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Nuisance
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Lecture notes of 32 pages for the course Law of Tort at UoS (Nuisance)
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NuisancePrivate Nuisance – Definition
Read v Lyons (1947).
The claimant was employed by the defendant in their factory which made explosives
for the Ministry of Supply. During the course of her employment an explosion
occurred which killed a man and injured others including the claimant. There was no
evidence that negligence had caused the explosion. At trial the judge held that the
case was governed by the rule in Rylands v Fletcher and liability was therefore strict.
The Court of Appeal reversed this decision as the rule in Rylands v Fletcher required
an escape of the hazardous matter.
The claimant appealed.
The House of Lords dismissed the appeal. In the absence of any proof of negligence
on behalf of the defendant or an escape of dangerous thing, there was no cause of
action on which the claimant could succeed.
‘… an unlawful interference with a person’s use or enjoyment of his land, or some
right over, or in connection with, that land’ – Scott LJ.
There must be an interference with the plaintiff’s use or enjoyment of land.
The defendant’s actions must constitute an unreasonable use of their land.
The plaintiff must have the required interest in land in order to have capacity to sue.
The defendant must be responsible for the interference in order to be found liable.
There must be an absence of any defence.
A number of remedies may be available.
What Constitutes an Interference with the Use of Enjoyment of Land?
Typical situation – the defendant does something on their land that causes
something to be emitted (e.g. noise, fumes etc), continuously or intermittently, onto
neighbouring land of the plaintiff and this either causes physical damage to the land
or interferes with the plaintiff’s enjoyment of their land (i.e. amenity nuisance).
Private nuisance is not actionable per se so there needs to be some loss.
Example of Physical Damage
St Helens Smelting Co v Tipping (1865).
The claimant was the owner of a large country house with over a thousand acres of
land. This land was close to a copper smelting factory which had long been in
operation.
The smelting factory discharged noxious gases as a result of its operation, which
were considered to be a normal part of the smelting operation.
As a result, trees on the claimant’s land were damaged by the fumes and noxious
gases. The claimant sued in nuisance.
Whether the defendant had acquired the right to carry on with the discharge of their
fumes as a result of the smelting through acquisition and long usage.
Whether it was a defence that the claimant ‘came to the nuisance’.
, The claim was allowed. It was no defence to say that the claimant ‘came to the
nuisance’ and the defendant could not be said to have acquired a right through
prescription to continue to discharge noxious fumes.
Whilst smelting and the discharge of these fumes was not in itself unlawful, and in a
locality in which this was to be expected there could be no nuisance.
However, in nuisance cases like this, it is necessary to distinguish between nuisance
alleged to have caused loss of amenities and comfort, and nuisance which is said to
have caused physical damage to property.
Where there had been physical damage to the claimant’s property as had occurred
in this case the question of the character of the locality itself was irrelevant, where it
may have been relevant if the alleged nuisance was only in the form of discomfort.
Example of Amenity Nuisance
Hunter and Others v Canary Wharf Ltd (1997).
A large tower was constructed in the Docklands area of East London which now goes
by the name of One Canada Square. It was constructed by Canary Wharf Ltd.
The tower was 250 metres tall and was completed near the end of 1990. Its location
was very close (less then 10 kilometres away) to the primary television transmitter of
the BBC, which is located in Crystal Palace.
As a result, the tower interfered with the television reception of a group of residents
of the Isle of Dogs. This interference was fixed by April 1991 through the installation
of a broadcast relay in Balfron Tower.
The claim in the case argued private nuisance for the period during which
interference was felt. 690 claims were made against Canary Wharf Ltd on those
grounds. Further, 513 claims were started against London Docklands Development
Corporation for damages suffered from excessive dust emanating from the
construction site. Some of the claimants were either owners or tenants, but others
did not have any property interests.
The issue in this case was whether interference with one’s television reception
amounted to actionable nuisance and further, whether it was necessary for the
claimant to have a property interest before a claim could be launched.
It was held that interference with one’s television reception through the
construction of a neighbouring structure could not and does not amount to an
actionable nuisance.
Further, it was held that only claimants with property rights can launch actions for
private nuisance. Khorasanjian v Bush [1993] was overruled in the parts holding that
a mere licensee can start a private nuisance action.
‘In cases of nuisances causing sensible personal discomfort (i.e. amenity nuisances)
the action is not for causing discomfort to the person but…for causing injury to the
land’ - Lord Hoffman.
,Interference – Objective Test
Walter v Selfe (1851).
Is the interference ‘…materially interfering with the ordinary comfort physically of
human existence, not merely according to elegant or dainty modes and habit of
living, but according to plain and sober and simple notions among English people?’
Interference – Emanation
Hunter v Canary Wharf (1997).
‘For an action in private nuisance to lie in respect of interference with the plaintiff’s
enjoyment of his land, it will generally arise from something emanating from the
defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a
noxious smell, vibrations, and suchlike’ – Lord Goff.
‘The mere fact that a building on the defendant’s land gets in the way and so
prevents something from reaching the plaintiff’s land is generally speaking not
enough for this purpose’ – Lord Goff.
Exception to Emanation Requirement?
Thompson-Schwab v Costaki (1956).
There was a sight of prostitutes and their clients entering and leaving the premises.
They were held to amount to actionable nuisance as the activity was offensive in
itself.
There was no need to demonstrate that the activities were noisy.
‘Occasionally activities on the defendant’s land are in themselves so offensive to
neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v
Costaki… Such cases must however be relatively rare’ – Hunter, per Lord Goff.
Emanation?
Pusey v Somerset County Council (2012).
People urinating in a nearby layby didn’t constitute a nuisance as the plaintiff only
had a partial view and had to make a special trip to the end of his driveway to see
anything.
, Strict Liability
Cambridge Water v Eastern Counties Leather (1994).
The Defendants were engaged in leather tanning at Sawston. During their work, as a
result of the process of degreasing pelts, small quantities of a solvent known as
Perchloroethene (PCE) was spilt on the floor of the building in which the Defendants
carried out their activities.
These solvents eventually seeped through the building floor and into the soil, which
eventually meant that they contaminated the Claimant’s borehole at Sawston Mill
near Cambridge, some 1.3 miles away.
The borehole was used to extract and supply water to local residents and
consequently this meant that the water available for extraction as contaminated and
to such a degree that it could not be safely used by the Claimants.
The Claimants brought a claim against the Defendants on the grounds of nuisance,
negligence and the rule in Rylands v Fletcher.
The issue in the case was whether the rules for remoteness of damage and
foreseeability of the type of damage caused apply to cases involving the rule
in Rylands v Fletcher and nuisance in the same way they do for negligence cases.
It was held that the necessity to prove foreseeability of the type of damage suffered
and to deal with remoteness of damage more generally applies equally to cases
based on negligence, nuisance and the rule in Rylands v Fletcher.
It was held further that the damage in this case was too remote as it was not
possible for the Defendants to reasonably foresee a spillage which would eventually
lead to contamination of a water borehole so far away.
The Defendants were therefore not liable for the damage.
‘The facts that the defendant has taken all reasonable care will not exonerate him
from liability…’ – Lord Goff.
Needs to be Reasonably Foreseeable
Strict liability – defendant may be liable even if they’ve taken all reasonable care.
But – liability isn’t entirely strict.
Reasonable foreseeability – claimant has to show that the damage they have
suffered was reasonably foreseeable.
‘But it by no means follows that the defendant should be held liable for damage of a
type which he could not reasonably foresee…a requirement (of) foreseeability
should be prerequisite of liability in damages for nuisance, as it is of liability in
negligence’ – Lord Goff.
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