Nuisance
- Elliot Tierney
- Jul 27, 2023
- 9 min read
Updated: Jul 31, 2023
Private Nuisance: an unreasonable interference with the use and enjoyment of land.
In Halsey v Esso, H lived in a house across from an industrial development. E had a depot in the development. H claimed E was interfering with his enjoyment of his house by emitting droplets of acid and petroleum into the air, which damaged his property. He also complained of the noise and smell. The court held that both the physical damage amounts to nuisance and the sound and smell amount to nuisance.
Veale J: ‘In an urban area, everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours, and the law must strike a fair and reasonable balance between the right of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his property for his own lawful enjoyment.’
‘give and take’; ‘live and let live’ principle.
Problems:
No comparison to social cost / benefits to E of running the depot there.
No consideration of who was at the land first – if H moved in after E had established their depot, H would have known about the nuisance.
By evaluating the character of the neighbourhood, Veale J potentially privileges those who live in better areas.
Requirements for Nuisance:
Land:
The nuisance must be to land.
In Hunter v Canary Wharf, One Canada Square (a skyscraper made of stainless steel) interfered with TV signals. Multiple people claimed for the nuisance of being unable to watch TV and for the cost they had paid for their TV license. Claimants included family of the homeowners too.
HL held that the nuisance must be to land, so C must have a right of exclusive possession to succeed in their claim. Therefore, only owners or leasee may have a claim. However, they still lose as there is no actionable nuisance where D merely builds on their land and blocks a view, light, air or TV signal to C’s property.
Unreasonable Interference:
The interference caused to the claimants use or enjoyment of their land by the defendant's action must be unreasonable.
Physical v Sensible Interference:
Physical Interferences: damages to property.
Sensible Interferences: noise and smell.
Courts are more ready to allow nuisance claims for physical interferences than sensory interferences.
’it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort’. [1]
Ordinariness of the Defendant's Activity:
Acts done by the defendant that are necessary for the ordinary use and occupation of their land is not nuisance if conveniently done. The defendant must not actively make nuisance.
In Bamford v Turnley, T made bricks in a kiln on his property. B claimed that the soot and ash was drifting over to his property, causing a nuisance.
T gives the examples of repairing your house (and causing noise), burning weeds (and making smoke) and emptying your cesspool (and causing a smell). T argues all are ordinary activities for social benefit, just like T’s brick making. Argument rejected by court.
‘that law to my mind is a bad one which, for the public benefit, inflicts a loss upon an individual without compensation’
‘It seems to me that [the principle] is this ... that those, acts necessary for the ordinary use and occupation of land and houses may be done if conveniently done, without subjecting those who do them to an action.’
‘This principle would comprehend all the cases I have mentioned [repairing houses, burning weeds, emptying cesspools], but would not comprehend the present [the brick kiln], where what has been done was not the using of land in a common and ordinary way, but in an exceptional manner ....’
‘There is an obvious necessity for such a principle .... It is as much for the advantage of one owner as of another, for the very nuisance that one complains of, as the result of the ordinary use of his neighbour's land, he himself will create in the ordinary use of his own ... The convenience of such a rule may be indicated by calling it a rule of give and take, live and let live.’
The nature of the activity, intensity, time and duration, and location are all relevant in determining whether the defendant's activity is ordinary.
Neighbourhood / Locality:
The character of the neighbourhood has to be considered to determine whether the defendant’s actions cause a nuisance to the claimant.
In Sturges v Bridgman, S and B share a party wall between their properties. B is a confectioner and uses mechanical machinery. S is a doctor who cannot hear properly in his practice. The court holds that the sound is a nuisance.
Thesiger LJ: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; 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 ... judges and juries would be justified in finding ... that the trade or manufacture so carried on in that locality is not a private or actionable wrong.’
This principle has been criticised, particularly as it gives people who live in better areas a greater right to claim under the tort. [2]
The Claimant's Extraordinary Sensitivity:
The character of the claimant is also taken into account. The claimant will not be able to claim simply because they are particularly more sensitive than another person would be. This is, therefore, an objective test.
‘ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?’ [3]
In Robinson v Kilvert, K occupied the cellar of an industrial building. They had to keep their room hot and dry. R used the floor above for storage. The heat from K’s business rose, drying out the R’s produce and causing it to lose value. The court states that the temperature was not so hot that an ordinary business would be affected.
In Rogers v Elliott [USA], R claimed that their convulsions were caused by E ringing their church bells. The court decides that R was unusually sensitive to the sound of the bells, so unable to claim.
‘The right to make a noise ... must be ... determined by the effect of noise upon people generally, and not upon those, on the one hand, who are peculiarly susceptible to it, or those on the other, who, by long experience, have learned to endure it without inconvenience ....'
‘If one’s right to use his property was to depend upon the effect of the use upon a person of peculiar temperament or disposition, or upon one suffering from an uncommon disease, the standard for measuring it would be ... uncertain and fluctuating .... The character of [a] business might change from legal to illegal, or illegal to legal, with every change of tenants of an adjacent estate, or with an arrival or departure of a guest or boarder at a house near by; or even with the wakefulness or the tranquil repose of an invalid neighbor on a particular night. Legal rights to the use of property cannot be left to such uncertainty.’
Malice:
If the defendant performs their actions with the specific intention of causing harm or nuisance, the claimant's case that they are causing a nuisance will be stronger.
In Christie v Davey, C often practiced musical instruments and sang loudly into the night. D started making lots of noise in retaliation to C after requesting them to stop. The court held that D’s activities were unreasonable because they were malicious.
In Hollywood Silver Fox Farm v Emmett, H bred animals on their farm. After an argument, E sends his son to shoot a gun in the air to scare the foxes. While shooting gun is an ordinary activity for a farmer, the court held that E’s intention and malice meant that they were causing nuisance.
In Bradford v Pickles, B collect water from springs. P lives outside city limits, but the source of the spring flows under his land. P requests B pays for the water and cuts off the water supply when they refuse. The HL concludes there is no nuisance.
Reconciliation of Conflicting Precedent:
There is a clear conflict between the judgements in Christie and Hollywood with the judgement in Bradford v Pickles.
Beliefs / Arguments:
Christie and Hollywood was decided incorrectly. [4]
Pickles was wrongly decided. [5]
Malice should only be relevant and qualified to noise only. [6]
It is justifiable if the defendant is acting to advance their own economic interest. [7]
There should be no liability for preventing the flow of something through your own land. [8]
Planning Permission:
Planning permission and zoning requirements must be taken into account, but this does not mean that a grant of planning permission excludes the claimant from claiming under nuisance.
In Lawrence v Fen Tigers, L own a house 500m away from a speedway stadium. FT had been granted planning permission by local council. The SC held that the planning permission cannot itself render an activity permissible in the tort of negligence. L’s claim succeeds.
Neuberger JSC: ‘the mere fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is normally of no assistance to the defendant’
‘it seems 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, without providing her with compensation’
A planning scheme may bear on the character of their neighbourhood though. Therefore, the court may factor in the activity alleged to be a nuisance in their evaluation. This has been criticised.
Coming to the Nuisance:
Intuitively, it should matter whether the claimant or the defendant was the first to occupy the land. However, the court does not allow the fact that the claimant came to the nuisance as a defence.
In Sturges v Bridgman, (see facts above) B still liable for nuisance despite the fact that he was there first and the nuisance only became a problem when S built the extension.
If it were relevant who was there first, property rights would be affected. If the claimant was there first, they would be able to exercise a property right that excused them from liability for nuisance.
There is an exception to this general rule where there is an easement by prescription: 20 years of the claimant not complaining when they have knowledge of the nuisance.
In Lawrence v Fen Tigers, (see facts above) L’s house was built in the 1950s and the speedway was built in the 1970s. L moved into their house in 2006. The court reaffirms that there is no defence of coming to nuisance and the exception of easement by prescription. On the facts, since FT operated intermittently, they hadn’t been a nuisance for 20+ years.
Neuberger JSC (obiter): D may have a defence where C builds on or changes the use of their land and D’s activity was not previously a nuisance, the activity does not increase / change and only affects the senses where D’s use of their land is a reasonable and otherwise lawful use and this is carried out in a reasonable way. Distinguishes Sturges on the fact that it only affects the senses.
Relation to Other Wrongs:
Negligence:
While the aim of negligence is to remedy carelessness, nuisance focuses on undue interference. Recently, principles of negligence have entered nuisance.
In Cambridge Water v Eastern Counties Leather, a tannery (ECL) had leaked chemicals into the water supply used by CW. It was not known that the chemicals caused harm, so it was not reasonably foreseeable that ECL’s negligence would cause CW harm. The court (in obiter) import reasonable foreseeability into nuisance from negligence.
Action in ‘Rylands v Fletcher’:
The nature of an action in Rylands v Fletcher is unclear.
In Rylands v Fletcher, R built a reservoir on their land. Unknown to them, there was a disused mineshaft below the reservoir that ran into F’s land. Water flooded into F’s land.
Blackburn J: ‘the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’
Questionable whether these actions come under negligence, nuisance or a standalone tort. Courts consider it as a ‘species’ of nuisance. [9]
Invasion of Privacy:
There is no tort of ‘Invasion of Privacy’ in English law, unlike other common law jurisdictions.
In Fearn v Tate, T built a viewing gallery on top of the Tate Gallery. This overlooks F’s building and visitors looked in and took photos. F sook injunction to prevent T from opening the viewing gallery on the side that overlooks their building.
The CA holds that overlooking another’s property cannot amount to nuisance. Court discusses line-drawing problems, the existence of planning laws and controls and how privacy should be left to Parliament.
Resources:
References:
[1] St Helen’s Smelting Co v Tipping [1865] 11 HL Cas 642 (Westbury LJ) [2] Steel, ‘The Locality Principle in Private Nuisance’ (3rd April 2017) The Cambridge Law Journal 76(1) 145-167 [3] Walter v Selfe (1851) [4] MacDonald (1937) [5] Denning LJ (1949) [6] Cross (1995) [7] Fridman (1954) [8] Taggart (2002) [9] Transco plc v Stockport MBC [2004] 2 AC 1
Cases Mentioned:
Halsey v Esso Petroleum [1961] 2 All ER 145
Hunter v Canary Wharf [1997] AC 655
Bamford v Turnley (1860) 3 B & S 62; 122 ER 25
Sturges v Bridgman (1879) LR 11 Ch D 852
Robinson v Kilvert [1889] 41 Ch D 88
Rogers v Elliott, 146 Mass 349, 15 NE 768
Christie v Davey (1893) 1 Ch 316
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468
The Mayor of Bradford v Pickles [1895] AC 587
Lawrence v Fen Tigers [2011] EWHC 360 (QB)
Sturges v Bridgman (1879) LR 11 Ch D 852
Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264
Rylands v Fletcher [1868] UKHL 1
Fearn v Tate Gallery Board of Trustees [2020] EWCA Civ 104
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