THE DEFENDANT

Summary of this section

A nuisance must emanate from land – the occupier who can cure the problem as the ‘correct’ defendant – the person who caused the problem as the ‘correct’ defendant – ordinary residential noise – a landlord and its tenant’s behaviour – a landowner and anti-social behaviour – responsibility for independent contractors, agents, and others

Introduction

A defendant can only be liable if the activities causing a nuisance emanate from the use of land. The correct defendant, first and foremost, is the person who can cure the problem.  This is because the most important remedy for the claimant is likely to be an injunction to bring the nuisance to an end. This defendant may be a different person from the person who caused the problem in the first place, who will remain liable.  The remedy against this second defendant will probably be an order to pay compensation.

The sections below consider in more detail who is likely to be the correct defendant in a claim in nuisance.  They also go on to examine the identity of the appropriate defendant in the following special circumstances, some of which require comment on liability:

• the defendant in the case of ordinary residential noise
• the position of a landlord and liability for its tenants
• whether landowners can be responsible for the anti-social behaviour of others
• whether landowners are liable for their contractors and agents
• the position of a builder or demolition contractor.

‘Defences’

Being able to identify the correct defendant is of course important.  The related issue is what defences might be available to a particular defendant.  Potential defences are considered separately in an additional section, ‘Defences’.  This section covers (a) defences at common law, (b) defences which are the result of legislation outside the Limitation Act 1980, and (c) the effect of the provisions of the Limitation Act.

Use of land and the defendant’s activities

For there to be a private nuisance, it is often said that the emission which constitutes a nuisance must emanate from land (rather than, for instance, the sea, although this may constitute a public nuisance) (Esso, 1954, 1956).

A better form of clarification is perhaps that which says that the acts or omissions giving rise to a nuisance will originate from the defendant’s own land or land over which it has control (Hussain,1998).  In cases of public nuisance it will suffice that the defendant’s activities concern the use of any land (Hubbard, 1976).

If there is uncertainty about meeting the requirement in private nuisance that a nuisance should emanate from neighbouring land, then other forms of action might be considered.  These are typically public nuisance or trespass.  There is an overlap with both, although the common law as it has developed in England, Wales and Ireland, has been reluctant to concede that private nuisance and trespass are anything other than mutually exclusive.

The defendant who can cure the problem

The ‘correct’ defendant is the person on whose land the state of affairs giving rise to the nuisance is situated. That person is in a position to do something about the nuisance. The possibility of an injunction is generally the starting-point in a nuisance claim, ordinarily making this the most appropriate defendant.  Where a tenant is in occupation, the tenant and not the landlord is likely to be the correct defendant (see “Landlords and their tenants”, below).

In the case of a bare licence, the absent licensor may still constitute the correct defendant as the person able to abate the nuisance (Cocking, 2016).  This is on the basis that under the relevant agreement, the licensor is still the ‘occupier’.  Cocking concerned a mother who allowed her daughter to live in a flat which the mother owned.  The daughter carried out anti-social acts which the mother failed fully to abate.  The Court of Appeal decided that the mother, as occupier, was in a different position from the usual position of a landlord.  As an occupier she was responsible for the nuisance caused by her daughter, even though she did not directly cause it, because she was in control and possession of the property (applying the principles relevant to under the ‘measured duty of care’ and Page Motors, 1981).

The defendant who caused the problem

Any person who has brought about the state of affairs constituting the nuisance is also liable even if that person is no longer present or responsible for the nuisance (Maberley, 1946). This is the case whether or not proceedings are also taken against some other person who is in a position to do something about it.

A defendant and ordinary residential noise

The ordinary sounds of residential occupation cannot themselves amount to a nuisance. This is because ordinary residential occupation is considered to be a reasonable user of the property: standards of ‘reciprocity’ mean that as between tenants or other household neighbours, each has to put up with the noises which the other generates (Southwark LBC, 1999).

However, there have been cases in which a landlord has been held liable in nuisance for the ordinary everyday sounds of its tenants after works have been undertaken by the landlord.

In Sampson v. Hodson-Pressinger (1981), for instance, adaptations were made so that a prospective tenant could walk on a tiled roof terrace above the claimant. The assignee of the landlord’s reversion was held liable in damages.

In Toff v. McDowell (1993), the landlord altered the flooring above the claimant’s basement flat. He was liable for damages in lieu of an injunction.  This was assessed as the damages which were equivalent to the compensation necessary for the construction of a false ceiling.

In many of these cases, a more certain means of success is via any contractual route, e.g. the mutual covenants in a letting scheme.

Landlords and their tenants – general principles

A landlord is not liable for a nuisance caused by his tenant merely because it does not take steps to prevent what is being done, even where the landlord knows that his tenant is causing a nuisance. A landlord can be liable for the nuisance of the tenant if the landlord participates in the nuisance or authorises it, these being general principles of tortious liability.

It could be argued that there is a ‘sliding scale’ of proximity between the conduct of a landlord and the nuisance carried out by his tenant and that the closer the connection, then the more likely it is that a claimant will be able to hold the landlord liable.  Such a scale might be presented as follows: (i) the landlord who fails to take steps to prevent a nuisance, the landlord being unaware that a nuisance is being carried out, (ii) the landlord who fails to take steps to prevent a nuisance when he does know that a nuisance is being carried out, (iii) a landlord authorising a nuisance, and (iv) a landlord participating in a nuisance.

The Supreme Court considered the issue of landlords’ liability in (Lawrence, 2015). There is also a useful summary of the law in (Fouladi, 2018). Specific examples provide an illustration as to when the liability of a landlord has been considered.

In Tetley (1985) the noise from go-karting was a natural and ordinary consequence of the use of the track. Because the council had given permission for that use, the council was liable in nuisance.

In Smith (1972) the claimant obtained an injunction against a local authority’s tenants who had made life impossible by reason of the nuisance they brought about. The claim against the local authority landlord failed, even though the local authority knew that the tenants were likely to commit acts of nuisance. It was said that there must be a “virtual certainty” or “a very high degree of probability” that a letting will result in a nuisance for the landlords to be held liable.

A licensor is not in the same position as a landlord, and may be subject to a ‘Leakey‘ duty to take reasonable steps to abate a nuisance caused by its licensee (see “the defendant who can cure the problem” above” and Cocking, (2016)).

A landowner’s liability for the anti-social acts of trespassers

Can a landowner be held liable in private nuisance for anti-social acts caused by trespassers who have occupied its land?

In Page Motors (1981) the local authority defendant granted a lease of land to the defendant garage business.  A large number of gypsies moved on to the defendant’s land which formed part of the same estate.  They were trespassers.  The gypsies substantially interfered with the defendant’s business by various different activities which took place on the land owned by the defendant, albeit that some of it had been leased to the garage business.  The Court of Appeal upheld the trial judge, who had held that the local authority had owed a measured duty of care to the garage business to remove the gypsies as the cause of the nuisance (a Leakey duty).  The defendant had been in breach of that duty by the beginning of 1975, the gypsies having not been removed until September 1978.  (The principle in Page Motors has also been applied in respect of a landowner’s licensees who cause a nuisance.  See “The defendant who can cure the problem” above.)

Hussain (1998) concerned a shop-owner’s complaints of racially aggravated acts.  The perpetrators all lived on the local housing estate and they were tenants of the council.  The Court of Appeal agreed with the council that the claim should be struck out because the council could not be held liable for the tenants’ acts.

In Lippiatt (1999) a judge struck out a claim by two local farmers who had alleged that the defendant local authority was liable in private nuisance for the acts of gypsies who interfered with their businesses.  Some of the gypsies’ acts had taken place off the defendant’s land, the gypsies trespassing on to the farmers’ land.  The Court of Appeal re-instated the case, relying on Page Motors (see above).  The Court of Appeal decided that an owner-occupier of land could be liable in nuisance for the unlawful activities of licensees or of persons based on his land which had taken place off its land.

The Court of Appeal judges in Lippiatt distinguished the facts of that case from those of Hussain.  The conduct complained about was not in any sense linked to the homes where they lived.  It could not be said to have ’emanated from’ land owned by the council.  The acts in Hussain had amounted to a public nuisance for which the individual perpetrators could be held liable.