Nuisance in English law
Encyclopedia
Nuisance in English law is an area of tort law
broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his use or enjoyment of that land", and public nuisance
, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III
, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation; Conor Gearty
has written that "Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone". In addition, it has been claimed that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence", and that private and public nuisance "have little in common except the accident of sharing the same name".
The tort of nuisance has existed since the reign of Henry III
, with few changes, and most of them merely technical. It originally came from the Latin nocumentum, and then the French nuisance, with Henry de Bracton
initially defining the tort of nuisance as an infringement of easements. The tort was in line with the economic status quo of the time, protecting claimants against their neighbours' rights to develop land, and thus has been described as "rural, agricultural, and conservative". There were initially four remedies for nuisance; the assize of nuisance, similar to the assize of novel disseisin
, which was limited to situations where the defendant's actions interfered with the claimant's seisin
; the action guod permittat prosternere, where the land in question was alienated
; the writ of trespass; and the "action upon the case for nuisance", which became the main remedy. This was because it was far faster than the other writs and actions, and unlike them did not require that both parties be freeholders. It was, however, limited to damages
, and unlike the other remedies did not allow for abatement.
By the 17th century the judicial philosophy had changed to allow the protection of a claimant's enjoyment of their land, with the duty being on the party that caused the nuisance to prevent it: "as every man is bound to look to his cattle, as to keep them out of his neighbour's ground; so he must keep in the filth of his house of office, that it may not flow in upon and damnify his neighbour". During the 19th century and the Industrial Revolution
, the law of nuisance significantly changed; rather than the previous tests a standard of care was instead expected, and applied differently to individuals and companies. In reaching these decisions the courts "effectively emasculated the Law of Nuisance as a useful curb on industrial pollution". In St Helen's Smelting Co v Tipping, for example, several judges "were explicit in suggesting that they were affected by the adverse effect of a more draconian view on the economic welfare of the country's industrial cities". This contrasted with the previous view, which was that when liability was established for a case where the defendant's actions had interfered with the enjoyment of land, the defendant would be liable however trivial the interference.
The decisions reached during this period vary, however, mostly due to the differing judicial philosophies of the time. While A.V. Dicey maintained that the prevalent philosophy was one of laissez faire thanks to the influence of philosophers and economists such as Adam Smith
, Michael W. Flinn
asserted that:
, where George Wilshere, 1st Baron Bramwell
defined it as "any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land". Private nuisance, unlike public nuisance, is only a tort, and damages for personal injuries are not recoverable. Only those who have a legal interest in the affected land can sue; an exception was made in Khorasandjian v Bush, where the Court of Appeal
held that a woman living in her mothers house was entitled to an injunction to prevent telephone harassment despite having no legal interest in the property. In Hunter v Canary Wharf Ltd
, however, the House of Lords
rejected this development, arguing that to remove the need for an interest in the affected property would transform the tort of nuisance from a tort to land into a tort to the person. The liable party under private nuisance is the creator, even if he is no longer in occupation of the land or created a nuisance on somebody else's land. In Sedleigh-Denfield v O'Callaghan, it was held that the defendant was liable for a nuisance (a set of water pipes) even though he had not created it, because he had used the pipes and thereby "adopted" the nuisance.
There is a general rule that a landlord who leases a property is not liable for nuisances created after the occupier takes control of the land. There is an exception where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty, or where the nuisance is caused by their failure to repair the premises, as in Wringe v Cohen. The landlord is also liable were the nuisance existed before the land was let, and he knew or ought to have known about it. Under the principle of vicarious liability, an occupier of land can also be liable for the actions of their employees; in Matania v National Provincial Bank, it was also established that they could be liable for the activities of independent contractors under certain circumstances.
For there to be a claim in private nuisance, the claimant must show that the defendant's actions caused damage. This can be physical damage, as in St Helen's Smelting Co v Tipping, or discomfort and inconvenience. The test for remoteness of damage in nuisance is reasonable forseeability, as established in Cambridge Water Co Ltd v Eastern Counties Leather plc
; if the defendant was using their land unreasonably and causing a nuisance, the defendant is liable even if they used reasonable care to avoid creating a nuisance. The test is whether or not the nuisance was reasonably foreseeable; if it was, the defendant is expected to avoid it.
The claimant must first show that the defendant's actions have caused an interference with their use or enjoyment of the land. These interferences are indirect, and almost always the result of continuing events rather than a one-off incident. This interference may be a physical invasion of the land, such as in Davey v Harrow Corporation, noise, as in Christie v Davey, or smells, such as in Wheeler v J J Saunders. The courts have allowed cases where the interference causes emotional distress, as in Thompson-Schwab v Costaki, but have been loath to protect recreational facilities or "things of delight"; things such as the blocking of a pleasant view or a television signal are not considered a nuisance. The latter was discussed in Hunter v Canary Wharf Ltd
, where the claimants argued that the blocking of their television signal by the construction of the Canary Wharf Tower was a nuisance. The House of Lords rejected this argument. There are rights to land known as servitudes, such as the right to light through windows or the right of support. An occupier can also be liable for an interference that is naturally arising, assuming they are aware of the interference's existence and fail to take reasonable precautions, as in Leakey v National Trust, which established that in such situations "the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances". This principle was extended in Holbeck Hall Hotel v Scarborough Borough Council, where the Court of Appeal said that if a landowner knows or ought to know that their property may cease to support another's, they are required to take reasonable precautions or they will be liable.
, it was established that if the action of the defendant would not have caused damage were it not for this abnormal sensitivity, the defendant is not liable. However if the damage was caused to abnormally sensitive property but would also have damaged non-sensitive property, the defendant is liable, as in McKinnon Industries v Walker. This was because it infringed on the "right to ordinary enjoyment"; as a result, the claimant could claim for his more sensitive activities as well.
The locality where the interference occurred also has an impact on whether or not it was unreasonable; in Sturges v Bridgman
, Thesiger LJ wrote that "what would be a nuisance in Belgrave Square [a residential area] would not necessarily be so in Bermondsey [a smelly industrial area]". If an activity is out of place with the locality, it is likely to be held as unreasonable. However, the nature of areas can change over time; in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
, it was held that the granting of planning permission to develop a commercial dock in an area changed that area's character, preventing the local residence from claiming in private nuisance for the disturbance the dock created. The granting of planning permission does not constitute immunity from a claim in nuisance, however; in Wheeler v Saunders Ltd
. the Court of Appeal said that it would be "a misuse of language to describe what has happened in the present case as a change in the character of the neighbourhood. It is a change of use of a very small piece of land... it is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail". In situations where the defendant's activities cause physical damage, as in St Helen's Smelting Co v Tipping, the locality of the activities is not a factor in deciding their unreasonableness.
The time and duration of the activity is also taken into account when determining unreasonableness. Activities may be reasonable at one time but not at another; in Halsey v Esso Petroleum, filling oil tankers at 10am was held to be reasonable, but the same activity undertaken at 10pm was unreasonable. A private nuisance is normally a "continuing state of affairs", not a one-off situation; there are exceptions, such as in De Keyser's Royal Hotel v Spicer, where piledriving at night was considered a nuisance. In such situations, the normal remedy is to grant an injunction limiting the time of the activity. Another exception was found in British Celanese v AH Hunt Ltd, where an electronics company stored foil strips on their property which blew onto adjoining land, causing the power supply to a nearby yarn manufacturers to cut off. A similar incident had occurred 3 years earlier and the defendants had been warned to store their strips properly; it was held that even though the power cut was a one-off event, the method of storing the foil strips constituted a continuing state of affairs, and the defendants were liable.
, such as that of Lord Wright
in Sedleigh-Denfield v O'Callaghan, seem to indicate that private nuisance is only valid in situations where there are two occupiers of land. Despite this, definitions of private nuisance fail to include any reference. Academics also assert that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence". Conor Gearty
supports the assertion that private nuisance is confused, and also claims that private nuisance is significantly different from public nuisance; "they have little in common except the accident of sharing the same name... Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone".
as any act or omission "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects". Because of the wide definition given, there are a large range of issues which can be dealt with through public nuisance, including picketing on a road, as in Thomas v NUM, blocking a canal, as in Rose v Miles, or disrupting traffic by queuing in a road, as in Lyons v Gulliver. A significant difference between private and public nuisance is that under public, one can claim for personal injuries as well as damage to property. Another difference is that public nuisance is primarily a crime; it only becomes a tort if the claimant can prove that they suffered "special damage" over and above the effects on the other affected people in the "class". The test for the required size of a "class" was also discussed in Attorney-General v PYA Quarries Ltd, with the court concluding that the test was whether the nuisance was "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, but that it should be taken on the responsibility of the community at large".
Because public nuisance is primarily a criminal matter, and affects a "class" of people rather than an individual, claims are normally brought by the Attorney General for England and Wales
as a "relator", representing the affected people. Other members of the affected class are allowed to sue individually, but only if they have suffered "special damage". The potential defendants in public nuisance claims are the same as those in private nuisance, with their liability dependant on a test of reasonableness; in public nuisance, however, this is determined by looking solely at the interference, not the defendant's actions.
, the claimant, a doctor, lived next to a "confectionery business". Vibrations and noises coming from this business continued for over 20 years without causing the doctor nuisance, and the doctor only complained after building a consulting room in his garden. It was held that the actual nuisance only started when the consulting room was built and the activity began to affect the doctor, not when the activity started. A second defence is statutory authority, when an activity is authorised by a piece of legislation; this applies to both public and private nuisance. This applies even when the activity is carried out not directly in line with the statute, but intra vires. In Allen v Gulf Oil Refining Ltd, the defendant was authorised to build an oil refinery by an Act of Parliament. The Act gave no express authority to operate it, and after it came into operation the claimant argued that it caused a nuisance through the smell and noise. The House of Lords
held that it had statutory authority to operate the refinery, saying "Parliament can hardly be supposed to have intended the refinery to be nothing more than a visual adornment to the landscape in an area of natural beauty".
s are the main remedy, and consist of an order to stop the activity causing the nuisance. They may be "perpetual", completely forbidding the activity, or "partial", for example limiting when the activity can take place. Damages
are a monetary sum paid by the defendant for the claimant's loss of enjoyment or any physical damage suffered; they may be paid for things as varied as loss of sleep or any loss of comfort caused by noise or smells. Abatement is a remedy that allows the claimant to directly end the nuisance, such as trimming back a protruding hedge. If the abatement requires the claimant stepping onto the defendant's land, he must give notice or risk becoming a trespasser
.
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his use or enjoyment of that land", and public nuisance
Public nuisance
In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...
, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation; Conor Gearty
Conor Gearty
Conor A. Gearty is the Rausling Professor of Human Rights Law and Director, Centre for the Study of Human Rights at the London School of Economics.-Background:...
has written that "Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone". In addition, it has been claimed that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence", and that private and public nuisance "have little in common except the accident of sharing the same name".
History
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
, with few changes, and most of them merely technical. It originally came from the Latin nocumentum, and then the French nuisance, with Henry de Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
initially defining the tort of nuisance as an infringement of easements. The tort was in line with the economic status quo of the time, protecting claimants against their neighbours' rights to develop land, and thus has been described as "rural, agricultural, and conservative". There were initially four remedies for nuisance; the assize of nuisance, similar to the assize of novel disseisin
Assize of novel disseisin
In English law, the Assize of novel disseisin was an action to recover lands of which the plaintiff had been disseised, or dispossessed. The action became extremely popular due to its expediency...
, which was limited to situations where the defendant's actions interfered with the claimant's seisin
Seisin
Seisin is the term denoting the legal possession of a feudal fiefdom . It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era...
; the action guod permittat prosternere, where the land in question was alienated
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
; the writ of trespass; and the "action upon the case for nuisance", which became the main remedy. This was because it was far faster than the other writs and actions, and unlike them did not require that both parties be freeholders. It was, however, limited to damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, and unlike the other remedies did not allow for abatement.
By the 17th century the judicial philosophy had changed to allow the protection of a claimant's enjoyment of their land, with the duty being on the party that caused the nuisance to prevent it: "as every man is bound to look to his cattle, as to keep them out of his neighbour's ground; so he must keep in the filth of his house of office, that it may not flow in upon and damnify his neighbour". During the 19th century and the Industrial Revolution
Industrial Revolution
The Industrial Revolution was a period from the 18th to the 19th century where major changes in agriculture, manufacturing, mining, transportation, and technology had a profound effect on the social, economic and cultural conditions of the times...
, the law of nuisance significantly changed; rather than the previous tests a standard of care was instead expected, and applied differently to individuals and companies. In reaching these decisions the courts "effectively emasculated the Law of Nuisance as a useful curb on industrial pollution". In St Helen's Smelting Co v Tipping, for example, several judges "were explicit in suggesting that they were affected by the adverse effect of a more draconian view on the economic welfare of the country's industrial cities". This contrasted with the previous view, which was that when liability was established for a case where the defendant's actions had interfered with the enjoyment of land, the defendant would be liable however trivial the interference.
The decisions reached during this period vary, however, mostly due to the differing judicial philosophies of the time. While A.V. Dicey maintained that the prevalent philosophy was one of laissez faire thanks to the influence of philosophers and economists such as Adam Smith
Adam Smith
Adam Smith was a Scottish social philosopher and a pioneer of political economy. One of the key figures of the Scottish Enlightenment, Smith is the author of The Theory of Moral Sentiments and An Inquiry into the Nature and Causes of the Wealth of Nations...
, Michael W. Flinn
Michael Flinn
Michael W. Flinn was a British economic historian. Born into a middle-class family in 1917, he was educated at William Hulme's Grammar School in Manchester, serving as an officer in the Royal Artillery during the Second World War...
asserted that:
Another common error... has been the assumption that the classical economists were the only effective influence on social and economic policy in the early and mid-nineteenth century. This is a curiously perverse view, since it ignores powerful voices like those of Bentham, Chadwick, the social novelists, many by no means inarticulate members of the medical profession, the humanitarians, the Christian Socialists and most sections of the many working class movements. There was in short, nothing approaching a consensus of opinion concerning laissez-faire and state intervention, even in the very narrow social sector represented by governments, Parliament, and the press. In practice the ears of ministers were assaulted by a confused babble of voices rather than bewitched by the soft whisper of a single plea for inaction.
Private nuisance
Private nuisance was defined in Bamford v TurnleyBamford v Turnley
Bamford v Turnley 3 B & S 62; 122 ER 25, is an important English tort law case, concerning nuisance and what it means to be a reasonable user of land.-Facts:...
, where George Wilshere, 1st Baron Bramwell
George Wilshere, 1st Baron Bramwell
George William Wilshere Bramwell, 1st Baron Bramwell , was an English judge.-Early years:Bramwell was born in London, the eldest son of George Bramwell, of the banking firm of Dorrien, Magens, Dorrien & Mello. He was educated privately, and at the age of sixteen he entered Dorrien's bank...
defined it as "any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land". Private nuisance, unlike public nuisance, is only a tort, and damages for personal injuries are not recoverable. Only those who have a legal interest in the affected land can sue; an exception was made in Khorasandjian v Bush, where the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that a woman living in her mothers house was entitled to an injunction to prevent telephone harassment despite having no legal interest in the property. In Hunter v Canary Wharf Ltd
Hunter v Canary Wharf Ltd
Hunter v Canary Wharf Ltd [1997] is an English tort law case on the subject of private nuisance. Several hundred claimants alleged that Canary Wharf Ltd, in constructing Canary Wharf Tower, had caused nuisance to them by impairing their television signal...
, however, the House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
rejected this development, arguing that to remove the need for an interest in the affected property would transform the tort of nuisance from a tort to land into a tort to the person. The liable party under private nuisance is the creator, even if he is no longer in occupation of the land or created a nuisance on somebody else's land. In Sedleigh-Denfield v O'Callaghan, it was held that the defendant was liable for a nuisance (a set of water pipes) even though he had not created it, because he had used the pipes and thereby "adopted" the nuisance.
There is a general rule that a landlord who leases a property is not liable for nuisances created after the occupier takes control of the land. There is an exception where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty, or where the nuisance is caused by their failure to repair the premises, as in Wringe v Cohen. The landlord is also liable were the nuisance existed before the land was let, and he knew or ought to have known about it. Under the principle of vicarious liability, an occupier of land can also be liable for the actions of their employees; in Matania v National Provincial Bank, it was also established that they could be liable for the activities of independent contractors under certain circumstances.
For there to be a claim in private nuisance, the claimant must show that the defendant's actions caused damage. This can be physical damage, as in St Helen's Smelting Co v Tipping, or discomfort and inconvenience. The test for remoteness of damage in nuisance is reasonable forseeability, as established in Cambridge Water Co Ltd v Eastern Counties Leather plc
Cambridge Water Co Ltd v Eastern Counties Leather plc
Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53 is a case in English tort law that established the principle that claims under nuisance and Rylands v Fletcher must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance...
; if the defendant was using their land unreasonably and causing a nuisance, the defendant is liable even if they used reasonable care to avoid creating a nuisance. The test is whether or not the nuisance was reasonably foreseeable; if it was, the defendant is expected to avoid it.
Interference
Hunter v Canary Wharf Ltd
Hunter v Canary Wharf Ltd [1997] is an English tort law case on the subject of private nuisance. Several hundred claimants alleged that Canary Wharf Ltd, in constructing Canary Wharf Tower, had caused nuisance to them by impairing their television signal...
, where the claimants argued that the blocking of their television signal by the construction of the Canary Wharf Tower was a nuisance. The House of Lords rejected this argument. There are rights to land known as servitudes, such as the right to light through windows or the right of support. An occupier can also be liable for an interference that is naturally arising, assuming they are aware of the interference's existence and fail to take reasonable precautions, as in Leakey v National Trust, which established that in such situations "the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances". This principle was extended in Holbeck Hall Hotel v Scarborough Borough Council, where the Court of Appeal said that if a landowner knows or ought to know that their property may cease to support another's, they are required to take reasonable precautions or they will be liable.
Unreasonableness
While there is no set definition of what is or is not unreasonable, factors that are taken into account include any "abnormal sensitivity" of the claimant, the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant. "abnormal sensitivity" is where the claimant's damaged property is particularly sensitive to damage by the defendant's actions. In Robinson v KilvertRobinson v Kilvert
Robinson v Kilvert LR 41 ChD 88 is an English tort law case concerning nuisance. It deals with what is sometimes called the issue of a "sensitive claimant".-Facts:...
, it was established that if the action of the defendant would not have caused damage were it not for this abnormal sensitivity, the defendant is not liable. However if the damage was caused to abnormally sensitive property but would also have damaged non-sensitive property, the defendant is liable, as in McKinnon Industries v Walker. This was because it infringed on the "right to ordinary enjoyment"; as a result, the claimant could claim for his more sensitive activities as well.
The locality where the interference occurred also has an impact on whether or not it was unreasonable; in Sturges v Bridgman
Sturges v Bridgman
Sturges v Bridgman LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality...
, Thesiger LJ wrote that "what would be a nuisance in Belgrave Square [a residential area] would not necessarily be so in Bermondsey [a smelly industrial area]". If an activity is out of place with the locality, it is likely to be held as unreasonable. However, the nature of areas can change over time; in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
Gillingham Borough Council v Medway Dock Co Ltd [1993] QB 343 is a case in English tort law covering nuisance. The council granted planning permission to Medway Dock Co Ltd to redevelop the Chatham Dockyard as a commercial port, noting that this would have some impact on local residents but...
, it was held that the granting of planning permission to develop a commercial dock in an area changed that area's character, preventing the local residence from claiming in private nuisance for the disturbance the dock created. The granting of planning permission does not constitute immunity from a claim in nuisance, however; in Wheeler v Saunders Ltd
Wheeler v Saunders Ltd
Wheeler v Saunders Ltd [1994] EWCA Civ 32 is an English Court of Appeal case on nuisance which amended the precedent set by Gillingham Borough Council v Medway Dock Co Ltd. Wheeler was a veterinary surgeon who owned Kingdown Farm House; the wider farm was owned by J.J. Saunders Ltd, who used it...
. the Court of Appeal said that it would be "a misuse of language to describe what has happened in the present case as a change in the character of the neighbourhood. It is a change of use of a very small piece of land... it is not a strategic planning decision affected by considerations of public interest. Unless one is prepared to accept that any planning decision authorises any nuisance which must inevitably come from it, the argument that the nuisance was authorised by planning permission in this case must fail". In situations where the defendant's activities cause physical damage, as in St Helen's Smelting Co v Tipping, the locality of the activities is not a factor in deciding their unreasonableness.
The time and duration of the activity is also taken into account when determining unreasonableness. Activities may be reasonable at one time but not at another; in Halsey v Esso Petroleum, filling oil tankers at 10am was held to be reasonable, but the same activity undertaken at 10pm was unreasonable. A private nuisance is normally a "continuing state of affairs", not a one-off situation; there are exceptions, such as in De Keyser's Royal Hotel v Spicer, where piledriving at night was considered a nuisance. In such situations, the normal remedy is to grant an injunction limiting the time of the activity. Another exception was found in British Celanese v AH Hunt Ltd, where an electronics company stored foil strips on their property which blew onto adjoining land, causing the power supply to a nearby yarn manufacturers to cut off. A similar incident had occurred 3 years earlier and the defendants had been warned to store their strips properly; it was held that even though the power cut was a one-off event, the method of storing the foil strips constituted a continuing state of affairs, and the defendants were liable.
Conduct of the defendant
In some circumstances, the conduct of the defendant can be a factor in determining the unreasonableness of their interference. In this situation the motives of the defendant and the reasonableness of their conduct are the factors used to determine the unreasonableness of their actions. This is one of the few exceptions to the rule that malice is not relevant in tort law. In Christie v Davey, the defendant was deliberately creating a noise to frustrate the claimants; based on this, it was held that their actions were malicious, unreasonable, and amounted to a nuisance.Issues with private nuisance
The idea of private nuisance has been criticised by academics for at least 50 years. Criticism centres on the free rein given to the judiciary and the lack of concrete definitions for legal principles; the idea of "reasonableness", for example, is frequently bandied about, but "rarely examined in detail, and it would be a brave person who would attempt to draw out a definition". While a definition for private nuisance is easy to find, the regularly accepted one does not consider that most private nuisance cases involve two occupiers of land; the "nuisance" has moved from the defendant's land to the claimant's land. Some judicial ratio decidendiRatio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
, such as that of Lord Wright
Robert Wright, Baron Wright
Robert Alderson Wright, Baron Wright, GCMG, PC was a British judge.On 11 April 1932, he was appointed Lord of Appeal in Ordinary and was created additionally a life peer with the title Baron Wright, of Durley in the County of Wiltshire, however resgined as Lord of Appeal already in 1935...
in Sedleigh-Denfield v O'Callaghan, seem to indicate that private nuisance is only valid in situations where there are two occupiers of land. Despite this, definitions of private nuisance fail to include any reference. Academics also assert that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence". Conor Gearty
Conor Gearty
Conor A. Gearty is the Rausling Professor of Human Rights Law and Director, Centre for the Study of Human Rights at the London School of Economics.-Background:...
supports the assertion that private nuisance is confused, and also claims that private nuisance is significantly different from public nuisance; "they have little in common except the accident of sharing the same name... Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone".
Public nuisance
Public nuisance concerns protecting the public, unlike private nuisance, which protects an individual. As such it is not only a tort but also a crime. In Attorney-General v PYA Quarries Ltd, it was defined by Romer LJMark Romer, Baron Romer
Mark Lemon Romer, Baron Romer PC was a British judge.Invested to the Privy Council in 1929, he was Lord Justice of Appeal from 1929 to 1938...
as any act or omission "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects". Because of the wide definition given, there are a large range of issues which can be dealt with through public nuisance, including picketing on a road, as in Thomas v NUM, blocking a canal, as in Rose v Miles, or disrupting traffic by queuing in a road, as in Lyons v Gulliver. A significant difference between private and public nuisance is that under public, one can claim for personal injuries as well as damage to property. Another difference is that public nuisance is primarily a crime; it only becomes a tort if the claimant can prove that they suffered "special damage" over and above the effects on the other affected people in the "class". The test for the required size of a "class" was also discussed in Attorney-General v PYA Quarries Ltd, with the court concluding that the test was whether the nuisance was "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, but that it should be taken on the responsibility of the community at large".
Because public nuisance is primarily a criminal matter, and affects a "class" of people rather than an individual, claims are normally brought by the Attorney General for England and Wales
Attorney General for England and Wales
Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...
as a "relator", representing the affected people. Other members of the affected class are allowed to sue individually, but only if they have suffered "special damage". The potential defendants in public nuisance claims are the same as those in private nuisance, with their liability dependant on a test of reasonableness; in public nuisance, however, this is determined by looking solely at the interference, not the defendant's actions.
Defences
There are several defences to nuisance claims; in Nichols v Marsland, for example, "Act of God" was accepted as a defence. One defence is that of "20 years prescription", which is valid for private nuisance but not public. If a private nuisance continues for 20 years, it becomes legal by prescription, assuming the defendant can show that it has been continuous and the claimant has been aware of it. A limitation is that the 20 years is from when the activity became a nuisance, not from when the activity started. In Sturges v BridgmanSturges v Bridgman
Sturges v Bridgman LR 11 Ch D 852 is a landmark case in nuisance. It decides that what constitutes reasonable use of one's property depends on the character of the locality...
, the claimant, a doctor, lived next to a "confectionery business". Vibrations and noises coming from this business continued for over 20 years without causing the doctor nuisance, and the doctor only complained after building a consulting room in his garden. It was held that the actual nuisance only started when the consulting room was built and the activity began to affect the doctor, not when the activity started. A second defence is statutory authority, when an activity is authorised by a piece of legislation; this applies to both public and private nuisance. This applies even when the activity is carried out not directly in line with the statute, but intra vires. In Allen v Gulf Oil Refining Ltd, the defendant was authorised to build an oil refinery by an Act of Parliament. The Act gave no express authority to operate it, and after it came into operation the claimant argued that it caused a nuisance through the smell and noise. The House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
held that it had statutory authority to operate the refinery, saying "Parliament can hardly be supposed to have intended the refinery to be nothing more than a visual adornment to the landscape in an area of natural beauty".
Remedies
There are three possible remedies where a claimant is found to have committed a nuisance; injunctions, damages and abatement. InjunctionInjunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s are the main remedy, and consist of an order to stop the activity causing the nuisance. They may be "perpetual", completely forbidding the activity, or "partial", for example limiting when the activity can take place. Damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
are a monetary sum paid by the defendant for the claimant's loss of enjoyment or any physical damage suffered; they may be paid for things as varied as loss of sleep or any loss of comfort caused by noise or smells. Abatement is a remedy that allows the claimant to directly end the nuisance, such as trimming back a protruding hedge. If the abatement requires the claimant stepping onto the defendant's land, he must give notice or risk becoming a trespasser
Trespass in English law
Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land...
.