Tort of Nuisance

Types of Nuisance

There are three main types of nuisance which should be distinguished:

 private nuisance
 public nuisance
 statutory nuisances.
Private Nuisance

Winfield and Jolowicz (Tort. (London: Sweet & Maxwell, 2014) 19th edition [ISBN
9780414025653]) define private nuisance as an ‘unlawful interference with a
person’s use or enjoyment of land, or some right over, or in connection with it’.
Three types of private nuisance can arise in practice:
1. physical injury to land (for example, by flooding or noxious fumes)
2. substantial interference with the enjoyment of the land (for example smells, dust
and noise)
3. encroachment on a neighbour’s land, for example, by spreading roots or
overhanging branches, which is of minor significance.
In Davey v Harrow Corporation [1958] 1 QB 60, roots of trees which were growing
on the defendant corporation’s property had penetrated the land of the plaintiff’s
adjoining property. This encroachment caused damage to the plaintiff’s house. In the
Court of Appeal Lord Goddard said: ‘… if trees encroach, whether by branches or
roots, and cause damage, an action for nuisance will lie…’ No distinction is to be
drawn between trees which may have been self-sown and trees which were
deliberately planted on land.
Nuisance and Trespass – Distinguished

 Trespass is actionable per se (actions which do not require allegations or proof),

whereas, in the case of a nuisance, only the proof of actual damage to the property
is required.
 If the interference with the use of the property is direct, then the wrong is trespass.
Whereas if the interference with the use or enjoyment of the property is
consequential then it will amount to a nuisance.
A balancing act between competing
interests
In considering whether or not the interference is reasonable, the courts will have
regard to
 the extent of the harm;
 the nature of the use interfered with.
Smith v Giddy [1904] 2 KB 448
The defendant was liable in nuisance for the branches of trees on his property which
overhung the claimant’s land. While this would normally have been an unactionable
blockage of light, the fact that the claimant ran a fruit orchard and the interference
meant that the fruit trees did not grow properly was decisive in the decision that the
defendant was liable.
The test of Reasonable User

 The ordinary use of your home will not amount to a nuisance, even if it
discomforts your neighbor.
In Baxter v Camden LBC (No 2) [2001] QB 1, a tenant of a flat complained of the
noise created by her immediate neighbours, also tenants of the defendant. The day-to-
day noise of the tenants was made worse because the property had been converted
into flats without proper sound insulation. The Court of Appeal dismissed the claim
in nuisance on the ground that occupants of low-cost, high-density housing must be
expected to tolerate higher levels of noise from their neighbours than others in more
substantial and spacious premises.
Factors determining reasonable use

 Damage to property or personal discomfort

St Helen’s Smelting Co v Tipping (1865)
The claimant was the owner of a large country house with over a thousand acres of
land. This land was close to a copper smelting factory which had long been in
operation. The smelting factory discharged noxious gases as a result of its operation,
which were considered to be a normal part of the smelting operation. As a result,
trees on the claimant’s land were damaged by the fumes and noxious gases. The
claimant sued in nuisance.
 The nature of the locality
Thesiger LJ stated classically in Sturges v Bridgman (1879): ‘What would be a
nuisance in Belgrave Square† would not necessarily be so in Bermondsey’. This
means that the nuisance will be judged according to the area in which it occurs.
 The claimant, a doctor, moved house and on the premises, he bought and built a
shed in his garden to carry out his private practice within. His shed was on the
boundary of the property and happened to be next door to a confectioner. The
confectioner had produced sweets in his kitchen for many years before the doctor
had moved in. The doctor alleged that the noise of the confectioner grinding his
pestle and mortar was clearly audible from his shed and that this disrupted his
amenity in the form of his enjoyment of his land.
 Utility of the defendant’s conduct
In Miller v Jackson [1977] QB 966 the plaintiffs bought a house in 1972 in such a
location that it was inevitable that cricket balls from a cricket ground nearby
would be hit into the garden. Cricket had been played on the ground since 1905
but the plaintiff contended that since the houses were built it had become a
substantial interference and claimed in negligence and in nuisance. The Court of
Appeal found that the playing of cricket constituted an unreasonable interference
with the plaintiff’s enjoyment of land and was therefore a nuisance. The majority
considered that the social utility of cricket could not justify a substantial
interference in the plaintiff’s enjoyment of their land but no injunction was
granted to restrain the cricket. The court took the view that the utility of the club
outweighed the plaintiff’s interest.
 Abnormal sensitivity
The leading case is Robinson v Kilvert (1889) 41 Ch D 88. Here, the complaint
related to hot air which affected brown paper stored in the plaintiff’s part of the
building and which had come from the lower part of the building in which the
defendant operated a business. The court refused the claim. The heat was not so high
that it would affect ordinary paper or even the plaintiff’s workforce. The damage was
due to the exceptionally delicate nature of the plaintiff’s trade. This would not amount
to a nuisance. If, however, the interference would have affected ordinary paper, the
plaintiff would have been able to claim the full extent of his losses.
Mackinnon Industries v Walker [1951] WN 401 (recovery for harm to orchids when
fumes would have damaged any flowers grown).
 Malice
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468.
Here, the defendant’s premises adjoined the plaintiff’s silver fox farm. In attempting to
prevent the foxes from breeding the defendant discharged guns on his own land as near
as possible to the boundary of the plaintiff’s land to scare the foxes. Macnaghten J
considered the intention of the defendant to be relevant in nuisance and an injunction
and damages were awarded.
Who can sue?

 In order to bring an action, the claimant must have a legal interest in the land. This
will normally mean a right to exclusive possession
Malone v Laskey [1907] 2 KB 141
The claimant lived with her husband who occupied a house as licensee. Vibrations
from the use of an engine on the defendant’s adjoining land caused a bracket to fall
on to the claimant causing her injury. Her claim in nuisance was dismissed by the
Court of Appeal as she had no interest in the land on which to found a claim.

Khorasandjian v Bush
Who can be sued?

 The most obvious is the person creating the nuisance (‘the creator’)
 Employer
Bower v Peate
The plaintiff and the defendant were owners of adjoining houses. The defendant
pulled down his house, intending to rebuild it. These works involved the excavation
and removal of soil that had supported the plaintiff's house, and also required
underpinning. The defendant engaged a builder to carry out the works. The plaintiff's
house suffered damage as a result of defective underpinning and lack of support. The
defendant argued that he was not liable, as he had engaged a contractor to carry out
the works. It was held that the defendant was liable.
 An occupier who has adopted or continued a nuisance
Sedleigh-Denfield
Here, a local authority, without the defendant’s permission (and therefore as a
trespasser), had placed a drainage pipe in a ditch on the defendant’s land with a grating
designed to keep out leaves. The grating had not been fixed in the correct position, with
the result that, during a heavy rainstorm, the pipe became choked with leaves and water
overflowed onto the plaintiff’s land. The House of Lords held the defendant liable. He
had adopted the nuisance by using the drain for his own purposes to drain water from
his land. He had also continued the nuisance because his manager should have realised
the risk of flooding created by the obstruction and taken reasonable steps to abate it.
 An act of nature
Goldman v Hargrave [1967] 1 AC 645
The defendant dealt with a fire caused by lightning hitting a gum- tree. The tree was
felled, cut into sections and left to burn itself out. The weather deteriorated and the fire
reignited causing damage to the claimant’s land.
Leakey v National Trust [1980] QB 485
The defendants owned a hill known as Barrow Mump; the claimants’ homes were at the
foot of the hill. The homes were threatened by the possibility that the hill would slip as
a result of the action of the weather on the type of clay. From time to time small slips
occurred on to the claimants’ land. The defendants had been aware of the problem for
more than eight years and had taken no steps to minimise the risk.
 Landlords
Tetley and others v Chitty and others [1986] 1 All ER 663
Premises were leased for the purpose of a go- karting club. The landlord, a local
authority, was well aware of the potential problems such use would cause in the way
of noise. It was held that as noise was a natural and necessary consequence of the use
of go- karts, the landlord was liable for the nuisance which had been authorised.
Defences

 prescription
 statutory authority
 planning consent.
Prescription

Sturges v Bridgman [1879] 11 Ch D 852

For more than 20 years a confectioner had carried on his business which included the
use of an industrial pestle and mortar to grind sugar. The premises abutted on to the
garden of premises occupied by a doctor. The doctor built a new consulting room at
the bottom of his garden but found that it could not be used because of the noise and
vibration coming from the confectioner’s premises. The doctor was able to obtain an
injunction against the confectioner despite the fact that the business had been in
operation for more than 20 years. It had only become an actionable nuisance once the
new consulting room was built therefore no prescriptive right could exist.
Statutory authority

Metropolitan Asylum District Hospital v Hill [1881] 6 App Cas 193

Here a general power had been granted by statute to build a smallpox hospital.
However, the defence was then unavailable when the hospital was sited in a place
that would cause a nuisance (obviously owing to the highly contagious nature of the
disease).
Planning Permission

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343

The Council alleged a public nuisance was being caused by the operation of a former
naval dockyard as a commercial enterprise. Heavy goods vehicles were using local
residential roads by night disturbing the local population. Planning permission had
been given for the development despite acknowledged concerns about the extensive
use of one particular entrance to the area. It was this which caused the eventual
problem.
Not real defence

 Coming to the nuisance

Bliss v Hall [1838] 4 Bing NC 183
The claimant who had just moved to the area was granted an injunction to prevent a
nuisance caused by a tallow- chandlery. The chandlery had been emitting ‘divers
noisome, noxious, and offensive vapours, fumes, smells and stenches’ for three years
prior to the claimant’s action but this could not be a defence.
Social utility

Adams v Ursell [1913] 1 Ch 269

A fried- fish shop was closed as it was claimed that it was a nuisance to the residents
in the part of the street where it was situated. The fact that its closure would cause
great hardship to the defendant and the poor people who were his customers was
irrelevant.
 The nuisance results from the acts of others
Remedies

 Injunction
 Damages
 Abatement