Tort: Nuisance

Nuisance

Private Nuisance

Requirements of Private Nuisance

Private nuisance is established if the claimant shows that:

  1. The defendant used land in away which interferes with other land in which the claimant has a property interest; and
  2. The interference is substantial and unreasonable. 
Uses and Property Interests

The claimant must have a property interest in the land which is interfered with: Malone v Laskey [1907] 2 KB 141. The interference must be relevant to the claimant’s rights. This means that the interference must affect the land, either physically or in terms of its amenity and use.

Noises
Noise, bells, noisy instrument

Kennaway v Thompson [1981] QB 88.

Smells
Smell, pungent garlic

Barr v Biffa Waste Services [2013] QB 455.

Trespass by Objects
Trespass, object, football in garden

Miller v Jackson [1977] 3 WLR 20.

Encroachment/Property Damage
Encroachment by tree roots and branches

Lemmon v Webb [1894] 3 Ch 1.

Flooding
Flooding in living room

Sedleigh-Denfield v O’ Callaghan [1940] AC 880.

Aesthetic Interference
Aesthetic, books, tv, retro

Purely aesthetic interference (e.g. interference with a view/television signals) are not actionable: Hunter v Canary Wharf [1997] AC 655. 

Adopting and Continuing the Nuisance

There is not normally any need to show that the defendant had a property interest in the land used if they directly caused the nuisance: Jones Ltd v Portsmouth City Council [2002] EWHC 1568. 

However, if the defendant did not cause the nuisance (for example where it is a natural hazard or the use of the land by a third-party), they will only be liable for it if they are the lawful occupier of the land and continue or adopt the nuisance: Sedleigh-Denfield v O’Callaghan [1940] AC 880; Goldman v Hargrave [1967] 1 AC 645.

Continuing the nuisance: failing to get rid of a nuisance which the defendant knows (or ought to have known) exists on the land and that it causes a nuisance.

Adopting the nuisance: using the thing which causes the nuisance instead of getting rid of it, where the defendant knew or ought to have known he was using it and that it caused a nuisance.

Is the Interference Unreasonable?

The test for whether an interference is unreasonable or not is whether an ordinary neighbour should reasonably be expected to tolerate the defendant’s use of the land, bearing in mind the usual give-and-take of neighbourly relations: Barr v Biffa Waste Services [2013] QB 455. Factors indicating the use is reasonable include:

One-off, rare, beach wedding

The nuisance is a one-off or rare event: Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] CLC 1214.

Clock, short time

The interference is short in duration: Barr v Biffa Waste Services [2013] QB 455.

Time, clock, day

The interference takes place at reasonable times of the day.

Interference, bed, teddy bear

The interference is not particularly intense: Kennaway v Thompson [1981] QB 88.

Warehouse, commercial, factory

The nature of the locality makes the activity normal: Sturges v Bridgman (1879) 11 Ch D 852. This factor is not relevant in property damage cases: St Helen’s Smelting v Tipping (1865) 11 HL Cas 642.

Natural waterfall

Where the nuisance is caused by a natural occurrence, the high cost of removing the nuisance and the defendant’s resources: Leakey v National Trust [1980] QB 485.

Factors indicating the use is unreasonable include:

Noisy sheep

The nuisance is a repeated or continuing event: Spicer v Smee [1946] 1 All ER 489.

Long time, hourglass, sand timer

The duration of the interference is long.

Night, full moon

The interference takes place at unreasonable times of the day (or night).

Intense, lightning bolt

The interference is intense: Kennaway v Thompson [1981] QB 88.

Church, countryside

The nature of the locality makes the interference unusual or unexpected: Sturges v Bridgman (1879) 11 Ch D 852.

Malice, criminal, attack

The defendant is acting maliciously: Christie v Davey [1893] 1 Ch 316.

The fact that the claimant ‘came to the nuisance’ (i.e. that they were aware of the defendant’s activities before they moved in) is not relevant: Miller v Jackson [1977] 3 WLR 20.

Planning Permission
Planning permission, architect's drawings

Planning permission is relevant if it shows that the nature of the locality is changing or has changed, but does not make a nuisance reasonable by itself: Gillingham BC v Medway (Chatham Docks) [1993] QB 343. 

Planning permission is unlikely to change or indicate the character of the locality unless it cannot be implemented without causing a nuisance or the permission specifically permits the nuisance: Lawrence v Fen Tigers Ltd [2014] AC 822. As such, in most nuisance cases planning permission is irrelevant. 

Sensitivity of the Claimant’s Use
Sensitive tulips, flower

If the only reason the defendant’s use is considered an interference is because it is damaging to some special, sensitive use the claimant is making of his land, this is not an actionable nuisance: Robinson v Kilvert (1889) 41 Ch D 88.

However, if the interference would be considered unreasonable by a person making normal use of the claimant’s land, it does not matter than the particular claimant’s use was sensitive: McKinnon Industries v Walker [1951] WN 401.


Public Nuisance

What Makes a Nuisance Public?

A nuisance is public if it:

  • ‘Materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’; or
  • Obstructs the public from exercising their general, common rights; or
  • If it is ‘so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to stop it’: Attorney-General v PYA Quarries Ltd [1957] 2 QB 169.

There is no need to show every member of the class has been affected, just a representative cross-section. The relevant class of the public can be relatively small, such as in East Dorset DC v Eaglebeam [2006] EWHC 2378 (QB) where a ‘substantial number of houses’ was enough. 

Who Can Sue?

No everyone who suffers loss automatically has the right to sue in public nuisance. The following have the right to claim:

  • The Attorney General; and
  • Private individuals who have suffered a direct, particular and substantial loss which goes above and beyond the losses suffered generally by other members of the relevant class: Colour Quest v Total Downstream [2009] EWHC 540 (Comm).

Since there is no need for the nuisance to affect private land, the claimant does not need to have any private property rights: Colour Quest v Total Downstream [2009] EWHC 540 (Comm).

The Meaning of Reasonable

Whether the ‘reasonable’ comfort of the public has been affected is determined by using the same test used in private nuisance.


Remedies for Public and Private Nuisance

Injunctions

An injunction will normally automatically be awarded to stop an ongoing nuisance and prevent future nuisances: Lawrence v Fen Tigers Ltd [2014] AC 822.

However, damages in lieu of an injunction may be granted if the following conditions exist: Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287.

  1. The injury to the claimant is small;
  2. The injury to the claimant is capable of economic valuation;
  3. The claimant’s injury could be adequately compensated by a small compensation payment; and
  4. In the circumstances of the case it would be oppressive to the defendant to grant an injunction. 

This is a ‘working rule’ rather than strict criteria, and should not be applied mechanistically:  Lawrence v Fen Tigers Ltd [2014] AC 822. Particular focus is place by the courts on whether the injunction is oppressive to the defendant: Jaggard v Sawyer [1995] 1 WLR 269.

An injunction might also be denied if the defendant’s activities are in the public interest: Miller v Jackson [1977] 3 WLR 20. Planning permission may be evidence of public interest, though not always: Lawrence v Fen Tigers Ltd [2014] AC 822. If an injunction can be granted which limits but does not completely end the defendant’s activities, the public interest is a less weighty concern: Kennaway v Thompson [1981] QB 8

Damages

Property damage is generally recoverable in nuisance. Loss of amenity (e.g. noise or smells) is only recoverable in private nuisance if it causes harm to the land. This means that the nuisance must either physically damage the land or lower its economic value: Hunter v Canary Wharf [1997] AC 855. Personal injury is not normally recoverable in private nuisance since it does not affect the land.

Since public nuisance does not require the claimant to have a land interest, all forms of damage are recoverable, including personal injury: Corby Group Litigation v Corby Borough Council [2008] EWCA Civ 463.


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Nuisance & Rylands v Fletcher Quiz

Test yourself on the principles of nuisance and Rylands v Fletcher.

1 / 23

For the purposes of establishing the rule in Rylands v Fletcher, what is a non-natural use?

2 / 23

What kind of tort is the rule in Rylands v Fletcher?

3 / 23

Which four factors indicate that a defendant's actions are 'reasonable' for the purposes of private and public nuisance?

4 / 23

Which four factors indicate that the defendant's use of land is 'unreasonable' for the purposes of public or private nuisance?

5 / 23

Who can bring an action for public nuisance? (Two answers)

6 / 23

What three matters must the claimant establish to show that the defendant has committed private nuisance against them?

7 / 23

What forms of damage are not recoverable in private nuisance? (Two answers)

8 / 23

In private nuisance, what is the effect on the assessment of reasonableness that the claimant's use was especially sensitive to the nuisance?

9 / 23

When is planning permission relevant to whether a defendant's activity is a nuisance?

10 / 23

If the escape in issue in a Rylands v Fletcher kind of case was caused by an act of nature, is the defendant liable?

11 / 23

What are the four matters the claimant must show to establish the rule in Rylands v Fletcher?

12 / 23

What factors indicate that a use is 'natural' for the purposes of the rule in Rylands v Fletcher? (Four answers)

13 / 23

What three factors indicate that damages in lieu of an injunction should be granted in an injunction claim?

14 / 23

When does a dangerous thing 'escape' for the purposes of the rule in Rylands v Fletcher?

15 / 23

Can a person sue in public nuisance if they do not have a property interest in affected land?

 

16 / 23

The default rule is that an injunction will be granted to restrain any public or private nuisance. True or false?

 

17 / 23

If the defendant did not directly cause a nuisance themselves, what must that the claimant show to demonstrate the defendant is responsible for a private nuisance? (Two answers)

18 / 23

What must be shown to establish public nuisance?

19 / 23

The defendant is being sued for breach of the rule in Rylands v Fletcher. The escape was caused by the deliberate act of a third party. Is the defendant liable?

20 / 23

Can a person sue in private nuisance if they do not have a property interest in affected land?

 

21 / 23

What does it mean if the defendant adopted a private nuisance?

22 / 23

What does it mean if the defendant continued a private nuisance?

23 / 23

To establish public or private nuisance, does the claimant need to show that the defendant had a property interest in the land?

 

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