The Tort of Nuisance
There are two types of nuisance in English law: Public nuisance and Private nuisance. In some instances, the same set of facts can produce liability in both kinds of nuisance, although the two types of nuisance are very much distinct. Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land. The parties to an action in private nuisance are generally neighbours in the popular sense of the word and the courts undertake a balancing exercise between the competing rights of land owner to use his land as he chooses and the right of the neighbour not to have his use or enjoyment of land interfered with. Public nuisance is a crime but becomes actionable in tort law if the claimant suffers 'particular damage' over and above the damage suffered by the public generally.
A vast range of interferences are capable of amounting to an actionable nuisance. Some examples include:
Encroachment by tree branches or roots -Lemmon v Webb [1894] 3 Ch 1Case summary
Some interferences are not capable of giving rise to an actionable nuisance:
Private nuisance
Private nuisance is essentially a land based tort. In order to bring a claim in private nuisance, a claimant must have an interest in the land in which he asserts his enjoyment or use has been unreasonably interfered with.
This requirement was departed from in Khorasandjian v Bush but reinstated in Hunter v Canary Wharf:
The claimant must possess a right to the enjoyment of the facility that is being deprived.
There was no right to a particular water depth in Tate & Lyle but the action succeeded based in public nuisance:
There is no such requirement that the defendant has any interest in land:
However, they must have used land:
A person with ownership rights in the land may be liable in nuisance even where they were not the creator of the nuisance if they authorised it:
The authorisation must relate to the nuisance, a landlord will not be liable merely for allowing occupation of the creator of the nuisance:
Similarly a landlord will not be liable for the noise created by a tenant, where the noise itself does not constitute a nuisance.
A further way in which an owner or occupier may be liable for the acts of the creator of the nuisance is where they have adopted or continued the nuisance:
Page Motors v Epsom Borough Council [1982] LGR 337 Case summary
Similarly an owner or occupier may be liable for hazards naturally arising:
The owner or occupier is only expected to do what is reasonable taking into account their resources:
Unlawful interference
Private nuisance requires an unreasonable use of land by the defendant which leads to an unreasonable interference with the claimant's use or enjoyment of their own land. This requires a balancing exercise of competing rights often referred to as the principle of give and take. Unreasonable interference alone is insufficient:
In assessing the reasonableness of the use and reasonableness of the interference, the courts take all the circumstances into account. In particular the courts will consider:
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The nature of the locality/neighbourhood
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Duration
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Sensitivity
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Malice
1.Locality/Neighbourhood
The reasonableness of the use of land will be assessed with regard to the nature of the locality in deciding whether there exists an actionable nuisance. As Thesiger LJ stated in Sturges v Bridgman,
"What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey"
Thus, for the pruposes of nuisance, a higher level of disturbance is considered reasonable in an industrial area than would be regarded as reasonable in a residential area:
The running of a brothel in a respectable residential area was held to constitute a nuisance:
Planning permission
Planning permission may have the effect of changing the nature of the locality:
Gillingham Borough Council v Medway Docks [1993] QB 343 Case summary
However, planning permission does not confer immunity from an action in nuisance and may not involve changing the nature of the locality:
Jackson LJ summarised the position with regards to planning permission in Coventry v Lawrence:
Where the nuisance results in physical damage as oppose to amenity damage the locality is irrelevant:
The position in relation to Art 8 European Convention of Human Rights was considered in:
2. Duration
Most nuisances consist of a continuing state of affairs. In most instances the claimant is seeking an injunction to prevent the continuance of such nuisances. In general the longer the nuisance lasts the greater the interference and the greater the likelihood of it being held to be an unlawful interference. However, an activity which is temporary may constitute a nuisance:
De Keyser's Royal Hotel v Spicer Bros (1914) 30 TLR 257 Case summary
Whilst a continuing state of affairs may be found in order to impose liability,
a single act is capable of amounting to a nuisance.
Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533 Case summary
3. Sensitivity
If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant will not be liable unless the activity would have amounted to a nuisance to a reasonable person using the land in a normal manner.
If, however, the claimant has established that the defendant has infringed their right to ordinary enjoyment of the land, they can also claim damages for any damage incurred to unusually sensitive property:
4. Malice
Where the defendant acts out of malice, the actions are more likely to be held unreasonable:
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 Case summary
Public benefit
Whilst the benefit to the community is not a defence it may be a factor considered when assessing if the use is reasonable:
Public nuisance
Castle v St Augustine Links (1922) 38 TLR 615 Case summary
Rose v Miles [1815]
Noble v Harrison [1926]
Griffiths v Liverpool Corporation [1974]
Nuisance is subject to the rules on remoteness of damage:
Remedies
Damages
Abatement
Injunctions
Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 Case summary
Defences
Coming to a nuisance is no defence
Statutory authority
NB Planning permission does not authorise a nuisance and is therefore no defence
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