PRIVATE NUISANCE
A road-map for the principles applicable in different types of private nuisance, sign-posting some of the major judgments in recent years: as requested by New Law Journal, the edited version of which will be found in the 1 December edition, available here.
Is it possible to set out any practical guidance in a summary as short as this as to those rules which govern an action in private nuisance, given the disparate factual circumstances to which this cause of action may apply? The answer is “yes” and that in any event the effort is useful, if not essential, since we can then avoid pursuing inappropriate themes in the wrong types of claims.
This short article identifies some elements common to all nuisance claims, but also suggests that distinct themes exist in respect of (i) physical damage to property, (ii) ‘intangible’ interferences and (iii) those cases where nuisance has become mixed with negligence. Such a categorisation is not entirely new, but rarely expressed. It constitutes the best road-map available to enable us to follow judgments from the highest courts and to understand where caution may be needed.
In a famous article by Professor FH Newark (The Boundaries of Nuisance) (1949) 65 LQR 480, he referred to the “mongrel origins” of the tort, citing Erle CJ in Brand v. Hammersmith Ry (1867 LR 2 QB 223 who had said that the answer to the question “What is a nuisance?” was “immersed in undefined uncertainty”. Less than a decade beforehand, in Sedleigh-Denfield v O’Callaghan [1940] AC 880, 903, Lord Wright had described private nuisance as ‘protean’ after the shift-shaping god of Greek mythology.
Professor Newark went on to threaten to nail four theses to the doors of the Law Courts in order to begin the process of stating the law of nuisance in a “rational” way, starting with the baseline that nuisance only ever applies “to such actionable user of land as interferes with the enjoyment of the [claimant] of rights in land”, that there must be some degree of permanence about this interference and that neither personal jury nor damage to chattels can by themselves give rise to a private nuisance. We can take these principles as a safe starting-point, together with the corollary that in any private nuisance claim the claimant must be able to demonstrate a proprietary interest in the land affected.
Lord Wright’s contribution was to seek to identify the central aim of the tort: “A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.”
However, towards the end of a period of “benign empiricism”, absent anything as “coarse and unjust” as a “more comprehensive rule-book” (Laws LJ in Arscott v. The Coal Authority [2005] Env LR 6), in Cambridge Water v. Eastern Counties Leather [1994] 2 AC 264, Lord Goff set up “reasonable user” as the “control mechanism” in the law of nuisance, with the result that once a prima facie of nuisance had been established, an objective test of reasonableness should be applied which was informed by the principle of give and take. As Lord Goff put it: “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”, a reference back to a key passage in Bamford v. Turnley (1862) 3 B. & S. 62 , 83, per Bramwell B, a judgment which is still essential reading and which has been discussed in many later cases.
Since 2000 the House of Lords and Supreme Court have considered important questions relevant to every aspect of the tort. They set out some more detailed principles, but as is explained further below, they can also be used to describe the route-map which is the aim of this article.
In Delaware Mansions Ltd v Westminster City Council [2001] UKHL 55, [2002] 1 AC 321 the House of Lords was concerned with the correct measure of compensation for a continuing nuisance caused by tree root subsidence.
In Transco Plc v Stockport MBC [2003] UKHL 61, [2004] 2 AC 1, the House of Lords presented the principle of Rylands v. Fletcher in its new clothes as a sub-species of private nuisance of the strict liability type, embellished with some new language (‘ordinary’ for ‘natural’ user and ‘extraordinary and unusual’ for ‘non-natural’ use of land).
Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42 established a limitation to the ambit of the tort where there was statutory scheme of remedy affecting others (just as some nuisances are not actionable where they are cloaked with statutory authority).
Lawrence v. Fen Tigers [2014] UKSC 13, [2014] AC 822, Do. (No.2) [2014] UKSC 46 [2015] AC 106 and Do.(No.3) [2015] UKSC 50, [2015] 1 WLR 3485 occupy 127 pages in three law reports, principally to demonstrate (i) whether a defendant can rely on the generation of its own noise and planning consents as part of an acceptable noise landscape in the locality (it can, up to the point at which there has been a change in the intensity or character of the noise), (ii) whether an injunction should be the primary remedy in nuisance or whether a claimant might be forced to accept compensation by reason, for instance, of the wider public benefit (it might) and (iii) the extent to which a landlord is legally responsible for a nuisance (namely where there had been a very high degree of probability that by reason of the letting a nuisance the landlord would have authorised it, or alternatively the landlord directly participated in it). The House of Lords also confirmed that it is possible to have a prescriptive right to cause nuisance (in theory at least) and posited that the well-established rule that ‘coming-to’ a nuisance is no a defence to a claim should be revised (for instance where a person builds an extension to a property knowing about the emissions from a neighbouring use of land).
Then, in Fearn v. Tate Gallery Trustees [2023] UKSC 4, [2023] 2 WLR 339, the Supreme Court decided that ‘overlooking’ can constitute a nuisance, and in Jalla v. Shell International [2023] UKSC 16 [2023] 2WLR 1085 the Court described a “continuing nuisance” as occurring which a defendant has created a state of affairs which results in repeated effects on a claimant.
Of these authorities, Transco is the most useful starting point for the hypothesis set out at the commencement of this article that there is a series of overlapping themes which can be organised into three broad categories. This much is said, broadly by Lord Walker of Gestingthorpe at paras.95-97, citing a passage from Lord Lloyd of Berwick who had posited just such a “simple classification” at Hunter v. Canary Wharf [1997] LodAC 655, 723.
Transco itself, then, provides an understanding of nuisance in the first category, namely by “direct physical injury to a neighbour’s land” (albeit that Transco was concerned with a claim in Rylands v. Fletcher). The existence of this form of the tort, to be distinguished from ‘intangible’ interferences (“nuisance by interference with a neighbour’s quiet enjoyment” of his land”, the second category) had first been clearly drawn in St Helen’s Smelting Co v. Tipping (1865) 11 HL Cas 642, Lord Westbury LC noting that where there is a “a material injury to property … there unquestionably arises requires a very different consideration”. All those factors which are designed to balance the reasonableness of one party’s use of land as against another’s in the case of ‘intangible’ interferences, go out of the window. Thus, the nature and character of the area and a detailed application of the principle of “give and take” are redundant. There will also be some “ongoing state of affairs” attributable to the defendant which must be identified, although this is a feature common to other forms of nuisance and discussed extensively by Lord Burrows JSC in Jalla.
Fearn sets out a detailed summary of all the “core principles” relevant to a claim of the second category, i.e. where there has been some “sensible” injury to the use and enjoyment of land: a robust standard of tolerance by a claimant, a “significant” interference with the use and enjoyment of land, reciprocity and give and take, the importance of locality and the nature and character of the area, and a reluctance to accept that any allowance should be made for the sensitivity of the property affected. Lawrence v. Fen Tigers is an example of the same species of nuisance.
It is worth observing that in Fearn, the minority led by Lord Sales JSC decided that the majority judgment “does not affirm established principle, but instead would constitute a major change in the law” (“by elevating one factor, whether the defendant’s use of its land is common and ordinary to unjustified prominence”, in place of “an objective test of reasonableness informed by the standards of the locale” (i.e. the test summarised by Lord Wright above) (para.245)). However, Lord Leggat’s judgment now states the current law where there has been some ‘sensible’ interference with the use and enjoyment of land.
The two different species of the tort can be reconciled by way of the judgment of Laws LJ in Arscott v. The Coal Authority [2005] Env LR 6), the judge drawing the following distinction, namely that if a landowner uses land in some unusual and exceptional manner (such as by running an operation which causes direct damage), then “no appeal to reasonableness will help him”, whereas “a landowner will not be liable 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 by him was unreasonable” (where there has been some ‘sensible’ interference, as in Fearn).
It remains to establish the third version of the tort, which is the version which relies extensively on negligence. This first arose in Sedleigh-Denfield v O’Callaghan [1940] AC 880 itself, when the state of affairs giving rise to damage (which is when the tort of nuisance is complete), was caused by the acts of a trespasser (in that case the local council, which laid down a pipe to carry away rainwater). Where a landowner either “continues” or “adopts” the state of affairs in question, then a duty of care arises to abate the nuisance. The House of Lords explained in Leakey v National Trust [1980] Q.B. 485 that this is a “measured” duty of case, which can also be utilised applies where there is a state of affairs caused by some natural thing which a landowner is in a position to control (such as tree roots). Much can depend on the competing resources of claimant and defendant. This is the form of the tort behind Delaware Mansions Ltd, the nature of a “state of affairs” being explored further in Jalla.
In the first and third classifications of the tort (direct physical damage and the measured duty of care), foreseeability of damage becomes a further control mechanism limiting liability. It has no application to the second category.
Conclusion
Building on earlier authorities which tentatively commenced the classification of private nuisances, it can be reasonably asserted that there are three general species of the tort, in respect of which, whilst all concern damage to land and interests in land, there are many distinct themes, as summarised above. The clearest route to understanding the distinctions today come from reading the earlier sections of the invaluable judgment of Laws LJ in Arscott v. The Coal Authority, the cases of Transco Plc v Stockport MBC and the judgment of Lord Leggatt JSC in Fearn v. Tate Gallery Trustees.
In 2024 (rather than in 2023), the Supreme Court will give its decision on the appeal from Manchester Ship Canal v United Utilities Water Ltd [2022] EWCA Civ 852, [2023] Ch.1, and we will know then whether Parliamentary encroachment on the tort is to be further extended or restricted. That appeal included an attack on the previous judgments in Marcic v Thames Water Utilities Ltd.
Gordon Wignall is a barrister who maintains a website at wiglaw.co.uk dedicated to nuisance, environmental permitting and waste, including criminal and civil liabilities.
GORDON WIGNALL
7 December 2023