Private Nuisance

John Murphy
 PRIVATE NUISANCE
I. Scope of the Tort
A. Definition
Leung Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR
480
“Private nuisance is a tort protecting property rights. It is concerned with the activities of
the owner or occupier of
property within the boundaries of his own land which may harm the interests of the owner
or occupier of other land”.

My definition in The Law of Nuisance (Oxford: OUP, 2010) p 1

“A substantial and unreasonable interference with a person’s land or the use or enjoyment
of that land”.

Jalla v Shell International Trading and Shipping Co Ltd [2023] UKSC 16 [citing me,
among others]:

“the tort of private nuisance is committed where the defendant’s activity, or a state of
affairs for which the defendant is
responsible, unduly interferes with (or, as it has commonly been expressed, causes a
substantial and unreasonable
B. Background
Despite its manifold forms, in Hong Kong, many of the cases on this tort—
probably unsurprisingly—apply to water leakage rather than noisy neighbours.

But bear in mind, disputes between domestic neighbours are not all of what
nuisance is about. For one’s neighbour could well be a factory, a bar or a sports
ground.

NB Flat owners might prefer the contract action under the Deed of Mutual
Covenant.
C. “Substantial Interference”
To sue, a nuisance must be substantial. In other words, the
principle of de minimis non curat lex applies.

Walter v Selfe (1851) 4 De G & Sm 315

“[O]ught this inconvenience to be considered in fact as

more than fanciful, more than one
of mere delicacy or fastidiousness, as an inconvenience
materially interfering with the
ordinary comfort physically of human existence, not merely
according to elegant or
dainty modes and habits of living, but according to plain and
simple notions among the
English people?” (Knight Bruce VC)

Fearn v Board of Trustees of Tate Gallery [2023] UKSC 4

“[T]he first question which the court must ask is whether the
defendant’s use of land has
caused a substantial interference”. (Lord Leggatt) (Lords Reed &
Lloyd-Jones agreed)
1 Unusual Sensitivity of the ClaimantIf a claimant is
abnormally sensitive, this may be an indication that, although C is
greatly irritated or affected, this may still not amount to a material
interference. Robinson v Kilvert (1889) 41 Ch D 88 “It would, in my
opinion, be wrong to say that the doing something not in itself noxious is a
nuisance because it does harm to some particular trade in the adjoining
property, although it would not prejudicially affect any ordinary trade
carried on there, and does not interfere with the ordinary enjoyment of
life”. (Cotton LJ). Hunter v Canary Wharf [1997] 2 All ER 426Fearn v
Board of Trustees of Tate Gallery (above). “The particular
sensitivities or idiosyncrasies of those individuals are therefore not
relevant, and the law measures the extent of the interference by
reference to the sensibilities of an average or ordinary person”.
(Lord Leggatt) Capital Prosperous Ltd v Sheen Cho Kwong [1999] 1
HKLRD 633NB Abnormally sensitive buildings can be distinguished:
Fearn (above) “it is the utility of the actual land, including the buildings
actually constructed on it, for which the law of private nuisance provides
protection - not for some hypothetical building of ‘average’ or ‘ordinary’
construction and design”. (Lord Leggatt)
2 Location of Claimant’s Premises C’s neighbourhood
helps govern C’s legitimate expectations re. peace and quiet etc.
Sturges v Bridgman (1879) 11 Ch D 852 “What would be a nuisance
in Belgrave Square would not necessarily be so in Bermondsey”.
(Thesiger LJ) Thompson-Schwab v Costaki [1956] 1 All ER 652 “the
test [is] … whether what is being done interferes with the plaintiffs in the
comfortable and convenient enjoyment of their land, regard being had
… to the character .. of the neighbourhood”. (Evershed MR) Tam Seen
Mann Estefania v Chan Norman and Another (Unreported HCA
627/2010) “A useful test which balances the interest between
neighbours … is what is reasonable according to ordinary usages of
mankind living in a particular society. In … Hong Kong, the court
should take into account the particular habits of Hong Kong people, in
particular later bedtimes”. NB Locality is not relevant in cases of
property damage. * St Helens Smelting Co v Tipping (1865) 11 HL 642 *
ACL Electronics (HK) Ltd v Bulmer Ltd [1992] 1 HKC 133
D. “Unreasonable Interference”Lord Leggatt’s doubts
in Fearn aside, this important requirement is a description of the
nature of the effect on C (rather than a characterisation of the way
that D behaves).NB Strict liability = liability regardless of personal
fault, not liability without fault.Certain factors shine some light on
what is entailed by an unreasonable interference.1. Seriousness
of the Interference.(a) DurationThe longer an interference =
more serious = more unreasonable.Matania v National Provincial
Bank [1936] 2 All ER 633 “the law, in judging what constitutes a
nuisance, does take into account both the object and duration of
that which is said to constitute the nuisance”. (Slesser LJ) (b)
Character of the Harm It is generally more difficult to justify physical
damage to C’s land than amenity nuisance. St Helens Smelting Co v Tipping
(supra): locality has no exculpatory value in property damage cases.
2 Character of the Defendant’s UserFearn
(above) [Now the leading authority on what a reasonable user
entails.] “The two conditions of [reasonable user are whether]
… the acts complained of were (i) necessary for the common and
ordinary use and occupation of land, and (ii) ‘conveniently done’
- that is to say, done with proper consideration for the interests of
neighbouring occupiers”.NB If you make an
unnecessary/abnormal use of your property, you will fail at limb
(1) to show a reasonable user. But even if you don’t fail at limb
(1), you may still fail at limb (2). Ultimately, it was because D (an
art gallery) was providing the public with the chance to intrusively
view the Ps that its user was considered unreasonable. It was not
“necessary for the ordinary occupation land”. “Inviting several
hundred thousand visitors a year to look out at the view from your
building cannot by any stretch of the imagination be regarded as
a common or ordinary use of land”. (Lord Leggatt).Several other
factors help illuminate things further…
(a) D’s malicious activities Though liability in
nuisance is technically strict, the malice in D’s user can be a
material consideration since if D’s user is malicious, he can never
justify the interference thereby caused. Hollywood Silver Fox v
Emmett [1936] 2 KB 468Pong Seong Teresa v Chan Norman
[2014] 6 HKC 515 “Where noise is created deliberately
and maliciously for the purposes of causing annoyance,
its mala fides character alone would render it an actionable
nuisance even if it would otherwise have been legitimate”.
(Linda Chan SC) (b) Locality in which D’s
activities occur Just as C’s location is relevant to the
question “what can we reasonably expect C to put up with?” so,
too, is D’s location relevant to the issue of “what is it acceptable
for D to do?” Ball v Ray (1873) 8 Ch App 467
(c) Fault on D’s Part?The Wagon Mound (No 2) [1967] 1 AC
617 “Nuisance .. [covers] a wide variety of tortious acts or omissions
and in many negligence in the narrow sense is not essential. An
occupier may incur liability for the [e]mission of noxious fumes or noise
although he has used the utmost care in building and using his premises
... [But] although negligence may not be necessary, fault of some kind is
almost always necessary and fault generally involves foreseeability”.
(Lord Reid) Lau Chun Wing Rod v Incorporated Owners of Po On Building
[2006] HKCU 1364 “It is settled law that the exercise of care and skill
by a competent contractor or every effort made by the Defendant to
prevent a nuisance afford no defence”. (Wong J)Tin Kin Ka Clara v Chan
Koon Cheong [2015] HKCU 1029 “to prove nuisance in a seepage case …
a plaintiff must show, besides the seepage … that (i) the defendants
actually or constructively knew that the water originated from their
premises; and (ii) remedial action was not taken within a reasonable
time”. (Li J).(d) The practicability of avoiding an
interference If D could have taken simple steps to avoid disturbing
C, the fact that D does not take those steps may be taken by the courts to
support a finding of unreasonable interference.Leeman v Montagu [1936]
2 All ER 1677
II Who Can Sue in Private Nuisance? The
House of Lords, in a landmark decision, set firmly in place the
rule that in order to sue in private nuisance C must have a
proprietary interest in the land affected. Hunter v Canary
Wharf [1997] 2 All ER 426 “[A]n action in private
nuisance will only lie at the suit of a person who has the
right to the land affected ... a mere licensee on the land has no
right to sue”. (Lord Goff). This principle has been applied
locally. Ng Hoi Sze v Yuen Sha Sha [1999] 3 HKLRD 890
“[T]he action is not one for causing discomfort to the person
but is one which arises because the utility of the land has
been diminished by reason of the existence of the nuisance.
It is for that reason that mere presence on the land of the
Plaintiff is not sufficient. For a Plaintiff to have a cause of
action in nuisance, he must have a right to the land”. (Rogers
JA)
III Recognised Heads of Loss in Private NuisancePhysical damage =
well recognised (See St Helens and Jalla cases (above)). So, too, is amenity nuisance like
noise/smell.As is intrusive viewing.Fearn (above) “the claimants’ complaint is indeed one of
damage to interests in property. The concepts of invasion of privacy and damage to interests
in property are not mutually exclusive. An important aspect of the amenity value .. Is the
freedom to conduct your life in your own home without being constantly watched and
photographed by strangers”. (Leggatt).A. Personal InjuryHunter (above) “The injury to the
amenity of land consists in the fact that persons on it are liable to suffer inconvenience,
annoyance or illness”. (Lord Hoffmann) “In the case of nuisances “productive of sensible
personal discomfort”, the action is not for causing discomfort to the person but ... for causing
injury to the land”. (Lord Hoffmann)Fearn (above) “the harm from which the law protects a
claimant is personal discomfort to the persons who are occupying it”. (Lord Leggatt).Yuen Sha
Sha case (above): same reasoning adopted by Godfrey JA.
B. Damage to Chattels Damage to chattels also
recoverable … with a twist. Anglian Water Services Ltd v
Crawshaw Robbins & Co Ltd [2001] BLR 173 [I]it is possible
to regard the interruption to the supply of gas as an
interference with the use of gas appliances rather than with a
use of land [since replacement electrical appliances can be
obtained]. (Stanley Burnton J). C. Economic Loss
Consequential economic loss so long as it derives from
interference with land’s amenity is recognised as recoverable.
Andrae v Selfridge [1938] Ch 11
IVWho Can be Sued?A. Creators of the Nuisance
The action in private nuisance will not necessarily always be against
the owner of neighbouring land.The law states that he who has
created the nuisance will be liable.Southwark LBC v Mills [2001] AC 1
(No liability, on facts) “Nuisance involves doing something on
adjoining or nearby land which constitutes an unreasonable
interference with the utility of the plaintiff’s land. The primary
defendant is the person who causes the nuisance”. Loke Yuen Jean
Tak Alice v Wong Kit Ying [2019] HKCU 2916 “The person to be sued
for nuisance is the one who has possession and control of the land
from which the nuisance emanated … If a nuisance arises prior to a
letting, the owner/landlord does not cease to be liable by virtue of
parting with possession. If he knew of the potentially harmful
condition of the property before letting, or ought to have known of it,
he remains liable for harm accruing after the letting… If the nuisance
arises after the tenancy is granted, Lord Neuberger PSC in Lawrence
& anor v Fen Tigers Ltd & ors (No 2) said as follows: “Lord Millett
explained in Southwark London Borough Council v Mills [2001] 1 AC
1, 22, that, where activities constitute a nuisance, the general
principle is that ‘the … persons directly responsible for the activities
in question are liable; but so too is anyone who authorised them’”.
(Ng J.)
B. Occupiers A fuller picture of occupiers’ potential liability can be put
as follows. Occupier may be liable, even though they did not themselves
create the nuisance where: * They adopted or continued the nuisance
created by another * They adopted or continued a nuisance created by
natural processes * They have control over the creator of the nuisance (as
per Loke Yuen Jean, above) NB 1 One adopts a nuisance when one makes use
of the state of affairs comprising the nuisance. [Sedleigh Denfield =
authority.] NB 2 One continues a nuisance where one fails to abate a
nuisance where one has actual or constructive knowledge of the nuisance.
[Sedleigh Denfield = authority.] Sedleigh‑Denfield v O’Callaghan [1940] AC
880 (owner/occupier liable for nuisance created by another if he
adopts/continues it). Leakey v National Trust [1980] QB 485 (liability for
adopting/continuing nuisances caused by nature: very dry bank of earth
liable to result in landslide after heavy rain). Matania v National Provincial
Bank [1936] 2 All ER 633 (liability for acts done by those over whom
owner/occupier had control: independent contractors in this case).Leung
Tsang Hung v Incorporated Owners of Kwok Wing House (2007) 10 HKCFAR
480
V Defences A. Prescription If you use land a particular way for 20 years without
complaint, then you acquire a prescriptive right to continue to do so.Sturges v Bridgman (1879) 11 Ch
D 852Coventry v Lawrence [2014] UKSC 13 B. Statutory Authority Statutory authority = a
defence. But hard questions of interpretation may still arise. Allen v Gulf Oil Refining Ltd [1981] AC
1001Manchester Ship Canal Co Ltd v United Utilities Water Ltd [2024] UKSC 22 “Applying the
general principles … the question … [is] whether there was any provision of the relevant legislation
which expressly or impliedly authorised such a trespass or private nuisance”. (Lords Reed and Hodge.)
Lam Yuk Fong v A-G [1987] HKLR 263 “in order to dismiss this action I have … to be satisfied
that there was no other way of doing this work”. (Saied J.) Cf Coventry v Lawrence (supra)
[Planning Permission] “the decision whether the activity causes a nuisance to the claimant is not
for the planning authority but for the court, the existence and terms of the permission are not
irrelevant as a matter of law”. (Lord Neuberger.)
C. Acts of God/StrangersInevitable accidents of nature and nuisances
created by third parties which are neither adopted nor continued by D (in the
senses discussed above) will not support an action in nuisance against D.
Sedleigh-Denfield v O’Callaghan (supra)If you don’t know, or have constructive
knowledge of the problem, then you won’t be liable. D. Limitation All civil
actions must be brought within a statutorily specified period. For nuisance it
is 6 years. But also well-established that with ongoing nuisances, a fresh cause
of action arises each day. Delaware Mansions Ltd v Westminster City Council
[2002] 1 AC 321. So what happens in a case where, because of the way D
conducts operations on their premises, an escape of something (eg, oil) occurs
that has a lingering effect on C? Jalla v Shell International Trading and Shipping
Co Ltd [2023] 2 WLR 1085 “There was no continuing nuisance in this case
(and there would be no continuing nuisance in the example of the one-off
flood) because, outside the claimants’ land, there was no repeated activity by
the defendants or an ongoing state of affairs for which the defendants were
responsible that was causing continuing undue interference with the use and
enjoyment of the claimants’ land”. (Lord Burrows.)
VI RemediesA.InjunctionsInjunctions are the remedy of choice, here.
In fact, they are presumptively granted in nuisance cases.Shelfer v City of London
Electric Lighting Co [1895] 1 Ch 287 “Where the injury … (i) small; (ii) capable
of being estimated in money; (iii) [compensable]… by a small money payment,
and (iv) … it would be oppressive … to grant an injunction”. (Smith LJ)
Occasionally, courts refuse injunctions. Gravity of interference and public interest
are salient, here.Cooke v Forbes (1867) LR 5 Eq 166 (gravity of interference)
Wheeler v JJ Saunders Ltd [1995] 2 All ER 697 (public interest)Fearn (above)
“[T]he public interest… [isn’t] relevant to the question of liability … [It is
relevant] only, where liability is established, to the question of what remedy to
grant”. (Lord Leggatt)NB Even if an injunction is refused, D may still have to pay
damages in lieu.Coventry v Lawrence (supra) “[T]he court might well … [grant
damages in lieu where] an injunction would involve a loss to the public or a
waste of resources on account of what may be a single claimant”. (Lord
Neuberger)Lo Yu Chu v Kam Fu Lai Development Co Ltd [1994] 3 KKC 18 “If [3rd
parties] … consider that the effect on them of an injunction will be … [very]
damaging … there is nothing to prevent them … [seeking] to have the injunction
set aside. (Penlington JA)
B.Damages As regards damages, the idea is to pay to C the difference
between the value of the protected interest before and after the nuisance. Andreae
v Selfridge & Co [1938] Ch 1Wong Shiu Hung v Lui Kuo [2001] HKCU 551 NB In
cases of physical loss, damages are measured in two ways: (1) cost of repair or (2)
drop in property value (whichever is lower).