Nuisance Notes

• Bradford Corp (1895) – D undertook extensive draining works with motive of making C pay him not to proceed. This would prevent drainage into C’s dam.

Court – use of property that would be legal with a proper motive cannot be classified as a nuisance just because of bad intentions (maliciousness, but now out of date). Owner of land has right to redirect percolating water to deprive neighbour. There is no common law interest in such water pre-collection.

• Victoria Park Racing (1937) – D watched racing on C’s land from roof and broadcast commentary that caused loss to C.

Court – nuisance is an unreasonable and significant interference with the use and enjoyment of property. Simply to commentate on the events on C’s land won’t qualify.

• Hunter (1997) – D built tower on his own land but it interfered with television reception.

Court – analogy of radio signal with a view – thus no interference that is actionable in nuisance since there is no right to a view, or to a signal.

Substantial Interference.

Substantial interference in general:

• Walter (1851) – D burned bricks on own ground so as to be offensive to neighbour.

Knight-Bruce VC –unreasonableness requires the nuisance to be substantial – thus not unreasonable merely according to elegant or dainty modes and habits of living, but “according to plain and sober and simple notions among the English people. “

• St Helens Smelting (1865) – C bought property and then D began extensive smelting nearby. Question whether carrying out activity on land in a convenient or suitable place can prevent it being a nuisance?

Lord Westbury – Distinguish (1) damage cases from (2) cases where nuisance is productive of personal discomfort. In (2) location will effect conclusion, in (1) the fact that activity usual here wont effect result.

• Southwark (1999) – C lacked adequate sound insulation in flats so sued D’s for everyday noises effecting his enjoyment of property.

Lord Hoffmann – Landlord is liable only when he has authorised the tenant to commit a nuisance. Normal use of residential flat can’t be nuisance to neighbour. Use being reasonable prevents liability. Since act of simply living in flat won’t be substantial or unreasonable landlord can’t be liability for authorising it.

Gravity of Interference Assessed Objectively:

• Robinson (1889) – D used cellar in manufacturing process requiring dry, hot air. This increased temperature of flat above and devalued paper stocks.

Cotton LJ – something in itself not noxious will not be held to be a nuisance unless it is interfering with ordinary enjoyment or use of property for private or business use. Wrong to describe something as a nuisance if not ordinarily noxious or ordinarily affecting enjoyment/business use. Assessment is objective and won’t have regard to unusually sensitive uses of property.

• McKinnon (1951) – Fumes from D’s factory damaged particularly delicate orchids that C grew. Thee fumes would have damaged any flowers.

Court – once a nuisance is established it shall extend to delicate and sensitive operations that it is effecting. So if it would be that usual things involved in enjoyment/use would be damaged then it will extend to sensitive ones in damages.

Nature and Extent of Interference:

• Halsey (1961) – D’s plant omitted significant noise, chemicals that damaged car, and pungent smells. Trucks omitted higher noise still.

Veale LJ – nuisance may still be found when activity is suitable to the land – this is one of several factors in the decision as to substantiality when the issue is noise and smell (it’s not taken into account in damage cases). Law to strike a fair/reasonable balance between right to undisturbed enjoyment and right to use for lawful enjoyment. Damage done to property not on their land was included for C (car parked on road). Injury to health not necessary for smell nuisance.

Damages for car and injunction to bring below nuisance level of noise and smell.

Nature of the locality:

• Gillingham (1992) – P granted PP for use of naval dockyard as commercial port. D took a lease – as a result heavy traffic resulted on residential roads so P brought action in nuisance.

Court – PP has the power to alter the character of an area and where it is granted a nuisances existence must be determined on the basis of the character off the neighbourhood after it was granted.

Test of reasonableness + substantiality referred to an area with planning permission for use as a commercial port.

• Wheeler (1996) – D given PP for two pig houses next to C’s holiday cottage. C lost profit.

Court – PP will not always result in a change in the character of the neighbourhood. PP does not equate to the defence of statutory authority. Judges were concerned to prevent PP from becoming a full defence as this would effectively mean that an industrial unit’s own existence would act as a justification for its existence.

• Biffa (2011)- one would expect a run-of-the-mill odour nuisance case such as this to be decided on well-established nuisance principles, with the central issue being whether in all the circumstances the smell was an ‘unreasonable user’, in other words a substantial interference with the residents’ use and enjoyment of their properties. His Lordship acknowledged that on the authorities a development for which planning permission had been granted could in certain circumstances alter the nature of the locality for the purposes of the private nuisance analysis. In any case a waste permit wasn’t covered by this rule on PP.

• Lawrence (2011) – Case where racing circuit was noisy but had PP and Jackson LJ - (i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. (ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. (iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect...

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