Lecture # 8. Private Nuisance

Transcription

1 Introduction Lecture # 8 Private Nuisance By: Salik Aziz Vaince [ ] It is an inborn right of every person that his senses may not be injured. Every man has the right to enjoy the pleasure of life, if this right is infringes or obstructed, it will be called nuisance. In law, an act, object, or practice that interferes with another's rights or interests by being offensive, annoying, dangerous, obstructive, or unhealthful. A private nuisance is an activity or condition (e.g., excessive noise) that interferes with the use and enjoyment of one's property and that may be a cause of action in civil litigation. An attractive nuisance is something on one's property that poses a risk to children or others who may be attracted to it. Under the common law, persons in possession of real property (land owners, lease holders etc.) are entitled to the quiet enjoyment of their lands. However this doesn't include visitors or those who aren't considered to have an interest in the land. If a neighbor interferes with that quiet enjoyment, either by creating smells, sounds, pollution or any other hazard that extends past the boundaries of the property, the affected party may make a claim in nuisance. 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 public at large. 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. Origin of Nuisance The word nuisance is derived from the French word nuire and Latin word nocere, which means to do hurt or to annoy. History of Nuisance The term nuisance first emerged in the thirteenth century and referred to actions that took place on the land of the defendant, but interfered with the rights of the plaintiff. A writ of nuisance could be obtained to take action against the defendant. This action gave rise to the modern day private nuisance, and eventually public nuisance, which was any crime that was committed against the crown. In the late 19th and early 20th centuries, it is difficult to administer the law of nuisance, as competing property uses often posed a nuisance to each other, and the cost of litigation to settle the issue grew prohibitive. Most of the country has their owned system of land in planning the use of plan for VLC Publishers Page 1

2 example zoning that describes what activities are acceptable and appropriate in a certain location. Zoning generally overrules nuisance. For instances, some country uses and industrial zone specifically for a factory to be operated. This industrial zone have their own law and rules where if the factory was operating in the industrial zone, the neighborhood which lives near the industrial zone can't make claim to the court for nuisance.. Jurisdictions without zoning laws essentially leave land use to be determined by the laws concerning nuisance. In the same way, there is an adaptation of the doctrine of nuisance to modern complex societies in modern environmental laws are, for example person's use of his property may harmfully affect another's property, or person, far from the nuisance activity and not easily incorporated into historic understandings of the nature of nuisance law. At this point in time the term was very widely used and vague in its meaning; any type of wrongdoing was often termed nuisance. In modern tort law there are different types of nuisances: public, private, and absolute nuisances. A private nuisance effects one individual s enjoyment of his land, while a public nuisance affects a larger amount of citizens or the public in general. Absolute nuisances are nuisances for which the defendant is strictly liable. Meaning of Nuisance Ordinarily means Which annoys or hurts or that which is offensive In legal sense A condition or situation that interferes with the use or enjoyment of property According to Blackstone Nuisance is something that is hurt, inconvenient or damage What Is Nuisance? The tort of nuisance sets out to protect the right to use and enjoy land, without interference from others. According to the oxford dictionary, it means a person or thing that is causing inconvenience or annoyance. From the perspective of law, nuisance is an act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. The purpose of the law of nuisance is to provide comfort to persons who have proprietary interests in land to members of society generally through the control of environmental conditions. Definition of Nuisance Nuisance is the unlawful interference with a person s use or enjoyment of land, or of some right over or in connection with it. An act which is harmful or offensive to the public or a member of it and for which there is a legal remedy. Legally, the term nuisance is traditionally used in three ways: 1. to describe an activity or condition that is harmful or annoying to others (e.g., indecent conduct, a rubbish heap or a smoking chimney) VLC Publishers Page 2

3 2. to describe the harm caused by the before-mentioned activity or condition (e.g., loud noises or objectionable odors) 3. To describe a legal liability that arises from the combination of the two. However, the "interference" was not the result of a neighbor stealing land or trespassing on the land. Instead, it arose from activities taking place on another person's land that affected the enjoyment of that land. A private nuisance is simply a violation of one's use of quiet enjoyment of land. It doesn't include trespass. Something or someone that causes annoyance, inconvenience, or makes life more difficult a broad legal concept including anything that disturbs the reasonable use of your property or endangers life and health or is offensive An activity or thing that interferes with the use of property by an individual (or a few individuals) by being irritating, offensive, or obstructive. Nuisances can include everything from noise and illegal gambling to posting indecent signs and misdirecting water on to other property. Conditions that affect an entire community are a public nuisance. Lawsuits may be brought to abate (remove or reduce) a nuisance. Example: To be a nuisance, the level of interference must rise above the merely aesthetic. For example: if your neighbor paints their house purple, it may offend you; however, it doesn't rise to the level of nuisance. In most cases, normal uses of a property that can constitute quiet enjoyment cannot be restrained in nuisance either. For example, the sound of a crying baby may be annoying, but it is an expected part of quiet enjoyment of property and does not constitute a nuisance. Legal Responsibility A private nuisance is a tort, that is, a civil wrong. To determine accountability for an alleged nuisance, a court will examine three factors: the defendant's fault, whether there has been a substantial interference with the plaintiff's interest, and the reasonableness of the defendant's conduct. 1. Fault: Fault means that the defendant intentionally, negligently, or recklessly interfered with the plaintiff's use and enjoyment of the land or that the defendant continued her conduct after learning of actual harm or substantial risk of future harm to the plaintiff's interest. For example, a defendant who continues to spray chemicals into the air after learning that they are blowing onto the plaintiff's land is deemed to be intending that result. Where it is alleged that a defendant has violated a statute, proving the elements of the statute will establish fault. 2. Substantial Interference: The law is not intended to remedy trifles or redress petty annoyances. To establish liability under a nuisance theory, interference with the plaintiff's interest must be substantial. Determining substantial interference in cases where the physical condition of the property is affected will often be fairly straightforward. More challenging are those cases predicated on personal inconvenience, discomfort, or annoyance. To determine whether interference is substantial, courts apply the standard of an ordinary member of the community with normal sensitivity and temperament. A plaintiff cannot, by putting his or her land to an unusually sensitive use, make a nuisance out of the defendant's conduct that would otherwise be relatively harmless. VLC Publishers Page 3

4 3. Reasonableness of Defendant's Conduct If the interference with the plaintiff's interest is substantial, a determination must then be made that it is unreasonable for the plaintiff to bear it or to bear it without compensation. This is a Balancing process weighing the respective interests of both parties. The law recognizes that the activities of others must be accommodated to a certain extent, particularly in matters of industry, commerce, or trade. The nature and gravity of the harm is balanced against the burden of preventing the harm and the usefulness of the conduct. Scope of Nuisance In order to constitute a nuisance there must be both: Injuria i.e. the wrongful act Damnum i.e. damage actual or presumed The term nuisance includes any act, omission, place or thing which causes or is likely to cause injury, danger, annoyance or wrong to the sense of right, small or hearing or which is or may be dangerous to life or injurious to health or property. Types of nuisance The two types of nuisance are private nuisance and public nuisance. 1. Private Nuisance A private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual Trespass or physical invasion to the land. 2. Public Nuisance A public nuisance is a criminal wrong; it is an act or omission that obstructs, damages, or inconveniences the rights of the community. A public nuisance is one which inflicts damage, injury or inconvenience upon the public at large or upon all of the class who come within the sphere or neighborhood of its operation. A person is guilty of public nuisance who does any act or is guilty of an illegal omission, which causes common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the area, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Scope: Keeping a common gaming house or disorderly inn, obstructing a highway or making it dangerous for traffic would come within the category of public nuisance. Explanation: Public nuisance consists not only of those acts which interfere with definite public rights, such as to use a public thoroughfare (public road), but also of nuisance which endangers the health, safety or comfort of the public generally, such as noise or the escape of noxious vapors, gases, fumes or any deleterious (Harmful to living thing) thing affecting the health of neighborhood. It is primarily a crime, prosecuted by the Attorney-General. An example would be unreasonable use and obstruction of the highway. It is only actionable as a tort if the claimant has suffered damage over and above other members of the public. VLC Publishers Page 4

5 Comparison of private nuisance and public nuisance A private nuisance is a civil wrong that affects a single individual or a definite number of persons in the enjoyment of some private right which is not common to the public. In other words, a private nuisance is a substantial and unreasonable interference with the private use and enjoyment of one s land. Examples include interference with the physical condition of the land, disturbing the comfort of its occupants, or threatening future injury or disturbance. The origin of private nuisance liability is purely tortious in character and not criminal. It is to be noted that a private nuisance exists only where one is injured in relation to a right that s/he enjoys by reason of his/her ownership of an interest in land. Private nuisance includes all injuries to an owner or occupier in the enjoyment of the property of which s/he is in possession, without regard to the quality of the tenure. However, a nuisance may be a public and a private one at the same time. An example of public nuisance would be someone blocking off a public road. This action would have an effect on a wide range of people, each of whom would be affected or disadvantaged to differing degrees. For an individual to have an action for compensation for the inconvenience or interference suffered, they would have to show that the impact was such as to cause them special damage. That is, they must show that the impact on them was greater than that on the general public. In the example above, to have any sort of action for compensation for nuisance you would have to show that you needed to use that particular road to go to work each day and that the action of blocking it caused you particular problems in getting to work, or a similar sort of inconvenience. It would not be enough to say to a court that you had suffered a minor inconvenience or could no longer have your usual Sunday drive because the road was blocked. The inconvenience or interference must not be trivial or inconsequential, or lacking in good reason for it occurring or continuing to occur. Private Nuisance A private nuisance is an interference with a person's enjoyment and use of his land. The law recognizes that landowners, or those in rightful possession of land, have the right to the unimpaired condition of the property and to reasonable comfort and convenience in its occupation. The essence of liability for private nuisance is an unreasonable interference with another s use or enjoyment of land and in assessing what is reasonable, the courts will try to balance each party s right to use the land as they wish. Examples of private nuisances. Nuisances that interfere with the physical condition of the land include vibration or blasting that damages a house; destruction of crops; raising of a water table; or the pollution of soil, a stream, or an underground water supply. Examples of nuisances interfering with the comfort, convenience, or health of an occupant are foul odors, noxious gases, smoke, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance may also disturb an occupant's mental tranquility, such as a neighbor who keeps a vicious dog, even though an injury is only threatened and has not actually occurred. An attractive nuisance is a danger likely to lure children onto a person's land. For example, an individual who has a pool on his property has a legal obligation to take reasonable precautions, such as erecting a fence, to prevent foreseeable injury to children. VLC Publishers Page 5

6 In a private nuisance, a defendant engages in some activity that interferes with the plaintiff s right to enjoy his property. A land owner is entitled to a certain level of comfort that is free from interference while on his private property. Private nuisance can come in the form of physical damage to the property or the disturbance of comfort. Tort law distinguishes a public nuisance from a private one based on the amount of people that are affected; a private nuisance may only affect a small amount of people. A private land owner can bring action against another for private nuisance, as long as he can prove the defendant interfered with his ability to enjoy the land. To have a claim relating to a private nuisance, you must show that you live on the property (this includes if you are living on the land under an agreement with the owner). In making your complaint to the court, you must show that the nuisance complained of is not trivial or unreasonable. When deciding whether what you complain about is a "private nuisance", the court would look at a number of factors, including: the general nature of your neighbourhood; where the interference took place (or is taking place); what activity is causing the interference; how long the interference lasted and whether it is ongoing; the time of day or night the interference occurs; the impact the interference is having on you; whether the interference was pre-existing when you moved into your property; how useful or necessary the activity causing the interference is; and what reasonable people would think of the interference The court tries to use common sense in assessing these factors. It will also weigh the inconvenience or impact of the interference on you against the cost and effect of having the person responsible for the interference modify or stop their activities It is a reality of living in close quarters to our neighbour s that there will be competing interests and activities, which on occasion may affect the enjoyment of living in the neighbourhood. A court, in deciding on a complaint of nuisance, will weigh up these competing interests in a pragmatic sense (Concerned with practical matters), recognizing that some noise, annoyance, inconvenience and discomfort are likely to occur wherever people live. For example, your neighbour's barking dog might wake you up every once in a while, but courts know that dogs bark and that the law allows people to keep dogs. Unless a dog is particularly noisy, a court will not usually help you to keep it quiet. Definition of private nuisance A private nuisance is same unauthorized use of a man s own property causing damage to the property of another or some unauthorized interference with the property or proprietary right of another, causing damage, but not amounting to trespass. "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" VLC Publishers Page 6

7 Explanation The plaintiff was the owner of a house and park which adjoined the defendant s premises was plantation of trees which had been planted by the plaintiff to screen off the gas works. The fumes and smoke from the gas works were carried by wind across the plantation and had injuriously affected the trees to such an extent that the tops of some of the trees were dying whilst others were dead. The plaintiff was entitled to an injunction restraining the defendants from carrying on their works so as to cause injury to the plaintiff s property. Elements of nuisance The claimant must prove three elements: 1. An indirect interference with the enjoyment of the land 2. That the interference was unreasonable 3. That this interference caused damage to the claimant Requirements for a claim of nuisance Interference The claimant must prove that the defendant has caused an interference with the claimants use or enjoyment of their land. There are many ways that such interference can be caused, but what they have in common is that they must be indirect, and that they will usually be the result of a continuing state of affairs, rather than a one-off incident. In some cases there will be a physical invasion of the claimant s land, such as the roots of the neighbours tree spreading into the claimants land. Davey -v- Harrow Corporation; CA 1957 Facts: The Plaintiff s house was damaged by roots penetrating from trees on adjoining land. At first instance, Sellers J found that the damage was caused by the trees, but they were not proven to be the property of the defendants. On appeal and after further evidence it was found that the trees had been growing for some time on the defendants land. Held: The defendants were liable in nuisance for damage caused by encroaching roots whether selfsown or planted. Where a boundary hedge is delineated on an Ordnance Survey map by a line, the line indicates the centre of the existing hedge. This accord with the practice of the OS and courts can take notice of that practice as prima facie evidence of what a line on a map indicates. After that Fisher -v- Winch and this, courts in future can take notice of this practice of the Ordnance Survey (that the boundary line on the map indicated the centre of the existing hedge) as at least prima facie evidence of what a line on the map indicates. As to damage by roots: once it is established that encroachment by roots is a nuisance, it must follow that if damage is thereby caused, an action on the case will lie. Water flooding onto land as a result of something done by a neighbor. Sedleigh-Denfield v O Callaghan [1940] AC 880 House of Lords The council undertook some work on the defendant s land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendant s workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The VLC Publishers Page 7

8 flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Lord Maugham: My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe. Sometime nuisance caused by something intangible such as noise. Christie v Davey (1893) 1 Ch 316 Facts: The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendant s property. The defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation. Held: The defendant s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions. Or due to smells. Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal Facts: The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance. Peter Gibson LJ: The defence of statutory authority is allowed on the basis of the true construction of the scope and effect of the statute. Parliament is presumed to have considered the competing interests in the particular circumstances which are the subject of the statute and to have determined which is to prevail in the public interest in authorising the particular development and use of land and whether or not compensation is to be paid to those whose common law rights are adversely affected by the authorised development and use. But in the case of planning permission granted pursuant to VLC Publishers Page 8

9 the statutory scheme contained in the town and country planning legislation it is far from obvious to me that Parliament must be presumed to have intended that in every case it should have the same effect on private rights as direct statutory authority, regardless of the circumstances that were in fact taken into account. True it is that Parliament by that legislation has provided a mechanism for regulating the development and use of land in the public interest and that it has delegated to the local planning authority the function of making planning decisions; but Parliament will also have been aware of the range of such decisions and the variety of possible circumstances in which they may be taken. It would also have been aware of the limited scope open to an objector to challenge a grant of planning permission. Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to and prevail that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. The situation complained of must be sufficient to interfere with the claimants use and enjoyment of their land. Anything which causes actual physical damage to the land fits this requirement, and it is established that things like fumes, noise or smells which make it physically unpleasant to be on the land can be included. The courts have also allowed actions for nuisance caused by situations which cause emotional stress. Thompson-Schwab v Costaki [1956] 1 WLR 335 The where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to amount to an actionable nuisance as the activity was considered offensive in itself. There was no need to demonstrate that the activities were noisy. However, the courts have not allowed the tort to protect what they consider to be recreational facilities. Bland -v- Moseley (1587) The court distinguished the elements of an easement of light. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour's land. The case established that blocking a neighbour s pleasant view could not be considered a nuisance. Hunter v Canary Wharf [1998] 1 WLR 434 House of Lords Facts: 690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for VLC Publishers Page 9

10 damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were: 1. Whether interference with television reception was capable of giving rise to an actionable nuisance 2. Whether an interest in property was required to bring an action in Held 1. There is no right of action in nuisance for interference with the television reception. 2. An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance. Lord Hoffman: In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, 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. In relation to planning permission: "In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build." Continuous interference There must be a continuous interference over a period of time with the claimant's use or enjoyment of land. An occupier of land can also be liable for nuisance caused by naturally arising hazards, providing they are aware of their existence and fail to take reasonable precaution. Leakey & Ors v National Trust [1980] QB 485 Court of Appeal Facts: The claimants land had been damaged by falls of soil and other debris from the defendant s land known as Burrow Mump. The falls were caused entirely by nature there was no human activity involved that would have caused the fall. The defendants were aware of the risks since They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides. Following the exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs. Leaky noticed a big crack appear in the bank above her house. She informed the National Trust and offered to pay half the cost of making it safe. Her offer VLC Publishers Page 10

11 was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance. Held: The National Trust was liable following the Privy Council decision in Goldman v Hargrave. A defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard. Megaw LJ: The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant. This principle was taken further in: Holbeck Hall Hotel Limited v Scarborough Borough Council [2000] 2 ALL ER 705 Court of Appeal Facts: The claimants owned Holbeck Hall, a four star hotel situated on South Cliff in Scarborough. The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. As a result the hotel became unsafe and had to be demolished. The claimants brought an action based on the principle in Goldman v Hargrave and Leakey v National Trust. The trial judge found for the claimant and the Council appealed. Held: Appeal allowed, the Council was not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant. Stuart Smith LJ: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. Bybrook Barn Garden Centre Ltd and Others -v- Kent County Council; CA 8-Jan-2001 A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an obstruction leading to the claimant s property being flooded. It was checked regularly, but no steps taken to increase the capacity. It was held that the local authority could become liable in nuisance when such a feature for which they had responsibility came to be an obstruction to the escape of material occurring naturally on land. VLC Publishers Page 11

12 De Keyser s Royal Hotel v Spicer Bros (1914) 30 TLR 257 An injunction was granted to prevent building work taking place at night despite the fact the work was only temporary in nature. The interference was considered unreasonable since it interfered with the claimant s sleep. There are only rare examples where a single act has been held to amount to a private nuisance: Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533 The defendant conducted a firework display. Some burning debris from the display landed on a nearby barge which caught fire. The defendant was liable despite the nuisance only lasting twenty minutes. Substantial and Unreasonable In order for a defendant s interference to be considered a nuisance, it must be both substantial (Fairly large) and unreasonable. A complaint by an overly sensitive plaintiff will not be considered a nuisance on the part of the defendant, because the offense must be something that would disturb the average, reasonable person. The interference must cause substantial damage to the plaintiff, and the interference with the plaintiff s comfort must be greater than the benefits of the defendant s conduct. Because nuisance is a tort that is based on the reasonable person standard, it is very dependent on the individual circumstances of a situation. A nuisance per se is an act that is always considered to cause a nuisance, while a nuisance in fact depends entirely on the situation. A judge or jury will make the decision as to whether the defendant s actions constitute a nuisance. The claimant must prove that the defendant's conduct was unreasonable, thereby making it unlawful. The rule is sic utere tuo ut alienum non laedas (So use your own property as not to injure your neighbor s). As to impairment of the enjoyment of land, the governing principle is that of reasonable user - the principle of give and take as between neighboring occupiers of land. The interference caused by the defendant to the claimant s enjoyment of their land will only amount to nuisance if it can be considered unreasonable. The basic premise is that if we are all to live together there must be give and take, but interference which goes beyond the normal bounds of acceptance behaviour will be unreasonable. London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939 House of Lords Facts: Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council. Held: There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist. VLC Publishers Page 12

13 The courts will take into account all the circumstances, and, in particular, the following factors: The locality Where the interference takes place will have an important bearing on whether it is reasonable; a landowner in the centre of London cannot reasonably expect the same level of peace and quiet as one in the depth of the country. St Helen s Smelting Co v Tipping [1865] UKHL J81 House of Lords Facts: The claimant owned a manor house with 1300 acres of land which was situated a short distance from the defendant s copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property. Held: Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance. Lord Westbury LC: My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an, action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property. VLC Publishers Page 13

14 The result is that interference which would be reasonable in one area may be unreasonable in another. Sturges v Bridgman (1879) 11 Ch D 852 Facts: The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for over 20 years but had no neighboring property so there were no complaints as to its use. The claimant then built a consulting room for his practice as a physician adjacent to the defendant s noisy shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over twenty years. Held: The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right. The character of a locality can be changed by decisions on planning permission. Gillingham Borough Council v Medway Dock [1993] QB 343 Facts: The defendant had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night. It was held that where planning permission is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously. The claimant s actions therefore failed. Buckley J: "Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides. There is the added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance." However, planning permission will not, by itself, provide immunity from a nuisance action. Wheeler v JJ Saunders [1995] 3 WLR 466 Court of Appeal Facts: The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The VLC Publishers Page 14

15 defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance. Peter Gibson LJ: The defence of statutory authority is allowed on the basis of the true construction of the scope and effect of the statute. Parliament is presumed to have considered the competing interests in the particular circumstances which are the subject of the statute and to have determined which is to prevail in the public interest in authorising the particular development and use of land and whether or not compensation is to be paid to those whose common law rights are adversely affected by the authorised development and use. But in the case of planning permission granted pursuant to the statutory scheme contained in the town and country planning legislation it is far from obvious to me that Parliament must be presumed to have intended that in every case it should have the same effect on private rights as direct statutory authority, regardless of the circumstances that were in fact taken into account. True it is that Parliament by that legislation has provided a mechanism for regulating the development and use of land in the public interest and that it has delegated to the local planning authority the function of making planning decisions; but Parliament will also have been aware of the range of such decisions and the variety of possible circumstances in which they may be taken. It would also have been aware of the limited scope open to an objector to challenge a grant of planning permission. Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to and prevail that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. Sensitivity of the claimant The standard of tolerance is that of the 'normal' neighbor. Therefore, abnormally sensitive plaintiffs are unlikely to succeed in their claims for private nuisance. Robinson v Kilvert (1889) 41 Ch D 88 Court of Appeal Facts: The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground VLC Publishers Page 15

16 floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendant s operations damaged the brown paper belonging to the claimant. Held: The defendant was not liable. The damage was due to the special sensitivity of the paper. Cotton LJ: "It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of the opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance." Lopes LJ: "I think the Plaintiff cannot complain of what is being done as a nuisance. 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." On the other hand, as soon as soon as the claimant has proved that the defendant has infringed the claimants right to ordinary enjoyment, they can also claim protection from any extra problems caused by unusual sensitivity. McKinnon Industries v Walker [1951] 3 DLR 577 Fumes from the D's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance. The utility of the defendant's conduct It will be unlikely for an activity to amount to a nuisance if it is useful for the community as a whole taking into account all the surrounding circumstances, such as locality and the duration of the activities. Contrast: Harrison v Southwark Water Co [1891] 2 Ch D 409 A claim was made for damages for nuisance from construction works. Held: The obligations of the defendant company in respect of the sinking of the shaft were neither greater nor less than those of a private person; and that a private person would not, in similar circumstances, be held to have created a legal nuisance by reason of the annoyance caused to his neighbour s in the thumping for the purpose of sinking the shaft, unless it could be shown that he had neglected to take all reasonable precautions for mitigating the annoyance to his neighbour s. Adams v Ursell [1913] 1 Ch D 269 A house owner complained that his neighbour s fish and chip shop was emitting odours which impinged on the enjoyment of his house. Held: Such odours might amount to a sufficient interference to constitute a nuisance. VLC Publishers Page 16