Nuisance in English law

Adam Smith; A.V. Dicey argued that his work led to a laissez faire attitude to industrial pollution and damages during the 19th century.

The tort of nuisance has existed since the reign of Henry III, with few changes, and most of them merely technical.[5] It originally came from the Latin nocumentum, and then the French nuisance, with Henry de Bracton initially defining the tort of nuisance as an infringement of easements.[6] The tort was in line with the economic status quo of the time, protecting claimants against their neighbours' rights to develop land, and thus has been described as "rural, agricultural, and conservative".[7] There were initially four remedies for nuisance; the assize of nuisance, similar to the assize of novel disseisin, which was limited to situations where the defendant's actions interfered with the claimant's seisin;[8] the action guod permittat prosternere, where the land in question was alienated; the writ of trespass; and the "action upon the case for nuisance", which became the main remedy.[9] This was because it was far faster than the other writs and actions, and unlike them did not require that both parties be freeholders. It was, however, limited to damages, and unlike the other remedies did not allow for abatement.[10]

By the 17th century the judicial philosophy had changed to allow the protection of a claimant's enjoyment of their land, with the duty being on the party that caused the nuisance to prevent it: "as every man is bound to look to his cattle, as to keep them out of his neighbour's ground; so he must keep in the filth of his house of office, that it may not flow in upon and damnify his neighbour".[11] During the 19th century and the Industrial Revolution, the law of nuisance significantly changed; rather than the previous tests a standard of care was instead expected, with different standards applying to individuals and companies.[12] In reaching these decisions the courts "effectively emasculated the Law of Nuisance as a useful curb on industrial pollution".[13] In St Helen's Smelting Co v Tipping,[14] for example, several judges "were explicit in suggesting that they were affected by the adverse effect of a more draconian view on the economic welfare of the country's industrial cities".[15] This contrasted with the previous view, which was that when liability was established for a case where the defendant's actions had interfered with the enjoyment of land, the defendant would be liable however trivial the interference.[16]

The decisions reached during this period vary, however, mostly due to the differing judicial philosophies of the time. While A.V. Dicey maintained that the prevalent philosophy was one of laissez faire thanks to the influence of philosophers and economists such as Adam Smith, Michael W. Flinn asserted that:

Another common error... has been the assumption that the classical economists were the only effective influence on social and economic policy in the early and mid-nineteenth century. This is a curiously perverse view, since it ignores powerful voices like those of Bentham, Chadwick, the social novelists, many by no means inarticulate members of the medical profession, the humanitarians, the Christian Socialists and most sections of the many working class movements. There was in short, nothing approaching a consensus of opinion concerning laissez-faire and state intervention, even in the very narrow social sector represented by governments, Parliament, and the press. In practice the ears of ministers were assaulted by a confused babble of voices rather than bewitched by the soft whisper of a single plea for inaction.[17]

19th-century legislation included:

• Nuisances Removal Act 1860 (23 & 24 Vict.)
• Nuisances Removal Act for England (Amendment) Act 1863 (26 & 27 Vict.)
• Smoke Nuisance (Scotland) Act 1865 (28 & 29 Vict.)
• Nuisances Removal (No. 1) Act 1866 (29 & 30 Vict.) .

The legislation recognised that diseased meat could cause sickness and needed to be removed from sale. In 1864 William Johnstone, a "wholesale pork pie manufacturer and sausage roll maker", was fined £15 (2015: £1,300), under the 1863 Act, for having on his premises a large quantity of meat unsound, unwholesome and unfit for food.[18]

Private nuisance was defined in Bamford v Turnley,[19] where George Wilshere, 1st Baron Bramwell defined it as "any continuous activity or state of affairs causing a substantial and unreasonable interference with a [claimant's] land or his use or enjoyment of that land".[1] Private nuisance, unlike public nuisance, is only a tort, and damages for personal injuries are not recoverable.[20] Only those who have a legal interest in the affected land can sue; an exception was made in Khorasandjian v Bush,[21] where the Court of Appeal held that a woman living in her mother's house was entitled to an injunction to prevent telephone harassment despite having no legal interest in the property.[22] In Hunter v Canary Wharf Ltd,[23] however, the House of Lords rejected this development, arguing that to remove the need for an interest in the affected property would transform the tort of nuisance from a tort to land into a tort to the person. The liable party under private nuisance is the creator, even if he is no longer in occupation of the land or created a nuisance on somebody else's land. In Sedleigh-Denfield v O'Callaghan,[24] it was held that the defendant was liable for a nuisance (a set of water pipes) even though he had not created it, because he had used the pipes and thereby "adopted" the nuisance.[25]

There is a general rule that a landlord who leases a property is not liable for nuisances created after the occupier takes control of the land. There is an exception where the lease is granted for a purpose which constitutes a nuisance, as in Tetley v Chitty,[26] or where the nuisance is caused by their failure to repair the premises, as in Wringe v Cohen.[27][28] The landlord is also liable were the nuisance existed before the land was let, and he knew or ought to have known about it.[29] Under the principle of vicarious liability, an occupier of land can also be liable for the actions of their employees; in Matania v National Provincial Bank,[30] it was also established that they could be liable for the activities of independent contractors under certain circumstances.[31]

For there to be a claim in private nuisance, the claimant must show that the defendant's actions caused damage. This can be physical damage, as in St Helen's Smelting Co v Tipping,[32] or discomfort and inconvenience. The test for remoteness of damage in nuisance is reasonable foreseeability, as established in Cambridge Water Co Ltd v Eastern Counties Leather plc;[33] if the defendant was using their land unreasonably and causing a nuisance, the defendant is liable even if they used reasonable care to avoid creating a nuisance. The test is whether or not the nuisance was reasonably foreseeable; if it was, the defendant is expected to avoid it.[34]

Interference

One Canada Square, the subject of Hunter v Canary Wharf Ltd.[23]

The claimant must first show that the defendant's actions have caused an interference with their use or enjoyment of the land. These interferences are indirect, and almost always the result of continuing events rather than a one-off incident. This interference may be a physical invasion of the land, such as in Davey v Harrow Corporation,[35] noise, as in Christie v Davey,[36] or smells, such as in Wheeler v J J Saunders.[37] The courts have allowed cases where the interference causes emotional distress, as in Thompson-Schwab v Costaki,[38] but have been loath to protect recreational facilities or "things of delight"; things such as the blocking of a pleasant view or a television signal are not considered a nuisance. The latter was discussed in Hunter v Canary Wharf Ltd,[23] where the claimants argued that the blocking of their television signal by the construction of the skyscraper at One Canada Square was a nuisance. The House of Lords rejected this argument. There are rights to land known as servitudes, such as the right to light through windows or the right of support.[39] An occupier can also be liable for an interference that is naturally arising, assuming they are aware of the interference's existence and fail to take reasonable precautions, as in Leakey v National Trust,[40] which established that in such situations "the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances". This principle was extended in Holbeck Hall Hotel v Scarborough Borough Council,[41] where the Court of Appeal said that if a landowner knows or ought to know that their property may cease to support another's, they are required to take reasonable precautions or they will be liable.[42]

Public nuisance concerns protecting the public, unlike private nuisance, which protects an individual. As such it is not only a tort but also a crime. In Attorney-General v PYA Quarries Ltd,[59] it was defined by Romer LJ as any act or omission "which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects".[2] Because of the wide definition given, there are a large range of issues which can be dealt with through public nuisance, including picketing on a road, as in Thomas v NUM,[60] blocking a canal, as in Rose v Miles,[61] or disrupting traffic by queuing in a road, as in Lyons v Gulliver.[62][63] A significant difference between private and public nuisance is that under public, one can claim for personal injuries as well as damage to property. Another difference is that public nuisance is primarily a crime; it only becomes a tort if the claimant can prove that they suffered "special damage" over and above the effects on the other affected people in the "class". The test for the required size of a "class" was also discussed in theAttorney-General v PYA Quarries Ltd, with the court concluding that the test was whether the nuisance was "so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large".[64]

Because public nuisance is primarily a criminal matter, and affects a "class" of people rather than an individual, claims are normally brought by the Attorney General for England and Wales as a "relator", representing the affected people. Other members of the affected class are allowed to sue individually, but only if they have suffered "special damage".[65] The potential defendants in public nuisance claims are the same as those in private nuisance, with their liability dependent on a test of reasonableness; in public nuisance, however, this is determined by looking solely at the interference, not the defendant's actions.[66]

There are several defences to nuisance claims; in Nichols v Marsland,[67] for example, "Act of God" was accepted as a defence.[28] One defence is that of "20 years prescription", which is valid for private nuisance but not public. If a private nuisance continues for 20 years, it becomes legal by prescription, assuming the defendant can show that it has been continuous and the claimant has been aware of it. A limitation is that the 20 years is from when the activity became a nuisance, not from when the activity started. In Sturges v Bridgman,[48] the claimant, a doctor, lived next to a "confectionery business". Vibrations and noises coming from this business continued for over 20 years without causing the doctor nuisance, and the doctor only complained after building a consulting room in his garden. It was held that the actual nuisance only started when the consulting room was built and the activity began to affect the doctor, not when the activity started.[68] A second defence is statutory authority, when an activity is authorised by a piece of legislation; this applies to both public and private nuisance. This applies even when the activity is carried out not directly in line with the statute, but intra vires. In Allen v Gulf Oil Refining Ltd,[69] the defendant was authorised to build an oil refinery by an Act of Parliament. The Act gave no express authority to operate it, and after it came into operation the claimant argued that it caused a nuisance through the smell and noise. The House of Lords held that it had statutory authority to operate the refinery, saying "Parliament can hardly be supposed to have intended the refinery to be nothing more than a visual adornment to the landscape in an area of natural beauty".[70] The statutory authority defence has recently been subject to legislative consideration in the Planning Act 2008, which expands the defence to over 14 types of infrastructure development.[71]

There are three possible remedies where a defendant is found to have committed a nuisance; injunctions, damages and abatement.

There are three possible remedies where a defendant is found to have committed a nuisance; injunctions, damages and abatement.

Injunctions are the main remedy, and consist of an order to stop the activity causing the nuisance (Mandatory or prohibitory) They may be "perpetual", completely forbidding the activity, or "partial", for example limiting when the activity can take place.[72]

Damages are a monetary sum paid by the defendant for the claimant's loss of enjoyment or any physical damage suffered; they may be paid for things as varied as loss of sleep or any loss of comfort caused by noise or smells.

Abatement is a remedy that allows the claimant to directly end the nuisance, such as trimming back a protruding hedge. If the abatement requires the claimant stepping onto the defendant's land, he must give notice or risk becoming a trespasser.[73]

In 2021 the government published its Police, Crime, Sentencing and Courts Bill, in which Section 60 would abolish the common law offence of public nuisance and replace it with a new statutory offence.[74]

• Bermingham, Vera; Carol Brennan (2008). Tort Law. Oxford University Press. ISBN 978-0-19-922798-3.
• Brenner, Joel Franklin (1974). "Nuisance Law and the Industrial Revolution". Journal of Legal Studies. 3 (2): 403–433. doi:10.1086/467519. ISSN 0047-2530.
• Cross, Gerry (1995). "Does only the careless polluter pay? A fresh examination of the nature of private nuisance". Law Quarterly Review. 111 (3). ISSN 0023-933X.
• Elliott, Catherine; Francis Quinn (2007). Tort Law (6th ed.). Pearson Longman. ISBN 978-1-4058-4672-1.
• Gearty, Conor (1989). "The Place of Private Nuisance in a Modern Law of Torts". Cambridge Law Journal. 48 (2): 214–242. doi:10.1017/S000819730010529X. ISSN 0008-1973.
• Lee, Maria (2003). "Law Quarterly Review". Law Quarterly Review. 119 (2). ISSN 0023-933X.
• Moor, Francis (2011). "Planning for nuisance?: A review of the effects of the Planning Act 2008 on the statutory authority defence in the UK". International Journal of Law in the Built Environment. 3 (1). doi:10.1108/17561451111122615.
• McLaren, John P.S. (1983). "Nuisance Law and the Industrial Revolution – Some Lessons from Social History". Oxford Journal of Legal Studies. 3 (2): 155–221. doi:10.1093/ojls/3.2.155. ISSN 0143-6503.
• Winfield, P.H. (1931). "Nuisance as a Tort". Cambridge Law Journal. 4 (2): 189–206. doi:10.1017/S0008197300132933. ISSN 0008-1973.