Private Nuisance: recent key cases from the Supreme Court
12:00pm-2:00pm | 19/03/2025
103 Colmore Row, Birmingham
Jack Smyth & Gordon Wignall js@no5.com & gwi@no5.com
Overlooking: viewing platform v posh flats
The Headline
Overlooking could in principle amount to a private nuisance
The Court split on the legal approach which led to that destination
The Majority Report – Lord Leggatt JSC i
The “Objective reasonableness” test, articulated in earlier case law, was simply shorthand for asking whether an act was something other than “common and ordinary”.
This was a principled approach which had greater explanatory force than the test of reasonableness, which they described as having “no explanatory power” in this context.
The Majority Report – Lord Leggatt JSC ii
If a claimant establishes a material interference with the amenity of its land, the defendant will not be liable if it can show that the use of their land was:
(1) necessary for the common and ordinary use and occupation of land and (2) conveniently done.
This is the rule of give and take: live and let live.
The Minority Report – Lord Sales JSC
Required a balancing of the interests of claimant and defendant.
The claimants had failed to take easy steps to reduce the problem of onlooking caused by the viewing gallery and so there was no nuisance.
Reaffirmed the test affirmed in Coventry v Lawrence/Lawrence v Fen Tigers [2014] AC 822 of whether the offending activity was something which ordinary people would consider it reasonable to have to put up with.
The General Principles i
Must have a right to exclusive possession of buildings or land.
Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land can be a nuisance.
“Amenity value” not personal discomfort
The basis of private nuisance is the value of reciprocity and equality between landowners (“give and take” and “good neighbourliness”).
The General Principles ii
Claims can only be brought by those whose own use of their land is general and ordinary.
Claims will succeed if the defendant’s use is not “common and ordinary”.
Claims will fail if the defendant’s use is “common and ordinary” and carried out in a reasonable manner.
Whether a use of land is “common or ordinary” must be judged by the characteristics of the locality.
The General Principles iii
Harm must be substantial.
The test is objective.
Building and demolition works are immune from private nuisance actions, provided that the manner of their undertaking is reasonable and steps have been taken to prevent “undue inconvenience” to neighbours.
So: extensive subterranean excavation for the basement swimming pool is not actionable?
Defences
It is no defence that the claimant “came to the nuisance” whether by moving to a property or developing it after the defendant’s offending activity started.
The public benefit of a defendant’s activity is no defence to a claim for nuisance, but may be relevant to remedy.
What’s wrong with that approach?
The Minority cleaved to the “old” formulation:
“what objectively a normal person would find it reasonable to have to put up with”
“Reasonableness” is a common and well understood legal test. Indeed, the Majority accepted that a common and ordinary use had to be carried out reasonably.
Where does that leave us?
One of the most unpredictable areas of litigation as so fact-sensitive and the Court has a wide discretion.
Whilst the public benefit of the use should be irrelevant to whether it’s a nuisance, is that realistic?
“The dog that didn’t bark” (Article VIII of the ECHR)
Manchester Ship Canal v. United Utilities
[2024] UKSC 22 (2 July 2024) [2024] 3 WLR 356
The issue:
- Discharges of foul water by sewage undertakers:
- Can owners of watercourses or water bodies bring actions in private nuisance / trespass?
The tort of private nuisance
Three ‘species’:
i. Strict liability in cases of pollution damage / (query physical damage)
ii. Intangible interferences (‘plagues of Egypt’)
iii. The measured duty of care (trespassers and natural items)
General principles of nuisance
An ‘undue’ interference with the use and enjoyment of land
Caused by an activity or state of affairs
Personal responsibility / fault
Sedleigh Denfield v. O’Callaghan (1940)
- Continuation of a nuisance (presumed knowledge but fails to bring to an end), or
- Adoption of a nuisance (makes active use of the source of the nuisance)
No dispensation from the law of tort
Bodies exercising statutory powers enjoy no dispensation from the ordinary law of tort, except in so far as statute gives it to them.
What has Parliament authorised and what has Parliament not authorised?
A presumption that Parliament does not intend statutory powers or duties to be used or exercised in a way which causes interference with private rights.
Allen v. Gulf Oil Refining Ltd [1981] AC 1001
Statutory authority:
- Immunity against proceedings
- Inevitable result of the statutory measure (para.18)
- Did that include the operation of the refinery (in Allen)?
- Express / implied authority
- Exception for ‘negligent’ operation
The law prior to privatisation I
From public health legislation through to privatisation:
- Undertakers established
- Vesting of public sewers and sewage works
- A power to construct the same
- A duty to ensure effectual drainage (sufficient sewers = s.15, LGA, PHA 1875)
- A duty to maintain sewers (s.15, LGA, PHA 1875)
- Permission to connect to the public sewer
- The right for undertakers to recover their costs
The law prior to privatisation II
- Undertakers established
- Compensation by arbitration for the exercise of powers
- A duty to repair and effectually to drain
- Complaints as to insufficient sewers or maintenance
- Investigation and mandamus (by the LGB, s.299, PHA 1875)
- Compensation for injurious affection (determined by arbitration)
Nothing was intended to render a previously unlawful act (nuisance or trespass) lawful.
Case law prior to privatisation
Glossop (no remedy for a breach of s.299 by injunction – duty owed to the public)
Robinson (do. where adequate capacity became inadequate)
Pasmore (do. – manufacturer wanting his factory adequately drained)
Baron (nuisance as a result of a failure to cleanse a sewer)
Price sewage contamination a nuisance when relieving an overloaded sewer)
Jones (sewage into the river Conway a nuisance)
Pride of Derby (1953) (polluting effluent poured into the river Derwent a nuisance)
See summary at para.50 (1) to (15).
Privatisation
The Water Industry Act was a consolidating Act
“These provisions demonstrate a continuity of the parliamentary policy seen in the earlier legislation, in particular in providing specific protection to watercourses” (para.67)
Case law post-privatisation
British Waterways Board v. Severn Trent Water (2001)
- No implied power to discharge non-foul surface water into a canal
Marcic v. TWUL (2003)
Dobson (2007) – the distinction between “policy” and “operations” is inadequate as a means of deciding that there is a duty of care; ‘negligence’ is irrelevant. = Nicholson (2014), Bell (2016), Oldcorn (2017)
Manchester Ship Canal v. United Utilities
- The discharge of polluting effluent into a watercourse is an actionable nuisance (if material)
- No authorisation
- No ‘inevitability’
- Section 117(5) and 186(3),(7) WIA 1991 preserve common law rights (see Radstock Coop (1968)
- No compensation with ouster would be incoherent and anomalous- (cf.s.180 and Schedule 12)
- An increase in injunctions?
N.b. final summary at para.133: no express or implied ouster of common law rights.
Marcic? “It is clear that that decision can readily be distinguished” (para.135).
Court
