Nuisance in English law is an area of tort law broadly divided into two torts; private nuisance, where the actions of the defendant are "causing a substantial and unreasonable interference with a [claimant]'s land or his/her use or enjoyment of that land", and public nuisance, where the defendant's actions "materially affects the reasonable comfort and convenience of life of a class of His Majesty's subjects"; public nuisance is also a crime. Both torts have been present from the time of Henry III, being affected by a variety of philosophical shifts through the years which saw them become first looser and then far more stringent and less protecting of an individual's rights. Each tort requires the claimant to prove that the defendant's actions caused interference, which was unreasonable, and in some situations the intention of the defendant may also be taken into account. A significant difference is that private nuisance does not allow a claimant to claim for any personal injury suffered, while public nuisance does.
Private nuisance has received a range of criticism, with academics arguing that its concepts are poorly defined and open to judicial manipulation. Conor Gearty has written that "Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone". In addition, it has been claimed that the tort of private nuisance has "lost its separate identity as a strict liability tort and been assimilated in all but name into the fault-based tort of negligence", and that private and public nuisance "have little in common except the accident of sharing the same name".
History
The tort of nuisance has existed since the reign of Henry III, with few changes, and most of them merely technical. 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. 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". 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; 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. 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.
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". 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. In reaching these decisions the courts "effectively emasculated the Law of Nuisance as a useful curb on industrial pollution". In St Helen's Smelting Co v Tipping,St Helen's Smelting Co v Tipping 11 HL Cas 642 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". 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.
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:
19th-century legislation included: Nuisances Removal Act for England 1855 (19 & 20 Vict. c. 121) (20 & 21 Vict. c. 73) (23 & 24 Vict. c. 77) (26 & 27 Vict. c. 117) (28 & 29 Vict. c. 102) (29 & 30 Vict. c. 41)
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 (: £), under the 1863 Act, for having on his premises a large quantity of meat unsound, unwholesome and unfit for food.
Private nuisance Private nuisance was defined in Bamford v Turnley, 3 B&S 62 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".Bermingham (2008) p. 225 Private nuisance, unlike public nuisance, is only a tort, and damages for personal injuries are not recoverable.Bermingham (2008) p. 224 Only those who have a legal interest in the affected land can sue; an exception was made in Khorasandjian v Bush, QB 727 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.Bermingham (2008) p. 235 In Hunter v Canary Wharf Ltd, AC 655 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, AC 880 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.Bermingham (2008) p. 236
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, 1 All ER 663 or where the nuisance is caused by their failure to repair the premises, as in Wringe v Cohen. 1 KB 229Bermingham (2008) p. 237 The landlord is also liable were the nuisance existed before the land was let, and he knew or ought to have known about it.Elliott (2007) p. 269 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, 2 All ER 633 it was also established that they could be liable for the activities of independent contractors under certain circumstances.Elliott (2007) p. 268
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, 11 HLC 642 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; 1 All ER 53 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.Elliott (2007) p. 267
Interference
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, 1 QB 60 noise, as in Christie v Davey, 1 Ch D 316 or smells, such as in Wheeler v J J Saunders. 2 All ER 697 The courts have allowed cases where the interference causes emotional distress, as in Thompson-Schwab v Costaki, 1 All ER 652 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, 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.Elliott (2007) p. 262 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, QB 485 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, QB 836 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.Elliott (2007) p. 263
Unreasonableness While there is no set definition of what is or is not unreasonable, factors that are taken into account include any "abnormal sensitivity" of the claimant, the nature of the locality where the nuisance took place, the time and duration of the interference and the conduct of the defendant.Bermingham (2008) p. 226 "Abnormal sensitivity" is where the claimant's damaged property is particularly sensitive to damage by the defendant's actions. In Robinson v Kilvert, LR 41 ChD 88 it was established that if the action of the defendant would not have caused damage were it not for this abnormal sensitivity, the defendant is not liable. However, if the damage was caused to abnormally sensitive property but would also have damaged non-sensitive property, the defendant is liable, as in McKinnon Industries v Walker. 3 DLR 577Bermingham (2008) p. 227 This was because it infringed on the "right to ordinary enjoyment"; as a result, the claimant could claim for his more sensitive activities as well.Elliott (2007) p. 265