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(p. 535) 18. Trespass to land and nuisance 

(p. 535) 18. Trespass to land and nuisance
Chapter:
(p. 535) 18. Trespass to land and nuisance
Author(s):

Kirsty Horsey

and Erika Rackley

DOI:
10.1093/he/9780198829270.003.0018
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date: 11 April 2021

Problem question

Read this problem question carefully, and keep it in mind while you are working through the chapter that follows. At the end of the chapter, you will be able to apply what you have learnt to the problem question and advise the relevant parties.

Lekan owns a large country estate in Buckhampton. He wants to develop it as an environmentally friendly residential adventure centre catering for stressed-out city executives. To this end, he has constructed a network of ropes, ladders and bridges in the canopy of his woodland for them to come and ‘Swing High’ from tree to tree. Unfortunately, misplaced marketing has led to the majority of his customers being large, noisy groups of young people on stag and hen weekends. Lekan also provides facilities for paintballing and a quad-bike cross-country course. In line with his stated environmental policy, he has recently begun to use large volumes of seaweed, collected from nearby beaches, as fertiliser for his large organic vegetable patch. He has been encouraged to do so by his local council’s recycling officer, who is keen to stop waste material going to landfill sites.

Lekan receives the following complaints:

  1. (a) Sarah, who lives downwind of Lekan’s estate, complains that the smell of the rotting seaweed makes her physically sick.

  2. (b) Sandy, a 14-year-old, lives on a neighbouring farm. He complains that the noise from the quad bikes is causing his guinea pigs to miscarry their young.

  3. (c) Jess who, when she walks her dogs, parks her car next to Lekan’s boundary fence, complains that her car has, on a few occasions, been hit by stray paintballs.

  4. (d) Ailsa complains that the ‘Swing High’ centre ‘lowers the tone of the neighbourhood’ and that her back garden can be seen from the platforms in the trees.

(p. 536) 18.1 Introduction

Consider the following examples:

  • Christine does not like her neighbour’s overhanging tree, as it causes too much shade to fall on her garden. As the neighbour refuses to prune it, Christine retaliates by having frequent late-night garden parties through the summer months.

  • Barry runs a relaxation and meditation centre and complains that the noise from the dance studio on the floor above him stops his customers relaxing properly.

  • Juliet lives near an industrial estate which has grown in size since she moved there. She complains that the noise of lorries delivering goods overnight keeps her awake.

  • Dev, who grows organic roses, complains that his flowers are wilting due to toxic smoke being emitted from a nearby factory.

  • Laura complains that rats, which have infested the compost heap in her neighbour’s garden, keep coming onto her property.

  • Antony’s neighbour sweeps up leaves in his garden and piles them up near the adjoining fence. The pile of leaves topples over and touches the fence. Some leaves are carried over the fence by a strong gust of wind.

  • Ameera has a dinner party. Upon going upstairs to get a cardigan, she finds one of the guests in her bedroom, looking in her wardrobe.

These scenarios indicate situations where tort law might protect the interests of the land users involved. This chapter considers the part the torts of trespass and nuisance play in the regulation of land use and touches on the possible contribution that these torts could make to the protection of the environment. Specifically, we will look in this chapter at trespass to land, private nuisance and—briefly—at public nuisance.1 The subsequent chapter outlines what is known as the ‘tort’ or the rule in Rylands v Fletcher [1868]. All these torts predate the tort of negligence, which was not ‘created’ until the twentieth century. They are used to protect the claimant’s ability to use and enjoy their land freely without unwanted and unwarranted interference by the defendant. This idea is distinct from negligence, which seeks only to protect the individual from harm (including to land) that is inflicted carelessly. Negligence is a conduct-based tort, but the land torts are primarily consequence-based (though in some circumstances the courts take the conduct of the defendant into consideration). Fault plays a very limited role; (p. 537) land torts are not organised in the ‘duty–breach–damage’ formulation that we are familiar with from negligence and, as we shall see, nor has their exact relationship and/or overlap with the tort of negligence ever been properly established.

18.2 Trespass to land

Trespass to land, like trespass to the person (Chapter 15), is concerned with direct harm, though its primary importance is in the protection of property rights. As with trespass to the person, it is actionable per se (i.e. without proof of damage). When we refer to harm in this context, actual damage to the land concerned is not necessary. The harm lies in the fact that land owned by one party has been unjustifiably interfered with by another. What constitutes unjust interference is a matter of debate. The most obvious is where someone enters someone else’s land or property (or remains there) without permission, but there are other, less clear, interferences, as we shall see.

When we refer to land in this context, we mean not only what is commonly understood as land, but also things under it, built on it and even the airspace above it. To claim in trespass, the claimant must either own or otherwise be in possession of the land (e.g. by being a tenant)—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. A commonly used example is that of neighbouring home owners and overhanging plants. If I pruned a tree growing in my garden and threw the branches into yours, I would commit trespass, as this is a direct action with a physical consequence (the branches land in your garden). However, if you were unhappy simply because I did not prune the branches, so much so that they grew out over your garden, this would be only an indirect and non-physical consequence, so would not usually be trespass (although it may be trespass into airspace or otherwise actionable in private nuisance—see section 18.3).

What is physical interference? This can be broken down into four categories, as in Table 18.1. As you will see from the examples in the table, more things can be a trespass than you might have originally thought—and possibly you have done many of these things without thinking.

Table 18.1 Types of physical interference with land

Nature of the interference

Examples

Crossing a boundary on to land

Walking across a field or garden without permission

Entering someone’s house or other premises without permission

Putting an arm through a window or door without permission

Machines, cranes or signs overhanging someone else’s property

Remaining on land

Not leaving property when asked to do so by the owner or occupier

Going beyond what is permitted while on someone’s land

Dinner guests take a peek into the bedrooms without permission

A shopper goes past a ‘no entry’ sign at the back of a supermarket

Putting or placing objects on someone’s land

Deliberately throwing items from one property onto another

Cattle straying from one person’s land to another’s

Allowing a dog to run across a private field

Leaning a bicycle against the wall or window of someone’s property

(p. 538) 18.2.1 Intention

A key element of trespass is intention—the act that constitutes the trespass must be intentional. However, it is not the trespass that must be intended, but merely the direct action (e.g. entry into a property) that resulted in it. Put another way, it does not matter that you did not deliberately trespass on someone else’s property—if you voluntarily took yourself there, you will have trespassed.2 In League Against Cruel Sports v Scott [1985] hunting dogs strayed onto the claimant’s land (areas of Exmoor where there were wild deer sanctuaries)—this amounted to a trespass.3 Here, the court avoided the fact that there was clearly no actual intention to allow the dogs onto the land by saying that persistently and frequently holding hunts alongside the land, when there was no means of preventing the dogs from straying, could be seen as an implied intention to trespass. Therefore, because it is the act that must be intentional, rather than the actual trespass, some trespasses can be committed accidentally, or make what would otherwise seem to be innocent use of land a trespass.

This is evident in ‘airspace’ trespass cases. When does something entering the space above one’s land amount to a trespass to land owned or occupied by the claimant? In Laiqat v Majid [2005], an extractor fan on the defendant’s land was found to be a trespass—it protruded over the claimant’s land by 75 centimetres at a height of 4.5 metres. Similarly, in Kelsen v Imperial Tobacco Co [1957], the defendant’s advertisement sign that jutted out eight inches into the area above the claimant’s shop was a trespass. In a less permanent sense, if the arm of a crane swings through airspace above one’s property then this too can be a trespass (see Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd [1987]).4 (p. 539)

Pause for reflection

How far up can a trespass occur in the airspace above someone’s property? In Lord Bernstein of Leigh v Skyviews & General Ltd [1978], the claimant sued in respect of a light aircraft flying above his property to take aerial photographs. His claim was rejected, as the activity being carried out by the defendant took place above the level of an ordinary user of land. The Civil Aviation Act 1982 (which had an earlier predecessor) specifically states that a trespass is not committed if an aircraft flies above property at a ‘reasonable height’ having regard to the prevailing conditions (s 76(1)).

While this decision helps us to determine where a trespass might stop (how high up), it raises further questions: is flying aircraft not an ‘ordinary’ activity in the twenty-first century?5 If not, why is the use of an industrial crane (Anchor Brewhouse) to be regarded as ‘ordinary’? Do you think the cases are helpful? Or should there be another way of deciding whether something in the airspace above land is a trespass, such as whether it blocks out light? Think about Laiqat and Kelsen again—do these really seem like trespasses to you?

Trespass in the other direction—below the claimant’s property—has been considered by the Supreme Court.

Star Energy Weald Basin Ltd and another (Respondents) v Bocardo SA (Appellant) [2010] SC

Bocardo owned land in Surrey, under which part of an oilfield lies. Star Energy had a licence granted by the Crown allowing it to bore for and obtain petroleum from the oil field from neighbouring land vested in the Crown. Without acquiring a licence from Bocardo to do so, Star Energy drilled three wells from the Crown land, which travelled diagonally downwards and entered Bocardo’s land below ground level (at depths between about 800ft and 1,300ft) and ran for between about 250m and 700m. No material physical harm was done to the estate by the drilling and installation of the wells and there was no interference with Bocardo’s use or enjoyment of its land. Bocardo also had no right to the petroleum. Nevertheless, when Bocardo became aware of the wells, it commenced an action in trespass.

The High Court held that the wells constituted an actionable trespass and this decision was affirmed by the Court of Appeal. The Supreme Court considered how far below the surface ownership rights extend. Lord Hope said:


There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at (p. 540) issue in this case, extending from about 800 feet to 2,800 feet below the surface, are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion. (at [27])

Thus, Star Energy had trespassed on Bocardo’s land. On a secondary issue relating to the appropriate measure of damages, the Supreme Court affirmed the Court of Appeal’s decision that damages were only available for the amenity loss caused by the technical trespass. This sum was measured at £1,000.6

18.2.2 Defences

Lack of permission is a necessary ingredient of trespass. Correspondingly, permission (express or implied)—or a ‘licence’—to enter or remain on land constitutes a valid defence, subject to the person with that permission (the licensee) not exceeding the boundaries of the permission (e.g. the dinner guest looking in Ameera’s wardrobe in the earlier scenario).7 Licences can be revoked, although the manner in which this can be done often depends on what type of licence was initially granted—for example, whether it was one given under a contract.

Legal justification is a defence to a claim in trespass (e.g. where the police are authorised by law to enter premises to carry out an arrest under the Police and Criminal Evidence Act 1984). However, exceeding the boundaries of such authority carries severe consequences and, if this happens, the trespass alleged is deemed to have begun at the moment the defendant entered the property (even though at that time, legal justification to be there existed). This is known as trespass ab initio, and is discussed further shortly.

Another defence is necessity.8 What is meant by this is that 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 (e.g. to prevent floodwaters spreading by going on to someone’s land to lay sand bags)9 or a private interest (e.g. to prevent the defendant themselves from personal injury or property damage). In Esso Petroleum v Southport (p. 541) Corporation [1956], the necessity defence was successfully used by a ship’s captain who discharged oil into the sea, polluting the shoreline. While there was some debate about whether this action amounted to a trespass or to nuisance, it was found to have been a necessary action in order to prevent the ship breaking up at sea and endangering the lives of the crew.

Counterpoint

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. In particular, it seems that for the defence to be successful, a sufficient degree of ‘peril’ is required. In Southwark London Borough Council v Williams [1971], for example, 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). He relied on the ‘floodgates’ policy argument, saying that if the defence were used once it ‘would open a door that no man could shut’. He also invoked a fear of lawlessness, stating that the:


courts must, for the sake of law and order, take a firm stand. They must refuse to admit the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good. (at 744)

Thus, he was arguing that there may be better means to address the problem of homelessness, rather than for the courts to be seen to condone squatting.10

In Monsanto plc v Tilly [2000], protesters entered land belonging to Monsanto, a company (in)famous for developing and growing genetically modified (GM) crops. The protesters, including the defendant, believed that GM crops have harmful environmental and societal effects and, as part of their campaign, thought it necessary to enter land owned by Monsanto to uproot the crops, in order to protect both public and environmental health. Tilly’s argument was rejected by the Court of Appeal—though the court recognised that there might be some occasions when the destruction of one crop might be necessary in order to save others. In this instance, the court viewed the crop destruction as a symbolic gesture, designed to attract media attention: the necessity argument failed. Furthermore, the fact that there is public law protection offered to ‘the public interest’ in relation to GM crops clearly influenced the court—as in the squatters’ case, it was perceived that there were better ways to achieve the intended goals than trespassing.

(p. 542) 18.2.3 Trespass ab initio

If a party is permitted to be on land by statute or common law (as opposed to by licence only), but commits a wrongful act while there (‘oversteps the boundaries’), then their original entry onto the land becomes a trespass. Essentially, their permission to be there is cancelled retrospectively. This is a historical concept, first defined in The Six Carpenters [1610]. Six carpenters went to an inn, where they ordered and paid for bread and wine. Later, they ordered more wine but refused to pay for it. 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). There is little difference between the principle and that which operates when a person is on someone else’s premises under licence (e.g. a guest at a dinner party) but proceeds to do something that they should not do (e.g. look in the bedroom wardrobes). However, a distinction is made in terms of remedy. While peeking in the wardrobes may turn someone into a trespasser, there is little harm that can be compensated, so damages are likely to be nominal. By contrast, had the six carpenters been found liable, the innkeeper could have recovered damages for the wine not paid for, as well as for the fact that a trespass had occurred.

In Elias v Pasmore [1934], police officers (legally) entered a man’s premises to arrest him. While there, they seized some of his belongings—some items were seized lawfully but others were not. The court found that a trespass was committed only in respect of the unlawfully seized items; it did not render the original entry illegal. Thus, it seems that trespass ab initio will occur only where the later wrongful act contravenes the entire basis for the original entry. As the original basis of entry was to make an arrest, the court found that this purpose had not been disturbed by the wrongful act.

Counterpoint

On the basis of Pasmore, it may seem that the doctrine of trespass ab initio has little muscle. To us, a doctrine that can protect people against abuses of authority while on their land seems useful, particularly given the limited scope that exists for suing organisations such as the police in negligence.11

In Chic Fashions (West Wales) Ltd v Jones [1967], the doctrine’s existence was criticised. The police searched the claimant’s premises for stolen goods, seizing goods that they wrongly believed to have been stolen. While the wrongful seizure itself was held to be lawful (as the police warrant gave them the authority to remove any goods that they considered to have been stolen), Lord Denning MR (obiter) suggested that the trespass ab initio doctrine was antiquated and failed to recognise the simple fact that a lawful act should not be rendered unlawful by subsequent events (at 313, 317 and 320). However, he later went on to make use of the doctrine in Cinnamond v British Airports Authority [1980], finding taxi drivers who were unlawfully touting for business to have trespassed from the moment they entered the airport premises. Perhaps (p. 543) this tells us that the decisions in Pasmore and Chic Fashions say more about the judicial attitude to claims against the police (in a similar vein to within the tort of negligence) than about the trespass ab initio doctrine itself.

18.2.4 Remedies

Claimants in trespass usually seek damages and/or an injunction. Damages compensate the claimant for harm already suffered due to the direct interference with their property. An injunction may be used to prevent a continuing trespass.12 However, other remedies are available in appropriate situations, such as re-entry (when the rightful owner/occupier of land has been excluded from it). This ‘self-help’ remedy may be used only if ‘reasonable force’ is all that is required to assert the right to re-enter. Conversely, where an owner or occupier of land has lost possession, an action for the recovery of land might be taken, allowing (if successful) the defendant to be ejected by court order. Further, an action for mesne13 profits may be brought to claim money from anyone who has wrongfully occupied the land and made a profit or saved expenditure in the process of doing so (e.g. a tenant who outstays the terms of their tenancy agreement and does not pay rent for the extended time spent in the property). It also covers the costs associated with putting right any deterioration to the fabric of the property as well as any (reasonable) costs associated with repossession.

18.3 Private nuisance

Whereas trespass is concerned with direct interferences to land, private nuisance deals with indirect and unreasonable interferences to land, including what might be called consequential interferences resulting from a direct action (Southport Corporation v Esso Petroleum Co Ltd [1954]). Private nuisance is located squarely within the relationship between neighbours; that is, the people living next door or upstairs rather than the ‘neighbour’ we meet in negligence (Donoghue v Stevenson [1932]). In short, private nuisance regulates relationships (and, in particular, conflicts) between neighbours, defining their mutual rights and obligations with respect to land use by striking a fair and reasonable balance between them. It seeks to protect the claimant’s ability to use and enjoy their land without unreasonable interference by the defendant. In this way, Conaghan & Mansell suggest, nuisance is often viewed as a ‘minor’ tort with minimal implications or impact beyond the cosy world of neighbourly squabbles or ‘ordinary people’ against industry (p 124). This means that references to its potential role in environmental protection are to a large extent downplayed; they become a ‘pale green’ aside its traditional concerns.14 (p. 544)

Counterpoint

Behind the usual accounts of private nuisance, which manage to give the tort the appearance of coherence, is a more nuanced picture of a tort developed piecemeal over time to protect particular interests of particular sections of society. It should not be thought that the ordering of nuisance into particular categories in a textbook serves to make it coherent. Dean Prosser articulates this well: ‘there is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance’ (Markesinis & Deakin p 509). Nuisance has also been described as a tort of ‘mongrel origins’,15 uncertain and lacking definition or any coherent goals or purpose.16

Conaghan & Mansell argue that traditional accounts of nuisance conceal a more sinister subtext extending well beyond neighbours engaging in garden-fence disputes. There are many examples of this when the cases themselves—not just the principles the judgments leave behind—are deconstructed. Behind, for example, the ‘seemingly innocuous conflict between a cricket club and a house owner who objected, reasonably, to the showering of cricket balls in her back garden’ (Miller v Jackson [1977]), appears the ‘elusive and potentially dictatorial character of the Public Interest’ (Conaghan & Mansell p 124). Similarly, ‘hovering on the sidelines of a dispute between the occupant of a “good class residential street” and his next-door neighbours, who were engaged in an activity … which allegedly threatened the values of property and the character of the street’ (they ran a brothel (Thompson-Schwab v Costaki [1956])), is ‘the dark and rather ominous shadow of Civilised Society’ (p 124).

So viewed, nuisance tells of more than just un-neighbourly behaviour. In its tales of polluted shrubs and rivers and disrupted TV signals, its narratives of anti-social boat-racing, cricket and piano playing, it reveals its social, historical and ideological contexts. Its case law is at times also indicative of the struggle between the ‘haves and have-nots’, the cosy privileged classes of London’s Belgravia and those living in the one-time slums of Bermondsey.17 Our point is this: there is more going on in nuisance than neighbourly squabbles that can be resolved with a simple application of legal principles. Traditional expositions of nuisance—its textbook appearance—are not only an excellent example of the ability of judges and legal academics to rationalise and synthesise the irrational and fluid (Conaghan & Mansell p 125), but also can be seen to clothe, subdue, constrain and ultimately obscure its political underpinnings, history and environmental potential. It could be argued that nuisance has failed to achieve its potential to develop into a real environmental tort—perhaps because of the balancing acts undertaken and the ‘privileging’ of the already privileged.

(p. 545) 18.3.1 What is private nuisance?

Private nuisance is ‘any unlawful interference with a person’s use or enjoyment of land or some right over it’.18 It is primarily concerned with conflicts arising over neighbours’ respective uses of land and seeks to protect the claimant’s use and enjoyment of land from an activity or state of affairs which the defendant has caused. Unlike trespass, it is concerned with indirect interferences (e.g. smells, noise or vibrations) and is actionable only on proof of some damage (including the subjective damage of ‘amenity’ interests as well as physical damage: see Table 18.2). In seeking to protect ownership rights, nuisance encourages people to be ‘good neighbours’ (though, as we shall see, this really extends only to those neighbours with a proprietary interest in land—mere ‘users’ of land are not necessarily protected). At the heart of nuisance is a balancing act—using one’s land freely, while not harming the land-based interests of others.

Table 18.2 Basic differences between nuisance and trespass

The legal harm

When actionable

Example

Trespass

Direct interference with land

Actionable per se (i.e. without proof of damage)

I dump some waste on your land. As well as, most likely, this amounting to various waste offences, I have committed a trespass. I have directly interfered with your land and even if you tell me to move it and I do; that is, even if there is no continuing harm, I will still have committed the trespass.

The most obvious example of a trespass is walking (without permission) across someone’s land; this is also a direct interference.

Nuisance

Indirect interference with use and enjoyment of land

Actionable upon proof of damage (to the interest in the land)

Instead of dumping the waste on your land, I simply leave it on my land to putrefy. It begins to smell, and flies gather—possibly there are rats that may go onto your land. This would give rise to an action in nuisance, as an indirect harm arising on one person’s land and spreading to another’s (though compare Gregory v Piper [1829], a trespass case).19

(p. 546) Things that may be included in an action for private nuisance are:

  • actual (physical) damage to land (e.g. by flooding, noxious fumes or vibrations);

  • interference with ‘amenity’ interests—the use and enjoyment of land (e.g. by the creation of smells, dust or noise);

  • encroachment (e.g. by tree roots or overhanging branches).

Private nuisance came into its own during the Industrial Revolution when courts faced new and pressing problems arising out of extremely polluting industrial land use, which were not compatible with how neighbours wanted to use their parcels of land—or, more to the point, the cases arose because the actions were defended by the industrial polluters. One case that highlights well the problems of industrialisation is St Helen’s Smelting Co v Tipping [1865].

St Helen’s Smelting Co v Tipping [1865] HL

Poisonous vapours from the defendant’s smelting works damaged trees and shrubs on Mr Tipping’s 1,300-acre Lancashire estate one and a half miles away. He brought a claim in nuisance. The defendant contended that, as almost the whole neighbourhood was devoted to smelting or similar manufacturing activities, he could continue his activities with impunity.

The House of Lords disagreed. Lord Westbury distinguished between nuisances producing what he called ‘material injury to property’ or ‘sensible injury to the value of the property’ and that which merely leads to ‘personal discomfort’ (lost amenity). He held that the former category may never arise from a reasonable use of land—that is, it will always amount to a nuisance.20 The injury to the claimant’s trees and shrubs gave rise to an action in nuisance irrespective of whether the pollution from the defendant’s works was normal for the locality.

Lord Westbury’s reasoning, about the difference between damage to property and personal discomfort, later developed into the so-called ‘locality’ rule—which simply means that the locality in which the nuisance takes place will be taken into account where there is interference with amenity interests (i.e. use and enjoyment of the land), but not where actual physical damage occurs.

Counterpoint

The consequence of this distinction is that physical damage is seen to be a graver form of injury than ‘mere’ discomfort or inconvenience. Or, put simply, that ‘actual’ damage to land (including drop in value) is worse than damage to people’s subjective interests in it. Courts (p. 547) are clearly more willing to find an actionable nuisance where there is physical damage to property; ‘mere’ personal discomfort is treated with more latitude, unless the intrusion is such that it ‘materially interferes with the ordinary comfort physically of human existence, not simply elegant or dainty modes or habits of living’ (Knight-Bruce V-C, Walter v Selfe [1851] at 852). A recent example illustrating this point can be seen in Fearn and others v The Board of Trustees of the Tate Gallery [2019]. On this basis, loss of a view from one’s property is loss of ‘elegant’ living (amenity) and not interference with the ordinary comfort of human existence. There is no remedy in nuisance against a neighbour whose new greenhouse blocks your beautiful view because ‘the law does not give an action for such things of delight’ (Wray CJ, Bland v Moseley [1587]). Whilst it might be easy to say that noxious fumes that destroy every plant in my garden should be actionable in nuisance, it is far more difficult to weigh up the complaints of a resident in an industrial area who says that lorries travelling to a factory nearby cause noise and dust that affect her amenity interests, for example by making her unable to sleep and worsening her asthma.

This distinction is, however, perhaps easier to articulate in theory than in practice—there are definite grey areas between lost amenity and damage to property. Moreover, what is the locality? It is the court that determines whether an area is, for example, industrial, rural or commercial. We must therefore be careful not to approach the locality rule too narrowly. This is not to suggest, however, that there are, in essence, two torts: one concerning physical damage and the other discomfort or inconvenience. In fact, the idea that two divergent torts had been created by St Helen’s Smelting was ruled out by the House of Lords in Hunter v Canary Wharf Ltd [1997]. Instead, the distinction between amenity interests and physical damage is best seen as a question of degree. Interferences resulting in physical damage are more likely to be regarded as unreasonable than less tangible amenity losses (disturbance, feeling sick, worsened asthma, inability to sleep and so on), which usually require the courts to engage in a more intricate balancing exercise, taking into account a number of factors, before deciding whether an alleged interference is a nuisance.

The difference between physical damage and lost amenity retains a somewhat uneasy presence in modern nuisance law. A recent example can be seen in Network Rail Infrastructure Ltd v Williams and another [2018], a case about Japanese knotweed, in which the Court of Appeal had to determine whether the presence of the knotweed in the soil (which lessened the sale value of the property) damaged the claimants’ amenity interests and, if so, how. They were, the defendants argued, merely ‘worried’ that their property would be damaged in the future. It could, however, have been argued that the presence of the knotweed rhizomes in the soil (which the claimants would need to spend time and money getting rid of) was in fact physical damage to their property, notwithstanding the fact that the plant had not (yet) caused any physical damage to their homes. However, the Court of Appeal found that what had happened was a ‘classic example’ of the interference with amenity interests in land (at [55]). Sir Terence Etherton MR said that the presence of the rhizomes:


imposes an immediate burden on the owner of the land in terms of an increased difficulty in the ability to develop, and in the cost of developing, the land, should the owner wish to do so … [A]ny improvement or alteration of the property requiring the removal of (p. 548) contaminated soil would require disposal of the soil either on site or, more likely, off site by special, and probably expensive, procedures.

As we can see, it is not always easy to distinguish between ‘sensible injury to property’ and ‘personal discomfort’: surely if your land becomes uncomfortable to live on, then its value (to you) is similarly diminished? Both interference with amenity and damage to property can cause ‘sensible injury to the value of property’. The House of Lords in Hunter affirmed that both material physical damage and loss of amenity amounted to interference with property interests. This would suggest that, in deciding whether conduct amounts to a nuisance, the same factors should be considered for each. If both are property interests, why should lengthy exposure to horrible smells be treated differently from material damage to property?

As we have indicated, private nuisance, unlike negligence, is an uncertain tort—it is often difficult to say with certainty what will or will not be a nuisance. Moreover, unlike the defined cases of negligence developed incrementally by the courts, in principle anything is capable of amounting to a nuisance, as long as there is an ‘emanation’ (e.g. a smell, smoke or noise) moving from one neighbour’s land onto another’s (Hunter; cf Southport Corporation v Esso Petroleum Co Ltd [1956]).21

That said, it seems self-evident that not every interference with a person’s use and enjoyment of land can amount to private nuisance. For example, if one neighbour listened to pop music to relax at the end of the day and even if they sang along—no matter how badly—it would not matter that the other neighbour, who might prefer classical music, did not like this. If they were able to establish that pop music or singing was a nuisance either because any music is played or, perhaps more hurtfully, because it is what some would consider as being ‘bad’ music, people would be severely limited in what they could enjoy in their own homes. A neighbour would, in effect, be given the power to veto another neighbour’s choice of activity. However, if pop music was played loudly between the hours of 2 am and 4 am every morning, then any neighbour would appear to have legitimate grounds for complaint—nuisance is about ‘reasonable’ use of land, but must have built into it some ‘give and take’.

Although it is relatively straightforward to state that private nuisance protects only against unlawful interference, the question as to what constitutes unlawful interference is somewhat problematic. Interference is only deemed unlawful when a court considers it to be substantial and unreasonable. In the modern law of nuisance, unlawfulness is equated with unreasonableness. The question is this: was there an unreasonable interference with the claimant’s use and enjoyment of land or, put another way, was/is the defendant an unreasonable user of their land?

(p. 549) As Lord Wright said in Sedleigh-Denfield v O’Callaghan [1940]: ‘a balance has to be maintained between the right of the occupier to do which he likes with his own, and the right of his neighbour not to be interfered with’ (at 903). So, the test is one of the ‘reasonable user’: balancing the interests of the claimant to enjoy their land against the interests of the defendant to use their land as is legally permitted. It is a ‘rule of give and take, live and let live’ (Bramwell J, Bamford v Turnley [1862] at 32). As a result, ordinary, or reasonable, use of your home will not amount to a nuisance even if it includes playing loud pop music reasonably, and even if it discomforts your neighbour due to poor soundproofing or insulation (Southwark Borough Council v Mills [2001]).22 However, the problem of how to define ‘reasonable’ use of land remains. The case law built up on private nuisance over time can help us to determine this—as we will see, it has created a ‘matrix of factors’ which can be used to help determine whether particular activities are likely to be a nuisance.23 Now, we can draw assistance from the first nuisance case to reach the highest level since Hunter: Coventry v Lawrence [2014] which helped clarify many of the tests in this ‘matrix’.24

18.3.2 Who can sue?

A claimant must first establish that they have legal ‘standing’—that is, the right to sue. Nuisance is not the only place in tort law where standing is an issue and where what seem like potentially legitimate claims can fail even before they begin.25 In private nuisance, Malone v Laskey [1907] set the initial boundaries. A woman was injured while using the toilet when its cistern fell on top of her. It had been dislodged by vibrations emanating from the electricity generator on the neighbouring defendant’s property. Despite her injuries, the Court of Appeal held that she had no cause of action in nuisance against the defendant, because she had no proprietary interest in the premises—the house belonged to her husband’s employer. She was ‘merely present in the house’.

(p. 550) As the aim of private nuisance is 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. However, it is more difficult to establish exactly what link or interest the claimant must have. Does this mean an interest in land as defined by property law or simply a substantial link with the land?

This traditional view of nuisance—the ‘interest in land’ requirement—was challenged in Khorasandjian. Miss Khorasandjian was subjected to a campaign of harassment by a former boyfriend.26 She sought an injunction to prevent him ‘harassing, pestering or communicating’ with her, especially by means of persistent and unwanted telephone calls to her mother’s home, where she lived. Like Mrs Malone, she had no proprietary interest: she merely lived in the house with her mother. Nevertheless, Dillon LJ in the Court of Appeal allowed her claim in nuisance stating that ‘the court has at times to reconsider an earlier decision in light of changed social conditions … If the wife of the owner is entitled to sue in respect of harassing telephone calls, then I do not see why that should not also apply to a child living at home with her parents’ (at 735). This innovative approach was subsequently followed by a differently constituted Court of Appeal in Hunter v Canary Wharf Ltd [1996]. Here, Pill LJ found that it was enough for the claimant to demonstrate a ‘substantial link’ to the property in question (the occupation of a property as a home was sufficient to enable the occupiers to sue). However, the House of Lords disagreed.

Hunter v Canary Wharf Ltd [1997] HL

A number of local residents, including homeowners, their families and other licensees, complained about the erection of the Canary Wharf tower in the London Docklands development. The tower—which is nearly 250 metres high, over 50 metres square, and has a metallic surface—was found to interfere with the television reception of neighbouring homes. Two preliminary questions arose: first, could an actionable nuisance exist in respect of interference with television reception? Secondly, if this was possible, who of those affected could sue?

The House of Lords held that interference with the television reception was not capable of amounting to a nuisance. There was no ‘emanation’ from the Canary Wharf tower which, according to Lord Hope at least, was viewed as a requirement of nuisance.27 The tower was simply stopping something going onto the property of its neighbours. It was held, by analogy to cases that refused liability for blocking a view, that the defendants were free to build what they wanted to on their land, subject to planning permissions and other restrictions such as easements. Hence, complaints could be made only at the planning stage and not by means of private nuisance.

(p. 551) When addressing the second question, the law lords reasserted the traditional view from Malone. Defining nuisance as a ‘tort directed against the plaintiff’s enjoyment of his rights over land’ (at 688),28 Lord Goff held that claims in nuisance can be brought only by claimants with an interest in land—that is, landowners, tenants, grantees of an easement or profit à prendre, or those with exclusive possession.

Hunter meant that someone cannot claim in nuisance if they are merely a member of the landowner’s family (as in Khorasandjian), a guest (long or short term), a lodger or an employee (including live-in employees, such as au pairs). Recognising such people’s claims, the law lords suggested, would be to effect a fundamental change in the nature and scope of nuisance and give rise to a number of practical difficulties. They believed that to extend nuisance in this way would transform it into a tort to the person, rendering redundant what they viewed as sensible restrictions on the right to sue for personal injury in negligence, for example by allowing liability for mere discomfort without damage (lost amenity). Put simply, the House of Lords was keen to reinforce nuisance as a tort to land, not to people.

Pause for reflection

To what extent is the standing requirement an unnecessary restriction reflecting a return to the historical roots of private nuisance at the expense of its potential role in protecting the environment and/or protecting people from harassment? Do you think the requirement is (a) necessary and (b) logical? Consider Khorasandjian v Bush [1993]. Do you agree that what she suffered should not be considered a nuisance?


For pointers on how to answer the questions posed in this ‘pause for reflection’ go to the online resources.

Counterpoint

It is unclear the extent to which Hunter is compatible with Article 8(1) of the European Convention on Human Rights (ECHR) (as incorporated into domestic law by the Human Rights Act (HRA) 1998), which establishes that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. The ‘interest in land’ requirement might need to be reconsidered in order to secure fuller protection of the right to respect for private and family life, and possibly also the right not to be discriminated against (Art 14). As we see in section 18.4.3, Article 8(1) has already been interpreted broadly by the European Court of Human Rights (ECtHR), permitting parties without rights in the home to sue.

(p. 552) In Khatun v UK [1998]—an appeal to the European Commission of Human Rights on part of the Hunter decision—it was found that the distinction made in Hunter between those with a proprietary interest in land and those without was not applicable for the purposes of Article 8(1) (although it was felt that the defendant’s activities (building the tower) could be justified under Art 8(2) as pursuing a legitimate and important aim given the public interest in developing the once run-down Docklands area of London and the limited interference to the applicant’s home). The decision in Khatun suggests that, should a suitable case arise, a court would be able to challenge the Hunter limitations. Indeed, to an extent this may already have happened.

McKenna v British Aluminium Ltd [2002] Ch D

Claims in private nuisance and in Rylands v Fletcher (Chapter 19) were brought by over 30 children from a number of households alleging that emissions and noise from the defendant’s neighbouring factory were an invasion of privacy and had caused them mental distress and physical harm. The defendants argued that following Hunter the claims should be struck out unless each of the claimants could point to a proprietary right—that is, show they had standing to take their claim.

In the High Court, Neuberger J rejected the defendant’s argument and refused to strike out the claims, saying that:


there is obviously a powerful case for saying that effect has not been properly given to Article 8(1) if a person with no interest in the home, but who has lived in the house for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only person who can bring proceedings. (at [53])

This was only a striking-out action. Neuberger J (later Lord Neuberger, president of the Supreme Court, 2012–17) believed the claimants in McKenna had an arguable case and that this restrictive aspect of the common law should be extended in light of the HRA, so dismissed the defendant’s application to strike out their claims.29

Pause for reflection

The way the law currently stands—as identified by counsel for the claimants in McKenna—excludes one very large group in particular from ever being able to claim in private nuisance: children. Children are never likely to have the required proprietary interest in a property to be able to sue. Do you think this should be the case?

(p. 553) 18.3.3 The concept of the ‘reasonable user’

As we have indicated, 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 occurring. Put another way, taking reasonable care does not prevent liability.30 Instead, the court must consider a range or a ‘matrix’ of factors in order to determine nuisance.

The factors that the court can take into account can be split into three categories:

  1. (1) always considered (intensity—including duration, frequency and timing of the interference);

  2. (2) sometimes considered, dependent on the type of claim (the nature of the locality); and

  3. (3) sometimes considered, if relevant on the facts (sensitivity of the claimant; bad intention of the defendant).

As we will see, many of these factors are also important in relation to the question of remedies. We will look at each category in turn. Essentially, each of the (relevant) factors must be weighed against the others. It is helpful to imagine a set of simple balancing scales, mentally placing each factor onto the scales on the relevant side, working out in whose favour the scales will tip. If the scales ultimately tip towards the claimant then their claim will be successful—if towards the defendant then the claim fails.31 Coventry now assists us in many of these considerations.

Coventry v Lawrence [2014] SC

Katherine Lawrence and Raymond Shields moved into ‘Fenland’ in January 2006, a bungalow situated less than one kilometre from a speedway stadium in an otherwise rural area. The stadium was constructed with the necessary planning permission (lasting ten years) in 1975. Permission was renewed on a permanent basis in 1985. Stock car and banger racing started at the stadium in 1984 and a ‘Certificate of Lawfulness of Existing Use or Development’ was issued in respect of this in 1994. Behind the stadium a motocross track initially operated under temporary planning permission which later became permanent.

In 2008, the couple initiated proceedings against the owners and operators of the stadium and track, seeking an injunction to stop the activities taking place there, which they claimed amounted to a noise nuisance. At first instance, the claimants succeeded and an injunction limiting the activities (and thus the noise) of the defendants was granted (though the injunction was stayed while the claimants had to rebuild their house, which had in the meantime been severely damaged by fire). The Court of Appeal reversed the decision, finding that the claimants had failed to establish a nuisance. Largely, this was because of the planning permissions (p. 554) that the stadium and track operated under, which, according to Jackson LJ, had changed the character of the locality.

The Supreme Court reinstated the trial judge’s decision. The noise from the stadium and track, notwithstanding the planning permission, amounted to a nuisance. The fact of planning permission may have relevance to the remedy to be awarded, and the precise terms of it may have a bearing on whether or not a nuisance exists at all (see e.g. Lord Neuberger at [96]). The injunction (though still stayed) was restored, though the court seemed to suggest that judges are too ready to grant injunctions without considering whether to award damages instead and that if/when the case goes back before the judge a consideration of whether to discharge the injunction and substitute damages could be undertaken.32

18.3.3.1 Factors that are always considered

The intensity of the interference

Unlike trespass to land where any interference to property can amount to a trespass, in private nuisance a threshold exists—everyone has to put up with some interference from their neighbours at some time (Southwark LBC v Mills [2001]). However, interferences can become unreasonable when they occur frequently or for long periods of time, as the earlier pop music example indicates. The idea is best explained by Lawton LJ in Kennaway v Thompson [1981]:

[N]early all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those living in towns may be irritated by their neighbours’ noisy radios or incompetent playing of musical instruments; and they in turn may be inconvenienced by the noise caused by our guests slamming car doors and chattering after a late party. Even in the country the lowing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live. (at 94, emphasis added)

If any interference could be a nuisance, the tort simply would not work. 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). That said, while ordinary everyday living cannot be an unreasonable use of land, an action for physical damage to property, even if caused by a temporary or short-lived activity, is likely to succeed—though in such cases the court will award damages rather than an injunction (this makes sense: (p. 555) as the nuisance has finished, there is nothing on which to base injunctive relief).33 In Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996], a 15–20-minute firework display at the end of the fiftieth anniversary of the Battle of Britain celebrations was held to be a nuisance to a Thames boat owner whose boat suffered substantial fire damage.

18.3.3.2 A factor that is sometimes considered, dependent on the type of claim

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’. Courts are more likely to find that noise from a local factory is a nuisance to local residents if the factory is in a residential area rather than an industrial one. Similarly, farmyard smells and noises are less likely to be a nuisance in an overwhelmingly rural area.34 However, as we have already indicated, following St Helen’s Smelting, the ‘locality principle’ applies only in cases where the claimant has suffered lost amenity. It is not a relevant consideration where the claim is about material physical damage (e.g. plants killed by poisonous fumes), which in law can never arise from a reasonable use of land.

In Coventry, Lord Neuberger described the claimants’ property as follows:

Across open fields, about 560 metres from the Stadium and about 860 metres from the Track, is a bungalow called ‘Fenland’ … It stands in about 035 hectares of garden, and is otherwise surrounded by agricultural land. The nearest residential property to Fenland appears to be about half a mile away, and the small village of West Row is about 15 miles to the south-east of Fenland (and about one mile to the south east of the Stadium). (at [12])

Given the idyllic and overwhelmingly rural nature of this description, it becomes easier to see how noise from a motocross and speedway stadium might constitute nuisance.

A classic quote summing up the ‘nature of the locality’ idea comes from Sturges v Bridgman [1879]. There, Thesiger 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 neighbourhood in question must be considered when determining whether a nuisance has or has not happened—put another way, people in some (poorer?) areas should be expected to put up with more than (affluent?) people in others.

Counterpoint

This supports the idea that nuisance is highly subjective and contextual. By this, we mean that for an activity to be a nuisance, someone must have complained about it—and this depends on their own subjective interpretation of the context in which the activity is taking place (see also Coventry and Fearn and others v The Board of Trustees of the Tate Gallery [2019]).

(p. 556) The locality rule therefore accentuates and mirrors inequalities already existing within society. 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, more environmental pollution and so on.35 Conaghan & Mansell point out that, historically, the compromise ‘distinction drawn in St Helen’s Smelting Co v Tipping [1865] between inflicting material damage to property and producing “sensible personal discomfort”’, and the so-called locality rule, were of ‘crucial significance in limiting the liability of industrialists for nuisance’ (p 133). They point to an observation made by Cornish and Clark that in the ‘period immediately after 1865, it was almost impossible to sue for amenity damage (smells, noise, vibrations) if one lived in an industrial area’36 and conclude that ‘inevitably the distinction had a disproportionate class impact by protecting the primary interests of residential landowners (in the physical integrity of their property) while denying any redress to those who simply wish to live in an environment free from the stench and clamour of industrial activity’ (p 133). Ironically, it seems those who suffer most from the ravages of pollution are deemed the least worthy of protection.

It seems that things have not moved very far in this respect. In Baxter v Camden LBC (No 2) [2001], the tenant of a first-floor flat within an old converted house complained of continuing noise from the flats above and below her to the council that had converted the property (with inadequate soundproofing) in 1975. Dismissing her claim, Tuckey LJ in the Court of Appeal returned to a familiar concept, saying that ‘occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises’ (at [10]).

The nature or character of a locality may change. For example, over a period of time the primary use of land may evolve from industrial to residential (or vice versa) or from green fields to commercial. Such evolution might be gradual or it may be faster and deliberately calculated to change the area, such as the development of the east end of London in preparation for the 2012 Olympic Games. Therefore, when considering a claim, the courts have to consider the locality as it is, not how it once was. When there is deliberate development or quick, radical change to the nature of an area, it is likely that planning permission will have been sought and received. So, is it the granting of permission or the actions taken on the back of the permission, once granted, that change the nature of a locality?

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QBD

In 1982, a disused navy dockyard in Chatham, Kent, was closed by the government. The area was subsequently divided into three parts, one of which was taken over by the Medway Ports Authority to be used as a 24-hour commercial port. Many residents complained about the level (p. 557) of traffic passing their properties, particularly throughout the evening and night. At one point it was recorded that a lorry was passing every 1.5 minutes in the early hours of the morning. Residents complained of interrupted sleep and general disturbance to their manner of living—for example, few of them could ever open the windows at the front of their houses because of the heavy volume of passing traffic. As a substantial group of residents was affected, the local council took an action in (public) nuisance on their behalf, asking for an injunction to prevent the movement of the lorries, particularly at night. The same council had granted the planning permission to the defendants allowing them to develop the port, even though it had been aware of the likely disturbance this would cause to local residents. When the planning application was made, local residents had been given the opportunity (as is usually the case) to voice their opinions.

Buckley J held that the granting of planning permission had in this instance changed the nature of the locality, which was now wholly commercial in its character. Local residents therefore could not complain about the serious disruption caused to them by commercial operations.

Gillingham does not mean that every time planning permission is granted the nature of a locality will change. It is a question of fact to be decided in each case. In this respect, Gillingham should be contrasted with Wheeler v JJ Saunders Ltd [1996], and the comments of the Supreme Court in Coventry should be considered.

Wheeler v JJ Saunders Ltd [1996] CA

Between two neighbours a house, with outbuildings and an adjacent farm, were in common ownership. Wheeler bought the house and the outbuildings and obtained planning permission to convert the outbuildings into holiday cottages. The farm was let to the defendants, who also obtained planning permission (despite the claimants’ opposition), to extend the capacity of their pig farm and build two new sheds, each capable of housing 400 pigs, with openings for ventilation, slatted floors and channels underneath to contain excrement. One shed was 11 metres from Wheeler’s house. On occasion, strong smells emanated from the farm to the claimant’s property, affecting them and also visitors to the holiday cottages. Wheeler claimed in nuisance in respect of the smells emanating from the pig farm. At first instance, an injunction was granted preventing the defendants using the sheds and the claimant was awarded £2,820 in general damages.

The Court of Appeal held that the smell emanating from the defendants’ farm was an actionable private nuisance. Planning permission was not the same as statutory authority and was not a legitimate defence to a claim in nuisance. Although planning permission could alter the nature of a locality (Gillingham), it had not done so in this instance—the nature of the locality remained the same.

(p. 558) In distinguishing the effect of planning permission in Gillingham, the court found that this had been ‘strategic’ in nature—that is, it was a deliberate attempt to change the nature of the locality for the good of the community. In Wheeler the planning permission was merely ‘expansive’—it allowed an already existing pig farm to become bigger. This difference meant the planning permission did not change the nature of the entire locality and so did not prevent a nuisance being caused to the claimants by the smell.37 In Watson v Croft Promosport Ltd [2009], the Court of Appeal ruled that despite planning permission being given for a motor-racing circuit on the basis that it was reasonable for the locality, the activity still amounted to an actionable nuisance (the nature of the locality was viewed as predominantly rural) and an injunction was granted to prevent racing on more than 40 days per year. This view was confirmed in Coventry in similar circumstances. Despite the (multiple) planning permissions 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]). Lord Neuberger also doubted the distinction previously drawn between strategic and other permissions, regarding this as ‘a recipe for uncertainty’ (at [91]). Thus, it seems that though planning permission may still change the nature of a locality, this will be a matter of fact to be assessed on a case-by-case basis. In fact, Lord Neuberger continued:

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 in a claim brought by a neighbour who contends that the activity cause a nuisance to her land in the form of noise or other loss of amenity. (at [94])

However, the tests relating to planning permission are now beginning to appear rather circular in nature. In Fearn, in which occupants of the Neo Bankside block of apartments next to the Tate Modern claimed in nuisance because their flats were regularly looked into by people accessing the Tate’s external viewing gallery, planning permission had allowed both developments to take place at the same time. The defendants submitted that ‘the planning approval of the viewing gallery, in the context of the largely parallel application for Neo Bankside, was evidence capable of supporting the submission that there was no nuisance’ (at [185]). This was rejected by Mann J as nothing indicated that the planning authorities had specifically considered the impact of the viewing platform. What was more relevant was the ‘character of the locality’. The planning permission was deemed not to conclude the matter; the overall character of the locality—defined by Mann J as ‘a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes’ (at [190])—was more important. Concluding on this point, he said 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 claimants were therefore unsuccessful.

(p. 559) 18.3.3.3 Other factors that are sometimes considered, if relevant on the facts

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 own sensitivities (where an ‘ordinary’ person would not be so affected) will fail. For example, in Heath v Mayor of Brighton [1908], the vicar and trustees of a church sought to stop noise emanating from the defendant’s power station as the vicar complained that it disturbed his deliberations over his sermons but, as no one else appeared to be disturbed by it, an injunction was refused.

The idea is better explained by Robinson v Kilvert [1889]. The claimant rented premises from the defendant, which he used as a paper warehouse. The defendant then started a manufacturing business in the cellar of his building for which he needed the air to be both hot and dry. Heating the cellar to achieve this caused the temperature of the floor of the claimant’s warehouse above to rise to 80° Fahrenheit. This, while it would not have damaged ordinary paper or caused anyone using the building any physical discomfort,38 dried out the specialist brown paper that the claimant was storing (and, as the value of the paper was affected by its weight, it lost value). The claimant sought an injunction preventing the defendant from heating the cellar. The Court of Appeal rejected his claim, holding that ‘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’ (Lopes LJ at 97).

However, despite the fact that 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 are the result of interference with what may be considered a sensitive use of land. In McKinnon Industries Ltd v Walker [1951], for example, the claimant was able to recover 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.39

Counterpoint

It is often difficult to determine what is ‘unduly sensitive’, particularly as this relates to the claimant’s use of land and not to the claimant themselves. If the storage of a particular type of paper is unduly sensitive (Robinson), but the growing of orchids is not (McKinnon), would the idea of sensitivity extend, for example, to the transmission of a signal to television viewers?

In Bridlington Relay v Yorkshire Electricity Board [1965], a company providing a residential relay system of sound and television broadcasts claimed in nuisance alleging that its business would be affected by electromagnetic interference from two electricity pylons erected between 200 (p. 560) and 250 feet from its mast and wiring that passed, at its nearest point, 169 feet away. Buckley J refused to grant an injunction, pointing to the sensitive nature of the business, saying that interference with purely ‘recreational’ facilities (e.g. television reception) was not actionable in nuisance.

As with many cases in private nuisance, Bridlington Relay may be a product of its time. Perhaps recognising this, Buckley J referred to the electrical interference not being actionable ‘at present’, meaning that as times change, so might the question about ‘recreational’ facilities. Indeed, Bridlington Relay was ruled ‘out of date’ in the Canadian case Nor-Video Services v Ontario Hydro [1978]. Despite the House of Lords’ reluctance in Hunter to answer how the case would be decided in 1997, it is hoped that the ability to receive an adequate television signal (a ‘recreational’ activity enjoyed by the vast majority of people) would in fact now be regarded as an ordinary and natural use of land.

In fact, the position on ‘abnormal sensitivity’ has since moved on. It must now be considered alongside (or as part of) the issue of foreseeability.

Network Rail Infrastructure Ltd v Morris (t/a Soundstar Studio) [2004] CA

Network Rail appealed against a finding that they were liable for nuisance caused by electromagnetic interference emitting from a signalling system, which affected the sound of electric guitars in Morris’s recording studio. They submitted that Morris’s use of the studio was abnormally sensitive to the magnetic waves and was not protected by the law of nuisance as he was involved in an extraordinary commercial activity, rather than the ordinary use of equipment in an ordinary way. Additionally, Network Rail argued that it could not have reasonably foreseen the problem, taking into account the distance between the signalling system and the studio, where the magnetic field was much weaker. Morris contended that they should have foreseen the nuisance as they had inherited a report from British Rail which detailed similar complaints from third parties who had musical rehearsal studios either in or near the affected area.

Allowing the appeal, the Court of Appeal found that the modern law of tort had discarded some established detailed rules and instead required a broad approach. To establish liability in nuisance, the test was not that of foreseeability alone, but of foreseeability as an aspect of reasonableness. The concept of abnormal sensitivity was thought outmoded and, whether Morris’s use of his studio was a sensitive use of premises was irrelevant. The correct test was whether it was foreseeable that specific damage would be caused to a specific claimant. However, even though the use of electronic equipment was a feature of modern-day life in the ordinary use and enjoyment of property, it was not reasonable to expect Network Rail to foresee the interference caused based on a report compiled several years prior to them taking over the maintenance of the rail track and which contained observations that were not specific enough to have reasonably expected them to have taken preventative action.40

(p. 561) Unlike negligence, 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. Nuisance is (at least in theory) supposed to be consequence-based—perhaps in this sense the concept of foreseeability is misplaced. In Fearn, Mann J appeared to agree, refusing to find that the concept of sensitivity had been overruled by Network Rail.

Counterpoint

Some elements of private nuisance do seem to have changed over time, making it appear closer to negligence in terms of the factors that may be considered. The question is always whether what the law considers to be an unreasonable use of land on the part of the defendant also amounts to them being ‘at fault’ for the way they use their land. In The Wagon Mound (No 2) [1967], which we considered in the chapter on breach in negligence (section 8.5), Lord Reid pointed out that while the level of fault may not be such as to amount to a breach of duty in negligence, some level of fault is almost always necessary in nuisance (at 639). But what did he mean by ‘fault’? As we will see, since Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] (discussed in Chapter 19), foreseeability in the Wagon Mound sense is now relevant in the land torts as well as in negligence. As Network Rail indicates, it has already become ‘dominant’ over some of the more traditional concerns in nuisance cases. An activity on land can be a nuisance only if it is reasonably foreseeable to the defendant that the activity might be a nuisance to someone else—so where does this leave fault?

Bad intention of the defendant

In assessing whether the defendant is a reasonable user of land, their motive may be taken into account. 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] Ch D

Christie was a music teacher who occasionally worked from home. Her children also played musical instruments. The claimant had lived in her home for three years with no problems with her neighbours until, on 30 September 1892, the defendant wrote to her saying:


During this week we have been much disturbed by what I at first thought were the howlings of your dog, and, knowing from experience that this sort of thing could not be helped, I put up with the annoyance. But, the noise recurring at a comparatively early hour this morning, I find I have been quite mistaken, and that it is the frantic effort of someone trying to sing with piano accompaniment, and during the day we are treated by way of variety to dreadful scrapings on a violin, with accompaniments. If the accompaniments are intended to drown the vocal shrieks or teased catgut vibrations, I can assure you it is a failure, for they do not. I am at last compelled to complain, for I cannot (p. 562) carry on my profession with this constant thump, thump, scrape, scrape, and shriek, shriek, constantly in my ears. It may be a pleasure or source of profit to you, but to me and mine it is a confounded nuisance and pecuniary loss, and, if allowed to continue, it must most seriously affect our health and comfort. We cannot use the back part of our house without feeling great inconvenience through this constant playing, sometimes up to midnight and even beyond. Allow me to remind you of one fact, which must most surely have escaped you—that these houses are only semi-detached, so that you yourself may see how annoying it must be to your unfortunate next-door neighbour. If it is not discontinued I shall be compelled to take very serious notice of it. It may be fine sport to you, but it is almost death to yours truly. (at 317–18)

Taking offence at the letter, the claimant did not reply. Instead of writing again, the defendant chose to create his own disturbances: banging on the wall, clattering metal trays together, whistling and shouting each time he heard music emanating from the claimant’s house. In response, the claimant sued in private nuisance—unsurprisingly the claim was met by a counterclaim from the defendant.

The claimant won an injunction against the defendant, but his counterclaim was not allowed. Giving judgment, North J commented that the defendant had acted ‘only for the purpose of annoyance’, adding ‘in my opinion, it was not a legitimate use of the defendant’s house’ (at 327).

It can be seen from this case that—with reference to the scales analogy—both claims may have been equally weighted until the defendant’s malicious motive was added to the equation. This firmly tipped the scales in favour of the claimant.41

Pause for reflection

What do you think would have happened if, instead of writing the letter, the defendant had sued the claimant in nuisance, alleging that the music was ‘to me and mine … a confounded nuisance and [causes] pecuniary loss, and, if allowed to continue, it must most seriously affect our health and comfort. We cannot use the back part of our house without feeling great inconvenience through this constant playing, sometimes up to midnight and even beyond’? Do you think the outcome of this case was correct? Would the decision have bettered the relationship between the neighbouring families?


For pointers on how to answer the questions posed in this ‘pause for reflection’ go to the online resources.

Having said that the defendant’s bad intention tipped the balance in favour of the claimant in Christie, it does not do so in all cases where malicious behaviour is exhibited. In Bradford Corporation v Pickles [1895], the defendant deliberately drained his land with the intention of decreasing the water supplied to his neighbour, in the hope that this would force the neighbour to buy his land. However, the House of Lords rejected the claim for an injunction, refusing to take the defendant’s alleged malice into account. (p. 563)

Counterpoint

Bradford is distinguishable from Christie in various ways. In Bradford, the claimant had no right to receive the water supply and therefore no right had been interfered with on which to base the alleged nuisance. As the case involved so-called ‘natural rights’ (water rights) and it was already well established that a land owner has the absolute right to do as he wishes with water filtering through his land even if his behaviour appears utterly unreasonable to others, the motive of the defendant was ‘irrelevant’. That said, a laissez-faire attitude prevailed when Bradford was decided and a lenient approach was taken to people who wanted to better themselves—in fact this was seen as largely commendable. Pickles had done no more than try to get a good deal on the sale of his land—his behaviour was not malicious, but sensible. Perhaps what has caused this case to be included in textbook sections on malice or bad motive is the fact that the case speaks of Mr Pickles as being an unpleasant character—possibly, whether this was true or not, the claimants wanted to portray him as such to make his behaviour look all the more malicious and encourage the court to follow Christie.

Malice was, however, present in Hollywood Silver Fox Farm Ltd v Emmett [1936]. Here, the defendant deliberately fired guns near his land’s boundary with the claimant’s fox farm, knowing this would distress the foxes and probably stop them breeding. An injunction was granted to stop him, even though the claimant’s use of the land for the specific purpose of breeding foxes could be said to be abnormally sensitive. Had noise been made by the defendant without malice (e.g. if noise was a natural consequence of his use of land), the claim would likely have failed.

Pause for reflection

Does taking malice into account, where relevant, seem to make private nuisance at least in part based on conduct? If the defendant’s conduct is to be taken into account, can it truly be said that nuisance is a consequence-based tort?

18.3.4 Defences to nuisance

A number of defences can be raised against actions in private nuisance. The general defences of contributory negligence and volenti non fit injuria (Chapter 10) may apply. Additionally, defences specific to nuisance claims (including public nuisance) exist. The most important of these are dealt with here,42 before we consider some things that are not valid defences. Many of these issues were also considered in Coventry.

(p. 564) 18.3.4.1 Statutory authority

If the defendant’s activities are authorised by statute or, more specifically, a statute provides that the defendant must use their land in a particular way, which then inevitably causes a nuisance to a neighbouring land user, the defendant has a total defence to nuisance claims (Manchester Corporation v Farnworth [1930]). So, although nuisance may be established on the facts, the claimant will have no remedy. In a sense, this illustrates the idea of separation of powers—courts cannot challenge or undermine what Parliament has determined the situation should/will be. Convention suggests that Parliament will have considered what best suits the area and its occupants, including the various conflicting uses of land. Statute may also authorise whether, when and how much compensation is to be paid to those affected by the defendant’s activities.

Statutory authority, then, is exactly that. The defendant has the authority, created by statute, to use their land in a particular way, with particular consequences. This must be distinguished from planning permission, which we discussed when looking at the nature of the locality in private nuisance claims (section 18.3.3.2). Similarly, environmental permits have been found neither to be equivalent to statutory authority nor to change the nature of a locality (Barr and others v Biffa Waste Services Ltd [2012]).

The effect of statutory authority is clearly illustrated in Allen v Gulf Oil Refining Ltd [1981]. The expansion of the Gulf Oil company in part of Wales was expressly authorised by the Gulf Oil Refinement Act 1965. The statute stipulated that an oil refinery should be built but was silent on the way it should operate once in use. In a test case, local residents claimed in nuisance, alleging that noise and vibrations emanating from the refinery caused them unreasonable levels of disturbance and asking that its operations cease. The House of Lords viewed the issue as hinging upon statutory interpretation and considered whether the nuisance was impliedly or expressly authorised by the statute. However, it also placed the burden of establishing this on the defendant, meaning that the test for the defence has a high threshold. A bare majority held that the refinery’s operations were implicitly authorised by statute, meaning that the nuisance caused by its operation was inevitable, raising a full defence to the claim.

Pause for reflection

It is interesting to note that the claimants in Allen would potentially have been successful in negligence, had the nuisance created exceeded that which was impliedly authorised by the statute. That said, in order to be able to sue in negligence, each claimant would have needed to establish a tangible harm on which to found their claim. What was the ‘harm’ here and could a claim in negligence be based on this?

While statutory authority remains an available defence to a nuisance claim, it must now be considered alongside the HRA. Section 3(1) of the HRA requires legislation to be interpreted compatibly with people’s fundamental rights under the ECHR. Clearly, in nuisance, the most apparent of these rights is that from Article 8(1) which guarantees respect for one’s private, home and family life. The inclusion of the word ‘home’ seems to suggest that nuisance-type claims suffered by ‘ordinary’ people may have a human (p. 565) rights dimension. In the context of statutory authority, this means that courts must be careful in the way they interpret statutes giving a defence to a claim in nuisance, particularly when ‘implying’ an authorisation rather than it being expressly written. It should also be remembered that Article 8(2) allows derogation from the right where this satisfies a legitimate aim, is in accordance with the law and is necessary in a democratic society. While this does not necessarily provide an escape clause for the creators of nuisance under statute, the fact that Parliament has authorised an activity suggests that individual claimants trying to rely on human rights arguments might face an uphill struggle.

Hatton v UK [2003] ECtHR

The claimant lived near Heathrow Airport. In 1993, a new system for controlling night flights was introduced, relying on a ‘noise quota’ as opposed to a restriction on the number of flights that could come into or out of the airport. Hatton and other nearby residents claimed that the pattern of night flights from the airport was an unreasonable use of land in that there was too much noise, which caused lack of sleep and other symptoms, in violation of their right to respect for private, home and family life under Article 8(1). Although the claimants could seek judicial review of the night flights operation, they argued that they had not received (and could not receive) an effective remedy for this violation, in breach of Article 13.43

The lower chamber of the ECtHR agreed that there was a violation of Article 8(1) and that any derogation from this under Article 8(2) had to be proven, rather than assumed. Modest damages of around £4,000 were awarded.44 However, on appeal by the UK Government, the Grand Chamber overturned the Article 8(1) finding, based on the exceptions permitted by Article 8(2). In particular, the Grand Chamber noted that night flights would reasonably contribute to the economic wellbeing of the country and that affected residents could easily move from the area if they wished.45 However, the Article 13 finding was upheld, so the claimants received the compensation: although the decision could be judicially reviewed, this could not provide the claimants with an effective remedy as the merits of their case could not be considered.

18.3.4.2 Twenty years’ prescription and coming to nuisance

An otherwise unreasonable user of land has a defence if they can show that they have been using their land in the way complained of for more than 20 years in which the claimant had been able to claim. The time starts from the point at which the claimant becomes aware of the nuisance-causing activity. (p. 566)

Sturges v Bridgman [1879] CA

The defendant had operated as a confectioner for more than 20 years in premises adjoining the garden of premises where a doctor practised. The confectioner used grinding equipment in the rear of his premises. The doctor built a consulting room in his garden and then found that noise and vibrations emanating from the confectioner’s work interfered with his work. He sued in nuisance for an injunction to prevent the grinding from continuing. The confectioner argued that this should not be granted on the grounds that (a) he had operated in the same way for such a long time and (b) the doctor, in building his consulting room where he did, had ‘come to the nuisance’.

The injunction was granted even though the confectioner had operated in the same way from those premises for more than 20 years—and the doctor knew this and had made no prior complaints. The time ran only from the point that this began to be a nuisance, and this was after the consulting room had been built by the doctor. The court also viewed ‘coming to the nuisance’ as an ineffective defence, so this could not be relied upon by the confectioner.

This decision seems somewhat harsh. The doctor, knowing who his neighbour was, had built his consulting room right by the site of the activity that would—perhaps inevitably—become a nuisance to him. However, it has long been the case that ‘coming to the nuisance’ is not a defence, and the defence of 20 years’ prescription did not apply as the claimant was able to argue that he only became aware of the nuisance once his surgery was extended.46 Put another way, nuisance law protects people even if their actions (e.g. moving closer to a boundary fence) result in those of their neighbour becoming a nuisance. This is increasingly an issue as cities and towns expand, as residential areas are built ever closer to things such as tanneries, sewage works and factories that were once on the outskirts. Despite the fact that it might be argued that people should choose carefully where they move to, or research an area more thoroughly, it is no defence for these industries to say they were there first.

Miller v Jackson [1977] is a classic example. The defendant cricket club had played on its ground for more than 70 years when adjacent land was sold to developers who subsequently built a housing estate there. The claimants bought one of the houses and claimed in nuisance alleging that cricket balls were frequently hit into their garden. The fence around the cricket ground had already been raised when the houses were built; a recognition of the fact that the club should do its best to prevent stray balls. A majority of the Court of Appeal (Lord Denning MR dissenting) reluctantly found the club’s activities actionable in nuisance. Sturges was affirmed as good law—the fact that the claimants had ‘come to the nuisance’ was not a defence. In so deciding, the majority prioritised the personal right of claimants freely to enjoy their land, even where this may have negative effects on established enterprises or community interests. However, had (p. 567) an injunction been awarded, it would effectively enable people who had chosen to move into the houses overlooking the cricket ground to stop it from being played. In Miller, a different majority (Lord Denning MR and Cumming-Bruce LJ) refused the claimants an injunction, awarding damages instead, on the ground that community interests outweighed the personal interests of the claimants.

Counterpoint

Miller, particularly Lord Denning’s judgment, warrants closer scrutiny, as it further illustrates the subjective nature of the tort of nuisance. While textbook accounts of nuisance deal with concepts and tests which seem to exist in and of themselves and assume some kind of rational form, Lord Denning’s judgment shows that, actually, a particular legal outcome is preferred which subsumes nuisance almost entirely within personal judicial preferences. Indeed, arguably the only significant constraint on judges is the linguistic one that they must justify their decisions using the language of these concepts, tests and standards, rather than by reference to the subjective preferences that in fact underlie them. It is judges, for example, who decide what kind of inconvenience claimants should have to tolerate. They do this by reference to what is required of the ordinary reasonable person (taking into account what they feel their expectations ought to be as a resident of the area in which they live—e.g. Bermondsey or Belgrave Square). This, particularly when allied with the locality rule, has operated as an excellent vehicle for judicial prejudices while at the same time disguising the essentially class-based nature of the exercise being carried out. The whole balancing exercise undertaken in the test of ‘reasonableness’ is a means by which judges can offer their intuitive sense of the justice of the case as a legal solution. Our fascination with learning ‘rules’, principles and concepts arguably, therefore, distracts us from what is really going on.

Conaghan & Mansell argue that textbook emphasis on the minority status of Lord Denning’s judgment in Miller downplays its subversive aspects (p 138). After all, if he failed to persuade the rest of the Court of Appeal, why should we look at his judgment? The important point is that Denning ‘felt free to deny liability’, to fail to find an actionable nuisance, taking into account the nature of the locality and the value of the defendant’s activity. As Conaghan & Mansell point out, however, ‘at the same time, to impose liability as the majority held, emphasising the degree of inconvenience experienced by the plaintiffs in the enjoyment of their property (including the threat of physical danger) was also neither inappropriate nor incorrect. Either outcome could be considered consistent with legal doctrine. The difference between the majority and minority on the question of liability is explicable largely in terms of the weight attributable to the social value of cricket’ (p 138, emphasis added).

They continue:


For Lord Denning cricket is a game, which in the summertime ‘is the delight of everyone’. It is a game where ‘the young men play and the old men watch’, a game which, in this instance, has gone on for 70 years on a green which until recently was adjoined by ‘a field where cattle grazed’. This field has now become a housing estate occupied by, among others, the plaintiff, ‘a newcomer who is no lover of cricket’. Lord Denning views the closure of the cricket club as a potentially disastrous calamity. The cricket ground (p. 568) might be replaced by ‘more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground’ (p 341). In this passage, Denning is appealing to a quaint and charming picture of English country life. He conjures up images of green fields, sleepy sunny afternoons, the quiet sounds of a cricket match on a summer’s day. His head is populated with old men, young men and grazing cattle. His characters are white, male and English. Threatening this bucolic vision of English men at play is a newcomer, the sort of person who lives on a housing estate, who does not appreciate the finer points of cricket, who might even be female and who brings in her wake the threat of social degeneration as young men are forced to abandon cricket and go to work in factories. (pp 138–9)

Lord Denning’s imagery is deliberate. Its purpose is to persuade the court that there was no nuisance (rather than merely refusing the injunction, as the majority held). However, his description of rural England borders on overstatement. As William Twining notes:


Lord Denning missed an important trick as an advocate. By innuendo (or confabulation) he suggests a romantic picture of rural life in the South of England—a nostalgic evocation of village cricket in Hampshire between the Wars, almost straight out of England Their England. But Lintz was a depressed mining village in the North of England, where cricket is a serious matter. Would not a picture of an impoverished community dependent on an activity that seriously engaged young males be a much stronger argument for saying that this was a reasonable use of land?47

Though public benefit or the ‘utility’ of the defendant’s activity was once a factor that had some bearing on whether that activity would be regarded as a nuisance, these days the utility value (e.g. the overall benefit to society) of the defendant’s use of their land is generally not taken into consideration (or not explicitly) when asking whether it is unreasonable.48 That said—except, perhaps, for Lord Denning—it was never a factor that carried heavy weight (see e.g. Adams v Ursell [1913]). However, utility is apparently still considered by courts when determining what remedy should be awarded to the claimant. Claimants seeking a cessation of nuisance-causing activities require an injunction. As we will see, courts have considerable discretion in deciding whether an injunction should be granted and, if so, to what extent the defendant’s activities should be prevented. Where the defendant’s activity has high social utility, an injunction is less likely to be awarded as the court may deem it appropriate that the activity should continue (see Dennis v Ministry of Defence [2003]).

(p. 569) 18.4 Remedies and the human rights dimension

Although it makes sense for us to consider remedies for private nuisance here, it is important to note that the remedies we detail can also be sought in relation to claims in public nuisance and under the rule in Rylands v Fletcher (Chapter 19).

There are two main remedies in nuisance: injunctions (which seek to prevent or stop a nuisance) and damages (compensation). In basic terms, the primary remedy for nuisance is an injunction. As we shall see, it is also possible for a claimant to recover under the HRA.

18.4.1 Injunctions

A claimant seeking an injunction is asking the court to prevent the part of the defendant’s activity that amounts to a nuisance, rather than to prevent the activity from continuing in its entirety (though sometimes the two may be indistinct). As an injunction is an equitable remedy it is discretionary. A court can therefore decide to award an injunction in whole or in part (e.g. injunctive relief might be temporary or partial—that is, it may operate for a specific period of time or may restrict particular activities at certain times of the day). As seen in Miller, courts are generally willing to award an injunction unless there are specific reasons that indicate damages would be more suitable (Shelfer v City of London Electric Lighting Co [1894]; Regan v Paul Properties Ltd [2006], Anslow v Norton Aluminium [2012]).49 It was confirmed in Coventry that the prima facie position is that an injunction should be granted, unless the defendant can convince the court why it should not be (at [121]).

In Shelfer, a pub landlord complained that vibrations and noise caused by the defendant were a nuisance and he was granted an injunction, even though doing so would inevitably deprive many people in the London area of electricity. Smith LJ laid down four conditions that a court must take into account when deciding whether to grant damages in lieu (in place of) of an injunction: whether the injury to the claimant is small, can be estimated in money terms and compensated by a small monetary payment, and whether the granting of an injunction would be oppressive for the defendant (at 322–3).

Whilst not saying that damages can never be awarded, the implication was that damages will (or should) be a ‘rare’ outcome. If a defendant has already been judged to be an unreasonable user of land, it hardly seems appropriate that the harm suffered by the claimant would be characterised as ‘small’ and ‘adequately compensated’ by money. It is the nature of the harm itself—particularly when claims are made in respect of amenity interest—that makes injunctions more appropriate. In Shelfer, the court was concerned to prevent defendants (who would often have more legal presence and strength than those who claimed against them) from ‘buying the right’ to commit nuisance by paying damages to those affected. Lord Neuberger reviewed the authorities in Coventry, concluding that each of the Shelfer criteria was in some way flawed and:

(p. 570)

(i) an almost mechanical application of A L Smith LJ’s four tests, and (ii) an approach which involves damages being awarded only in ‘very exceptional circumstances’, are each simply wrong in principle, and give rise to a serious risk of going wrong in practice. (at [119])

Instead he found that the decision whether or not to award damages in lieu of an injunction was a matter of discretion, which would depend on the facts of each case, and ‘should not … be fettered’ (at [120]).

As we have already discussed, the appropriateness of an injunction was examined by the Court of Appeal in Miller where the majority held that an injunction should not be granted, despite the cricket club’s activities being a nuisance. The decision to award damages in lieu was in part justified on the basis that village cricket was an activity that held much ‘public interest’. This issue was raised again in Kennaway.

Kennaway v Thompson [1981] CA

The claimant complained that noise caused by power-boat racing in a lake close to her home was a nuisance. The defendants contended that she had chosen to build her house near the lake in the knowledge that some racing took place, thus she should not be entitled to an injunction.

In the Court of Appeal, Lawton LJ was critical of the judgment in Miller, finding that the relevant authority was Shelfer, in light of which the claimant should be awarded an injunction despite the fact she may have been aware of the power-boat racing or any public interest that might be involved in allowing the activity to continue. Exercising its discretion, the court awarded only a partial injunction, requiring the racing organisers to adhere to a planned timetable of events.

Essentially, the partial injunction awarded in Kennaway was used to create a compromise between neighbouring users of land. As we have highlighted, being reasonable neighbours requires some give and take—in such a situation the claimant might be expected to have to put up with some noise; the Court of Appeal was simply establishing how much was reasonable.50

More recent case law—as well as the enactment of the HRA—seems to indicate that a different approach to remedies may be required if the activity complained of is carried out by a public authority in the public interest. In such cases, even when an activity amounts to a nuisance, it may be felt that the public interest in the continuation of the activity outweighs the claimant’s right to an injunction and that damages might be more appropriate.51 This idea is explored further later.

18.4.2 Abatement and damages

Abatement is a ‘self-help’ remedy where the claimant takes it upon themselves to do something to stop the nuisance continuing. Clearly, this is a risky strategy—by taking (p. 571) action in this way, one might become a trespasser. As such, it has limited application to most nuisances, though might apply in situations where the problem complained of is one of encroachment. That is where, for example, tree roots or branches from one property grow so that they encroach (intrude) into a neighbouring property. Often in such cases, instead of issuing nuisance proceedings, a potential claimant may avail themselves legitimately of the remedy, as long as they do no more than is necessary to abate the nuisance.52

Aside from where damages are awarded in lieu of an injunction, damages (perhaps as well as an injunction) may be considered appropriate in other nuisance claims. In Raymond v Young [2015], the claimants suffered multiple trespasses and persistent harassment and nuisance from their neighbours for nearly 40 years. The Court of Appeal found that it could be appropriate to award damages for the loss of value to a property, even where a full injunction had been granted. However, courts should not award damages for loss of amenity in addition to the damages for lost value, as that would constitute double recovery.

With the exception of trespass, the land torts become actionable only with proof of harm. Damages awards are subject to the foreseeability test set out in The Wagon Mound (No 1) [1961], namely that the liability can arise only for damage of a type that can be reasonably foreseen. As these are land torts, however, the question of if and when damages for personal injury should be awarded is a difficult and contentious one. Put simply, if the harm must be categorised as a harm to the land (or an interest in it), then how can personal injury fall into that category?

In public nuisance, as we shall see, it is possible to claim damages for personal injury. However, in private nuisance (and under the rule in Rylands v Fletcher), it is technically not possible to do so: the torts protect the claimant’s interest in land only. Therefore, damages for private nuisance are awarded only where the value of the land concerned (in sale or rent) has decreased, or for the effect a nuisance has on the claimant’s use and enjoyment of the land (their ‘amenity’ interest).53 Consequently, one effect of damages compensating injury to land and not the person is that the award will not increase even if many people are affected on the same piece of land (Hunter).

However, ‘personal injury’ (for which the appropriate claim would be in negligence), is not the same as ‘personal discomfort’. The latter is more properly regarded as part of a diminished enjoyment of the land in question (lost amenity), for which damages are recoverable. In Bone v Seale [1975], for example, the claimant recovered damages for the personal discomfort they suffered as a result of the unpleasant smell emanating from a neighbouring pig farm. While the monetary value of the claimant’s land could not be shown to have decreased, the damages reflected the claimant’s lost enjoyment of the land while affected by the smell (this has to be the case, otherwise smell could never be a nuisance). (p. 572)

Pause for reflection

Do you find this argument convincing? In claims of this type the law says that it is the land that suffers (because there are smells that come over it), not the claimant (who complains about the smell).54 If it was truly the land that suffers, it must follow that all neighbours would be equally affected. However, as people have different sensitivity to smells, not all would consider the same smell to be a nuisance—how can it be the land that is affected? Would the argument carry more or less weight if the people complaining were actually made physically sick by the smells? Would it be better simply to acknowledge that personal injury is recoverable in nuisance?

Because of the nature of the harm (to land), economic losses such as lost profits can be recovered only where they are a consequence of the claimant’s inability to use their land to make those profits. Put another way, economic loss consequential upon damage to a proprietary interest may be recoverable, but ‘pure’ economic loss is not. For example, in Andreae v Selfridge & Co Ltd [1938] a hotel owner received damages for lost profits when her hotel suffered a drop in custom while the defendants carried out construction work nearby. It is far easier to claim for damage to property. Damages for this type of harm are readily recoverable and their quantification is straightforwardly assessed according to normal principles. In Halsey v Esso Petroleum Co Ltd [1961], damages were even awarded for damage to clothes hung on a washing line in the claimant’s garden.

Pause for reflection

Does the fact that a claimant could recover damages for something as ‘unimportant’ as laundry seem surprising to you? Damage to any kind of property owned by the claimant is compensable—in practical terms this means that while a claimant would be unable to recover for their own broken leg, they would be able to recover damages for the broken leg of any animal on the land owned by them!55 Can this be a correct distinction?

That said, it seems that damage to property must be allowed, even though damages for personal injury remain unavailable. What would happen if a farmer complained that poisonous fumes which emanated from the defendant’s factory subsequently ruined not only his crops but also caused some of his cattle to die? If he could recover only for damage to his land then the farmer would be awarded only damages for his crops (which would be treated as part of the land in question). Yet both of these are simply alternative means of farming one’s land—so there would seem to be no reason why the law should protect one and not the other.56

(p. 573) 18.4.3 Under the Human Rights Act 1998

There have been tensions within the ECtHR about human rights claims based on environmental issues that result in nuisance. The ECtHR has held that forms of environmental pollution nuisances may fall within the scope of the right to respect for the home and private life provided for in Article 8(1).57 For example, in Powell and Rayner v UK [1990], a case about noise from Heathrow Airport, the ECtHR held that the rights of Mr Rayner, who owned land just over a mile away from a major runway, were clearly at stake because of the noise levels (although it ultimately found that running the airport was a modern economic necessity which justified the violation under Art 8(2)).58 In comparison, in López Ostra v Spain [1995], the claimant’s Article 8 rights were found to have been violated by exceptionally severe pollution coming from a factory 12 metres away from her home. This was the first time that what might be termed an ‘environmental’ case had succeeded.59

Marcic v Thames Water Utilities plc [2003] HL

Mr Marcic sued in private nuisance and for a violation of his Article 8 rights following frequent sewage floods at his home. The sewage flooded his garden and lapped at his back step but never entered his house. Thames, the sewerage undertaker, prioritised renovation work to combat internal flooding. The cause of the flooding was the overloading of the sewer network which, although originally adequate, by then had too many properties connected to it (under statute, new properties are given a right to discharge into the existing sewerage network). Marcic asked for damages and an injunction compelling Thames to make improvements.

The Court of Appeal relied on Powell and Rayner and S v France [1990]—a case about interference with property from a nearby nuclear plant—finding that if a ‘fair balance’ was to be struck between claimants whose rights have been breached and the public interest, then even though states have a margin of appreciation, they must still compensate those whose rights are necessarily breached. In S v France the Commission said that: ‘when a state is authorised to restrict rights or freedoms guaranteed by the Convention, the proportionality rule may well require it to ensure that these restrictions do not oblige the person concerned to bear an unreasonable burden’ (at 263). Thus, the Court of Appeal awarded Mr Marcic compensation.60

The House of Lords rejected the nuisance action, holding that Thames had not acted unreasonably. The law lords stressed the particular position that Thames was in; that is, it was a company which funded improvements to, inter alia, the sewerage network under a formula derived from legislation (Water Industry Act 1991) and operated by the economic regulator for (p. 574) the water industry (Ofwat). This was the downfall for the human rights claim: the law lords considered that Parliament had already provided statutory remedies (enforcement orders), which Ofwat could serve on sewerage companies where it felt that they should do more to protect the interests of their customers. So, the issue was whether this statutory scheme violated Mr Marcic’s human rights. The law lords held that it struck the right balance between the different interests involved (e.g. the interests of those affected by flooding and all customers who ultimately pay for systematic improvements through their bills). Lord Nicholls found that ‘the malfunctioning of the statutory scheme on this occasion does not cast doubt on its overall fairness’ (at [53]). Essentially, Marcic lost because he had not asked Ofwat to make an enforcement order and instead took a private law action in the courts. That is, he had not established that there was the type of ‘domestic irregularity’ that seems to be required post-Hatton. Had Marcic’s claim succeeded, it was estimated that the cost to Thames alone would have been in the region of £1 billion.

Pause for reflection

Lord Nicholls went on to say (echoing the Court of Appeal judgment) that ‘the minority who suffer damage and disturbance as a consequence of the inadequacy of the sewerage system ought not to be required to bear an unreasonable burden’ (at [45]), but did not expand on this. Lord Hope addressed this point, finding that by compensating those whose properties are flooded internally, offering a free clean-up service in the case of external flooding and bearing in mind Thames’s obligation to allow domestic connections and the funding formula, a fair balance was struck.

Do you think the decision in Marcic protects sewerage companies at the expense of customers? Because a scheme for making enforcement orders under the Water Industry Act 1991 exists, water and sewerage companies—who often operate at considerable profit—will rarely have to compensate those who, like Mr Marcic, suffer because of their inaction. A second issue here is the extent to which public law controls are actually used by public regulators, for example the enforcement orders, so relied on by the House of Lords in Marcic, had at the time never been used by Ofwat. Is a ‘fair balance’ between competing interests really being struck?

In Dobson v Thames Water Utilities Ltd [2008] a large number of claimants, some occupying properties as owners or lessees and some with no legal interests (including children), sued in respect of a sewage treatment works operated by Thames. They complained that odours and mosquitoes from the sewage works caused them a nuisance as a result of Thames’s negligence. Unlike in Marcic, Thames should therefore be liable for damages for nuisance, negligence and under the HRA (based upon alleged violations of Art 8 and Art 1 of Protocol 1 to the ECHR). Thames countered that complaints about odour or mosquitoes from the sewage works were about a failure of its duty to ‘effectually deal’ with the contents of sewers at the sewage works under section 94 of the Water Industry Act 1991 and/or a failure properly to treat waste water received and discharged (p. 575) by the sewage works in accordance with the Urban Waste Water Treatment (England and Wales) Regulations 1994. Further, as such failures were enforceable under section 18 of the 1991 Act by Ofwat, following Marcic, no common law remedy or remedy under the HRA arose towards individual claimants. Ruling on preliminary issues in the High Court, Ramsey J agreed that the Marcic principle would preclude a nuisance claim, absent negligence. However, where the allegation related to a nuisance caused by negligence, a claim would lie.61 He said:

Whilst the principle in Marcic precludes the claimants from bringing claims which require the court to embark on a process which is inconsistent and conflicts with the statutory process under the [1991 Act], it does not preclude the claimants from bringing a claim in nuisance involving allegations of negligence where, as a matter of fact and degree, the exercise of adjudicating on that cause of action is not inconsistent and does not involve conflicts with the statutory process. (at [148])

Similarly, a claim under the HRA would be allowed to proceed. Appealing the High Court’s decision, the ‘negligent nuisance’ finding was not disputed, but the appropriateness of the available remedies was.62

Two issues in particular were considered on appeal. First, had the child claimants in Dobson received ‘just satisfaction’?63 Ramsey J had concluded that they had, in the damages that were awarded to their parents for the nuisance to the household (at [209]). The Court of Appeal refused to say so as bluntly, instead preferring to be directed by comments from Hunter to the effect that the impact on all occupiers of the land in question may have been taken into account when assessing damages in nuisance. According to Waller LJ, the essential question was:

whether it is necessary to award damages to another member of the household or whether the remedy of a declaration that Article 8 rights have been infringed suffices, alongside the award to the landowner, especially where no pecuniary loss has been suffered. (at [45], original emphasis)

This issue would have to be readdressed at a new trial and accordingly Ramsey J’s decision was reversed on this point (at [46]). The second issue was similar: could those with proprietary interests, who had already received damages for nuisance, claim additional damages under the HRA (i.e. for their own personal damages rather than damage to the ‘land’)? Predictably, given their comments quoted earlier, the Court of Appeal found that this would be ‘highly improbable, if not inconceivable’ (at [50] and [52]). Unsurprisingly, therefore, in Dobson and others v Thames Water Utilities Ltd (No 2) [2011], Ramsey J found that no additional damages under the HRA were justified: damages already given for the nuisance constituted ‘sufficient just satisfaction’.

(p. 576) The HRA does not provide for a new tort of ‘breach of the Convention’ which one individual can rely on against another. But, as we have seen, when deciding cases involving human rights, courts must consider whether a claimant receives ‘just satisfaction’ for violations of those rights. If domestic law does not provide a sufficient remedy then additional remedies may become necessary. There is no reason, however, why these must be remedies in tort law.

Further, despite what we have said in relation to Miller, the role played by the social or public interest in an activity has become part of the consideration of the appropriate remedies for a proven nuisance.64 This overlaps with the impact of the HRA, as can be seen in Dennis.

Dennis v Ministry of Defence [2003] QBD

Dennis was the owner of a large estate near Stamford in Cambridgeshire, situated about two miles from RAF Wittering, a site owned by the Ministry of Defence (MOD) and used as an operational and training base for Harrier jump jets. Frequent noise (there were, on average, 70 occurrences each day) from the planes, which were often flown at low altitude, caused Dennis and his family disturbance. They argued that this caused diminution in the capital value of the property and that they had been unable to develop the commercial potential of the estate, consequently losing profit. Dennis sought an injunction and damages or damages in lieu amounting to £10 million.

The MOD accepted that flying the aircraft caused noise and disturbance to the claimant but not that it was an actionable nuisance. It countered the claim with a number of arguments, including that the use of RAF Wittering for training pilots was an ‘ordinary use’ of land in the modern era and that the training exercises were undertaken for the public benefit. Furthermore, the MOD contended that the claimants had ‘come to the nuisance’ and/or that it had gained a prescriptive right to use the land for training Harrier pilots; and that the claimants’ land was not capable of generating the commercial profit they had estimated.

The court refused to award an injunction and instead awarded Dennis damages of £950,000. This sum was meant to represent any loss of capital value, and reflect past and future loss of use and amenity in the land. Buckley J held that (a) the noise from the Harrier jets was highly intrusive, frightening, persistent and unpredictable and accordingly constituted a very serious interference with the claimant’s amenity interests; (b) the training of Harrier pilots could not be regarded as an ‘ordinary use’ of land even where the use was justifiable on other grounds. The level of noise and disturbance had increased considerably since the introduction of Harriers in 1969. The use was now so extreme that it could not be regarded as a feature of the area. In any event, even if such a use were to be considered ‘ordinary’, it had to be conducted in a manner which did not maximise the disturbance to the claimant. And (c) a public benefit might excuse (p. 577) an otherwise actionable nuisance provided no more damage was done than was reasonably necessary (following Marcic). A defence based upon public benefit should not, however, be allowed to succeed where a human rights claim (in this case Art 8(1) ECHR) would succeed.

In essence, Buckley J reached his decision by balancing the orthodox elements of nuisance with a rights-based approach. The ‘public benefit’ of training Harrier pilots was not considered when determining whether the training was a nuisance, but became relevant in determining the appropriate remedy. When public benefit was factored in, Buckley J awarded the claimant damages in lieu of an injunction.65 Therefore, the noise from the flights, which the court had agreed was a nuisance, was allowed to continue. The award of damages in effect allowed the RAF to ‘buy’ the right to continue the nuisance (exactly the position that the court in Shelfer said should be avoided). So, while ‘public benefit’ (as defined by the court) cannot prevent something being a nuisance, it can have a significant impact on the remedy awarded, even where human rights are affected.66

One further point to note regarding potential human rights claims in relation to nuisance is that Article 14 ECHR provides that other Convention rights must be enjoyed without discrimination. This might be thought to have the potential to affect the refusal of claims based on standing after Hunter (i.e. who has standing to sue and who does not). However, in Khatun v UK [1998], the European Commission on Human Rights found no violation of Article 14 because everyone in the locality was treated in the same way, meaning there was no discrimination. Put another way, the rich and poor of the London Docklands area were treated alike. That said, Article 14 may affect the locality rule, as judging the reasonableness of a polluting activity (alleged nuisance) differentially according to whether it interferes with a ‘run down’ or ‘high class’ location may well be discriminatory.67

(p. 578) 18.5 Public nuisance

Public nuisance is a crime, which, in some circumstances, where the harm is suffered by a section of the community or the community as a whole, may also lead to a civil action, including where the harm is personal injury.68 Although courts frequently draw comparisons between private and public nuisance they are in reality very different and each seeks to protect very different interests;69 we therefore do not discuss public nuisance in much detail here. Public nuisance is distinct from private nuisance in that its object is the recognition and protection of publicly held rights and not the protection of property interests. In this sense, claimants do not necessarily claim in respect of some harm done to their interest in land, but in respect of community-based activities.

An individual may claim in public nuisance only where they have 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.70 This is because the essential characteristic of public nuisance is the infringement of a public right, an interference with the interest of a community rather than an individual:

[A]ny nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. The sphere of the nuisance may be described generally as ‘the neighbourhood’; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary … to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected … (Romer LJ, Attorney General v PYA Quarries Ltd [1957] at 184)

In the same case, Denning LJ also did not say how many people must be affected in order for a nuisance to be public. Instead, he described a public nuisance as ‘a nuisance which 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 put a stop to it’ (at 191).

A commonly used example of a public nuisance is an obstruction of the highway, but it is more than this. As Conaghan & Mansell point out, it has also ‘been held to include quarry-blasting … an ill-organised pop festival, and engineering a hoax bomb scare’ (pp 127–8, but see R v Rimmington; R v Goldstein [2005]). In Corby Group Litigation v Corby District Council [2009], a local authority was liable in public nuisance for ‘causing, allowing or permitting the dispersal of dangerous or noxious (p. 579) contaminants’ from land reclamation sites, which had caused birth defects in many children born in the area.71

What constitutes a ‘class’ of Her Majesty’s subjects is a question of fact for the court. We know that it is not necessary to show that every member of that section of the community has been affected, as long as the nuisance can be shown to have affected a representative cross-section of that group of people.72 That said, it is not enough for an individual who wants to claim to show merely that they are a member of the affected group—they must show that they have suffered ‘special’ or ‘particular’ damage in excess of that suffered by the public at large. This can include personal injury (unlike private nuisance), property damage and loss of custom, profit or business. In Castle v St Augustine’s Links [1922], for example, a car driver on the road next to the defendant’s golf course was struck by a golf ball hit from the thirteenth tee. Evidence showed that balls from the golf course frequently went over the highway and the court ruled that the positioning of the thirteenth tee amounted to a public nuisance. The class of persons affected were highway users and among them the claimant had suffered special damage. In Tate & Lyle Industries Ltd v GLC [1983], parts of the riverbed of the Thames silted up because of ferry terminals erected by the defendants. Large vessels were unable to access a jetty and the claimants incurred expense in carrying out their own dredging operations. Their claim in public nuisance was successful because the building of the ferry terminals had interfered with the public right of navigation enjoyed by all users of the river and special damage had been suffered by the claimant (the cost of the dredging). In R v Rimmington; R v Goldstein, both cases concerning the sending of malicious items through the post, neither defendant was found guilty (these were criminal cases) of public nuisance. Rimmington sent 538 racially offensive items to people across the country. Goldstein had, as a joke, sent some salt through the post to a friend. When the envelope leaked in the sorting office, an anthrax scare ensued. Neither incident, however, affected what their lordships thought to be a ‘class’ of Her Majesty’s subjects in the required way, but only ‘individuals’ (Lord Rodger at [47]).

18.6 Conclusion

In this chapter we have started to look at the ‘land torts’. These are distinct, in particular from negligence, in that they are supposedly based on establishing liability without fault. Trespass to land involves the direct and intentional act (it must be the act that is deliberate, not necessarily the trespass) of entering land upon which you have no permission (express or implied) to be. It is actionable per se, in that no damage needs to have been caused—the (legal) harm is the trespass itself.

Private nuisance differs in that it governs the relationship only between neighbours, producing liability when one neighbour (in the literal sense) interferes with the rights of another to use and enjoy their land. As it is a tort to the land, not to the person who has (p. 580) rights over it, a proprietary interest in the land affected is required in order to be able to sue (Hunter). Essentially, the rules of nuisance require a certain amount of give and take between neighbours—the tort is committed only when one becomes an ‘unreasonable user’ of land. What makes someone an unreasonable land user is the central question—it has to do with the nature of the locality or neighbourhood, and, in respect of the act complained of, its intensity, frequency and duration. A factor that may prevent successful claims—even before defences are considered—is ‘sensitive’ use of the claimant’s land, though this now seems to be subsumed into the more familiar (from negligence) notion of foreseeability (Network Rail).

Public nuisance differs in its scope and application, not only because it is primarily a crime, but also because it seeks to recognise and protect publicly held rights rather than an individual’s property rights. That said, many things that are public nuisances could also be a private nuisance if an individual’s interest in land was affected.

What may impact most on nuisance law in the future is the development of rights-based claims, particularly with respect to Article 8(1) ECHR. Activities carried out in the ‘public interest’ (though potentially human rights violations) may, however, affect the available remedy. Whereas an injunction would often seem more appropriate, as it stops the nuisance continuing (or limits it), damages may be awarded in lieu where the defendant can show that what is a nuisance to one person (or even many) has a broader benefit for society.

End-of-chapter questions

After reading the chapter carefully, try answering the questions which follow.

  1. 1 What is the nature of the harm controlled by private nuisance?

  2. 2 In negligence, duty of care (and in some cases, the standard of care) is used as a means of restricting claims. Where are such limitations to be found in nuisance?

  3. 3 Do the land torts appropriately weigh the interests of the individual against those of wider society?

  4. 4 Do the land torts protect landowners’ interests too much, or not enough?


If you would like to know what we think visit the online resources (www.oup.com/uk/horsey6e/).

Answering the problem question

Consider again the problem question at the start of this chapter. Now having read about the topic, what would be your advice to the various parties?

Here are some pointers to get you started

  • Lekan, as the creator of all the problems, will be the defendant. The claimants are Sarah, Sandy, Jess and Ailsa.

  • Sarah is complaining that the smell of the seaweed is a nuisance as it makes her feel physically sick. The first question, however, would be whether she has ‘standing’ to sue (p. 581) (Hunter). If she has, though she cannot claim for physical harm, she may be able to claim that this affects her use and enjoyment of land, but whether she succeeds would depend on the factors to be weighed for and against her claim, including the nature of the locality (Coventry).

  • Sandy is claiming in respect of noise, which has a long history in nuisance claims. However, he is 14, meaning that it is unlikely he has standing.

  • Jess’s car has been hit. Is the claim best made in nuisance or trespass?

  • Has a harm been suffered by Ailsa?

If you need some more guidance

  • An annotated version of the problem with issues and cases to consider can be found in the Appendix.

  • A suggested outline answer to check your ideas against can be found in the online resources that accompany the book.

Further reading

A good place to start your reading is with Maria Lee’s 2003 article as it shows not only how the tort of private nuisance is not based on constant and clearly definable principles but also on value judgements. For a look at the interaction between public regulation (including planning permission) and private nuisance, Lee’s 2011 article is also worth reading. Steel’s analysis of the locality rule, after Coventry, is also helpful.

Campbell, David ‘Of Coase and Corn: A (Sort of) Defence of Private Nuisance’ (2000) 63 MLR 197Find this resource:

Lee, Maria ‘What is Private Nuisance?’ (2003) 119 LQR 298Find this resource:

Lee, Maria ‘Hunter v Canary Wharf Ltd (1997)’ in Charles Mitchell and Paul Mitchell (eds) Landmark Cases in the Law of Tort (Hart, 2010)Find this resource:

Lee, Maria ‘Tort Law and Regulation: Planning and Nuisance’ [2011] JPEL 986Find this resource:

Simpson, AW Brian ‘Victorian Judges and the Problem of Social Cost: Tipping v St Helen’s Smelting Company (1895)’ in Leading Cases in the Common Law (OUP, 1995)Find this resource:

Steel, Sandy ‘The Locality Principle in Private Nuisance’ [2017] CLJ 145Find this resource:

Wightman, John ‘Nuisance—The Environmental Tort? Hunter v Canary Wharf in the House of Lords’ (1998) 61 MLR 870Find this resource:

Notes:

1. Note, however, that various statutory nuisances also exist, which give wider public law protection of interests in land. Councils are obliged to investigate complaints about issues that might be a ‘statutory nuisance’ (nuisances covered by the Environmental Protection Act 1990) and, should they agree that this is happening, has happened or will happen in the future, must serve an abatement notice (which can lead to penalties if not adhered to). Examples include noise from premises, machinery or vehicles; insect infestations or smells arising from trade/industrial premises; accumulations of rubbish, etc. The web pages for the Department for Environment, Food & Rural Affairs contain further information.

2. If your actions were involuntary—e.g. you were pushed onto the land by someone else—you would not have trespassed. What is considered to be a ‘voluntary action’ is not always straightforward. Compare Smith v Stone [1647] with Gilbert v Stone [1647]: in Smith, a man who was carried onto the claimant’s land was held to have acted involuntarily, thus was not liable in trespass. In Gilbert, a man entered another’s premises under duress (he was being threatened)—this was still trespass as the act of entering the land had been deliberate and intentional, even if not ‘voluntary’.

3. In fact it seems that this trespass was deliberately crafted by the claimants, see section 1.3.4.

4. So might the overhanging branches that annoy Christine, in the earlier scenario, also be a trespass?

5. Consider the potential impact of recreational drones on this area of law and particularly how this area of law may interact with the development of the law on invasion of privacy.

6. The High Court had awarded Bocardo 9 per cent of the proceeds from the field since 2000 (£621,180 plus interest), and the same percentage of future income. Newspaper reports suggested the case was to be taken to the ECtHR (see e.g. Paul Cheston ‘Mohamed Al Fayed’s dream of becoming an oil baron is capped by court’ London Evening Standard 28 July 2010). Compare the government’s plan to prevent householders from suing in trespass in relation to shale gas and oil drilling under their land taking place without their permission (Damian Carrington ‘Queen’s speech: fracking to get boost from trespass law changes’ The Guardian 4 June 2014).

7. This has notable similarities with the duty owed under the Occupiers’ Liability Act 1957 to only those visitors that have been expressly invited or have been (or are treated as having been) given permission to enter or use the premises (s 1(2)) for a particular purpose: ‘When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters’ (Scrutton LJ, The Carlgarth [1927] at 110). See section 11.2.1.2.

8. As it is in a trespass to the person claim, see section 15.5.2.

9. In Dewey v White [1827] the necessity defence was allowed where firemen deliberately destroyed the claimant’s chimney to prevent the spread of fire to neighbouring properties.

10. Nothing much has changed. The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 (s 144) made it an offence to squat in a residential building. In relation to the defence of necessity, consider Daniel Gauntlett, who died in February 2013 having slept rough on a freezing cold night on the doorstep of a bungalow he had previously squatted. His inquest was asked to consider whether he ‘had died obeying the law’ and whether the government, in failing to put into place measures to protect the vulnerable when passing LASPO, s 144, had violated his Art 2 right to life. In December 2014, the coroner recorded a verdict of death by natural causes exacerbated by self-neglect. See also Layla Moran MP ‘Homeless people are vulnerable, not criminal. The law is 200 years out of date’ The Guardian 29 January 2019.

11. See section 6.5.3.

12. Though interesting issues arise in the context of protestors, in the sense that preventing protests may amount to a violation of the right to freedom of expression given by Art 10, or of private life under Art 8 ECHR. See Mayor of London v Hall [2010]; Manchester Ship Canal Developments v Persons Unknown [2014].

13. Pronounced ‘mean’.   

14. Conaghan & Mansell Ch 6.

15. FH Newark ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.

16. Conor Gearty ‘The Place of Private Nuisance in a Modern Law of Torts’ [1989] CLJ 214, 215. Maria Lee also argues that the ‘“boundaries” of private nuisance remain somewhat “blurred”’ (2003, p 298).

17. See Sturges v Bridgman, section 18.3.3.2. Also see, in a wholly different context, but making the same point, Dayna Nadine Scott ‘“Gender-Benders”: Sex and Law in the Constitution of Polluted Bodies’ (2009) 17 Feminist Legal Studies 241.

18. Percy H Winfield ‘Nuisance as a Tort’ [1931] CLJ 189, 190. Note, however, that he prefaced this with the comment that ‘nuisance’ is not a term capable of exact definition.

19. Laura, in the scenarios outlined previously, would seem only to have an action in private nuisance. Antony may have a trespass claim in respect of his neighbour’s leaves touching his fence—though only a claim in nuisance (subject to the principles outlined later) in respect of the leaves that blow over.

20. So it seems that Dev, in the scenarios outlined at the beginning of the chapter, will have a successful claim in nuisance, despite the argument that his use of land was ‘sensitive’—see section 18.3.3.3.

21. Though consider Laws v Florinplace [1981], where the movement of people in and out of a local sex shop/cinema was an actionable nuisance even though there was no ‘emanation’ as such, and now Fearn and others v The Board of Trustees of the Tate Gallery [2019], where the claim related to customers of the Tate Modern who went onto an outdoor viewing gallery and could see directly into neighbouring (glass-walled) apartments. Mann J found that non-emanation was not a complete bar to a claim and that being overlooked could be a nuisance in an appropriate case (at [174]).

22. See the recent case Fouladi v Darout Ltd and others [2018] in which the claimant was awarded over £100,000 for the ‘excessive’ noise coming from her neighbours in the flat above her (despite the fact the upstairs flat was used for normal family life), after renovations to the floor had made the noise more obvious.

23. Discussed in section 18.3.3.

24. More clarification was apparently needed in a second review by the Supreme Court: Coventry v Lawrence (No 2) [2014], which considered when and how the injunction’s terms could be varied. Still further issues were raised by that second hearing in relation to the 60 per cent costs to be paid by the defendants (about £640,000, comprised in part from a no-win-no-fee uplift as well as a before-the-event (BTE) insurance premium, see Chapter 21), as well as the fact that it had taken two private individuals about £400,000 to establish that the activities complained of were in fact a nuisance. The defendants claimed the costs scheme was a violation of their Art 6 right to a fair trial. This concerned the Supreme Court and a third hearing on that point was heard by a further seven-member panel (Coventry and others v Lawrence and another [2015]). A 5:2 majority found no violation (though the dissents (Lord Clarke and Lady Hale) were strongly worded and Lord Mance in the majority (and Lord Clarke in dissent) described the case as ‘awkward’ (at [97] and [108] respectively)).

25. In a claim under the Consumer Protection Act 1987 in relation to a defective product that has caused consequential property damage, e.g., a claimant must first establish that the value of that property damage exceeds £275 (see section 12.3.1). Further, strictly speaking, in negligence a claimant can sue only if they have suffered a recognisable harm (Rothwell v Chemical and Insulating Co Ltd [2007], Dryden and others v Johnson Matthey plc [2018]; cf Rees v Darlington Memorial Hospital NHS Trust [2002]).

26. Of course, should the same facts arise today the claimant should be able to rely on the Protection from Harassment Act 1997; see further section 15.6.2.

27. See also, on the question of what emanates (and from where), Hussain and another v Lancaster City Council [1999].

28. In reference to Newark (n 15).

29. Also see Dobson v Thames Water Utilities Ltd [2009], discussed in section 18.4.3.

30. Including adhering to terms of an environmental permit: Barr and others v Biffa Waste Services Ltd [2012].

31. A good—if long—example of this in practice can be seen in Stephen Anslow and others v Norton Aluminium Ltd [2012].

32. Note Peires v Bickerton’s Aerodromes Ltd [2016], which indicates courts will still more readily favour an injunction where that is the most appropriate remedy in the circumstances. As Peter Smith J acknowledged, there must be some give and take—he found that ‘the Claimant’s approach has been one of reasonable restraint; the Defendant’s approach regrettably has not been the same’ (at [120]).

33. As in Stephen Anslow and others v Norton Aluminium Ltd [2012].

34. A good example of the idea is found in Hirose Electrical UK Ltd v Peak Ingredients Ltd [2011]. An electrical manufacturer complained about strong odours including garlic and curry coming from neighbouring premises. The High Court found that such odours had to be tolerated on a light industrial estate. The claimant appealed, arguing that the area had been mischaracterised as a light industrial estate rather than a business park—which might have led to a different conclusion—but was unsuccessful.

35. See the article referred to in n 17.

36. Law and Society in England: 1750–1950 (Sweet & Maxwell, 1989), p 157.

37. Juliet is unlikely to be able to claim in private nuisance if the locality was already industrial when she moved there, even if the industrial operations have increased over time. However, as locality is only one factor to be taken into account, the outcome of her claim may depend on the intensity of the disturbance.

38. As noted by Cotton LJ at 94.

39. Barry, in the examples at the start of the chapter, may therefore have difficulty in taking his claim, unless he can show that the noise from the dance studio would also affect someone with a less delicate trade.

40. In relation to the beginning of chapter scenarios, would it be reasonably foreseeable to the owners of a dance studio that noise emanating from it could cause others nuisance?

41. So, Christine’s bad intention in holding frequent late-night garden parties as retaliation for overhanging branches may amount to a nuisance and allow her neighbour to make a claim against her!

42. There are others not considered here, such as ‘inevitable accident’, ‘act of God’ or an (unforeseeable) act of a stranger.

43. Under the Civil Aviation Act 1982, s 76, private law claims in the domestic courts had not been possible.

44. Though it should be noted that the cost of compensating everyone similarly affected was estimated at approximately £2 billion.

45. Similar justifications had been used in a previous case relating to noise from Heathrow (generally, rather than specifically night flights) in Powell and Rayner v UK [1990]. In Hatton, a strong dissenting judgment thought this approach was too conservative, and argued that Convention rights should be interpreted in a way that would expand protection against environmental pollution.

46. Similarly, in Coventry, the defendants had no prescriptive right to continue their activities—though they had been operating for 31 years by the time the claimants moved in, the nuisance only began at that point, as that was when the claimants became affected by it (at [142]–[143]). Lord Neuberger also confirmed that ‘coming to the nuisance’, as the claimants had, was no defence (at [51]).

47. William Twining Rethinking Evidence (CUP, 2006), pp 303–5.

48. Acknowledged by the Court of Appeal most recently in Barr and others v Biffa Waste Services Ltd [2012].

49. See also the Senior Courts Act 1981, s 50.

50. A similar exercise was undertaken in Watson v Croft Promosport Ltd [2009].

51. As in Hatton. Though cf Barr and others v Biffa Waste Services Ltd [2012].

52. Most recently confirmed in Delaware Mansions Ltd v Westminster City Council [2001]. In the scenarios outlined at the beginning of the chapter, Christine may have been able to trim back her neighbour’s branches, as long as she did so reasonably. This may have removed her perceived need for retaliation.

53. This was confirmed by the House of Lords in Hunter. Similarly, in Transco v Stockport Metropolitan Borough Council [2003], the House of Lords confirmed the same in relation to claims under Rylands v Fletcher.

54. See Paula Giliker and Silas Beckwith Tort (3rd edn, Sweet & Maxwell, 2008), p 340.

55. Newark (n 15), p 490.

56. Giliker and Beckwith (n 54) p 341.

57. The other main applicable right is Art 1 of Protocol 1, the right to peaceful enjoyment of possessions.

58. As was the case in Hatton, discussed earlier. See also Khatun v UK [1998].

59. Though it can be noted that part of the reason for her success was ‘domestic irregularity’ in the sense that Mrs López Ostra had clearly been let down by a culpable failure on the part of the Spanish regulatory authorities. Thus, it seems that in comparable cases, such ‘domestic irregularity’ will need to be shown in order for a claim to be successful.

60. Note that Dennis (discussed later) was decided after the Court of Appeal decision in Marcic but before the House of Lords’ decision.

61. It is notable that Ofwat intervened in Dobson, submitting that it was reasonable to assume that their lordships in Marcic intended to preserve scope for claims to be brought arising out of allegations of negligence in the physical operation of sewers or sewerage treatment works. In Marcic, Thames was not accused of having failed to operate its sewerage system properly. Ofwat also submitted that such allegations are unlikely to raise the issues of regulatory balancing and infrastructure investment which were the focus of the decision in Marcic (at [103]–[112]).

62. Dobson v Thames Water Utilities Ltd [2009].

63. HRA, s 8(3).

64. This was explicitly argued by the claimants in Watson v Croft Promosport Ltd, though the Court of Appeal found that only in ‘a marginal case where the damage to the claimant is minimal … consistent with the principles of Shelfer, the effect on the public of the grant of an injunction is properly to be taken into account’ (Richards LJ at [51]). Following Coventry, it now seems clear that this is not precisely the approach that should be taken.

65. Compare the recent similar case of Peires v Bickerton’s Aerodromes Ltd [2016] where there was no public interest element and—post-Coventry—a partial injunction was granted (with obiter judgment on what damages for diminution in value would amount to should the case be decided in that way in the event of an appeal).

66. In Dennis, Buckley J held that because the award of loss of amenity was based on loss of enjoyment of the estate which envisaged enjoyment by a family as opposed to one individual, it was not appropriate to award further sums to Mrs Dennis based on a violation of her human rights. In Dobson, Ramsey J said that this was ‘a finding which depended on the facts and was not a finding that, as a matter of law, an award of damages in nuisance would provide just satisfaction to all those in the same household’ (at [206]). Note how this contrasts with his opinion on child claimants.

67. That said, the justification tests still have to be applied, as does the judicially constructed test of ‘domestic irregularity’, and the circumstances where amenity damage will be so excessive as to be a human rights violation will undoubtedly be rare.

68. In Corby Group Litigation Claimants v Corby Borough Council [2008] the Court of Appeal confirmed that obiter comments in Hunter and Transco had not impliedly reversed this principle and that the essence of the right protected by the tort of public nuisance is the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life or health of the public.

69. Reaffirmed by the Court of Appeal in Corby Group Litigation v Corby District Council [2009].

70. For an interesting (if long) judgment on a claim made on behalf of nearly 16,000 claimants, which ultimately failed on the science, and the uncertainty caused by lack of evidence of actionable harms suffered caused by the alleged nuisance (a fire at a wood processing plant)—as well as some pointed comments about ‘claims farming’ practices—see Saunderson and others v Sonae Industria (UK) Ltd [2016].

71. Abandoning an appeal to the findings of public nuisance (and negligence in the clean-up operation), Corby Borough Council instead agreed to settle the claims with an undisclosed sum of money, while not admitting liability. See BBC News ‘Birth defect children in Northamptonshire agree pay-out’ 16 April 2010.

72. An example is East Dorset District Council v Eaglebeam Ltd [2006].