Private nuisance
Nuisance is an indirect interference with the use or enjoyment of land. The interference needs to be unreasonable. Only certain people can make claims in nuisance and there are certain defences which can justify the nuisance caused. The rules and difficulty in arguing your case, coupled with the confusion of indirect and direct interference in terms of noise, pollution or property damage caused by physical interference means it is much easier to just claim under negligence.
Indirect interference
Most disputes come between neighbours in land. The next door neighbour is playing their music too loud, or the person living behind your house has fires on the day you put out your washing. If they came on to your land, there would be a direct interference. This is the law of trespass, which we don't look at in AQA Law. If the neighbours or a company are affecting the way that you are using your land without coming on to your land, then it is indirect interference. If something dangerous escapes of land and causes damage elsewhere, then that is a separate tort of Rylands v Fletcher. Thats a case name, and it is the name of the case that establishes the law, but it is the tort of Rylands v Fletcher.
Indirect interference
Most disputes come between neighbours in land. The next door neighbour is playing their music too loud, or the person living behind your house has fires on the day you put out your washing. If they came on to your land, there would be a direct interference. This is the law of trespass, which we don't look at in AQA Law. If the neighbours or a company are affecting the way that you are using your land without coming on to your land, then it is indirect interference. If something dangerous escapes of land and causes damage elsewhere, then that is a separate tort of Rylands v Fletcher. Thats a case name, and it is the name of the case that establishes the law, but it is the tort of Rylands v Fletcher.
Dunton v Dover District Council 1977
A child's playground was opposite an old people's home. The noise from the children was disturbing the use of the old people's home and so they sued the council. They won their case; the noise made by the children was held to be an indirect interference with the use or enjoyment of land. They were granted a partial injunction which meant the park had to be closed at 6pm.
A child's playground was opposite an old people's home. The noise from the children was disturbing the use of the old people's home and so they sued the council. They won their case; the noise made by the children was held to be an indirect interference with the use or enjoyment of land. They were granted a partial injunction which meant the park had to be closed at 6pm.
Bone v Seale 1975
In this case, the plaintiffs (now called claimants) sued for smells made by pig farms. The judge awarded over 6,000. The CoA reduced that number to 1,000. We can use this case as an example where smells can be an indirect interference with land. The damages given by a lump sum figure for over twelve years in this case.
In this case, the plaintiffs (now called claimants) sued for smells made by pig farms. The judge awarded over 6,000. The CoA reduced that number to 1,000. We can use this case as an example where smells can be an indirect interference with land. The damages given by a lump sum figure for over twelve years in this case.
Wheeler v J.J Saunders 1995
Wheeler owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse there but rented out the holidays cottages. He then leased the farm to S.S, and obtained planning permission to build a house on the farm for the purpose of keeping pigs. Two years later, he obtained permission to build another pig house. The second house was built 11 metres from the farmhouse and the holiday cottage. Dr Wheeler brought an action in nuisance. He claimed that the noise and smells of the pig farms was enough to amount to a nuisance.
His claim was successful and the appeal made against him failed. The court stated that planning permission does not grant an immunity to claims against you for nuisance. Planning permission differs to statutory authority because Parliament have taken the rights and balancing interests into account when making the statute.
Wheeler owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse there but rented out the holidays cottages. He then leased the farm to S.S, and obtained planning permission to build a house on the farm for the purpose of keeping pigs. Two years later, he obtained permission to build another pig house. The second house was built 11 metres from the farmhouse and the holiday cottage. Dr Wheeler brought an action in nuisance. He claimed that the noise and smells of the pig farms was enough to amount to a nuisance.
His claim was successful and the appeal made against him failed. The court stated that planning permission does not grant an immunity to claims against you for nuisance. Planning permission differs to statutory authority because Parliament have taken the rights and balancing interests into account when making the statute.
Halsey v Esso Petroleum 1961
The claimant was an owner of a small terrace house in Fulham in a street in a residential area. The Defendant owned and occupied an oil storage depot which adjoined the street. In this depot that was opposite C's house, was a boiler house containing two steam boilers with metal chimney stacks from which, time to time, noxious acid smuts were emitted. These damaged C's washing that was hung out to dry, and also damaged the paintwork on his car. Sometimes, a smell of oil was present, and this was on and off for many years, but during recent years, it was growing in intensity. It was also becoming more frequent. From the depot, a particularly pungent oily smell was released of a nauseating character.
In 1956, the Defendant introduced a night shift. This ran from 10pm to 6am. The noise of the boilers went on through the night and despite efforts made by D to minimise it, there was still noise. This cause the claimant's windows and doors to vibrate, and he could not sleep through it. The entrance to the depot was opposite the claimant's house and the exit gate near-by, and since November 1956, at intervals in the night, oil tankers, exceptionally heavy vehicles, sometimes in convoy, would come in. It was possible for the Defendant to conduct their operations without any, or any appreciable smell, and there was no nuisance by noise by day.
The question was whether damages can be claimed for in this case even though the nuisance was a public one. The courts determined that there can be a private nuisance action as well as a public nuisance action and awarded costs and injunction.
The claimant was an owner of a small terrace house in Fulham in a street in a residential area. The Defendant owned and occupied an oil storage depot which adjoined the street. In this depot that was opposite C's house, was a boiler house containing two steam boilers with metal chimney stacks from which, time to time, noxious acid smuts were emitted. These damaged C's washing that was hung out to dry, and also damaged the paintwork on his car. Sometimes, a smell of oil was present, and this was on and off for many years, but during recent years, it was growing in intensity. It was also becoming more frequent. From the depot, a particularly pungent oily smell was released of a nauseating character.
In 1956, the Defendant introduced a night shift. This ran from 10pm to 6am. The noise of the boilers went on through the night and despite efforts made by D to minimise it, there was still noise. This cause the claimant's windows and doors to vibrate, and he could not sleep through it. The entrance to the depot was opposite the claimant's house and the exit gate near-by, and since November 1956, at intervals in the night, oil tankers, exceptionally heavy vehicles, sometimes in convoy, would come in. It was possible for the Defendant to conduct their operations without any, or any appreciable smell, and there was no nuisance by noise by day.
The question was whether damages can be claimed for in this case even though the nuisance was a public one. The courts determined that there can be a private nuisance action as well as a public nuisance action and awarded costs and injunction.
Thompson-Schwab v Costaki 1956
The sight of prostitutes and their clients entering and leaving the premises itself was seen to be an actionable nuisance. This was based on the idea that the sight and premise of them was offensive itself. There was no need to demonstrate that the activity was noisy.
The sight of prostitutes and their clients entering and leaving the premises itself was seen to be an actionable nuisance. This was based on the idea that the sight and premise of them was offensive itself. There was no need to demonstrate that the activity was noisy.
Hunter v Canary Wharf 1997
Canary Wharf Ltd undertook construction on a large tower in London. This tower is now known as One Canada Square. It is used for residential and commercial purposes. When the tower was built, people who lived in the are could no longer get TV reception. The tower was interfering with the BBC primary television transmitter and was the cause of the loss of reception. The claimants sued for damages for their TV licences fees. There were several hundred home owners in the case. The BBC put in a secondary transmitter which fed to these houses and solved the problem, but they sued in nuisance for the time that they were affected. You must have a proprietary interest in the land. There is no action in nuisance against interference with television reception. Lord Hoffman: “In this case...cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land.'' |
Unreasonable interference
There is a basic assumption that everyone should behave responsibly when using land. We have live together and have to tolerate other people being around. We all put up with a little interference from each other sometimes. Nuisance is about dealing with constant disruption. There are certain factors that will determine whether or not the interference is an unreasonable one. When courts are deciding whether or not the use of a piece of land is reasonable, they use these factors:
There is a basic assumption that everyone should behave responsibly when using land. We have live together and have to tolerate other people being around. We all put up with a little interference from each other sometimes. Nuisance is about dealing with constant disruption. There are certain factors that will determine whether or not the interference is an unreasonable one. When courts are deciding whether or not the use of a piece of land is reasonable, they use these factors:
Character of the neighbourhood/locality
Where the nuisance is taking place is really important to whether or not the courts will deem the interference as a private nuisance. The courts will use the area of the nuisance with regard to the nature of the locality in deciding whether there exists an actionable nuisance. In Sturges v Bridgman, it was stated that: "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey". Different locations can allow for different actions. The expectations of an industrial estate would be very different to that of a quiet residential area.
Where the nuisance is taking place is really important to whether or not the courts will deem the interference as a private nuisance. The courts will use the area of the nuisance with regard to the nature of the locality in deciding whether there exists an actionable nuisance. In Sturges v Bridgman, it was stated that: "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey". Different locations can allow for different actions. The expectations of an industrial estate would be very different to that of a quiet residential area.
The duration of the interference
The interference with land needs to be continuous to sue for nuisance. One time events are not going to be enough. If you have a party one evening on the weekend and it is a rare occurance, the one event will not be enough to be actionable. If you have loud music playing at 3am every night, then it is a different story.
In Crown River Cruises Ltd v Kimbolton Fireworks Ltd 1996, a barge was set alight by flammable debris from a firework display. The display only lastest 20 minutes, but there was damage done by it; this is why it was actionable.
The interference with land needs to be continuous to sue for nuisance. One time events are not going to be enough. If you have a party one evening on the weekend and it is a rare occurance, the one event will not be enough to be actionable. If you have loud music playing at 3am every night, then it is a different story.
In Crown River Cruises Ltd v Kimbolton Fireworks Ltd 1996, a barge was set alight by flammable debris from a firework display. The display only lastest 20 minutes, but there was damage done by it; this is why it was actionable.
Sensitivity of the claimant
If the claimant is particularly sensitive to a nuisance, then there will be no action. There will only be liability if the reasonable claimant would suffer a loss. This rule is exemplified in Robinson v Kilvert (1889). The heat required in manufacturing products by the defendant downstairs rose up and damaged special brown paper made by claimant's upstairs. Normal paper would not be damaged so the special characteristics of the claimant do not open up liability claims.
The test is now one of forseeability - the similar rule applies but it is a fairer one of foreseeable harm. In Network Rail Infrastructure v Morris 2004, Morris ran a recording studio near a railway line. New track circuits interfered with the claimant's amplification system causing him to lose business. The CoA ignored he abnormal sensitivity and stated that the interference was not foreseeable. There was no liability in this case.
If the claimant is particularly sensitive to a nuisance, then there will be no action. There will only be liability if the reasonable claimant would suffer a loss. This rule is exemplified in Robinson v Kilvert (1889). The heat required in manufacturing products by the defendant downstairs rose up and damaged special brown paper made by claimant's upstairs. Normal paper would not be damaged so the special characteristics of the claimant do not open up liability claims.
The test is now one of forseeability - the similar rule applies but it is a fairer one of foreseeable harm. In Network Rail Infrastructure v Morris 2004, Morris ran a recording studio near a railway line. New track circuits interfered with the claimant's amplification system causing him to lose business. The CoA ignored he abnormal sensitivity and stated that the interference was not foreseeable. There was no liability in this case.
Malice
Deliberate harmful acts planned to annoy or interfere with anyone will ordinarily be nuisances. In Hollywood silver Fox Farm v Emmett (1936), the defendant disagreed with the farm for foxes. The claimant was running a mink farm. The defendant fired two shots from a shotgun. Normally, on land this would not be unreasonable, but the mink when frightened eat their young. The act was meant to cause this harm deliberately and therefore was unreasonable. Acts of revenge will open up the sufferer of original interference to liability. In Christie v Davey 1893, the defendant became annoyed by music lessons next door and started banging on the walls with trays and shouted at them through the walls. There was an injunction granted against him. |
The state of the Defendant's land
An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land. You cannot simply ignore nusiances, from whatever reason, on your land. In Leakey v The National Trust (1980), the defendant was liable when a large mound , the Burrow Mump, subsided on their land and caused damage to cottages. Defendants owe a duty to prevent the spread of those things on their land which might create a nuisance.
An occupier must take such steps as are reasonable to prevent or minimise dangers to adjoining land from natural hazards on his land. You cannot simply ignore nusiances, from whatever reason, on your land. In Leakey v The National Trust (1980), the defendant was liable when a large mound , the Burrow Mump, subsided on their land and caused damage to cottages. Defendants owe a duty to prevent the spread of those things on their land which might create a nuisance.
Defences
Statutory Authority
In Allen v Gulf Oil Refining 1981, Ds had been given statutory authority from a statute to acquire land and to use it to build and run an oil refinery. The claimant argued that the noise smell and vibration were a nuisance. The court held the refinery could use the defence of statutory authority. The use of land under planning permission would come under this defence. However, statutory authority is stronger than planning permission. |
Permission
If a nuisance has existed for 20 years then there is a prescriptive right to continue. In Sturges v Bridgman 1879, the nuisance had happened for such a long time it was commonly accepted and allowed to happen. |
Contributory negligence
If the claimant has made matters worse for themselves, then their damages may be denied or reduced. Contributory negligence can be whole, but it can also be percentage. So if you were awarded £10,000 as compensation but the court awarded 50% contributory negligence, then the claimant would only receive £5,000. This is more likely to be an all or nothing outcome in nuisance, as there is not really an option for damages sometimes. |
Consent
If the claimant at an earlier point has consented to the activity then there can be no claim in nuisance. Act of a stranger
There will be a defence if the nuisance is caused by a third party or by an Act of Nature, an Act of God. |
Remedies
The standard remedy for tort law is damages, which acts as compensation for the claimant to pay them back and put them back into the position before the tort had occurred. In nuisance however, money is not often going to solve the problems between the parties. The courts can grant partial or full injunctions. These are court orders to stop something from happening, for example a partial injunction to stop children playing in the park after 6pm (Dunton v Dover District Council).
Injunctions are most likely to be awarded for nuisance claims as they deal with the issue better but in Miller v Jackson, the courts refused to grant an injunction and only gave compensatory damages as the utility of the cricket ground was more valuable than the claimant's interference and an injunction would not have been fair.
The standard remedy for tort law is damages, which acts as compensation for the claimant to pay them back and put them back into the position before the tort had occurred. In nuisance however, money is not often going to solve the problems between the parties. The courts can grant partial or full injunctions. These are court orders to stop something from happening, for example a partial injunction to stop children playing in the park after 6pm (Dunton v Dover District Council).
Injunctions are most likely to be awarded for nuisance claims as they deal with the issue better but in Miller v Jackson, the courts refused to grant an injunction and only gave compensatory damages as the utility of the cricket ground was more valuable than the claimant's interference and an injunction would not have been fair.
public nuisance
This type of nuisance can be a crime as well as a tort. This only looks at the tortious claims made as it can sometimes lead to an individual claiming compensation in tort for their loss. The definition of public nuisance is that the action must affect the reasonable comfort and convenience of a class of people. However only the person who has suffered particular damage (over and above that of the general public can claim).
In the case Attorney-General v PYA Quarries Ltd 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, but that it should be taken on the responsibility of the community at large. This sets the rules for public nuisance; there must be a 'class' of people affected, such as the 30 householders in this case who were affected by vibrations.
The claimant must have been particularly affected by the public nuisance, and more so than the other claimants to be able to bring an action. In Castle v St Augustine Links, a car was hit by golf balls while driving over a golf course. This case illustrates public nuisance so well as any motorist using the road could be included in the class of people affected but this one in particular had been affected more than others as it shattered their windscreen.
Two other case examples of a public nuisance are;
In the case Attorney-General v PYA Quarries Ltd 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, but that it should be taken on the responsibility of the community at large. This sets the rules for public nuisance; there must be a 'class' of people affected, such as the 30 householders in this case who were affected by vibrations.
The claimant must have been particularly affected by the public nuisance, and more so than the other claimants to be able to bring an action. In Castle v St Augustine Links, a car was hit by golf balls while driving over a golf course. This case illustrates public nuisance so well as any motorist using the road could be included in the class of people affected but this one in particular had been affected more than others as it shattered their windscreen.
Two other case examples of a public nuisance are;
- Rose v miles - a traffic queue that was caused on a road by roadworks
- A-G v Orange Productions - Traffic disruption and noise from a badly organised pop festival was a public nuisance.