A good preliminary definition for the tort of private nuisance can be found in Miller v Jackson [1977] QB 966. Denning MR at 980 said: “The very essence of private nuisance […] is the unreasonable use of man of his land to the detriment of his neighbour.”
There are two primary features of nuisance – firstly, it involves the protection of the use of land (or property). Secondly, that protection is from unreasonable interference.
This can cover a wide range of neighbour-neighbour relationships.
Property Interests and Private Nuisance
Since nuisance deals with property rights, it is necessary that a claimant has a proprietary interest in the property which is interfered with. This might be as an owner, leaseholder or tenant. The need for proprietary interest stems from Malone v Laskey [1907] 2 KN 141.
For a brief period of time in the mid-90s, this requirement was removed, in the case of Khorasandijan v Bush [1993] QB 727. This stance changed in 1997, and the proprietary right requirement was reinstated in Hunter v Canary Wharf [1997] AC 655.
What Constitutes Unreasonable Interference?
The second key element of private nuisance is that of unreasonable interference – that is, use of land or property in a way which would foreseeably interfere with the claimant’s quiet enjoyment of their own land. There are five main factors which, to date, have been used to determine unreasonableness:
Character of Neighbourhood
Character of neighbourhood refers to what might reasonably be expected of a particular area. Thus, the relative amplitude of a nuisance depends on its context. This principle can be found in Sturges v Bridgeman [1879] 11 Ch D 852.
It should be noted that the factor of neighbourhood character only comes into play when the nuisance is one which causes inconvenience to the claimant, rather than physical damage. If the nuisance causes physical damage, then neighbourhood character will not form a valid defence. Physical damage remains an unreasonable nuisance, regardless of neighbourhood context. This principle can be seen in St Helen’s Smelting Co v Tippings [1865] 11 HL Cas 642.
Sensitivity of the Claimant
Whilst claimants will by definition be annoyed by a nuisance, this is not the test for private nuisance. Instead, the existence of nuisance will be judged against its effect on a reasonable person. If it is held that the claimant is simply unusually sensitive to a nuisance, or is using their property for an unusual purpose (which in turn is disrupted by the nuisance), then the nuisance will not be legally recognised.
The use of the reasonable person/ordinary land use test can be seen in Robinson v Kilvert [1889] 41 Ch D 88.
It should be noted that there exist circumstances in which the claimant’s annoyance will be because a particular activity of theirs is affected by a nuisance, but it is nonetheless one which would still interfere with the ordinary person.
It should also be noted that the relevant standard is that of ‘ordinary use’. This should not be taken as meaning that the disruption of a specific activity is not grounds for nuisance, as long as that activity is considered by the courts to constitute normal use.
Duration of Nuisance
There must be some continuity to the duration of the nuisance. ‘Continual’ is a distinct concept from ‘constant’ as far as private nuisance goes. At the same time, the law is usually only concerned with dealing with nuisances that will likely reoccur. There have been rare exceptions to this rule, however, as in Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533.
Although the courts will look for an ongoing nuisance, that ongoing nuisance can be instigated by a single act. This can be seen in Spicer v Smee [1946] 1 All ER 489.
It should be noted that temporary nuisances can still be considered continual – De Keyser’s Royal Hotel v Spicer Bros(1914) 30 TLR 257.
Public Benefit
The courts will also consider the public benefit of the nuisance action – much as they will in an action for negligence. This is a key mechanism for distinguishing between reasonable and unreasonable. The courts will generally hold that construction is of public benefit.
Of course, defendants are rarely given free rein to annoy their neighbours; they will still have to act reasonably in carrying out their publicly beneficial activity.
Malice
If it is found that the defendant is acting with deliberate hostility or spite, this makes it far more likely that their actions will be found to be unreasonable. In a similar manner to the way in which the law will look favourably upon a claimant with ‘clean hands’, in nuisance cases it will treat defendants with ‘dirty hands’ less favourably. This can be seen in Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2 KB 468.
Private Nuisance Must Cause Harm
Once it has been established that a claimant has a proprietary right, and the defendant’s actions are unreasonable, the claimant must demonstrate that there has been some harm from the defendant’s actions. Three types of recognised harm were laid down in Hunter v Canary Wharf (described above.)
- The first category is encroachment – where the defendant’s activity or land directly affects the claimant’s property. The classic scenario here will be where subsidence is caused in the claimant’s property, usually by tree or hedge roots from the defendant’s property.
- Secondly, where the defendant’s use of their land causes physical damage to the claimant’s property, as in St Helen’s Smelting Co v Tippings, discussed above.
- Thirdly, where there is an interference with the claimant’s enjoyment of their property. This category includes cases involving noise or odour. De Keyser provides an example of the former category.
Certain scenarios will present a combination of these harms, so Miller v Jackson(above) involved both property damage and the prevention of the claimants being able to safely use their garden.
Public Nuisance
There exists a second category of nuisance cases, distinct from private nuisance. This category of cases is called public nuisance. Public nuisance is first and foremost a matter of criminal law – a common law offence which a party can be cited for. However, if an individual can demonstrate that they, as an individual, have been especially affected by a public nuisance, then they can make a claim in tort.
A working definition for public nuisance can be found in Attorney General v PYA Quarries [1957] 2 QB 169. Romer LJ provided that “any nuisance is ‘public’ which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects. […] It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.”
What Constitutes a ‘Class of People’?
A sufficiently large class of people is required before a public nuisance case can succeed. At a bare minimum, the affected group of people must be so large that, in the words of Lord Denning in Attorney General v PYA Quarries: “it would not be reasonable to expect one person to take proceedings […] to put a stop to it but that it should be taken on the responsibility of the community at large.”
Whether a class is large enough will depend on the facts of the case at hand. There are several examples of note, however:
- In R v Ruffel [1991] 13 CR a local community could constitute a class of people.
- In R v Ong [2001] 1 Cr App R (S) 117 a group of people with a common interest could constitute a class of people.
- A group of road users can be a class of people, as in Castle v St Augustine’s Links [1922] 38 TLR 615.
Even if the effect of a nuisance action is indirect, it can still affect a class of people, R v Lowrie [2005] 1 CR App R (S) 95.
Smaller groups of people can be considered a class, as long as they have common characteristics, R v Johnson [1997] 1 WLR 367. It should be noted, however, that the courts appear to have started to shy away from applying public nuisance to cases involving numerous, but separate victims, as in R v Rimmington [2006] 1 AC 469.
The Special Damage Requirement
In order for a claim in tort to be made, the claimant must show that they have suffered damage over and above the class of people affected by the public nuisance. This effectively prevents all of those affected by a public nuisance from bringing a claim. Damage can be personal injury, property damage, economic loss, or just discomfort or inconvenience. This will purely be a matter of the facts at hand, since whether a claimant is especially affected by a nuisance will depend on the extent to which the general class of persons is affected.
Nuisance Defences
Prescription
The defence of prescription, which only applies to private nuisance is a claim that a defendant has acquired a right to cause the relevant nuisance because they have done so for over 20 years without interruption.
It is essential to note that the start of this 20-year period is not from the start of the activity itself, but from the start of the time that the activity became a nuisance. This can be seen in Sturges v Bridgman.
Statutory Authority
If a defendant’s activity is authorised by statute, then this will likely constitute a valid defence. However, an authorised activity which is undertaken in an unreasonable manner can still give rise to a claim in nuisance, as in Wheeler v JJ Saunders Ltd [1996] Ch 19.
Ineffective Defences
There are a number of arguments which are often put forward in nuisance cases which the courts usually regard as invalid. It is often argued by defendants that the claimant has ‘come to the nuisance’, and thus as the newcomer they shouldn’t be allowed to disrupt the activity of the established resident. This can be seen in Miller v Jackson and Sturges v Bridgman. The law will ignore this argument – an activity is a nuisance whether it starts the year before or the year after a claimant has moved to their property, and the right to quiet enjoyment remains static. Furthermore, this defence could effectively allow a defendant to singlehandedly make their area unappealing to newcomers.
It should also be noted that a defendant cannot successfully argue that their actions only constituted a nuisance when combined with the actions of another. The prime example here is a loud band – a single defendant musician cannot claim that their contribution in isolation was not a nuisance as a defence.
Rylands v Fletcher
There also exists a nuisance-like tort created by the case of Rylands v Fletcher [1868] LR 3 HL 330. This is anomalous: there are few cases which can be said to have given rise to their own special tort. The rule is states as being that “the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at this peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape”
It is important to note that there now exists a comprehensive body of tort law to deal with the situations originally covered by Rylands. Whilst it originally covered personal injury, it is now only relevant in cases of property damage or harm to proprietary interests. Whilst it has not been overturned entirely, the courts dislike using the doctrine, and will seek to use other areas of tort law wherever possible.
The tort can be broken down into four elements – collecting and keeping on land, non-natural use of land, likely mischief, and escape and harm.
Collecting and Keeping on Land
Collecting and keeping on land refers not only to an innately mischievous thing (like water or deadly bees), but also things which, if kept on a piece of land, might cause something else to escape, Miles v Forest Rock Granite Co (Leicestershire) Ltd(1918) 34 TLD 500.
This is particularly important for cases of fire – which naturally ‘escapes’ and does damage, LMS International v Styrene Packaging and Insulation Ltd [2005] EWHC 2065.
It is worth noting the requirement for the active collection of the mischievous object – so naturally occurring objects will not be covered by Rylands.
Non-natural Use of Land
Non-natural use of land is largely context dependant, Rickards v Lothian [1913] AC 263.
The definition of ‘natural’ can change over time. This can be seen in in Musgrove v Pandelis [1919] 2 KB 43. The current working definition of “unnatural” can be seen in Transco plc v Stockport MBC [2004] 2 AC 1. Non-natural use was described as “an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances”.
Likely Mischief
Likely mischiefcan be obvious but can also include things which are not dangerous whilst contained, but become dangerous when released. This can be seen in Crowhurst v Amersham Burial Board [1878] LR 4 Ex D 5.
Escape and Harm
Simply, the requirement that there is an escape from the defendant’s land, and harm occurs. This used to be a matter of strict liability – escape and harm alone used to satisfy the test. It is now the case that the escape must be reasonably foreseeable (in line with the test in Wagon Mound (No 2).)This change was brought about by Cambridge Water Co. v Eastern Countries Leather plc [1994] 2 AC 264.
Defences
Both contributory negligence and consent can be used in Rylands cases – so if a claimant knowingly consents to the keeping of a mischievous thing, they will not be able to rely on Rylands.
Defendants can also advance an act of god/nature defence.
If the escape is caused by third-party action, then the claim against the defendant will fail (although an alternative claim against the third party in negligence will arise).
Finally, if a defendant’s actions are authorised by statute, this will usually form a defence to liability under Rylands, provided the defendant has acted in accordance with the relevant statutory requirements.