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2.1 Private Nuisance, Public Nuisance Tort Law (Queen Mary University of London)
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Tort Law Revision note: Private Nuisance, Public Nuisance and Ryland’s v Fletcher Private Nuisance:
Definition: ‘an unlawful interference with a person’s use or enjoyment of his land, or some right over, or in connection with, that land’: Read v Lyons [1945] (per Scott LJ) ELEMENT 1: PROVING AN INTERFERENCE
A. Element 1: Can C prove an interference? 1. a.
Has there been an interference that could potentially trigger nuisance?
What types of interference trigger nuisance?
Three potential types: Hunter v Canary wharf [1997] per Lord Lloyd
b.
It must an actionable ‘interference’ (and the type of damage recoverable)
A tort against land, not a tort for protecting essentially personal interests: Hunter v Canary Wharf, supra (Lords Lloyd and Hoffmann) Subtle distinctions between physical damage and amenity nuisances
The smell is not going to cause physical damage to the property, so what one has to prove is that there is reduction in the value of the Land (amenity Nuisance) – how you would do this is to show a reduction in the capital value or rental value of the Land (i.e. need re-estate evidence) per Hunter v Canary Wharf
The status of personal injury damages?
Personal injury cannot be claimed on its own one has to suffer a personal injury in addition to a reduction in value of Land. (post hunter v Canary Wharf) No recovery for pure relational economic loss
The status of chattel damage?
Hunter v canary Wharf seems to suggest that chattel damage is recoverable, if it’s consequential on property damage, i.e. you need to prove some damage to the Land and then you tag on your chattel damage.
Lord Hoffman gave the example, that if a claimant land is flooded because the defendant let the water flood it, and as a result the Cattle are killed then Cattle could be recovered for as they are chattels (tag on chattel damage).
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Tort Law Revision note: Private Nuisance, Public Nuisance and Ryland’s v Fletcher Halsey v Esso Petroleum [1961] o
c.
Mr Halsey Lived next door to Esso depot and this was used for both processing and distribution of oil, the Esso depot had to massive chimney which reaslsed abnoxtion fumes, they condensed and fell on Mr Halsey property and it messed up the paint work on his car and also affected the clothes that he left out to dry. This was seen as chattel damage. The court said that nuisance succeeded their and he could recover. (These days you would need to show or attach this chattel damage to a reduction in the value or rental value of the land. (you need to have property valuations done)
The interference must not be trivial
‘Trifling nuisances have never been actionable’, per Southwark LBC v Tanner [2001] (Lord Millett) (i.e. mere inconvenience is not enough)
Numerical calculations: Watson v Croft Promo-Sport Ltd [2009 (CA) (noise nuisance) o
o
Promo sport operated a race track which run 200 days a year, according to the evidence on 140 of those days there was a high level of noise coming from the venue. The Watson lived very close (300 meters) by and were frustrated about the noise and sued the Croft promo sport. They were prepared to accept 20 days of high level nuisance. It went up to the court of appeal as to whether you can impose such a threshold on a defendant. The court of appeal held that there was a Nuisance here and injunction was awarded to stop this track over a certain number of days. The court felt that the correct threshold of noise was 40 days and anything above that was a nuisance for which an injunction would be awarded.
Note: since then the court said it is not right to impose a certain threshold, they said there is no set numerical threshold (2012) see Barr v Biffa.
d.
There is ... no precedent for requiring claimants to specify a precise limit of acceptable smell,…They were entitled to have their cases assessed by the same standards, and not by reference to an arbitrary numerical test set by the judge.
The interference must affect a ‘right’ of the claimant
right’ to television reception
Bridlington v Yorkshire [1965] o The defendant was Yorkshire electricity broad, who built high tension electricity capable in England, according they emitted some electric magnetic interference, which affected residents TV reception. This went to the court as to whether it was a private nuisance. o It was held that there was no private nuisance here, the reason he gave was that this right to watch TV, was recreational activity and it is not part of peaceable use and enjoyment of the premises that it could be regard as nuisance. (Buckley LJ) Hunter v Canary Wharf o This case arose out of the building of the Canary Wharf tower in Isle of Dogs. This was 250 Meters high, once it was built it disrupted the TV Signal in crystal palace, this caused problems that lived in lime house and Shadwell, there TV Signals in these households were disrupted or non-existence. This was brought as a group claim, it went to the house of lord as to whether this was a nuisance. The ratio in this case was actually concerned about standing, i.e. who sue for these disruption must have possessory interest. o It was held by a 3:2 majority that a TV Signal reception could be protected in private nuisance in the modern era. (Whatever they say about this is only dicta). They said that this was due to three reasons: 1. Unlike Bridlington they did not regard TV Viewing as pure recreational, the world had moved on. They said that it’s an educational and a social purpose. Evidence was given to the court that the average person watches 24 hrs. Of TV a week. As a result anything that interfered with this must be considered to a serious interference with the enjoyment of the Land. They said that anything which was said in Bridlington should be overruled.
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Tort Law Revision note: Private Nuisance, Public Nuisance and Ryland’s v Fletcher
e.
‘Right’ to a view: (not protectable in private Nuisance, not a property right) – however you can sue for interruption to your light. Also if you are confronted with upsetting sites on your neighbour’s property then you can sue, these are caveats to the general rule.
The interference must generally emanate from the defendant neighbour’s land
Rule: A Nuisance generally arises from something emanating from the defendants land. (You need show that something came from the defendant’s land that interfered with use and enjoyment of your land. These things that emanate could be electromagnetic wave, smell, fire etc… Hunter v Canary Wharf, Lord Goff: o
The issue in hunter v Canary Wharf is that nothing emanated from the building it was just there. It was just in the pathway of the TV signal. Could this be a private nuisance, it was held in hunter v Canary wharf, that No it can’t if it does not emanated from the defendants land. (dicta)- They said that there was no emanation in this case the building was just there. Just because a building get in the way that prevent something does not mean that it’s emanating from the Land.
However, Bank of New Zealand v Greenwood [1984] 1 NZLR 525 o In this case the defendant had built a glass roof and because of the angle of the glass roof, light reflected to the claimant premises which blinded them and they could not look in that direction. They sued in private nuisance, it was held that this was a private nuisance and he was instructed to change or alter it. The house of lord said that this was not like the canary wharf tower something did emanate from, these were the light rays that came from the defendant land, and the house of Lord in hunter approved this case.
The exceptional ‘rare cases’ Thompson v Costaki [1956] o This was a case in which the defendant had a brothel and the claimant lived next door. The claimant objected to the site of prostitutes coming with clients. He sued in private nuisance, o It was held in this case that private nuisance should succeeded. There was nothing that was emanating from the defendant land, it was all taking place on his own land, yet the house of Lord said that this was an exceptional rare case.
f.
The interference must be reasonably foreseeable (i.e. damage) Old view — that the defendant was strictly liable in nuisance, even when he was not in a position to know of it or to remedy it: Ballard v Tomlinson (1885)
Modern view: the interference with the claimant’s enjoyment must have been reasonably foreseeable
Cambridge Water v Counties Leather plc [1994]: (modern Law) o The defendant, Counties Leather made leather and they used a solvent which degreased the fat from the hide to make leather good. This solvent was used every day and bit of these fell on the floor. Unfortionely it went through tiny cracks in the concrete floor and unknown to the defendant, there was an aqua fill running underneath these premise, this solvent was going through soil and into the aqua fill. (They had no clue). This solvent made it 17 miles into Cambridge water which was going to be expanded and used to provide water for those who lived in Cambridge. This was then found to be contaminated water and had to be taken off grid and cleaned. Cambridge water sued the counties in private nuisance. o It went to the house of Lord, they had no idea as to what the solvent had or could have done, or knew of the aqua fill below its premises. So the court said that Cambridge water could not succeed in private nuisance, the reason for this, was that now the modern law the defendant must know or reasonable foresee the damage that it might cause a private nuisance, (the defendant in this case knew nothing)
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Tort Law Revision note: Private Nuisance, Public Nuisance and Ryland’s v Fletcher
ELEMENT 2: AN UNREASONABLE USER B. Element 2: Can C prove an unreasonable user? 1. Distinguish unreasonable user and using unreasonably
General rule: ‘if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it.’(not the same as negligence)
Balancing treatment required, under physical damage nuisance compared with amenity St Helen’s Smelting v Tipping: o
o
In this case St Helen’s run a cooper smelting company, Mr Tipping owed a large estate in which he grew several fruity trees, Unfortionely the St Helen’s factory released sulphuric acid from its chimney and as a result this caused acid rain, which landing on his trees. Mr tipping was not seeking damage but rather he was seeking an injunction to shut down the factory. It was held by the house of Lord, that there was private nuisance and that injunction would be put in order to close down the factory. The unreasonable user element, was in favour of Mr Tipping as it caused physical damage on his land.
Ellison v Ministry of Defence [1997] (no longer the law that physical damage is more when considering the balancing of unreasonable user. o
o
In this case the Ministry of defence had big fuel tanks on an airfield, which the Mod Owned. As a result of building these fuel tank, a lot of soil was pushed to one side. Then a huge rain storm occurred and this poured from across the air field in to the property of Ellison who had a manufacturing business. This cause significant damage to the land and was said that this rain was pushing carvans from their places. They sue the MOD for them causing these re-element of the landscape which resulted in the flood that cause the damage on their property. It was held by the court of appeal that there was no private nuisance, the court said that the MoD Building these fuel tank was a reasonable use of their Land and the fact that there was physical damage to the claimant land did not he tip the balance in favour of th claimant. There was also argument of national security. (this case shows That St Helens should not be taken literally)
A balancing exercise?
To determine reasonable user, the court must balance the right of the defendant to use and enjoy his land as he wishes, against the interference to the claimant’s enjoyment of his land
The factors which the court must balance are derived principally from Pollock BC in Bamford v Turnley (1862) Consider the factors that must be balanced Factor 1: Locality of the nuisance
Relevance – ‘the character of the neighbourhood’: what that means is that louder, smellier that neighbourhood is, the more unlikely you can prove private nuisance, as the area is already smelly or busy and thus loud.
Murdoch v Glacier Metal [1998] o
o
In this case Glacier run a factory and at night the drone of the factory affected the resident around. The Murdoch sued for private nuisance as their sleep was getting disrupted every night. They argued that noise exceed that of the world health organisation recommended noise level for passive sleep. It was held by the court of appeal said that there was no nuisance here, the two reasons given: the court said that the locality was already nosey as there was a busy motorway behind the factory, which also generated
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