Tort: Private Nuisance

Valeria
Jun 27, 2024
10 min read

To claim for private nuisance, the claimant must either own or otherwise be in the possession of the land - it is the fact of possession of the land in question that is the legal interest protected. The interference must be direct - it must also be physical, in the sense that something must have happened.

Definition

Baxter v. Camden LBC (No.2) [1999] - “Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference with the utility of the plaintiff’s land.” per Lord Hoffmann

Who Can Sue

A claimant must first establish that they have legal 'standing' - that is, the right to sue.

As the private nuisance aims to protect the claimant's use and enjoyment of land, it is perhaps obvious that the claimant must have an interest in the land that has been unreasonably interfered with.

Malone v Laskey [1907]:

No authority was cited, nor in my opinion can any principle of law be formulated, to the effect that a person who has no interest in property, no right of occupation in the proper sense of the term, can maintain an action for a nuisance arising from the vibration caused by the working of an engine in an adjoining house. per Sir Gorell Barnes P.

Khorasandjian v Bush [1993] - The claimant was entitled to an injunction in private nuisance to prevent the defendant from harassing her, even though she had no proprietary interest in the premises where she received the calls. (overruled by Hunter v Canary Wharf).

In Hunter v Canary Wharf Ltd [1997] - it was held that someone cannot claim in nuisance if they are merely a member of the landowner's family (as in Khorasandjian), a guest, a lodger, or an employee. Recognizing such people's claims, the law lords suggested would effect a fundamental change in the nature and scope of nuisance and give rise to several practical difficulties. The HL was keen to reinforce nuisance as a tort to land, not to people.

Who Can Be Sued

There are three potential defendants to a nuisance case:

The Occupier of the Land From Which the Nuisance emanates:

Sedleigh-Denfield v O'Callaghan [1940] - “If a man uses on premises something which he found there, and which itself causes a nuisance by noise, vibration, smell or fumes, he is himself in continuing to bring into existence the noise, vibration, etc., causing a nuisance.” (per Lord Atkin)

The creator of the nuisance:

Although the creator of the nuisance is usually the neighbour of the claimant doing something annoying on their own land, that may not always be the case. It was held in Church of Jesus Christ of Latter Day Saints v. Price [2004] that you can be a nuisance by standing outside someone's house in the street and disturbing them.

The landlord of the creator of the nuisance:

Baxter v. Camden L.B.C. [1999]

As a general rule the tenant as occupier, rather than the landlord, is liable for nuisance arising out of the state of repair of property or the use which is made of it. But the landlord will be liable if he causes, continues, or authorises the nuisance. (per Tuckey L.J.)

However, the landlord will not be liable to the neighbours if he cannot be said to have authorised the nuisance at all. Therefore, if the tenant does something entirely unpredictable, it will not be the landlord's responsibility.

Southwark London Borough Council v. Tanner [1999]

The person or persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. Landlords have been held liable for nuisance committed by their tenants on this basis. It is not enough for them to be aware of the nuisance and take no steps to prevent it...They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property.

(per Lord Millett)

Caveat Lessee:

A landlord will not be liable to his own tenant if he lets to him a property with an existing nuisance of which the tenant should have been aware at the time of taking the lease. This applies even if another tenant of the same landlord causes the existing nuisance. However, in that case, the victim of the nuisance could sue the other tenant. It is no defence to say that you were there first.

The Concept of 'Reasonable User'

Nuisance is a consequence-based tort: liability does not depend on whether the defendant acted reasonably or whether they did all they could to prevent the nuisance from occurring. Put another way, taking reasonable care does not prevent liability, therefore the courts will have to consider three categories:

Always considered - intensity (including duration, frequency, and timing of the interference);
Sometimes considered, dependent on the type of the claim - the nature of the locality;
Sometimes considered, if relevant to the facts - sensitivity of the claimant; the bad intention of the defendant.

However, it is not 'unreasonable' to carry on 'normal' activities on a premise:

Walter v. Selfe [1851]

The important point for decision may properly, I conceive, be thus put: Ought this inconvenience to be considered in fact as more than fanciful, or as one of mere delicacy or fastidiousness, or as 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, sober and simple notions among English people.

Lyons v. Wilkins [1899] - “Every annoyance is not a nuisance. The annoyance must be of a serious character and of such a degree as to interfere with the ordinary comforts of life.” per Chitty L.J.

Baxter v. Camden London B. C. (No.2) [1999]

Ordinary use of residential premises without more is not capable of amounting to a nuisance. Ordinary use may only give rise to a nuisance if it is unusual or unreasonable having regard to the purpose for which the premises were constructed.” per Tuckey L.J

Nuisance or Not

Potential claim for Nuisance	No claim for Private Nuisance
Tetley v. Chitty [1986]; Watson v. Croft Promosport Ltd [2009] - Noise	Bridlington Relay v. Yorkshire Electricity Board [1965]; Hunter v. Canary Wharf [1997] - Television signals
Halsey v. Esso Petroleum [1961]; Bone v. Seale [1975] - Smells	A view
Sturges v. Bridgman [1879] - Vibrations	Air Flow
Andreae v. Selfridge [1938] - Dust	Natural Light
Thompson-Schwab v. Costaki [1956] - Brothels
Lemmon v. Webb [1895] - Natural Encroachments

The Intensity of the Interference

Southwark LBC v Mills [2001] - everyone has to put up with some interference from their neighbor at some time.

Kennaway v Thompson [1981] - interference can become unreasonable when it occurs frequently or for long periods of time. The idea is best described by Lawton LJ:

Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighborhood can be expected to bear.

The interference must be substantial, in the sense that, for example, it continues for a long time or takes place at an unreasonable time of day or night.

Crown River Cruises Ltd v Kimbolton Firewors Ltd [1996] - That said, while ordinary everyday living cannot be an unreasonable use of land, an action to physical damage to property, even if caused by a temporary or short-lived activity, is likely to succeed - though in such cases the courts will award damages not injunction.

Where an activity creates a state of affairs which gives rise to risk of escape of physically dangerous or damaging material, such as water, gas or fire, then the law of nuisance is, and should be, available to give a remedy in respect of that state of affairs, albeit brief in duration. (per Potter J.)

The longer the interference goes and the more often it happens, the more likely it is to be unreasonable:

Rapier v. London Tramway Co. [1893] - The defendants set up a stable for horses which were to draw their trams. However, as there were 200 of these horses, this resulted in a considerable stench which amounted to a nuisance.

Bolton v. Stone [1951] - The claimant was hit by a cricket ball whilst standing on the highway outside her house. The ball was hit by a batsman playing in a match on the Cheetham Cricket Ground which was adjacent to the highway. She sued in negligence and nuisance. It was neither negligence nor nuisance. Although it was foreseeable that this might happen, the House of Lords said the possibility was too remote either to impose a duty of care in negligence or to constitute unreasonable behaviour in nuisance.

Tetley v. Chitty [1986]

You could hear the noise quite clearly in that room as well as in the rest of the house. The noise was distressing. I am normally philosophical but this was all day and every day. I felt powerless to do anything about it except to complain. per Mr. Beggs, second plaintiff .

Peires v. Bickerton [2016] - A helicopter flying in a residential area was ordered to limit its landing and taking-off practice to 30 minutes a day.

The Nature of the Locality

The reasonableness of land use can depend on, alongside other considerations, the character or nature of the area it is in - its 'locality'.

A classic quote summing up the 'nature of the locality' idea comes from Sturges v Bridgman [1879]. Thesinger LJ said that 'what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey' (at 865). Clearly, he meant that the character of the neighborhood in question must be considered when determining whether a nuisance has or has not happened. In other words, those who live in what the court considers to be economically and socially poorer areas are expected to have to cope with more interference from others.

It must be considered that the nature and scope of the locality might change. For example, over a while, the primary use of land may evolve from industrial to residential. Such evolution might happen gradually or it might be faster and deliberately planned to change the area. When there is a deliberate development or quick, radical change to the nature of an area, planning permission will likely have been sought and received.

This does not mean that every planning permission is granted the nature of the locality will change (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]), rather it is a fact to be decided in each case.

Wheeler v JJ Saunders Ltd [1996] - The planning permission was merely 'expenses' - it allowed an already existing pig farm to become bigger. Thus planning permission did not change the nature of the entire locality and did not prevent nuisance from being caused to the claimant by the smell.

Watson v Croft Promosport Ltd [2009] - despite planning permission being given for a motor-racing circuit on the basis that it was reasonable for the locality, the activity did amount to an actionable nuisance and an injunction was granted to prevent racing on more than 40 days per year.

Coventry v Lawrence [2014] - despite the planning permission granted to the defendants, it was found to be 'wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance' (at[90]).

Fearn v Board of Trustees of the Tate Gallery [2019] - in assessing whether or not there was a nuisance Mann J considered the 'character of the locality' ... as 'a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes' (at [190]). He stated that 'the significant factor is that it is an inner city urban environment, with a significant amount of tourist activity. An occupier in that environment can expect rather less privacy than perhaps a rural occupier might. Anyone who lives in an inner city can expect to live quite cheek-by-jowl with neighbours' (at [190]).

The Sensitivity of the Claimant

To be a nuisance, a court must find that the defendant's use of land is potentially unreasonable to anyone. This implies that the claim of someone affected because of their sensitivities (where an 'ordinary' person would not be so affected) will fail.

Gaunt v. Finney (1827)

A nervous or anxious or prepossessed listener hears sounds which would otherwise have passed unnoticed, and magnifies and exaggerates into some new significance originating within himself sounds which at other times would have been passively heard and disregarded. (per Lord Selbourne)

Robinson v Kilvert [1889] - The Court of Appeal rejected the claim, holding that 'a man who carries on exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, it is something which would not injure anything but an exceptionally delicate trade.' (Lopes LJ at 97).

Even though a claimant's sensitivity may sometimes render a claim in nuisance ineffective, it is clear that after an actionable nuisance is established, a claimant will receive damages for all of their losses even if these result from interference with what may be considered a sensitive use of land.

McKinnon Industries Ltd v Walker [1951] - A claimant will succeed if, although he is unusually sensitive, the defendant's activities would also affect a normal person. The claimant recovered the cost of damage to his orchids (as well as lost profits on them), even though the defendant contended that orchid growing was a sensitive activity.

Nuisance is not supposed to be based on the defendant's fault. The defendant can take as much care as possible, but if the way they use their land has the effect of causing nuisance to a neighbour they can be liable.

Network Rail Infrastructure Ltd. (formerly Railtrack plc) v. CJ Morris (t/a Soundstar Studio) [2004] - As far as awarding damages are concerned, the fact that the injury has to be 'reasonably foreseeable' is enough to satisfy any issues about unusual sensitivity.

Bad Intention of the defendant:

In assessing whether the defendant is a reasonable user of the land, their motive may be considered. This is only an issue where actions by the defendant are undertaken in bad faith or with malice towards the claimant.

Christie v. Davey [1893] - An injunction was granted to prevent Davey (defendant) from causing or permitting any sounds or noises in his house, so as to vex his neighbours, the court being satisfied that he was only making the noises in question with the malicious intent of annoying them.

Hollywood Silver Fox Farm Ltd. v. Emmett [1936] - Although the firing took place over the defendant’s land, where he was entitled to shoot, the plaintiffs were entitled to an injunction

to stop him doing so in this malicious manner.

Church of Jesus Christ of Latter DaySaints v. Price [2004]

“On the evidence before me, his activity and speech is sometimes targeted at religious and other activities within the claimants’ buildings… It does not follow that because untargeted activities may be a reasonable use of the highway, even when, as in the case of the example of the Salvation Army band they involve noise, that targeted activities are also reasonable. In considering whether they are, account must be taken of what is said or done and account must also be taken of the degree of repetition.” per Beatson J.

Defences

Lack of permission is a necessary ingredient of trespass. Consequently, permission (express or implied) - or a 'licence' - to enter or to remain on land constitutes a valid defence, subject to the person with that permission (the licensee) not exceeding the boundaries of permission.

Legal justification is a defence to a claim in trespass:

Ab initio - Exceeding the boundaries of the authority carries severe consequences and, if this happens, the trespass alleged is deemed to have begun at the moment the defendant entered the property.

The Six Carpenters [1610] - The court held that a wrongful act committed after lawful entry onto someone's premises could make the original entry a trespass (however the carpenters were not liable as they had not committed a wrongful act, only an omission). Elias v Pasmore - It seems that trespass ab initio will occur only where the later act (unlawfully seized items)

Necessity - The action claimed as trespass might be deemed a necessary one for the defendant to have taken in order to protect either a public interest or a private interest.

What is necessary in a given situation often depends on the viewpoint of the person asked - the court may or may not agree with the defendant's viewpoint, as necessity in many situations is subjective. Southwark London Borough Council v Williams [1971] - Squatters occupying a number of the council's empty properties claimed necessity in defence. Lord Denning MR thought differently, saying that 'if homelessness were once admitted as a defence to trespass, no-one's house would be safe' (at 744).