Introduction
liability in private nuisance arises only when the conduct of the defendant amounts to an unreasonable user of
land in that it causes an unreasonable interference with the claimant’s use of land (question of fact); court
weighs up different factors and asks if the conduct interferes with C’s use of his land, not ‘elegant and dainty
habits’, but ‘plain and sober notions’: Walter v Selfe (1851) 4 De G& Sm 315 at 322.
the question = could a reasonable person be expected to put up with the interference?
Baarr v Biffa Waste Services Ltd [2013] QB 455 at [74], per Carnwath LJ;
Lawrence v Fen Tigers Ltd [2014] AC 822 at [5], per Lord Neuberger, and at [193], per Lord Carnwath
unreasonable interference / unreasonable user — depends on number of factors, e.g. nature and extent of
interference, locality, reasonableness of D’s conduct.
Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 — ‘A [private] nuisance can be defined, albeit in
general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise
authorised, and which causes an interference with the claimant's reasonable enjoyment of his land, or to use a
slightly different formulation, which unduly interferes with the claimant's enjoyment of his land.’ (Lord
Neuberger, para 3)
facts: the claimants had bought a bungalow in a rural location in Suffolk a few hundred metres from a
complex consisting of a stadium used for various motor sports and a track used for motocross racing.
the bungalow (which had been built in the 1950s) was surrounded by fields and there were no other
residential properties within a half-mile radius. permanent planning permission had been granted for
speedway racing at the stadium some 20 years previously, and stock car and banger racing were covered
by a certificate of lawful use. permanent planning (p. 659) permission had also been granted four years
earlier for motocross events at the track, albeit with detailed conditions as to the frequency and timing
of these events, and the level of noise they generated. the claimants were upset by the noise from the
motorsports events held at the stadium and track, and brought proceedings in private nuisance against a
number of defendants associated with the facilities.
held: appeal allowed.
St Helen’s Smelting Co v Tipping (1865) 11 HLC 642 — distinction between activities of a neighbour which
cause ‘material injury to property’ (where the locality in which the activity is pursued is irrelevant) and those
which cause ‘sensible personal discomfort’ (where the locality is relevant), c.f. see locality below.
facts: the plaintiff bought property in June 1860, and several months later the defendant began extensive
smelting works on its property nearby. the plaintiff alleged that the fumes from the defendant’s works
had caused damage to trees and shrubs on the plaintiff’s land. the jury found for the plaintiff, and the
defendant challenged the direction given by the trial judge, Mellor J. appeals to the Court of Exchequer
Chamber and the House of Lords were dismissed.
c.f. Lawrence v Fen Tigers Ltd [2014] UKSC 13 — ‘the type of nuisance alleged in this case is
nuisance in the sense of personal discomfort, in particular nuisance by noise, as opposed to actual injury
to the claimant's property (such as discharge of noxious material or removal of support)’ (para 1)
c.f. the mere presence of a building cannot amount to private nuisance, Hunter v Canary Wharf [1997]
AC 655
c.f. overlooking cannot amount to private nuisance, Fearn v Tate Gallery [2020] EWCA 104
facts: Cs were residents of flats in London, which were directly opposite an extension of Tate
Modern (the Blavatnik building). visitors to this building could see into Cs flats. some had taken
photos (and posted them online) or used binoculars to look into Cs flats. Tate posted a notice
asking visitors to respect the privacy of their neighbours and instructed security guards to stop
people taking photographs. Cs sought an injunction requiring Tate to prevent members of the
public from observing their flats.
first instance — if the sight of something on the defendant’s land can give rise to a
nuisance claim, as in Thompson-Schwab v Cotaki [1956] 1 WLR 335 (in which an
interlocutory injunction was granted restraining the defendants from using premises for
, the purpose of prostitution), then it should be noted that part of the privacy claim could
be founded on the fact that the claimants find it oppressive to see the watchers watch
them.
CA — the overwhelming weight of judicial authority is that mere overlooking is not
capable of giving rise to an action in private nuisance (policy, historical grounds). to say
otherwise would unduly constrain building in a city.
c.f. standing to sue, Hunter v Canary Wharf Ltd [1997] AC 655 — whether one addresses physical
damage to property or personal discomfort, private nuisance is about land, not people, re: claimants
must have a right over the land in question, the mere occupation of the property as a home is not
sufficient (C must have proprietary interest in the property in question).
c.f. Fearn v Tate Gallery [2020] EWCA 104 — overlooking part of proprietary right?
Distinguishing private nuisance
c.f. negligence, Occupiers Liability Acts 1957 and 1984 — the Act applies to people coming onto others’ land,
private nuisance is about people’s land affecting neighbours’ land.
c.f. statutory nuisance, Environmental Protection Act 1990, part III
c.f. public nuisance, Corby Group Litigation Claimants v Corby BC [2008] EWCA Civ 463 — ‘The essence of
the right that is protected by the tort of private nuisance is the right to enjoy one's property. … The essence of
the right that is protected by the crime and tort of public nuisance is the right not to be adversely affected by an
unlawful act or omission whose effect is to endanger the life, safety, health etc of the public’ [29]
Level of interference
the principle of reasonable user, Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264, p 299
— liability for nuisance is “kept under control by the principle of reasonable user—the principle of give and
take as between neighbouring occupiers of land, under which ‘those acts necessary for the common and
ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those
who do them to an action’: see Bamford v Turnley (1862) 3 B & S 66 , 83, per Bramwell B.”
factors:
i. locality — some form of public interest is considered bc a landowner must put up with
inconveniences resulting from ‘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 the public at
large’ (see below)
NOTE that locality does not provide immunity, i.e. even if D’s use of land is suitable for an area,
it might still amount to nuisance.
St Helen’s Smelting Co v Tipping (1865) 11 HLC 642 — the locality principle applies to
amenity harms, but not to physical damage to property; “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.”
Lawrence v Fen Tigers Ltd [2014] UKSC 13; [2014] AC 822 — locality is ‘a classic issue of
fact and judgment for the judge trying the case’ (para 59).
▪ nature of locality — dominant land use (residential, commercial, industrial or
agricultural) / the ‘established pattern of uses’ ([60)
