LAWS41501 Tort Law & Civil Remedies

HANDOUT: LECTURE : Nuisance

“CAN I SUE MY NEIGHBOURS IF I DON’T WANT TO GO TO

THEIR HOUSE PARTY?”

Lecture Outline

What is Nuisance?
An Environmental or Pale Green Tort?
Public Nuisance
Statutory Nuisance – Neighbours from Hell?
Private Nuisance
Defences
The Rule in Rylands v Fletcher
Remedies and further defences
Nuisance and Human Rights

1. What is Nuisance?

The tort of Nuisance is concerned with protecting a person’s interest in their use or
enjoyment of property. In the past, unlawful interference with land has amounted to
offensive smells, toxic chemicals, noxious fumes, traffic jams, flooding, fires, even
brothel keeping. However, the key part to this tort is that it is concerned with the use
or enjoyment of land. In this respect, it needs to be distinguished from negligence
liability.

Nuisance as a tort can be split into four main categories:

 Public Nuisance
 Statutory Nuisance
 Private Nuisance
 The Rule in Rylands v Fletcher

There is no bar to arguing all these headings in the same case, however the use of
each of these categories has its own advantages and disadvantages and it is important
that you appreciate how, why and where to apply them. This lecture will explain the
key concepts in each category and the main areas of difference or similarity between
the torts.

2. An Environmental or Pale Green Tort?

Often civil claims relating to environmental harm are referred to as “toxic torts” and are
characterised by losses sustained as a result of exposure to hazardous toxic substances
or harmful environmental activities.

Many claims of this nature also generate human rights law claims, especially in relation

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to Article 8 on the basis that an individual’s right to privacy and family life has been
violated by excessive exposure to noise or pollution. Themes which will be explored in
the next workshop.

In contemporary times, private nuisance has become associated with the protection of
the environment predominantly through the control of land use. Claims within this area
may also In assessing whether or not a private nuisance exists or not, the courts are
essentially engaging in a balancing exercise, that is they are trying to reconcile the
competing interests of the claimant’s and defendant’s right to use their property as they
wish.

3. Public Nuisance

Public Nuisance is concerned with recognising and protecting the rights of members of
the public, the most common example of the tort is in preventing the obstruction of a
highway (see Dymond v Pearce [1972] 1 QB 496; Tarry v Ashton [1876] 1 QBD
314)

While it can be both a tort and a crime, public nuisance is primarily a crime and acts as
a means of public protection.

The leading case in this area is: AG v PYA Quarries [1957] 2 QB 169.

In it, Lord Justice Denning describes Public Nuisance as:

“….a nuisance which 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 of the community at large.”

In the same case, Lord Justice Roper gave the following definition of Public Nuisance
as:
“any nuisance is ‘public’ if it materially affects the comfort and convenience of a
life of a class of Her Majesty’s subjects”

3.1 Individual Actions

An individual may bring an action in public nuisance if they can establish that they have

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suffered particular or ‘special’ damage over and above that of the community at large.
This is to limit the number of claims being brought and to avoid the floodgates opening.

It is not necessary to show that every member of the class has been affected, but the
nuisance must affect a representative cross-section of this class. See:

Rose v Miles [1815] 4 M&S 101

Halsey v Esso Petroleum Company Ltd [1961] 2 All ER 145
Lyons v Gulliver [1914] 1 Ch 631
Gillingham v Medway (Chatham) Dock Co [1992] 3 All ER 923
Tate & Lyle Industries Ltd v GLC [1983] 2 AC 509

If a claimant cannot show special damage, it is still possible to bring a claim, however
this would need to be under a relator action in the name of the Attorney-General, or by
persuading the Local authority to exercise its power under s.222 of the Local
Government Act 1972.

Following R v. Rimmington (Anthony) [2005] UKHL 63 – outraging public decency or

morals is no longer covered by Public Nuisance.

4. Statutory Nuisance – Neighbours from Hell?

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The common law is supplemented with statutory pollution controls. For present
purposes, the most relevant are those relating to Statutory Nuisance – contained in
Part III of the Environmental Protection Act 1990 (EPA 1990).

By virtue of s.79 EPA 1990, local authorities are under a duty to inspect their areas for
the existence of statutory nuisances. S.80 EPA 1990 provides that where a local
authority has identified the existence of a statutory nuisance, they are under a
mandatory duty to serve an Abatement Notice on the person responsible for the
nuisance.

4.1: Types of Statutory Nuisance

Widened in scope by the implementation of the Noise and Statutory Nuisance Act 1993.
In essence, a statutory nuisance arises from a nuisance that is considered to be
“prejudicial to health or a nuisance”. Examples of statutory nuisances include:
 Any premises in such a state as to be prejudicial to health or a nuisance
 Smoke emitted from premises so as to be prejudicial to health or a nuisance
 Fumes or gases emitted from premises so as to be…..
 Any dust, steam, smell or other effluvia arising on industrial, trade or business
premises and being…..
 Any accumulation or deposit which is…..
 Any animal kept in such a place or manner as to be……
 Noise emitted from premises so as to be…..
 Noise that is prejudicial to health or a nuisance and is emitted from, or caused
by, a vehicle, machinery or equipment in a street* (Noise & Statutory
Nuisance Act 1993)
 Any other matter declared by any enactment to be a statutory nuisance

4.2 How do the courts interpret the meaning of “prejudicial to health or a

nuisance”

For a matter to become a statutory nuisance, as opposed to a common law nuisance, it

must possess the added element of being “prejudicial to health or a nuisance”.
See: Coventry City Council v Cartwright [1975] 1 WLR 845
Prejudicial to health – “likely to cause a threat of disease or attract
vermin”
NCB v Thorne [1976] 1 WLR 543
Nuisance – “ordinary common law meaning – public or private”

4.3 How is the existence of a statutory nuisance determined?

The Local authority will investigate the matter and consider:
 Nature and location of the nuisance
 Time and duration of the nuisance
 Utility of the activity

4.4 Who is responsible for the nuisance?

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s.79(7) EPA 1990 defines the person responsible as:
“…..the person to whose act, default or sufferance the nuisance is attributable”

The Abatement Notice

The notice served on the “person responsible” must be clear and precise, and must
require any, or all, of the following:
 The abatement of the nuisance or the prohibiting or restricting of its
occurrence / reoccurrence
 The execution of works or other steps necessary to comply with the notice

s.80(4) EPA 1990 provides that it is a criminal offence to fail to comply with an
Abatement Notice, or any requirement or prohibition imposed by the notice, without
reasonable excuse.
See: Kirklees MBC v Field [1998] Env LR 337

3.5 Defences
s.80(7) EPA 1990:
 Reasonable Excuse
 Best Practicable Means Defence
 Special Defences

NB There is a Right of Appeal against an Abatement Notice

s.82 EPA 1990 – Individual Actions

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5. Private Nuisance

The traditional definition of a private nuisance is:

“…..an unlawful interference with a person’s use or enjoyment of land, or some
right over, or in connection with it.” (Read v Lyons [1947] AC 156

For example:
 Encroachment upon the claimant’s land (eg tree roots)
 Physical damage to the claimant’s land / property (eg noxious fumes)
 Interference with the claimant’s comfort or convenience (eg smells or dust)
See: Smith v Giddy [1904] 2 KB 448
St.Helen’s Smelting Co v Tipping [1865] 11 HL 642

In any claim for Private Nuisance, there are five main elements that have to be
satisfied:
a) Identify who can sue
b) Identify who is liable
c) Identify the type of damage
d) Determine whether the interference was reasonable?
e) Can the defendant rely on any defences

5.1 Who can Sue?

An action in private nuisance is only available to an owner or occupier with a
recognised legal or equitable interest (which excludes the family of the occupier,
visitors etc).
See: Malone v Laskey [1907] 2 KB 141
Khorasandjian v Bush [1993] 3 WLR 476
The leading case in this area is: Hunter v Canary Wharf Ltd [1997] 2 All ER
426

5.2 Who is Liable?

There are three potential defendants in an action for private nuisance:
 The creator of the nuisance (could be a third party with no land ownership)
 The occupier of the land
 The occupier’s landlord

Although historically there was no common law duty imposed upon an occupier to
abate a nuisance arising from natural causes, or the natural condition of the land. This
has now changed and Lord Wilberforce has identified three relevant factors in
Goldman v Hargrave [1967] 1 AC 645 that need to be taken into account when
considering the nature and extent of the duty owed:
 The occupier’s awareness and knowledge of the risk
 The forseeability of consequences of not abating or checking the hazard
 The defendant’s actual ability to abate it (subjective)

See also: Leakey v National Trust for Places of Historical Interest or Beauty
[1980] QB 485
Holbeck Hall Hotel Ltd v Scarborough BC (No.2) [2000] QB 836

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Sedleigh-Denfield v O’Callaghan [1940] 3 All ER

5.3 The distinction between physical damage and interference with the
enjoyment of land (or amenity damage)

In the context of private nuisance, it is important to distinguish between actual physical

damage to property and interference with the enjoyment of property.

Where the nuisance consists of an interference with the enjoyment of property

(amenity damage), then the proof of a substantial level of interference is required by
the courts. Interference with the enjoyment of the property can also be moral (see
Thompson-Schwab v Costaki [1956] 1 All ER 652)

Leading Cases:

St Helen’s Smelting Co v Tipping [1865] 11 HL 642

Cambridge Water Company v Eastern Counties Leather [1994] 2 AC 264

The requirement for foreseeability of damage in private nuisance

Whilst damage to property can be remedied via private nuisance, personal injury is
usually dealt with under the heading of negligence rather than nuisance.

5.4 Reasonableness in the context of Nuisance

Central to private nuisance is the concept of reasonableness. In Saunders-Clark v

Grosvenor Mansions and D’Allensandri [1900] 2 Ch 373, Mr Justice Buckley
stated:
“the court must consider whether the defendant is using the property reasonably
or not. If he is using it reasonably, there is nothing which at law can be
considered a nuisance: but if he is not using it reasonably…then the plaintiff is
entitled to relief.”

In Southwark LBC v Mills [1999] 3 WLR 939 HL, Lord Millet stated that:
“the use of the word ‘reasonable’ in this context [that is, private nuisance] is apt
to be misunderstood. It is no answer to an action for nuisance to say that the
defendant is only making reasonable use of his land….What is reasonable from
the point of view of one party may be completely unreasonable from the point of
view of the other. It is not enough for a landowner to act reasonably in his own
interest. He must also be considerate of the interest of his neighbour. The
governing principle is good neighbourliness, and this involves reciprocity. A
landowner must show the same consideration for his neighbour as he would
expect his neighbour to show for him.”

In Bamford v Turnley [1862] 3 B & S66, Pollock CB stated that:

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“The question….entirely depends on the surrounding circumstances – the place
where, the time when, the alleged nuisance, what, the mode of committing it,
how, and the duration of it, whether temporary or permanent, occasional or
continual.”

In Walter v Selfe [1851] 4 De G & SM 315, Vice Chancellor Knight Bruce stated
that:
“an inconvenience materially interfering with the ordinary comfort of human
existence, not merely according to elegant or dainty modes and habits of living,
but according to plain and sober simple notions among the English people.”

What all these quotes confirm have in common, is that in determining whether or not
an actionable nuisance has arisen, the courts will take into account a number of
factors.

These are:
 Locality
 Utility of the conduct
 Duration
 Sensitivity of the claimant
 Intention of the defendant
 Forseeability

5.4.1 Locality
In assessing whether interference with enjoyment of property has arisen the courts will
examine the locality in which the nuisance arises. For example, note the comments of
Lord Justice Thesinger in Sturges v Bridgeman [1897] 11 Ch D 852:
“What would be a nuisance in Belgrave square would not be so in Bermondsey.”

It is also worth noting the impact of planning permission

See: Gillingham v Medway (Chatham) Dock Co [1992] 3 All ER 923
Wheeler v JJ Saunders Ltd [1995] 3 WLR 466

5.4.2 Utility of the Conduct

Coupled with the location of the claim, it is also important to consider the social utility
of the defendants conduct and the impact that any prohibition / injunction might have.
See: Adams v Ursell [1913] Ch 269
Miller v Jackson [1977] 3 All ER 338
Bolton v Stone [1951] AC 850

5.4.3 Duration

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The courts will take into account the duration of the nuisance. The existence of a
private nuisance is normally associated with a continuing state of affairs. Although,
note the comments in Spicer v Smee [1946] 1 All ER 489 over whether a nuisance
arises from the condition of the defendants land.
See also: Harrison v Southwark & Vauxhall Water Co [1891] 2 Ch 409
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd [1914] 30 TLR 257
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2
Lloyd’s Rep 533

5.4.4 Abnormal Sensitivity

Previously, the courts would not generally take into account any abnormal sensitivity in
determining whether or not a nuisance has occurred in relation to either person or
property.
See: Heath v Mayor of Brighton [1908] 98 LT 718 (Sensitive person)
Robinson v Kilvert [1889] 41 ChD 88 (Sensitive property)
[DISAPPROVED]

The current leading case is now: Network Rail Infrastructure Ltd v Morris (t/a
Soundstar Studio) [2004] EWCA Civ 172 which stated that the test was
“whether it was foreseeable that specific damage would be caused to a specific
claimant, a requirement that subsumed both duty in fact and remoteness of
damages and was applied with the same generality as in negligence cases”

5.4.5 Malice
In ascertaining whether an actionable nuisance exists, the purpose of the defendants
activity will be considered. Activities involving an element of malice will not be regarded
as reasonable.

See: Christie v Davey [1893] 1 Ch 316

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

6. Defences

There are a number of defences that can be pleaded in an action for private nuisance:

a) Prescription
b) Unforeseeable act of a stranger
c) Statutory Authority
d) Act of God
e) Consent

6.1 Prescription
The continuance of a nuisance for 20 years theoretically entitles the defendant to claim
a prescriptive right to commit private nuisance (Note: the defence is NOT valid for
public nuisance). However the defendant must prove that the interference constituted
an actionable nuisance for the entire 20-year period. When does that 20-year period
run from?

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See: Sturges v Bridgman [1879] 11 ChD 852

6.2 Unforeseeable act of a stranger

The act of a third party must be unforeseeable, see: Rickards v Lothian [1913] AC
263

6.3 Statutory Authority

A defendant will not be liable for interferences that are the inevitable result of the
authority of a statute. Statutory authority can be express or implied.

See: Allen v Gulf Oil Refining Ltd [1981] AC 1001

Smeaton v Ilford Corporation [1954] Ch 540
Gillingham v Medway (Chatham) Dock Co [1992] 3 All ER 923
Marcic v Thames Water Utilities Ltd [2004] 1 All ER 115
Dennis v MoD [2003] Env LR 34

6.4 Act of God

“The defendant will not be liable where the escape is due solely to natural causes, in
circumstances where no human foresight or prudence could reasonably recognise the
possibility of such an occurrence and provide against it” (Giliker & Beckwith).

6.5 Consent
This may be express or implied.

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7. The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher has been described as a hybrid form of nuisance which
imposes strict, although not absolute, liability where something is brought onto land, or
collected there, and subsequently escapes causing damage. In this sense, the
environmental implications of the rule are clear. Many potential pollutants consist of
materials and / or substances that are brought onto land, and in the past, the rule has
been invoked in relation to water, fire, gasses, oil etc.

During the initial stages of development, there was speculation as to whether some
comprehensive theory of strict liability had been developed for harm caused to persons
by dangerous things. However, such a position is no longer tenable since the case of
Read v Lyons [1946] 2 All ER 471

Rylands v Fletcher [1865] 3 H & C 744

The case involved the construction of a reservoir upon land rented by the defendant.
Below the reservoir existed old mine workings that communicated with those of the
claimant and a third party, the defendant’s contractors failed to block off the
mineshafts.

The reservoir burst, and water flooded the mine belonging to the claimant. The
defendant did not know of the existence of the mine workings until the incident.
Although negligence could not be established on the part of the defendant, the court
nevertheless held the defendant liable for the claimant’s loss.

Mr Justice Blackburn formulated the following famous principle:

“The person who, for his own purposes, brings onto his land and collects and
keeps there something likely to do mischief if it escapes, must keep it in at his
peril, and if he does not do so he is prima facie liable for all the damage which is
the natural consequence of its escape.”

The case went to the House of Lords who affirmed the decision and the approach of
Blackburn J, Lord Cairns LC emphasising that for the rule to apply, the use of the land

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must be “non-natural”. As will be seen, it is this particular qualification that has proved
to be one of the major limitations in subsequent interpretations of the Rylands v
Fletcher rule.

The Rule can be condensed into three key parts:

The person who for his own purpose
a) Collects and keeps something likely to do mischief if it escapes
b) Non-natural use of the land
c) Escape from the land

7.1 The Person

The defendant is usually the owner of controller of the land

See: Smith v Scott [1973] Ch 314
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985

7.2 Collects and keeps something likely to do mischief if it escapes

This applies to things that the defendant artificially accumulates on land. It does not
apply to things that occur naturally on the land.

See: Giles v Walker [1890] 24 QBD 656

Pontadawe Rural DC v Moore Gwyn [1929] 1 Ch 656
AG v Corke [1933] Ch 89

7.3 Non-Natural Use of Land

This concept has been equated with “extraordinary” or “abnormal use” and the courts
will generally take into account the degree of risk created by the defendant’s use and
the prevailing standards of the era.
See: Musgrove v Pandelis [1919] 2 KB 43
Rickards v Lothian [1913] AC 263
Read v Lyons [1946] 2 All ER 471
British Celanese Ltd v AH Hunt [1960] 1 WLR 959
Cambridge Water Company Ltd v Eastern Counties Leather [1994] 1 All
ER 53
Transco plc v Stockport MC [2003] UKHL 61

The most Modern Formulation of the rule can be seen in Stannard (t/a Wyvern
Tyres) v Gore [2012] EWCA Civ 1248 [22]:

(1) The defendant must be the owner or occupier of land.

(2) He must bring or keep or collect an exceptionally dangerous or mischievous
thing on his land.
(3) He must have recognised or ought reasonably to have recognised, judged by
the standards appropriate at the relevant place and time, that there is an

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exceptionally high risk of danger or mischief if that thing should escape,
however unlikely an escape may have been thought to be.
(4) His use of his land must, having regard to all the circumstances of time and
place, be extraordinary and unusual.
(5) The thing must escape from his property into or onto the property of
another.
(6) The escape must cause damage of a relevant kind to the rights and
enjoyment of the claimant's land.
(7) Damages for death or personal injury are not recoverable.
(8) It is not necessary to establish the defendant's negligence but an Act of God
or the act of a stranger will provide a defence. "

8. Remedies

8.1 Damages

The aim of damages is to put the claimant back into the position that they would have
been in had the nuisance not occurred.
See: Bone v Seale [1975] 1 All ER 787

8.2 Injunctions

Injunctions are potentially the most sought after remedy for nuisance since they can
prevent the nuisance from continuing. Since they are an equitable remedy, they are
only granted at the court’s discretion.
See: Kennaway v Thompson [1981] QB 88
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287

9. Nuisance and Human Rights

To conclude your study of nuisance it is also important to understand that claims for
nuisance-related activities can also be argued as a human rights claim. In particular,
Article 8 of the ECHR, has been developed so that ‘excessive exposure to pollution
and/or noise’ may amount to a breach of the right to privacy and family life. This was
successfully argued in cases such as Dennis v MoD [2003] EWHC 793 and
considered in Marcic v Thames Water Utilities Ltd [2001] 3 All ER 698.

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