Zephaniah would sue Byron and Shelley, and Midvale Borough Council as the occupier of the land. He would seek, as injunction to stop future noise nuisance in the first action, and in the second action, damages in respect of past damaging his plants and for an injunction to stop it. His action would be for unreasonable interference with the enjoyment of his land by the defendant, under the common law, and where the common law proved to be ineffective, then the Environmental Protection Act 1990.

This case deals with private nuisance and statutory nuisance. According to Winfield: private nuisance is “unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it”[1]. As regards the noisy parties and loud music, it is well established that noise can constitute a nuisance: Halsey v. Esso Petroleum (1961); Tetley v. Chilly (1986), but not all interference gives rise to liability[2]. In Walter v. Selfe (1851), Knight Bruce stated that there must be give and take between neighbours and the interference must be substantial, not fanciful[3]. Alternatively, under the statutory nuisances, the relevant Act is the Environmental Protection Act 1990, which contains powers in section 79, 80 and 82. It deals with smoke, fumes, dust, noise or accumulations or deposits, which are prejudicial to health or a nuisance.

The first action in the problem is the interference by Byron and Shelley with the enjoyment of Zephaniah’s land. The sort of deleterious invasion, in this case is the noise (loud music, noisy parties & drunken singing). In addition, much noisier parties are starting to occur more frequently. The second action is concerned with Zephaniah being seriously affected by the activities of the large group of travelers who have been allowed by the council to camp there. The travelers are causing damage to Zephaniah’s land by allowing their dogs to roam in his garden.

Formerly, an interest in the land affected was required as a prerequisite for suing in nuisance(Malone v. Laskey (1907)) and, although this requirement was relaxed by the Court of Appeal in Khorasandjian v. Bush (1993) and Hunter v. Canary Wharf ltd (1996), it was re-imposed by the House of Lords in Hunter (1997)[4]. Hence, only owners and tenants of the properties affected may sue, not their guests or lodgers. In the problem, Zephaniah who has a legal interest in the land and own rights over that land can bring an action for nuisance.

Any person who creates the nuisance can be sued, and so may the occupier (landlord) who may be jointly and severally liable with the creator where the latter was under his control or where he expressly or impliedly authorises the nuisance[5]. In the second action, if Lippiatt v South Gloucestershire Council (1999)[6] were to be applied, the council allows travellers to use the lane as a base from which to disturb the claimants. However, the council owns the property from which the nuisance is continuing. So, the council may be liable for a nuisance committed on their land, which they have not created.

The remedies available against them would be damages to compensate for past nuisance and an injunction to prevent further nuisance. In the problem, Zephaniah sought an injunction in respect of noise, and for the second action, not further interference with his enjoyment by travellers. If Miller v.Jackson (1977) and Kennaway v. Thompson (1981) were to be applied, there was a nuisance. He would be awarded damages to compensate for past nuisance but refused an injunction in respect of noise[7]. The court will try to balance between the individual rights to enjoy their house and Zephaniah without threat of annoyance.

In deciding whether a particular interference is unreasonable or not, the court will rely on a series of guidelines, but each test is only a guideline and not a condition, and the court has to evaluate the defendant’s behaviour in all the circumstances of the case. Thus, according to Pollock CB in Bamford v. Turnley (1862)[8], these include: time, place, benefit to the community, malice, temporary or permanent, reasonable exercise of rights and hypersensitive claimant. However, the court will take into account all or some of the above in deciding whether an actionable nuisance has occurred or is occurring.

In assessing whether the interference amounts to an actionable nuisance the nature of the locality is taken into account. In this case, the claimant complained that the noise seriously interfered with his peace. There are limits as to what people are able to tolerate in quiet residential areas. This is relevant factor where the interference is with health and comfort (Bamford v. Turnley (1860))[9],as Thesiger LJ stated in Sturges v. Bridgman (1879), ‘what would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey’[10].

Byron and Shelley have frequently activated to have much noisier parties by malice, as inHollywood Silver Fox Farm v. Emmell (1936) and Christie v. Davey (1893), so, prima facie, they would seem to have committed a nuisance. Secondly, in the absence of malice, no action would have arisen[11]. On the other hand, if Bradford Corporation v. pickles (1895) were to be applied, the right of enjoyment in their land which do not appear to reconcile on malice in nuisance, where the House of Lords refused to hold that the defendant’s act became unlawful because of his motive[12]. However in the problem, Zephaniah’s way of saying them to curtail their noises should not be regarded as a intensity of interference.

Actions for private nuisance arise when there has been continuous interference over a period of time with the claimant’s use or enjoyment of land. As Talbot J put it in Cunard v. Antify re ltd,‘private nuisances, at least in the vast majority of cases, are interferences for a substantial of time by owners or occupiers of property with the use or enjoyment of neighbouring property’[13]. In the problem, the interferences are permanent. So, the interferences should usually amount to actionable nuisances. In Spicer v. Smee (1946), the court stated that it was the defective wiring, rather than the resulting fire, that rendered the defendant liable[14].

As regards Zephaniah, he has the problem that he can only work effectively when his surroundings are peaceful. In addition, being a poet, he is a sensitive claimant. The standard is that of the ordinary and reasonable man living in the vicinity of the alleged nuisance and, where the damage is entirely due to an abnormal sensitivity on the part of the claimant, no action will lie: Robinson v. Kilvert (1889); Health v. Mayor of Brighton (1908)[15]. As Lord Robertson said in Eastern and South African Telegraph Co ltd v. Cape Town Cos ltd (1902), ‘A man can not increase the liabilities of his neighbour by applying his own property to special uses, whether for business or pleasure’[16]. If however Zephaniah can establish that the noisy parties, loud music and drunken singing constitutes an unreasonable interference with his enjoyment of property, Zephaniah will not be denied damages or an injunction to stop the nuisance merely because of his sensitivity: Mc Kinnon Industries v. Walker (1951)[17].

However the court might raise the question of fault on the part of the defendant. In the problem, Byron and Shelley made noise by several activities (noisy parties, loud music and drunken singing). They must be aware that such interference may be cause of the claimant’s loss of enjoyment of land. So, they should have kept their activities within limit, because of the effects it is having on his neighbour. Therefore, the court have a discretion to award damages in lieu of an injunction, subject to the question of balancing the rights of both parties.

The claimant sought damages of the second action in respect of past damage to his plants and the fence, and for an injunction to stop it. The claimant is entitled to compensation for the damage, he has suffered as a result of the nuisance. It is therefore essential to show that the harm is foreseeable. Lord Reid in The Wagon Mound (NO-2) stated that the recovery of damages in private nuisance depends on foreseeability by the defendant of the relevant type of damage[18]. Further the matter is settled by Cambridge Water Co v. Eastern Counties Leather PLC (1994),the damage suffered by reason of the nuisance must be reasonably foreseeable[19]. On the other hand, if the court considers that some loss would have been suffered even though no actionable nuisance had been committed then the claimant may not recover the whole amount of the loss as stated by the court in Andreae v. Selfridge & Co ltd (1938)[20].

 The local authorities have powers to deal with statutory nuisances under the Environmental Protection Act 1990 in sections 79, 80 and 82. These include: smoke, fumes, dust, noise or accumulations or deposits. In the problem, the claimant is affected by noise. If Baxter v. Camden LBC (1999) and Southwark LBC v. Mills (1999) were to be applied, Byron & Shelley were not committing a nuisance since the noise was caused by the ordinary enjoyment of the property, therefore they could not be liable to continue their parties[21]. But there is little factual difference with the existing case.

What would constitute the noise is given in the Noise Act 1996, for Zephaniah to apply the Act, S 2 (6) of the Act must be satisfied. If the parties were being held after 11 PM and before 7AM(reference to S 2 (6)), the noise will amount to a nuisance. In addition, the other relevant sections S 2 (2) and S (10) are applicable here.

Zephaniah would be in a much stronger position to be compensated by the court, if he could establish that the disturbances constituted an unreasonable interference with his enjoyment of property. He would then be awarded damages or an injunction to stop the future nuisance.

Bibliography

1. Vivienne, Harpwood (1997) Principles of Tort Law, 3^rd Edition, Cavendish, London.

2. C.D. Baker (1996) Tort, 6^th Edition,Sweet & Maxwell, London.

3. Barbara Harvey & John Marston (2000) Cases & Commentary & Tort, 4^th Edition, Pearson, UK.

4. Markesinis BS & Deakin SF (1999) Tort Law, 4^th Edition, Oxford.

5. Stephenson, G (2000) Sourcebook On Torts, 2^nd Edition, Cavendis.

6. Andrew & Burrows (1994) Torts and Breach of Contract , 2^nd Edition, Butterworths, London.

7. D. M.M Scott (1969) Case Book on Torts, 2^nd Edition, Butterworths, London.

[1] Cited in Barbara Harvey & John Marston, Cases & Commentary & Tort, 4^th Edition, p-422.

[2] Cited in Vivienne, Harpwood, Principles of Tort Law, 3^rd Edition, p-194.

[3] Cited in C. D. Baker, Tort, 6^th Edition, P-281.

[4] Cited in C. D. Baker, Tort, 6^th Edition, P-289

[5]. Cited in Stephenson, G, Sourcebook on Torts, 2^nd Edition, p-454

[6] Cited in Barbara Harvey & John Marston, Cases & Commentary & Tort, 4^th Edition, p-439

[7]. Markesinis BS & Deakin SF, Tort Law, 4^th Edition, p-445.

[8] Cited in C. D. Baker, Tort, 6^th Edition, P-281.

[9] Cited in Barbara Harvey & John Marston, Cases & Commentary & Tort, 4^th Edition, p-496.

[10] Cited in Vivienne, Harpwood, Principles of Tort Law, 3^rd Edition, p-190.

[11] Cited in Stephenson, G, Sourcebook on Torts, 2^nd Edition, p-455.

[12] Cited in Markesinis BS & Deakin SF, Tort Law, 4^th Edition, p-435.

[13] Cited in Markesinis BS & Deakin SF, Tort Law, 4^th Edition, p-429.

[14] Cited in Markesinis BS & Deakin SF, Tort Law, 4^th Edition, p-430.

[15] Cited in Vivienne, Harpwood, Principles of Tort Law, 3^rd Edition, p-191

[16] Cited in Markesinis BS & Deakin SF, Tort Law, 4^th Edition, p-430.

[17] Cited in C. D. Baker, Tort, 6^th Edition, P-284.

[18] Cited in Barbara Harvey & John Marston, Cases & Commentary & Tort, 4^th Edition, p-496.

[19] Cited in C. D. Baker, Tort, 6^th Edition, P-293..

[20] Cited in C. D. Baker, Tort, 6^th Edition, P-286.

[21] Cited in Barbara Harvey & John Marston, Cases & Commentary & Tort, 4^th Edition, p-437.