983] 2 AC 509, where the Defendant erected ferry terminals in the Thames causing silt to come up which made it difficult for large vessels to dock at the Claimant's dock. The action in private nuisance failed because a proprietor was not entitled to object to an alteration to the depth of the water which did not threaten to cause damage to his land but merely affected a public river. The Claimant succeeded in public nuisance however as they had suffered special damage beyond the average river user (they had to pay for dredging to clear the water).
The purpose of private nuisance is to protect the owner of land from unreasonable interference from their nearby neighbours. Whether the interference is unreasonable, rather than simply being annoying, is a question of fact to be decided in each case. Does the conduct interfere with the land "not merely according to the elegant and dainty habits of living but according to plain and sober notions among our people": Walter v Selfe (1851) 4 De G & Sm 315. Any relevant factor can be taken into consideration but these will most commonly be:
• Nature of the nuisance,
• Extent of damage suffered,
• Locality,
• Duration,
• Use that Claimant is making of their land,
• Purpose of the Defendant's actions,
• Potentially the courts will consider whether there is any benefit.
The courts have generally ignored any benefits which flow from the Defendant's nuisance; they tend simply to ask whether it is a nuisance or not. In Bamford v Turnley (1862) 3 B&S 66, Claimant complained that Defendant's burning of bricks on his property resulted in smoke and smell which affected Claimant's enjoyment of the land. The Defendant won at trial and there was an appeal, in which the Defendant argued that the activity had a public benefit . The court held that this argument failed. However, public benefit can be taken into account as a factor in the balancing process. Though, as a rule, if public benefit is to take precedence over private rights, it should be determined by statute. Thus when railways were being built, statute provided for rights of compulsory land acquisition with the payment of compensation to those affected. If the role being undertaken is important enough (e.g. a weapons factory during war time), it seems unlikely that private rights would prevail, rather an award of damages would be made.
One might question how this fits with the HRA 1998. The answer is it fits well. In Dennis v Ministry of Defence [2003] EWHC 793, the Claimant owned a large estate adjoining an RAF airbase used to train pilots. The harrier planes hovered in the air causing a lot of noise. The Claimant argued that this was a nuisance or alternatively that it infringed Art 8 and Art 1 of Protocol 1 (quiet enjoyment of property). The Defendant argued that the public benefit was paramount. The court held that the activity was a nuisance and that public interest is not to be taken into account in deciding whether there is a nuisance. It can be taken into account in deciding the remedy though i.e. damages or an injunction. The court held that the nuisance could continue but that the Defendant had to pay damages.
How important is the location of the nuisance in relation to the Claimant's property? In St Helen's Smelting v Tipping (1865) 11 HL Cas 642, the Claimant bought property in June 1860 and a few months later the Defendant began smelting works one and half miles away and the Claimant claimed that the fumes caused damage to plants on his property. The House of Lords found for the Claimant. One of the issues for the House of Lords was whether the judge's direction to the jury had been correct in law; the judge said that there was no liability for nuisance if Defendant's activities were carried on in a convenient and suitable place. The court stated that in order for it to be a nuisance there must be "material injury to property", and in such a case the location of the nuisance is irrelevant. Whereas if only simple discomfort is caused, the location of the activity is relevant. However, in the latter case, a landowner has to put up with "those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and public at large". This does not apply where material injury to property is concerned.
Why has the law chosen to distinguish between damage to property and damage to the enjoyment of the property (known as loss of amenity). Why the automatic conclusion in the first but the balancing exercise in the second? Loss of amenity would include things such as a bad smell or noise. The reasoning is two-fold: (1) a material injury is never reasonable, (2) smells and noise are part and parcel of living in busy areas like a city where there may be many shops but not of a property in the countryside. As such, the locality becomes relevant to how reasonable it is for the Defendant to carry on the activity.
It is interesting to note that the grant of planning permission by a local authority does not mean that an action in nuisance cannot be brought, as the court is not bound by administrative decisions and an award of compensation may be required: Wheeler v JJ Saunders [1996] Ch 19. However, where the new building will change the character of the locality, the assessment of whether it constitutes a nuisance is to be made based on how the locality is after the development and not before. So a residential area which has planning permission for a factory (and it can be said that this changes the "character of the neighbourhood") the locality considered by the court will not be a residential area but a residential area with a factory in it: Hunter v Canary Wharf [1997] AC 655. Clearly the latter locality will make it much more reasonable for there to be noise or smell annoyance.
In Robinson v Kilvert (1889) 41 Ch D 88, the Claimant was a tenant leased to him by the Defendant which was used as a paper warehouse. The Defendant retained the use of the cellar which he required to be very hot and dry. As a result the floor of the warehouse heated up and dried Claimant's paper making it less valuable. One issue for the Cour of Appeal was whether an action in nuisance would succeed. The court held that heat in itself is not a noxious thing and as it was not excessive there was no nuisance. Ordinary paper would not be affected by the heat and the Claimant cannot therefore complain that his sensitive paper is affected. As long as the Defendant is behaving reasonably, the Claimant cannot use the sensitivity of their trade as an excuse.
In Christie v Davey [1893] 1 Ch 316, the Claimant's family were a musical family and practiced music in the house. The Defendant next door got annoyed and wrote saying they had been disturbed but what sounded like howling of a dog and dreadful scrapings on a violin. The letter was ignored and the Defendant started making noise in his house whenever the music was going on such as knocking on the wall, beating trays. The Claimant sought an injunction and the Defendant counter claimed for an injunction. The court held that the noises made by Defendant were not of a legitimate kind and were excessive and unreasonable as they were done deliberately and maliciously to annoy the Claimant. Thus the injunction was granted to Claimant.
However, it is different where the action being done by Defendant does not amount to a nuisance. In Bradford Corporation v Pickles [1895] AC 587, Pickles owned land with a spring on it that supplied water to Claimant's dams. Pickles wanted to divert the water rendering Claimant's dam useless. The trial judge found that the purpose of the draining was not to allow Pickles to quarry stone but so that he could get the Claimant to pay him. The House of Lords held that Claimant was not entitled to an injunction. It was said that the act was lawful even though the motive was malicious as motive is irrelevant.
Malice is not a relevant factor unless it affects the reasonableness of Defendant's actions. Pickles can be understood because it was perfectly lawful for the Defendant to do with his property as he pleased, he was not causing a nuisance to anyone. If he had chosen to direct his water towards a person's property (causing damage) rather than directing it away, there would have been a claim. Nuisance law is historically concerned with preventing something emanating from Defendant's land and not the opposite.
One of the more confusing issues in nuisance is whether it requires fault (i.e. at the least negligence) for liability. The answer seems to be that it depends on (1) what remedy is being sought and (2) what is meant by fault.
It appears that if an injunction is being sought, the question of fault is irrelevant. The Defendant may have acted carefully with their land but an injunction can still be granted if the activity is an unreasonable use of land. However, is fault required when damages are sought? In Cambridge Water v Eastern Counties Leather [1994] 2 AC 264, it was said that a failure to take reasonable care will not establish liability in nuisance. However, this does not mean that liability is unaffected by foreseeability. The use of the land may be unreasonable because it could foreseeably result in nuisance to the neighbour. It is not a defence in nuisance, as it is in negligence, to show that they took reasonable steps to avoid the harm. If the activity constitutes a nuisance that is all that is required.
There are a number of cases where the Defendant will be liable for a nuisance created on their land by a third party. In this category, the basis of liability appears similar to that in negligence. Where the only cause of action is nuisance, the Defendant will be liable only for loss of amenity of the land. Whereas if there is also a cause of action in negligence, the liability in nuisance will mirror that of the negligence.
In Sedleigh-Denfield v O'Callaghan [1940] AC 880, the Defendant owned land on which a pipe had been built taking water away from a ditch. It was built by the local authority without the Defendant knowing and amounted to trespass. The local authority was meant to put a grate on the pipe preventing debris from entering but instead left it at the side. The Claimant owned neighbouring land which became flooded after the debris blocked the pipe and flooded. In order for the Defendant to be liable they needed to have had knowledge of the cause and probable effects of the nuisance. The Defendant knew of the danger and were able to prevent it but did not take any reasonable steps.
One reason why nuisance was argued and not negligence was because of negligence's reluctance to impose liability for omissions. Another benefit of arguing a case in nuisance is that loss of amenity of land is not actionable e.g. bad smells or noise. These bad smells or noise would have to result in property damage or financial loss to be actionable.
Sedleigh is also authority for the proposition that a single isolated incident can be the basis of a nuisance claim, it need not be an ongoing activity.
If an occupier can be liable for third party acts how about nuisance created by nature. The courts have not always been consistent. In Lemmon [1894] it was not doubted that an occupier of land on which trees grew whose branches overhung into the neighbour's property had committed a nuisance, provided that there was some damage. However an occupier who allowed thistles to grow on his land was not liable when seeds blew onto neighbouring land resulting in the proliferation of thistles. It was said that there was no duty to an adjoining property to cut thistles which grew naturally: Giles v Walker (1890). In Goldman v hargrave [1976], lightening struck the Defendant's property and set fire to a tree which became a fire risk (assumedly because it was now easier for it to catch on fire again). The Defendant took some steps to alleviate the risk which were inadequate and a fire later started which damaged Claimant's property. Applying Sedleigh-Denfield the Privy Council held that the occupier of land owed a duty to remove any hazards, natural or not. The duty was based on the occupier's knowledge of the risks and foresight of possible damage to the neighbour. The occupier had to take reasonable steps. The resources of the occupier can be taken into consideration. The Council held that the present case should have been brought in negligence not nuisance.
The leading English case is Leakey v National Trust [1980] QB 485, where the Claimant owned two houses at the base of a large mound on the Defendant's land. As a consequence of natural weathering part of the mound had broken off and fallen onto the Claimant's land and the Defendant was aware of this. Later a large crack formed in the mound and the Defendant refused to take action claiming they were not responsible for natural movement of the land. Shortly after debris fell onto the Claimant's land. The Claimant brought an action for an injunction and damages. The court held that the claim was essentially for failing to take reasonable steps (negligence) but that nuisance was an appropriate vehicle.
Who can bring an action for nuisance? Historically only a person with a possessory or proprietary interest could. In Hunter v Canary Wharf [1997] AC 655, two appeals were heard by the House of Lords relating to nuisance form construction in canary wharf. There were two issues: (1) whether interference with television signals by new buildings was nuisance and (2) who could bring a claim. The House of Lords held that there was no cause in respect of the television signals and that only those with exclusive possession could sue in nuisance. Exclusive possession is a right that belongs to a freeholder or a leaseholder. The decision in Hunter has not been well-regarded by everyone. The underlying approach is the approach which has characterised nuisance law historically, namely, the protection of land. Thus the fact that the television signal was disrupted did not damage the land but simply posed an inconvenience and annoyance. This can be contrasted with where the inconvenience and annoyance affects the amenity of the land. Arguably, however, in the case of a disrupted television signal there is not much difference: the lack of a signal makes the property less enjoyable just as the presence of smell or sound would. The court in this case simply took the view that the discomfort caused was not great enough and, perhaps, did not affect the land in quit a direct way as a bad smell or noise would do.
In Miller v Jackson [1977] C purchased a house adjacent to a cricket ground where cricket had been played for 72 years. Balls frequently hit the walls of the house or went into the garden some causing damage to the property. The cricket club erected a fence which was insufficient and offered to place a net over the garden and install unbreakable glass. These offers were rejected and sought an injunction and damages. The court agreed that the cricket activities amounted to a nuisance even though they had been going on long before the Claimant moved in but thought an injunction was inappropriate. The court held that there was no defence of coming to the nuisance as it would be against public policy to allow an nuisance to continue simply because it had been for a number of years.
However, it was said in Leakey that it may be a defence if the Claimant knows fully that the nuisance is taking place but still elects to go there and by word or deed demonstrated their willingness to accept it. It is possible for a volenti non fit injuria defence to apply in nuisance. However, the facts of Leakey were best viewed as a claim in negligence not nuisance so too much should not be read into this judgment. Thus the best view is that it cannot be said that the Claimant has consented to the activities unless it is absolutely clear. However, as was mentioned above, a Claimant can only has the right to expect the enjoyment of property which is consistent with the locality. It is possible for a nuisance which has been a nuisance for 20 years to have a defence of prescription under the Prescription Act. This obviously would not be the case if (1) the Claimant moved in less than 20 years ago and (2) the nuisance has been ongoing for less than 20 years.
It has long been the case that there is no liability for doing something which Parliament has permitted (provided it is done without negligence). In Allen v Gulf Oil refinery [1981] AC 1001, the Defendant built a refinery under the Gulf Oil Refinery Act 1965 and the Claimant complained that it produced noise and vibrations. The House of Lords held that the Act gave implicit protection against actions in nuisance.
Less straight forward are cases involving the grant of planning permission by a local authority. The Court of Appeal in Allen [1980] held that it did not have the same effect as statutory authority. It was said that the only authority the council had to authorise a nuisance, if any, was its power to permit the change of character of a locality as discussed above: Gillingham Borough Council v Medway [1993].
We have seen above how liability can sometimes be imposed for single isolated incidences, though the law of negligence would sometimes be a better fit. However, there is an exception for cases falling with the principle in Rylands v Fletcher. This rule provides that where there has been an escape of a dangerous thing in the course of non-natural use of the land, the occupier is liable for damage which occurs as a result as long as it was foreseeable. This is regardless of whether there has been any fault i.e. strict liability. There are, however, some defences.
Rylands v Fletcher (1866) LR 1 Exch 265. the Defendant employed independent contractors to build a dam on the land they occupied. They didn't know that there were five unused mine shafts below the dam and that there was a connection between these mines and the Claimant's mines. When the reservoir was filled water burst into the shafts and flowed into Claimant's mines. The Claimant sought damages. The court said that if a person brings something onto their land which might cause damage if it escapes, they must be liable when it does escape. A distinction was drawn between where the flooding resulted from water brought onto the land or because of some natural collection of water.
Cambridge Water v Eastern Counties Leather [1994]. The Defendant used a chemical in its tannery which ended up spilt on the floor. Over time it seeped into the ground and was carried by an underground river to a borehole several miles away. The water in the borehole was polluted and would not satisfy the minimum health requirements and the Claimant had to find an alternative source of water. An action was brought in negligence, nuisance and under Rylands; all failed. The House of Lords refused the claim on the basis that it was not foreseeable. This does not mean that the escape itself was foreseeable but that the type of harm done would be foreseeable if there was an escape. Thus though spillage of the chemical was foreseeable, pollution of the borehole was not. The escape of the chemical took place over a long period of time and could hardly be described as isolated, but this did not pose a problem for the application of Rylands v Fletcher.
How then does nuisance differ from the rule in Rylands? The answer is because in nuisance the use of the land has to be unreasonable, whereas in Rylands it must be non-natural. The court also made clear that the rule did not permit recovery for personal injury as this, in the law generally, required at least negligence and thus strict liability was not a high enough standard. Though arguably if it was foreseeable, why not. However, economic loss may be recoverable if it is consequent on property damage but not if it stands alone.
In Read v J Lyons [1947] AC 156, the Claimant was an inspector of munitions and had been injured when a high explosive shell went off whilst being manufactured at Defendant's factory. There was no negligence alleged and liability was sought under Rylands v Fletcher. The House of Lords rejected the claim because there had been no 'escape'. Escape means escape from a place where the Defendant has occupation or control to a place outside his occupation or control. Thus if the Claimant had been injured just outside the gates there would have been liability but not if she was inside the premises.
Almost anything can be 'dangerous' for the purpose of Rylands v Fletcher such as, fire, gas, fumes, water, poisonous vegetation, a flag pole, rusty wire. In an unusual case Attorney General v Corke [1993], the Defendant allowed people onto his land to live in caravans. These people engaged in anti social activities which took place off Defendant's land. The court held that these people were 'dangerous' within the meaning of Rylands v Fletcher.
It is not clear what use of the land constitutes a non-natural use. It was said in Cambridge Water that the storage of chemicals on the land is the typical example of a non-natural use of the land. The case law beyond this is murky. It was said in Rickards v Lothian [1913] AC 263 that it must be a special use which brings with it increased danger as opposed to an ordinary use of the land. This would greatly reduce the number of cases where Rylands v Fletcher could be applied. For example, there are many things which people do ordinarily on land and which don't bring any special danger (such as build a road) but which cannot be considered natural uses of the land. It was suggested by the commentator Williams that the non-natural use test basically means that there must be an unreasonable risk of harm i.e. balance the risk against the reasonableness of carrying it on. However, it seems that this cannot be correct because of the comment made in Cambridge Water. There was no risk storing the chemicals and it was not unreasonable to do so yet it was still held to be a non-natural use of land. The best approach is to ask whether, in view of the way land is used in the broader community, the Defendant put his land to a use which was different. So in Rylands itself the water in the dam was non-natural even though it was small in quantity whereas a fire in a house is natural even though the fire has no safety guard around it.
Rickards v Lothian [1913] AC 263. The Claimant leased part of the second floor of a building owned by the Defendant. A tap was left on in the top floor lavatory causing water to overflow and damage some of the Claimant's stock. The court held that there were some defences to an action such as where the damage is caused by an Act of God. For example where the Defendant has something on their property which is harmless but a sudden unpredictable natural event causes it to escape. For example in Rylands itself if a sudden rainfall had caused the dam to overflow it would not have been the Defendant's fault. A second defence is where the event is caused by a malicious third party. It was held in the present case that the person leaving the tap on had done so deliberately and, as such, the Defendant could not be responsible. This defence will only be available if the escape was caused by a stranger and it was not foreseeable that it would happen: Perry v Kendricks Transport [1956].
Other defences which apply are statutory authority, volneti non fit injuria and contributory negligence.
