a hotel operator cannot say that its noisy and odorous kitchens were being used with the most modern equipment available

5) Reasonable user, reciprocity and “best practicable means”

This is the fifth in a short series of posts considering the consequences of the judgment of Leggatt JSC in Fearn v. Tate Gallery Trustees [2023] UKSC 4 [2023] 1 WLR 339. Leggatt JSC’s judgment has caused some surprise since he elevated a variety of themes used to determine what is a nuisance into a set of applicable ‘principles’. These posts are a summary of those principles.
Post (1) was a historical examination of case law which showed that the current notion of the “threshold” test is no lower than it was when it was first established in Walter v. Selfe (1851). Post (2) explains that whilst the “threshold” test is an objective one, it is also adapted by judges to reflect individual reactions to different nuisances. . Post (3) was concerned to find what the limits may be to the scope of the tort of private nuisance, a tort protecting land rights. Post (4) considered the counterintuitive fact that “coming to” a nuisance is not a defence.
Four things should be learnt from this post. First, it is either meaningless or irrelevant to say that a private nuisance is occasioned by a defendant’s “unreasonable” use of its land. Secondly, “reasonable user” is a term of art for the purposes of the tort, and constitutes an all-important control mechanism. Thirdly, reciprocity, an alternative means of signifying “reasonable user”, is, for Leggatt JSC, a means of signifying a priority to be attached to the “ordinary” use of land. Fourthly, the use of “best practicable means” is no defence to an action.
First, then, is the expression “unreasonable use” to signify the behaviour of a defendant in bringing about a nuisance.
It has been said that an actionable nuisance is an unreasonable interference by a defendant with the use and enjoyment of a neighbour’s land, representing an inappropriate balance between two competing land-uses. Nuisance may aways be the latter, but it is simply not possible to take into consideration the defendant’s use of land without considering the particular effects on a claimant’s land. The difficulty is that the uses by the claimant and the defendant are likely to be entirely lawful in themselves. For instance, the landfill operator in Barr v. Biffa Waste (2013) enjoyed planning permission and held an environmental permit, but this did not stop it being legally responsible for the odours experience by local claimants. It was a lawful, or “reasonable”, use of land, but not when assessed by reference to the experiences of its residential neighbours.
This leads on to the second issue which is the topic of this post, and that is the question of “reasonable user”.
“Reasonable user” is used to describe the core consideration in nuisance, which is one which goes back to a form of words which has exercised a great deal of judicial time not only in the middle of the nineteenth century, but also in a string of cases over the last twenty years in the House of Lords and the Supreme Court.
The wording in question is conventionally extracted from the expression used in Bamford v. Turnley (1862): “those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action”. That is to say that for there to be a nuisance, not only must the acts in question be necessary for the ordinary use of land, but they must also be done with due consideration for neighbouring land users.
The problem, judicially, has centred around what is meant by “conveniently”. It is convenient for a developer to dry bricks in a temporary kiln, or “clamp”, on his land next to the place where the bricks are going to be used. Nothing could be more convenient. But “convenience” means more than this, and imports the question whether or not the activity is done with proper consideration for the interests of neighbours. If, as a result, neighbours experience smoke and fumes which make the occupation of their homes impossibly difficult, then the rules of nuisance are engaged.
As Lord Goff explained in Cambridge Water (1994), returning to Bamford v. Turnley, “although liability for nuisance has generally been regarded as strict, . . . [it] has been kept under control by the principle of reasonable user – the principle of give and take as between neighbouring occupiers of land, under which those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action” … The effect is that, if the user is reasonable, the defendant will not be liable for consequent harm to his neighbour’s enjoyment of his land; but if the user is not reasonable, the defendant will be liable, even though he may have exercised reasonable care and skill to avoid it”.
The third and related issue to be derived from the judgment of Leggatt JSC is the importance of reciprocity (see paras.34 and 35 of his judgment in Fearn).
Reciprocity has traditionally been thought of as another means of giving expression to “reasonable user” as the overall control mechanism behind the law of private nuisance. Leggatt JSC quoted from Lord Millett in Southwark v. Mills (2001): “The governing principle is good neighbourliness, and this involves reciprocity. A landowner must show the same consideration for his neighbour as he would expect his neighbour to show for him. This explanation gets to the nub of the rule of give and take, live and let live” stated by Bramwell B in Bamford v Turnley”.
This is really the same test as that described by Lord Goff above, but Leggatt JSC describes reciprocity as a reason why special protection is owed to an “ordinary” use of land over a special use. He considered this to be a function of a principle of “equal justice”.
To quote from the judgment in full (para.35): “This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him. Nor can such a person complain on that basis about substantial interference with his special use of his land caused by the ordinary use of neighbouring land. By contrast, a person who is using her land in a common and ordinary way is not seeking any unequal treatment or asking of her neighbours more than they ask of her”.
This is a theme which has been considered previously, for instance in Arscott (2005), albeit in the context of the tort of nuisance where there is physical damage to land: “But if, albeit broadly, a landowner will not be liable in nuisance for the consequences of what would be recognised as a natural use of his land by him, unless the quality or extent of that use was unreasonable, still if he pursues a non-natural use, then generally no appeal to reasonableness will help him. This is most plainly exemplified by the well known rule in Rylands v Fletcher: anyone who in the course of a non-natural use of his land brings onto it for his own purposes anything likely to cause harm if it escapes is answerable for all direct damage thereby caused”. There is a hierarchy of protection afforded by the law of nuisance, in all its forms, the effect of which is that someone who makes an unusual, special or exceptional use of land, does so at his or her peril, in the event that it has consequences for a more ordinary use by a neighbouring occupier.
Finally, it will be seen from the above, that the use of “best practicable means” is of itself no defence to a claim in nuisance. Where the rule of “give and take, live and let live” is breached, it is of no extra assistance for a defendant to say that they were using best practicable means to try and avoid the consequence of a particular land use. Thus, a landfill operator causing odour nuisance cannot defend itself by saying that it was the most modern design of landfill site, and a hotel operator cannot say that its noisy and odorous kitchens were being used with the most modern equipment available (see Vanderpant v. Mayfair Hotel (1930)).

Gordon Wignall
23 May 2023