Private nuisance

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'Private nuisance' is the interference with a person's right to peaceful enjoyment of his land, which is not sufficiently direct to amount to atrespass to land. Although there are a number of different categories of Nuisance, most non-specialist lawyers deal most commonly with private nuisance, because it is actionable at the suit of a private citizen.public nuisance andstatutory nuisance are usually enforced by particular public bodies, and only loosely fall under the heading oftort law at all. These nuisances may, and often do, amount to crimes. Consequently, where the word 'nuisance' appears on its own, it usually means 'private nuisance', and that is the interpretation assumed in this article.

(Private) nuisance has many similarities with trespass to land; the following table provides a brief comparison of these two torts.

As in trespass to land, there is some uncertainty about whether a nuisance can be caused inadvertently, or whether at least negligence must be shown if the nuisance is not direct.

The claimant must show

  1. that damage has been occassioned, directly or indirectly, to the land, and
  2. the interference was unreasonable, and non-trivial, and
  3. the interference occured repeatedly, and
  4. he has title to sue, and
  5. the defendant is legally capable of being liable.

In response, the defendant can raise a number of defences.

Damage to the land

Strictly speaking, to succeed in nuisance the claimant must show damage to the land (or, more precisely, damage to his rights in land), not the person. Where the damage is evident and physical, problems do not usually arise. For example, in st helens smelting v tipping (1865), damage was caused to the claimant's trees by fumes from an industrial plant; this was a clear nuisance, and the fact that the claimant owned land in what was essentially an industrial district did not harm his case.

Other factual circumstances make it less straightforward to determine whether the land has been damaged by the nuisance.

First, if the land is physically affected, 'damage' may be presumed by the court, even if the claimant cannot show that his land has diminished in value. For example, in HunterVCanaryWharf1997, the deposit of dust on the claimant's land was held to be capable of amounting to 'damage', even though the claimant had not shown that the the value of his land had been adversely affected. So 'damage' is a somewhat broader concept in nuisance than in negligence.

Second, the damage can be to the amenity of the land, rather than its physical state. If the defendant's actions cause the land to become less valuable, this constitutes an actionable loss of amenity. For example, in tetley v chitty (1986), noise from a go-kart track was held to be an actionable nuisace, as was the bad smell emanating form a pig farm in bone v seal (1975).

Third, although some losses of amenity value may be actionable, the courts have not accepted that all losses are so actionable. For example, in Hunter_, interference with television reception was not held to amount to a nuisance. In a way this is strange, because many people would be deterred from owning land that did not obtain adequate television reception; this particular part of the Hunter decision has been rejected by some other common-law jurisdictions (e.g., in the Canadian Nor-Video case).

The fact that loss of amenity may be actionable has caused and, indeed, continues to cause some confusion. Here's why: if a loss of amenity resulting from personal discomfort can be actioned, then the courts have from time to time extended this head of liability to encompass actual personal injury. After all, it seems logical in a way that if discomfort is actionable, injury should be actionable. However, in Hunter the House of lords doubted that personal injury could amount to a nuisance -- nuisance is concerned with the rights in land, not with bodily integrity. Nevertheless, there are numerous cases where damages have been awarded for personal injury resulting from nuisance.

A further problem with the principle that loss of amenity is recoverable is that whether there is a loss of amenity will depend on what the claimant does on his land. If the defendant has the poor fortune to live next to someone who carries on a particular line of business, and the defendant's actions are deemed to reduce the amenity of the neighbouring land with respect to that business, then he will be liable. Admittedly the courts have been reluctant to impose liability where the claimant's activities are unsually sensitive to interference (e.g.,robinson vkilv ert (1889)), but it is only by bad luck that the defendant in mc kinnon v walker (1951) happened to operate his business next to a flower grower rather than some less sensitive business.

Finally, there is some doubt as to what constitutes land. Clearly the term encompasses land and buildings; it appears, from CrownRiverCruisesVKimboltonFireworks1996 to include permanently-anchored vessels. Other structures may amount to land, but it isn't entirely clear what the basis for decision is.

Unreasonable interference

To succeed in nuisance, the claimant must show that the interference with has land was unreasonable. He need not show that the defendant behaved in an unreasonable way -- there is no additional fault element in nuisance -- which distinguishes nuisance somewhat from negligence. In deciding nuisance cases, the courts have to balance the right of the claimant to use his land, with the right of the defendant to use his. Not every trivial interference will amount to a nuisance. The presence of the following factors increases the likelihood that an interference will be held to be unreasonable:

  1. the location is one in which the interference is unexpected. For example, making a disruptive amount of noise is more likely to be unreasonable in a quiet rural area than in an industrial zone (SturgesVBridgman1879);
  2. the interference occurs at an unreasonable time -- the middle of the night, for example;
  3. the defendent could have accomplished his objectives in a less intrusive manner;
  4. the interference is long-standing;
  5. the interference is dangerous;
  6. the interference is something that does not naturally occur (e.g., a chemical release)
  7. the defendant's activity is of little or no social utility (but social utility is of relatively little weight, particularly if the defendant could carry on his operation elsewhere with no detriment --adams v ursell (1913))
  8. the defendant has caused the interference maliciously

The fact that the interference has been sanction by local authority planning approval does not prevent it amounting to a nuisance (WheelerVJJSaunders1995).

That malice can be an element in determining whether something is a nuisance tends to give the lie to the hallowed notion that nuisance is a tort of strictly liability, and requires no fault to be proved. In holleywood silver fox farm v emmet (1936), the defendant's shooting was perfectly lawful, and would not have amounted to a nuisance had it not been done with malice.

Repeated interference

It is often said that there is no liability in nuisance for an isolated event; indeed, one of the main distinctions between nuisance and the rule in rylands vfletcher is that the latter can found liability for an isolated event. Nevertheless, the requirement for repeated events is often said to distinguish nuisance from negligence, which can be based on a single event. Recently, however, there have been some developments in this area. In british celanese v hunt capacitors (1969), the defendant's metal foil blew onto a power line and shut off power to the claimant's plant. This was a single event, but the defendants were liable. The reasoning was that the single event followed from an ongoing state of affairs (the inadequate storage of the foil). Then, in leakey v national trust (1980), the defendants were held liable for a (single) landslide onto the claimant's property. Again, the reasoning was that the defendant's land was defective, and had been so for a long time.

Who can sue in nuisance?

The basis of the tort of (private) nuisance has always been an interference with one's right to peaceful enjoyment of land; it is a tort against land, not against the person. The textbook case that demonstrates this is MaloneVLaskey1907, in which it was held that a person occupying a house as a licencee was not able to sustain an action in nuisance against a neighbour.

That this decision has the potential to leave valid claims unsatisfied was recognized by the Court of Appeal in KhorasandjanVBush1993. In that case, the person who might have had standing to sue under the principle in Malone had suffered no damage, and therefore had no claim. The person who had suffered damage was a licencee, and therefore had no title to sue. The Court therefore decided that the law of nuisance could be invoked by those who had a 'substantial link' to the land, and this would include the relatives of landowners.

In fact, principle of Malone v Laskey seems to have been overlooked more often than not; in Crown River Cruises, for example, the claimants were licencees of a river barge, not even lessees.

The Khorasandjan principle -- that occupiers with a 'substantial link' to the landowner had title to sue -- was overturned by the House of lords in HunterVCanaryWharf1997. The House restated the principle that nuisance was a tort against property and, in any event, it would be difficult to determine where the standing to sue ended on the basis of the 'substantial link' test. In short, developing the law as the Court of Appeal suggested would significantly change the very nature of the tort.

Although Hunter seems clear enough, there continue to be uncertainties about who has title to sue in nuisance. The first problem arises from those cases where the courts have accepted that it is a nuisance to prevent someone getting access to land (rather than interfering with his use of that land). These cases have mostly arisen out of the actions of pickets on industrial disputes. In both Thomas v NUM [1986] Ch 20 and Newsgroup v SOGAT_ [1987] ICR 187 the courts accepted that pickets caused a nuisance by preventing non-striking workers getting into their places of work. In none of these cases has the victim of the nuisance had any proprietary interest in land; at best they have been licencees. However, unlike Malone, these cases concerned rights of access to land, not right of enjoyment of land, and might represent a different species of nuisance. It is unclear (at least, it is unclear to me) how these cases are affected by Hunter.

The second problem is that it has never really been clear what amounts to a proprietary interest in land for the purposes of nuisance, and on closer inspection it is obvious that it isn't a particular helpful concept in general. Consider, for example,pemberton v southwark lbc (2000). Here the Court of Appeal decided that a tenant, who had reverted to being a trespasser by his non-payment of rent, but was tolerated by the landowner, had standing to sue in nuisance. Does this mean that (a) a trespasser has a proprietary interest, or (b) a trespasser who is tolerated has a proprietary interest, or (c) a trespasser who used to be a tenant continues to have a proprietary interest? None of these possibilities seems entirely logical.

The third problem, which will probably become more of a problem in future, is whether, if a remedy in nuisance is denied to non-landowners, the law of nuisance is capable of giving effect to a person's rights under Art. 8 of EuropeanConventionOnHumanRights. This Article demands 'respect for private and family life', and if a person occupies his home as a licencee, or even as a trespasser, it seems that he should still be able to get the protection of the Article. This was accepted at first instance in McKenna v British Aluminium (The Times, April 25th 2002).

Who can be liable?

The claimant can act against various people.

First, he can act against the person causing the nuisance, even if that person is not occupying land in the vicinity. For example, in southport corporation v esso petroleum (1956) an action was held to lie against the owners of an oil tanker which discharged oil into the sea (although the action failed on its facts).

Second, the defendant can act against a person who occupies the land from which the nuisance emanates, even if this defendant has not actively caused the nuisance. There are a number of areas of uncertainty here. (i) It is not clear whether there can be liability for nuisances arising from the natural state of the land (rather than the defendant's actions). It now appears (Leakey) that there can. (ii) It is not clear whether there can be liability for nuisances caused by previous occupiers of the land. Probably if the defendant could not reasonably have been expected to know of the nuisance, he will not be liable. If the defendant makes use of the thing that causes the nuisance (in the jargon, he 'adopts the nuisance'), he may be liable (SedleyDenfieldVOCallaghan1940).

Third, if the occupier of the land from which the nuisance emanates is not the freehold proprietor, then an action may lie against the landlord. This will be the case if the landlord knew of the intended use of the land and sanctioned it (Tetley v Chitty) or if the landlord has reserved the right to enter and make repairs, and the nuisance results from a failure to repair.

Defences

The following might be defences.

  1. Prescription. The defendant must show that he or she has been committing the nuisance for 20 years, and that the claimant did not object in that time. For prescription to succeed, the defendant needs to show that he has acquired a prescriptive right against the defendant. If the defendant moves premises to the area of the nuisance, the defendant cannot rely on a prior period of non-complaint. However...
  2. volenti non fit injuria. There is a defence if the claimant knew of the nuisance before moving to its vicinity. He will be deemed to have accepted the situation.
  3. Statutory authority. There is no nuisance if the defendant's action is specifically authorized by statute.
  4. Act of God. This might include, for example, water overflowing from the defendant's well in an unsually heavy rainstorm.

The following are generally not defences.

  1. The social utility of the action in question.
  2. Planning permission from the local authority.
  3. jus tertii.

jus tertii.