What is a “Substantial” Interference?
One of the principles of private nuisance discussed by Leggatt JSC in Fearn v. Tate Gallery Trustees [2023] UKSC 4 [2023] 1 WLR 339 is that of threshold: what is the minimum level of seriousness at which an interference with the use and enjoyment of land counts as an actionable nuisance?
The threshold test is an objective one, reflecting the fact that the interest which is protected by the tort is the utility of land, not the personal comfort of the individuals occupying it (see Fearn at para.23). See also para 108 of Leggatt JSC’s judgment: “In each case the court just has to make a judgment about whether the nature and degree of interference exceeds what an ordinary person would regard as acceptable”.
Leggatt JSC notes that various terms have been used in more recent judgments, including “serious”, “material” and “significant”, but that the locus classicus cited today remains Walter v. Selfe (1851).
This is the authority that says that although a plaintiff should be expected to put up with air that was not as “fresh, free and pure” as the day when the affected property was acquired, and that whilst the effects need not be positively bad for your health to constitute a nuisance, the resultant inconvenience must be one “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 sober and simple notions among the English people”.
Is there anything from the case law of the early Victorian era which might suggest that by comparison with today, the actual factual threshold applied by judges has changed? In particular, is there any reason to suppose that claimant expectations are now lower than they were in the litigious 2020s?
The spectrum of themes relevant to the type of private nuisance with which Leggatt JSC was concerned (‘sensible’ interferences) had become largely entrenched by the mid-1800s, even though the judicial vocabulary has now acquired some new descriptors (such as “reasonable user”). The applicable themes were themselves a response to the changes of the industrial revolution and its supposed lack of environmental standards, so that it is surely a reasonable hypothesis that in the mid-19th century, the time of the Great Stink and of the Great Smog, plaintiffs were expected to put up with much more than they do today?
Walter v. Selfe itself was a case about the manufacture of bricks. Developers often made their own bricks, and if they could do so near to where they were constructing the neighbourhoods of London, then there were obvious commercial advantages. It is useful to explain the actual process.
The manufacture of bricks was done in clamps, if possible, rather than in less objectionable kilns (which were permanent structures at least with a chimney). A site was acquired, the clay was exposed, bricks were manufactured and then dried, and finally they were piled up in 14-high stacks with the necessary fuel ignited underneath. Sometimes the bricks were made with combustible rubbish inside them. Burning ran for up to three months. Indeed it was the relatively short duration of the burning in these cases which has pre-empted submissions in subsequent case law as to whether a nuisance can be considered “temporary” or not (although the successful defence in Duke of Grafton v. Hilliard (1 Jan 1851) that the absence of the Duke and the Earl of Grantham “gone from their estates to their respective country seats” near Berkeley Square during the two-month period of brick manufacture allowed in the Square, must be considered an outlier).
All in all, then, the smell and smoke from such operations must have been intolerable, should you have been unfortunate to live near enough.
In Walter v. Selfe itself (in which the clamp was 50 metres distant), an interim injunction was granted by the Court. Not surprisingly, the threshold test it contained went on to be applied in other brick clamp cases, and almost uniquely so. This particular form of litigation was a mid-19th century industrial phenomenon, other reported cases (the entrails of some of which still enthral the courts) including Pollock v. Lester (1853) (70 metres distance), Hole v. Barlow (1858) (three clamps, one within 10 metres), Beardmore v. Tredwell (1862) (28 kilns each capable of burning 70,000 bricks, some parallel to the plaintiff’s property), Cavey v. Ledbitter (1862) (a single clamp 50 metres long within 6 metres of the garden) and Bamford v. Turnley (1862) itself (150 metres distance).
In passing, it is worth noting that in Walter v. Selfe the judge had a site visit and must have formed a view about the direction of the prevailing wind (whereas today. there would be professional evidence in the form of modelling and wind roses). His reference to the physical comfort of human existence is first made in the judgment with regard to the “climate and habits of England”, so that it is not too much to suppose that his famous appeal to the English people may initially have had more to do simply with the weather.
The judge decided that the fumes “wholly or to a great extent” would mix with air feeding the plaintiff’s house, so that the property “must generally or often … be subjected substantially to … the original and full strength of the mixture”.
Walter v. Selfe and the other brick clamp cases show that the Court would not intervene unless the degree of interference was very considerable: a brick clamp must have given rise to a very noxious state of affairs. We are on track to suppose that in the 1850s, the Court would only recognise a very high threshold standard.
There are, however, some other cases of the same period which are not concerned with brick manufactory which also make reference to Walter v. Selfe test.
Soltau v. De Held (1851) was about a new Roman Catholic church which unapologetically rang six bells throughout the day on which they were installed, and then separately and together at various times throughout the week. These facts, and the evidence of the reaction of plaintiff, who found it impossible “to read, write or converse in his house”, undoubtedly satisfied the Walter v. Selfe test. (It is worth noting that things may perhaps have been different if it had been a parish of the established church, the judge stating: “Now it seems to be overlooked that the building to which these bells are attached, although called a church by those who have erected it and those who use it, is not a church in the eye of the law. It is no more a church than the chapel or meeting-house of any denomination of Protestant Dissenters is”.)
Bamford v. Turnley (the core of Leggatt JSC’s judgment) in effect settled the law both as to brick clamps and nuisance (the key question as to the “convenience” of the defendant’s activity being not only the question of convenience of the site for the defendant, but also requiring an evaluation of the effects on the plaintiff). 1862, therefore, is the year when the brick clamp cases and the immediate relevance of Walter v. Selfe come to an end. It was followed, however, by the important case of Swaine v. The Great Northern Railway Company (1864), decided after various Acts of Parliament which revised the procedures between cases decided in Chancery and at Law.
In Swaine, the defendant left manure in a railway siding from time-to-time. Unfortunately, the storage began to stretch for longer and longer periods, and it transpired that the supposed manure also contained “different sorts of animal dung, decomposed fish, dogs, cats and almost every species of decomposed animal matter.”
It is reasonably clear from this case, that the Walter v. Selfe test as to threshold was originally intended only to apply in cases where the Court of Chancery was asked to grant an injunction. The Court was concerned with the question whether or not the activity of storing inappropriate ‘manure’ constituted a continuing system of the same justifying a final injunction (which was refused). As the headnote says: “occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of the Court of Chancery by injunction except in extreme cases”. The plaintiff was left to his remedy in an action in a Court of Law, the effects not having been serious enough to warrant even an award of damages in lieu.
Today, Walter v. Selfe is the recognised test for threshold in all private nuisance cases, despite its antiquated language. Whilst it is tempting to explore the early cases of the same period to divine a deflationary effect on the threshold which now has to be satisfied, this turns out not to be a very fruitful inquiry. If anything, it can even be argued that the high test which was applied in the Courts of Equity, the Walter v. Selfe test, has had an inflationary outcome. This is because Walter v. Selfe was designed in the 1850s to be applied in those “extreme” cases when an injunction was being sought (and originally in interim applications), but by inference, it was not necessarily the test in Courts of Law of the time where only damages were required. It is the generally applicable test in the 21st century.
In practice, the witness evidence which is adduced in contemporary nuisance cases always tends to include extreme instances, such as accounts of nausea. This makes cross-examination a dangerous enterprise, since to contradict the witness is to run the risk of an onslaught as to the effects of the defendant’s activities. It also means that the witness evidence generally lives up to the threshold standard of the old brick clamp cases. On paper at least, and if legal representatives are doing their job, the nuisance is always one “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 sober and simple notions among the English people”.
Finally, whilst the threshold test is indeed an objective one, as Leggatt JSC reminds us in Fearn, the further question as to what allowance should be made for individuals’ significantly varying sensitivities, is a separate topic which justifies a short additional post to follow.
Gordon Wignall
9 May 2023