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‘PLAGUES OF EGYPT’

Sensible Personal Discomfort

Summary of this section

A rule of strict liability – the law of nuisance concerning physical damage distinguished from those principles which are relevant to ‘intangible’ interferences – similarities with rules governing interferences with easements and profits – reciprocity, or ‘give and take; live and let live’ – ‘best practicable means’ is no defence to a claim – a robust standard – building and construction works and other temporary interferences – ‘coming to’ a nuisance no defence – prescription – some ‘template’ authorities – the importance of expert evidence in relevant areas – comparison with statutory nuisance

Introduction

Nuisance is the means for obtaining a remedy in cases where a landowner has been ‘unreasonably’ affected by noise, smells, fumes, dust or other such matters emitted from neighbouring land.  They are cases in which there has been some non-physical damage to the enjoyment of land.

These rules are entirely different from those which apply where there has been physical damage to land. Although they also have an ancient origin, they became settled by about the early to mid-nineteenth century when there was an active programme of development, especially in London and the Home Counties (brick kilns and railways being a recurrent problem, as well as chimney stacks in the industrial north)

Where there is both physical damage to land and an intangible interference, then both sets of rules will be applied in the same case. Private nuisance in both areas consists of the application of common law rules interpreted by judges, largely without the interference of Parliament.  Air pollution, for instance, which renders life intolerable in one’s home, is subject to the rules set out in this section (‘category 2’ claims). Air pollution which causes damage to trees and crops, on the other hand, is subject to the rules relevant in cases of Direct Physical Damage (category 1 claims).

This category of private nuisance, above all others, is concerned with striking some balance between neighbouring land uses in order to determine what is ‘reasonable’ and what is ‘unreasonable’. Ultimately the rule is one of mutual tolerance – give and take; live and let live’. One landowner is expected to tolerate the inconveniences from his neighbour. This is because one day their respective roles may be reversed.

General rules relating to The Claimant (who should have a proprietary interest and not be hypersensitive) and also to The Defendant, are those which apply to all types of nuisance. Liability for ordinary residential noise, the position of landlords for the acts of their tenants and the position of landlords for anti-social behaviour should also be considered.

The principles which apply specially in these ‘category 2’ cases have not changed much since about 1860 and they are discussed in more detail in this section.  They are all cases of strict liability, in the sense that there is no requirement to prove the breach of any duty of care. It might tentatively be said, perhaps, that there is some prejudice in favour of the status quo.  That is to say that the courts tend to favour the balance of land use before some new user is interposed.  At the same time, the courts are tolerant of ‘temporary’, albeit significant, interruptions caused by demolition and construction works.  The same principles which are applied to this category of nuisance have also been applied, broadly speaking, in the case of easements and profits.

Specific principles and guidance set out in more detail in this section

The more specific rules in this area are the following:

  • reciprocity (being the ultimate control mechanism in this area)
  • ‘best practicable means’ (which is not a defence)
  • the grounds of complaint must be sufficiently serious (i.e. a ‘robust’ standard applies)
  • the question whether or not there is liability for building or demolition works or for other such temporary inconveniences
  • the nature and character of the area
  • the consequence of planning permission and regulatory licences and permissions
  • the extent to which the previous activities of the defendant are to be taken into consideration
  • ‘coming to’ the nuisance
  • prescription

There are certain cases which provide a good template for many of the principles which apply in these cases. They are very fact-specific. Expert evidence, whilst not always essential, can be determinative.  After making some points about these issues, this section of the website ends with a brief reminder of the parallel system for dealing with these types of nuisance under the statutory nuisance regime.

Finally, it should be said that the ordinary remedy sought by a claimant in these cases is an injunction, although modest damages for interference with amenity will also be recoverable.  In Coventry (2014), the Supreme Court threw the law relating to injunctions in these cases into some doubt, making it apparently easier for a judge to award damages in lieu of an injunction.  The section of the website on Remedies considers these issues in more detail.

Easements and profits

The principles which apply in cases where there has been some inconvenience by way of noise or smell, etc, are also applied where there has been a disturbance to an easement or a profit. The detailed application of the rules relevant to intangible interferences in the case of easements and profits are not considered in this website, but it should be explained briefly what easements and profits are.

An easement has been described as a “privilege without a profit”, namely “a right attached to one particular piece of land that allows the owner of that land (the dominant owner), either to use the land of another person (the servient owner) in a particular manner, such as by walking over it or depositing rubbish on it, or to restrict its use by that other person to a particular extent, but that does not allow him to take any part of its natural produce or its soil” (Cheshire and Burn’s Modern Law of Real Property (2011), pp.634-5).

A profit (‘profit à prendre’) “consists of the right to enter another’s land and to take something off the land” Cheshire and Burn’s Modern Law of Real Property (2011), p.701). Examples are taking fish from a river or pheasants from another’s land.

Reciprocity: the key issue

It has been repeatedly said that a nuisance is an “unreasonable interference with the use and enjoyment of land”, or “sic utere tuo ut alienum non laedas” (literally – “you may not enjoy your land so that it causes harm to the land of another”).

The rules which apply in these types of nuisances are designed to identify what makes an activity “unreasonable” in the given context. The central question is whether or not the defendant has behaved either reasonably or unreasonably. The governing principle which seeks then to strike the balance between neighbouring land uses is one of ‘give and take, live and let live’ (i.e. the principle of reciprocity). Has the claimant had to endure more than is reasonable according to such an assessment?  If so, then the defendant has behaved ‘unreasonably’.

The application of the principle tends to be determined from the position of the claimant, since a reasonable use of land by a defendant cannot itself absolve the defendant. See Reinhardt (1989): “the application of the principle governing the jurisdiction of the Court in cases of nuisance does not depend on the question whether the defendant is using his own [property] reasonably or otherwise. The real question is, does he injure his neighbour?” In cases involving a residential occupier and commercial or business premises, indeed, it can perhaps be said that for the most part the ‘give and take’ is likely in many cases always to be in one direction.

Best practicable means

‘Best practicable means’ is not a defence. Contrary to the position in many instances of statutory nuisance, a defendant is not able to argue that it has used the most modern technology in an effort to abate the effects of the nuisance: “it is no answer to say that the best known means have been taken to reduce or prevent the noise complained of, or that the cause of the nuisance is the exercise of a business or trade in a reasonable and proper manner” (Vanderpant, 1930). However, it is possible that such considerations may make it more likely that the claimant may find that its remedy is one of damages rather than by way of an injunction (Coventry, 2014).

A robust standard

A starting-point is that a complainant must be reasonably ‘robust’ (Walter, 1851), the corollary being that the ‘hypersensitivity’ of the claimant is relevant to an assessment as to whether or not the complaint is reasonable. In all cases there must be a “real injury” rather than a “partial inconvenience”, so that in the case of noise, for instance, the fact that a householder “had enjoyed exceptional quiet gave him no right to more than the ordinary freedom from extraordinary noises” (Higgins, 1905).

Temporary interferences such as demolition and building works

A temporary inconvenience is less likely to be considered a nuisance, reasonable building or demolition works being considered temporary, even though they may go on for a long period (Harrison, 1891, and Adreae, 1938).

Nature and character of the area

Overall, the court must take a view about the nature and character of the area as part of the background to its assessment as to the conduct of the parties. If the area is one characterised by the trade of fishmongery, for instance, then it would hardly be possible to complain about the activities of an additional fishmonger. In modern cases, the courts are often asked to consider much wider areas than that of the immediate locality.

Planning permissions, regulatory licences and permissions, and their effect

In this context (the assessment of the nature and character of the area), there is also the difficult question of the consequences of planning permissions granted locally over the years.

Only in very rare ‘strategic’ cases will a planning permission have the effect of changing the nature and character of an area with the result that what might otherwise have become a nuisance within that area is not a nuisance (Gillingham, 1991).

That said, it has been held that a local authority can grant planning permissions in the full knowledge that the permissions will effect a change to the locality.  This is because the newcomers will obtain injunctions restraining the noisy or smelly old trades in the neighbouring area (Ex p. Thomas, 1991).

Generally, however, because the law distinguishes the private law expectations of the parties to a nuisance action from the wider issues of public policy which apply under the Town and Country Planning Acts, the grant of planning permission has limited relevance.

Previous activities of the defendant

What, then, if the activities of a defendant have taken place over a substantial period, and what is the effect of any planning permissions which the defendant itself may have obtained? For instance, if the defendant has undertaken motor racing in the immediate area for fifty years, but it has intensified them, then to what extent can it rely on what it has done in the past prior to the intensification?

Some guidance was given about the relevance of the defendant’s activities in Coventry (2014). The Supreme Court decided that the court should assess the level of the interference which, objectively, a normal person would find it reasonable to have to put up with, given the general character of the locality. The defendant can then rely on its own activity as part of the noise of the general character of the locality prior to the intensification.

The court in Coventry (2014) also decided that in so far as it could be shown that it was a lawful part of the established pattern of uses of the area, then any implementation of a planning permission for the defendant’s activity could at least be relevant to an evaluation of the established pattern of local land uses. Moreover, the terms and conditions of such permission might also be relevant to an evaluation of the reasonableness of the defendant’s activities.

‘Coming to’ the nuisance

Private nuisance has been a means over the years of ensuring that the development of land cannot be stifled. Thus, there is no general defence of ‘coming to’ the nuisance, as robustly stated in Sturges (1879).

A defendant which has undertaken a long-standing activity cannot complain that because it was there first, a newcomer only has itself to blame for finding that its activities cause it to experience nuisance.  However, there has been a modest proposal to amend this aspect of the law in Coventry (2014).  Neuberger JSC considered that a neighbouring landowner who knows of the defendant’s activities should not be able to change or alter its property so as to bring about a nuisance (for instance by building an extension).

Prescription

It should be acknowledged, as it was in Coventry (2014), that (in theory at least) an easement can be obtained by prescription, the effect of which would be to render a defendant’s activities innocuous. There are substantial difficulties, however, facing a defendant which wants to demonstrate that it has obtained the benefit of such a right. In any event, since a public nuisance is always a crime, it is questionable that a defendant can obtain a prescriptive right over an activity which is also said to constitute a public nuisance.

Templates showing the application of the relevant principles in intangible interferences

Modern templates for the application of the relevant principles are Halsey (1961) and Barr (2013), with the rider that in Coventry (2014), the Supreme Court made some inroads into the common law, especially in relation to remedies (in particular as to the making of an injunction).

The impact of these inroads cannot yet be fully assessed: there have not been enough cases to see what judges will do at first instance (i.e. at trial).

Expert evidence

Expert evidence is not always necessary in nuisance proceedings. A judge can find a nuisance proved in the absence of such evidence, the burden being on the claimant.

The evidence of those who have experienced a nuisance is generally the most compelling, although the court will be wary of those who have become sensitised (Gaunt, 1872). For a defendant, evidence that its habits and behaviour have not in fact changed from a time before any complaints started (for instance in respect of its manufacturing processes), is compelling (Gaunt, 1872).

When considering whether injunctive relief should be granted, the prospective effects as predicted by experts will be important, given a defendant’s proposals as to what it intends to do to mitigate or abate a nuisance. Experts are available in a very wide variety of areas, the most commonly employed being acoustic experts, odour experts and dust experts.

That said, it would have to be a strong case for a judge not to want to consider the contribution of an expert, and expert evidence in group litigation is likely to be vital.

Expert evidence in group litigation

An expert is likely to be required, certainly in a case with many claimants (say ten or more), to predict the distances from the defendant’s site where there is likely to be some material exposure to different levels of the nuisance.

The expert (in whatever discipline) performs this task, typically, by the use of isopleths (which have the appearance of contours on Ordnance Survey maps), and possibly by the use of a computer model allowing different data to be inputted to produce the isopleths. These isopleths reflect the impact of local wind and topography on local properties and map the extent of the emissions in the local area.

Acoustic experts

There is a large body of experts in acoustics, who can be relied on to compare the noise from a neighbouring activity with various recognised standards. Relevant considerations are likely typically to include World Health Organisation standards (which are mainly connected with effects on health), BS4142 (a means for the assessment of noise from industrial and other buildings) and Building Regulations (used in the case of both impact and acoustic noise transmission within buildings). Different noise qualities and characteristics give rise to different problems.  Experience shows that particular difficulties arise in the case of sudden percussive noise impacts when ambient noise levels are low (for instance at night), and also in the case of low-level rumble.

Odour experts

The Environment Agency has produced guidance for use in the context of environmental permitting. This advocates the use of dispersion olfactometry (according to a British Standard), involving diluting a sample taken in the laboratory to a point where each member of a trained panel can just begin to detect the odour. An assessment is made of the number of dilutions used when half of the panel can detect the odour. The relative offensiveness or pleasantness of particular odours are determined by reference to recognised odours, ranging from the smell of fresh bread through to “wet dog”.

Dust experts

Dust experts are capable of collecting particle samples and of submitting them to microscopic and chemical analysis. Analysis can measure levels of dust coverage and discolouration. There is related expertise which covers air quality. There are a variety of modelling standards which can be applied, including dispersion modelling.

Comparison with statutory nuisance proceedings

There is a parallel system of statutory nuisance which can be used to control matters which are prejudicial to health or a nuisance, but this is best seen just as a set of procedural rules. The regulator, where there is a nuisance under the Environmental Protection Act 1990 (i.e. a Statutory Nuisance) is the local authority. (There is a complementary system open to a private individual which is part of the statutory nuisance regime under s.82, Environmental Protection Act 1990.)

The options for a person aggrieved at an ‘intangible’ nuisance, are either common-law proceedings in the civil courts, statutory nuisance proceedings (under which the claim is taken over and the costs risks absorbed by the local authority) or proceedings under s.82, Environmental Protection Act 1990. Legal expense insurance would be more likely to assist with the first of these.

The other significant differences between the Environmental Protection Act 1990 and private nuisance at common law, is that, in many important circumstances under the statutory nuisance regime, the use of “best practicable means” constitutes a defence, thereby prohibiting the obtaining of an effective remedy.

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