Occupier’s liability
5.3 Statutory nuisance
1 Parliament has declared certain activities nuisance by statute.
2 They are usually part of public health reform and so prejudicial to health more than prejudicial to land, e.g. Clean Air Act 1956.
3 They provide a means of stopping the nuisance and save the victim the cost and inconvenience of civil action.
4 They are quasi-criminal and enforced by local authorities through the use of abatement notices.
5 Offenders failing to comply are then tried in the Magistrates’ Court.
Key Cases Checklist
5.1.2.1
Hunter and another v Canary Wharf [1997] 2 All ER 426 HL
Key Facts
Families of tenants made unsuccessful claims in private nuisance for dust and interference with television reception caused by the erection of a very large building near to their homes.
Key Law
The court held that there was an interference with recreational facilities only, not with the health or physical well-being of the claimants. The House also held that the claimants could not in any case bring an action as they had no proprietary interest in the land.
Key Judgment
Lord Goff explained:
‘an action in nuisance will only lie at the suit of a person who has a right to the land affected’.
5.1.3.4
St Helens Smelting Co v Tipping (1865) 11 HL Cas 642 HL
Key Facts
The claimant owned property near to the defendant’s copper smelting works and claimed in nuisance for damage to hedges and trees caused by the toxic smuts and interference with his quiet enjoyment of his land. He succeeded.
Key Law
The court held that the nuisance was actionable because, even though it involved an industrial area, damage had been caused.
Key Judgment
Lord Westbury LC stated:
‘With regard to … personal inconvenience and interference with one’s enjoyment … whether that may … be … a nuisance, must undoubtedly depend
… on … the place where the thing complained of actually occurs … when an occupation is carried on … and the result … is a material injury to property, then there unquestionably arises a very different consideration’.
5.1.3.4
Laws v Florinplace Ltd [1981] 1 All ER 659 QBD
Key Facts
Ten residents in a suburban area, enjoying what was described as an ‘attractive village atmosphere’, successfully sought an injunction against a sex shop and video club that had opened in their area.
Key Law
The court held that even if the defendant changed the name of the business and its name and its displays, it was still arguable that the repugnance caused to the residents by their awareness of the business could be an interference amounting to a nuisance.
5.1.3.4
Robinson v Kilvert (1889) 41 ChD 88 QBD
Key Facts
The claimant stored paper in premises where the defendant manufactured cardboard boxes in the basement. The heat necessary for the manufacture damaged the brown paper and the claimant unsuccessfully sought damages in nuisance.
Key Law
The court held that the heating was not a nuisance since it was not of a sort that would cause damage in the case of the ordinary uses of the premises. Damage was only caused because the brown paper was very susceptible to variations in temperature.
5.1.3.4
Christie v Davey [1893] 1 Ch 316 Ch Div
Key Facts
The claimant gave music lessons and the defendant, his next-door neighbour, became annoyed by the constant noise from the music lessons next door. The defendant reacted by banging on the walls, beating trays and shouting.
Key Law
The court held that the noises were made maliciously and deliberately to annoy the claimant. They were an unreasonable use of land and the claimant was granted an injunction.
Key Link
Hollywood Silver Fox Farm Ltd v Emmet [1936] 2 KB 468.
5.1.3.4
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 QBD
Key Facts
The claimant won a claim for nuisance from the noise from the defendant’s depot, the nauseating smell and also in relation to the damage which acid smuts caused to her washing and to her car.
Key Law
The court held that they were all private nuisance except for the damage to the car, which was a public nuisance. The defendant’s use of land was unreasonable.
Key Judgment
Veale J stated:
‘the law must strike a fair and reasonable balance between the rights of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his own property for his own lawful enjoyment’.
5.1.3.4
Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2 Lloyd’s Rep 533 QBD
Key Facts
A barge was set alight by flammable debris resulting from a firework display which lasted only 20 minutes. The owners claimed successfully in negligence and it was also accepted that the action in private nuisance was also possible.
Key Law
The court held that an action for nuisance was possible because the barge owners had a licence to occupy the site.
Key Problem
The very limited duration of the display seems to run contrary to the principle of continuity required for nuisance, e.g. Bolton v Stone (1951).
5.1.3.4
Holbeck Hall Hotel Ltd v Scarborough BC [2000] 2 All ER 705 CA
Key Facts
The claimant’s hotel stood near to a cliff by the sea. The defendant, the local council, owned the land between the hotel and the cliff top. After a long period of steady erosion a major landslip undermined the foundations of the hotel so that it had to be demolished. On appeal, the council was held not to be liable in nuisance.
Key Law
The Court of Appeal held that, since the council was unaware of the danger of the landslip, which could not merely be presumed from the previous erosion, it neither adopted nor created the nuisance.
Key Judgment
Stuart-Smith LJ explained that:
‘It is the existence of the defect coupled with the danger that constitutes the nuisance; it is knowledge … of the nuisance that involves liability for continuing it when it could have been abated’.
5.1.4.3
Leakey v The National Trust [1980] QB 485 CA
Key Facts
Following heavy rain, a large natural mound of land on a hillside, known as the Burrow Mump, slipped and damaged the claimant’s cottage. The defendant was held liable in nuisance.
Key Law
The court found the defendant liable because it was aware of the possibility of the landslide happening and did nothing to prevent it.
Key Comment
The case shows what a close link there is between nuisance and negligence. The type of duty depends on the facts of the case.
5.1.4.2
Tetley and others v Chitty and others [1986] 1 All ER 663 QBD
Key Facts
The defendant council rented land to another party on which to run go-kart racing. Local residents succeeded in gaining an injunction.
Key Law
The court held the council liable because it was already aware of the excessive noise that the activity would cause and had accepted responsibility for the nuisance by granting the lease.
5.1.5.1
Marcic v Thames Water plc [2003] UKHL 66; [2003] 3 WLR 1603 HL
Key Facts
Because of the substantial rise in the number of houses in an area the sewers, which had not been modified, became inadequate to cope with the amount of sewage, even though the defendant maintained them properly. The sewers flooded periodically and the claimant, rather than using statutory enforcement measures, installed a flood defence and claimed for damages in nuisance and for interference in family life in breach of Art 8 of the European Convention on Human Rights. Both claims failed.
Key Law
The House held that there was no actionable nuisance since the common law would be unable to impose obligations on a water authority which were inconsistent with a statutory scheme and in this instance the right of complaint was to the Director-General of Water Services. There was no breach of Human Rights legislation since Art 8 of the European Convention does not guarantee absolute protection of residential properties but must balance out the rights of individuals and the rights of the public generally.
5.1.5.2
Sturges v Bridgman (1879) 11 ChD 852 CA
Key Facts
Eight years after he moved in, a doctor built a consulting room at the bottom of his garden. Vibrations from the defendant’s machinery in the neighbouring property disturbed the claimant and prevented him from listening to his patients’ chests etc. His claim succeeded.
Key Law
The court held that the defence could not apply because the twenty-year period for prescription would only begin when the nuisance commenced, here when the consulting room was built.
5.1.5.6
Miller v Jackson [1977] QB 966 CA
Key Facts
A new housing estate was built by a cricket club that had been used for 70 years. Balls constantly came into the claimant’s garden during matches and he succeeded in claims in both nuisance and negligence, but was denied the injunction that he sought.
Key Law
The court held that while there was a plain interference with the claimant’s enjoyment of his land it recognised that the remedy could not be granted because it would interfere with a public utility of importance to the community.
Key Judgment
Lord Denning dissented on the decision because, as he said, playing cricket ‘is a most reasonable use of land’. On refusing to grant the injunction, he said ‘I recognise that the cricket club are under a duty to use all reasonable care … but I do not think the cricket club can be expected to give up the game of cricket altogether’.
5.1.5.3
Sedleigh Denfield v O’Callaghan [1940] AC 880 HL
Key Facts
A workman had placed grating for trapping leaves too close to a culvert pipe on the defendant’s land. The defendant knew about it.
After a severe storm the pipe became blocked, and his neighbour‘s land was flooded. His neighbour succeeded in his nuisance claim.
Key Law
On appeal, the court held that the defendant was liable because he was aware of the nuisance but failed to do anything to remedy it and so had adopted the nuisance. The defence of act of a stranger was not applicable in the circumstances.
Key Judgment
Lord Wright said:
‘The responsibility which attaches to the occupier because he has possession and control of the property cannot logically be limited to the mere creation of the nuisance. It should extend to … if, with knowledge, he leaves the nuisance on his land’.
5.1.5.1
Allen v Gulf Oil Refining Ltd [1980] QB 156 HL
Key Facts
The claimants sued for nuisance caused by a refinery. An Act authorised the defendants to purchase land for the construction of a refinery but made no mention of its use. The claim failed.
Key Law
The court held that the statutory authorisation for construction of a refinery necessarily implied its use as a refinery. The defence of statutory authority succeeded.
5.1.5.1
Wheeler v J J Saunders Ltd [1996] Ch 19 CA
Key Facts
The defendant, a pig farmer, was granted planning permission to expand by building two more pig houses each containing 400 pigs. One pig house was only 11 metres from the cottage of a neighbour, who then successfully claimed in nuisance.
Key Law
The defendant’s appeal on the defence of planning permission failed because the defence was said to operate only in respect of those nuisances that Parliament had authorised.
Key Judgment
Peter Gibson LJ explained that planning permission can only be a defence where as the result of the permitted activity ‘there will be a change in the character of the neighbourhood’.
Key Link
Gillingham Borough Council v Medway (Chatham) Dock Co [1993] QB 343.
See also Watson v Croft Promosport [2009] EWCA 15, where planning permission to convert a disused aerodrome into a motor racing circuit did change the character of the area and so was reasonable, but the Court of Appeal limited the use of the race track to 40 days annually.
5.1.6.2
Kennaway v Thompson [1981] 3 WLR 311 CA
Key Facts
The claimant built a house near to a lake where speedboat racing had taken place for many years. He succeeded in his claim for nuisance created by the excessive noise.
Key Law
At first instance the claimant was awarded £1,600 in damages. On appeal he was granted an injunction restraining the use of the lake for speedboat races to certain days with certain noise limits.
5.2.2.1
Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 CA
Key Facts
Houses neighbouring a quarry suffered from dust and vibrations.
The Attorney-General successfully sought injunctions on behalf of the County Council and the District Council.
Key Law
The court rejected the defendant’s argument that the nuisance was not sufficiently widespread to amount to a public nuisance.
Key Judgment
Romer LJ stated:
‘any nuisance is “public” which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’.
5.2.2.5
Castle v St Augustine Links (1922) 38 TLR 615 QBD
Key Facts
A taxi driver was hit in the eye by a sliced golf ball. The golf links straddled the highway so the risk of harm was great and it was shown that golf balls regularly came off the course and onto the road. The claim in public nuisance succeeded.
Key Law
The court accepted that the regularity of the occurrence was a significant interference with the public’s use of the highway and the claimant had suffered special damage so the nuisance was proved.