Bachelor of Sharia and Law - Law of Tort II

NUISANCE
Introduction

The tort of nuisance sets out to protect the right to use and enjoy land, without
interference from others.

There are actually three types of nuisances:

• Private nuisance
• Public nuisance
• Statutory nuisance

Private nuisance is a common law tort, and the main subject of this chapter. Public
nuisance is a crime, and therefore dealt with through prosecution under the criminal
law, but it also comes into the study of tort because there are some cases where parties
who have suffered as a result of a public nuisance can sue in tort.

Statutory nuisance

Statutory nuisance is the name given to offences created under various statutes
concerning public health and environmental issues – for example, creating excessive
noise can be a statutory nuisance under the Control of Pollution Act 1974, and emission
of smoke may amount to a statutory nuisance under the Clean Air Act 1956.

Statutory nuisances are dealt with by local authorities, who can issue orders to stop the
harmful activity. These nuisances are quasi-criminal in nature and are enforced by
officers of local authorities, whose usual policy is to prevent nuisance by serving
reduction notices and who only prosecute in the magistrates’ courts as a last resort.

Private nuisance is a continuous, unlawful and indirect interference with the use or
enjoyment of land, or of some right over or in connection with it.

The essence of liability for private nuisance is an unreasonable interference with

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The claimant must prove three elements:

1. Continuous, indirect interference with the enjoyment of the land;

2. Interference was unreasonable; and

3. Interference caused damage to the claimant.

Interference

The claimant must prove that the defendant has caused an interference with the
claimant’s use or enjoyment of their land. They must be indirect, and that they will
usually (though not always) be the result of a continuing state of affairs, rather than a
one-off incident.

There must be a continuous interference over a period of time with the claimant's use or
enjoyment of land.

De Keyser's Royal Hotel v Spicer Bros Ltd (1914): Noisy pile driving at night during
temporary building works was held to be a private nuisance.

However depending on circumstance where a single act can be held to amount to a

Crown River Cruises v Kimbolton Fireworks [1996]: It was held that a firework display
constituted a nuisance when it was inevitable that for 15-20 minutes debris of a
flammable nature would fall upon nearby property, thereby damaging the property in
the ensuing fire.

In some cases there will be a physical invasion of the claimant’s land, such as:

Davey v Harrow Corporation (1958)- the roots of a neighbour’s tree spreading into the
claimant’s land.

Sedleigh-Denfield v O’Callaghan (1940)- water flooding onto land as a result of

Often the nuisance is caused by something intangible, such as noise

Christie v Davey (1893)- noise,

Wheeler v J J Saunders (1995)- smells.

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The situation complained of must be sufficient to interfere with the claimant’s 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.

However, the courts have not allowed the tort to protect what they consider to be
recreational facilities:

Bland v Moseley (1587) - blocking a neighbour’s pleasant view could not be considered
a nuisance.

Hunter v Canary Wharf (1997)- the claimants were people living near the huge tower
blocks of Canary Wharf, which was causing interference with their television reception.
The Court of Appeal decided that loss of this kind of recreational facility was not
sufficient interference to give rise to an action in nuisance.

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 precautions
(often known as continuing a nuisance, as opposed to creating one).

Leakey v National Trust (1980): The defendants occupied land on which there was a
large, naturally occurring mound known as Barrow Mump. After one very hot summer,
they were aware that the area could be affected by landslides, because of the earth
drying out, but they took no precautions against this. A landslide did occur, casting
earth and tree roots onto neighbouring land, and the defendants refused to remove the
debris. The courts held that they were liable for the nuisance, even though they had not
actually done anything to cause it, but had merely failed to prevent it.

Unreasonableness

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 rule is sic utere tuo ut
alienum non laedas (So use your own property as not to injure your neighbour's).

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 acceptable behaviour will be
unreasonable.

Southwark London Borough Council v Mills (1999): Here the council had converted a
house into flats and the claimant lived in one of them. She sued the council, claiming
that the building was poorly sound-proofed and she was troubled by the everyday

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noise generated by the occupants of other flats. The House of Lords held that the
ordinary use of residential premises could not amount to a nuisance; there was nothing
unusual about the way the building had been converted and the noise was normal for
such a residential building.

In deciding whether an interference is unreasonable, the courts will take into account all
the circumstances, and, in particular, the following factors:

1. Sensitivity: A defendant is not responsible for damage which occurs solely because
the claimant, or the claimant’s situation, is abnormally sensitive. The standard of
tolerance is that of the 'normal' neighbour. Therefore, abnormally sensitive plaintiffs are
unlikely to succeed in their claims for private nuisance

Robinson v Kilvert (1889) the claimant occupied the ground floor of the defendant’s
premises, using it to store brown paper. The defendant’s business, carried on in the
basement of the same building, involved making paper boxes. This needed a hot, dry
atmosphere. The heating used by the defendant in the cellar made the claimant’s floor
hot too, which dried out the brown paper, reducing its value. The claimant sued in
nuisance, but the court found that brown paper was exceptionally delicate. The damage
was due more to the sensitivity of the paper than to the defendant’s activities, so there
was no nuisance.

2. 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 depths of the country. This point was
made in:

Sturges v Bridgman (1879): "What would be a nuisance in Belgravia Square would not
necessarily be so in Bermondsey.“

St Helens Smelting Co v Tipping Ltd (1865): The claimant’s estate was situated in an
industrial area, and in deciding whether the fumes from the copper works amounted to
nuisance when it damaged crops and trees. House of Lords distinguished between
nuisances causing actual injury to property, as in this case, and nuisances causing
personal discomfort. In the latter case, claimants should be prepared to put up with the
level of discomfort common to the area in which they are situated. However, claimants
were not expected to put up with actual damage to their land resulting from the normal
activities of the locality, and so an injunction was granted.

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3. 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.

Harrison v Southwark Water Co [1891]: - building work carried out at reasonable times
of the day did not amount to a nuisance.

Adams v Ursell [1913]: a fried-fish shop was a nuisance in the residential part of a
street. An injunction would not cause hardship to the D and to the poor people who
were his customers.

4. Malice: Malice here means a bad motive. Where a defendant acts with malice, that
may be relevant to the question of reasonableness, in that it may make what would
have been reasonable conduct unreasonable.

Christie v Davey (1893)- claimant was a music teacher, and held musical parties in his
house. The defendant, his next-door neighbour, deliberately tried to disturb both
lessons and parties by blowing whistles, banging trays, making loud noises and
hammering on the wall. The court held that this malicious motive made the defendant’s
conduct unreasonable and a nuisance.

Nuisance was originally a tort of strict liability, in the sense that a defendant who was
found to have committed an unreasonable interference with the claimant’s land would
be liable, regardless of whether they had done so deliberately, carelessly or quite
unknowingly.

Damage

The interference must have caused some sort of damage to the claimant. This can mean
physical damage to their land, as in St Helens Smelting Co v Tipping (1865), where the
fumes from the copper-smelting works actually damaged trees and crops growing on
the claimant’s neighbouring land.

However, physical damage is not essential; discomfort and inconvenience may be

The claimant must prove that the interference actually caused the damage complained
of, under the rules of causation.

Cambridge Water Co v Eastern Counties Leather (1994) establishes that the test for
remoteness of damage in nuisance is reasonable foreseeability. Held that Eastern

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Counties Leather were not liable as the damage was too remote. It was not reasonably
foreseeable that the spillages would result in the closing of the borehole.

Defences

Statutory authority: Where a statute orders something to be done, and doing that thing
inevitably creates a nuisance, there will be no liability because the statute is treated as
having authorised the nuisance.

Allen v Gulf Oil Refining Ltd (1981): Residents in the area where the defendants were
operating an oil refinery brought an action claiming that the refinery was causing a
nuisance. The company pleaded in their defence that the nuisance was an inevitable
result of operating the refinery, which they had power under statute to do.

Prescription: A defendant may be held to have acquired the right to commit a private
nuisance by what is called prescription. This applies where it can be shown that the
nuisance has been actionable for at least 20 years, and that the claimant was aware of
this during the relevant period.

Sturges v Bridgman (1879) the defendant had been running his business for over 20
years, using heavy machinery, before his new neighbour, the doctor, moved in and was
disturbed by the noise. The defendant pleaded the defence of prescription, but the court
held that this did not apply; although the noise had been going on for more than 20
years, it did not become a nuisance until the claimant’s consulting room was built.
Therefore the activity must have been a nuisance to the actual claimant (or any
predecessors) for at least 20 years; the fact that it may have been a nuisance to people
occupying other property is not sufficient to create a prescriptive right.

PUBLIC NUISANCE

Public nuisance is an act "which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty's subjects".

The leading definition of public nuisance comes from the case of Attorney-General v
PYA Quarries (1957). The defendants used a blasting system in their quarry which
caused noise and vibrations, and threw out dust and stones, which affected people
living nearby. The Court of Appeal held that this could amount to a public nuisance,
which it defined as any nuisance which ‘materially affects the reasonable comfort and
convenience of a class of her Majesty’s subjects’.

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This definition has been taken to include a whole range of activities which endanger the
public, cause them inconvenience or discomfort, or prevent them exercising their rights.

How many people have to be affected in order for them to amount to ‘a class of her
Majesty’s subjects’? This question was examined in:

PYA Quarries, where, as there were only 30 houses nearby, the quarry owners argued
that they were too few for the problem to amount to a public nuisance. The court stated
that the test was whether the nuisance 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’. The court explained that this would not be
the case where only two or three people were affected by it, but agreed that the 30
householders in the case before them were enough. Beyond that, they declined to give
guidelines on numbers and said that the issue of whether the number of people affected
by a nuisance amounts to a class is a question of fact, to be examined in each case.

Tort actions for public nuisance

A defendant whose behaviour comes within the definition of public nuisance can be
prosecuted, but they can be additionally sued in tort for public nuisance if a claimant
can prove that they suffered ‘special damage’ over and above the effects on other
members of the affected group.

Benjamin v Storr (1874), for the purposes of his business, defendant kept horses and
vans standing outside claimant's coffee-house all day long. This caused an obstruction
to the highway, a public nuisance. claimant's complained that he suffered special
damage because the vans obstructed the light to his windows and he had to incur
expense in keeping gas lights burning all day long. He further alleged that the smell of
the horses made the premises objectionable and deterred customers, makes special
damages.

Rose v Miles [1815]:, The defendant wrongfully obstructed a public navigable creek
(canal) which obstructed the defendant from transporting his good through the creek.
This resulted in the plaintiff having to transport his goods by land, causing him to incur
extra costs. It was held that although the act of the defendant was a public nuisance,
since the plaintiff was able to prove that he suffered loss over and above other members
of the public, he had a right of action against the defendant.

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Lyons v Gulliver [1914]: The defendants operated the Palladium theatre. People
wanting to attend queued either along the footpath or along the roadway itself in front
of the premises from which the plaintiff neighbor carried on its business. Held that
interrupting traffic by queuing in a road is public nuisance.

Defences

The general tort defences discussed in the chapter on negligence apply to public
nuisance, and statutory authority is the most important. It was used successfully in
Allen v Gulf Oil Refining Ltd in a claim for public nuisance as well as private.

The defence of prescription, used in private nuisance, does not apply in public
nuisance.

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