Legal Waters: Private Nuisance Analysis and Remedial Outlook for SH and the Smiths in the MI Case

The legal issue in this situation is whether MI is liable in private nuisance to SH and the Smiths. The law that is applicable to this issue is related to private nuisance, which is discussed and applied in the following sections of this part of the essay.

Private nuisance is defined as the interference with the use and enjoyment of land and as such this is the right that is related to the protection of a person’s right of enjoyment in their property. In Miller v Jackson, the claimants were awarded damages against the defendant for the nuisance caused by cricket balls landing in and damaging their garden. In Lawrence v Fen Tigers, the claimant were awarded damages for the sound coming from the motor races organised in a nearby stadium by the defendants. In Network Rail Infrastructure v William, the defendant was held liable for failure to control Japanese Knotweed on their own land and devaluation damages were payable to the claimant for law dissertation help. In all of these cases, the claimants have been allowed damages against defendants who have interfered with the claimants’ rights of enjoyment of their property.

Nuisance can be established where the claimant is able to prove that there was indirect interference with their right to enjoy property, damage to the property, interest in the land, and foreseeable harm. Direct interference would come within the scope of trespass, while indirect interference comes within the scope of nuisance. In order to qualify as nuisance, the interference must be of a continuous nature or recurrent.

The liability under private nuisance is strict in nature, which means that the claimant is not required to prove fault of the defendant in order to claim damages; interference in the enjoyment of the property is prima facie nuisance. Therefore, when the claimant claims nuisance, the defendant cannot plead that he was not at fault; if the latter’s actions would amount to nuisance, the court can fix the liability in nuisance. However, similar to the tort of negligence, the harm must be foreseeable to the defendant in order to be claimed as nuisance. This was demonstrated in Leakey v National Trust, where the claimant sued the defendant for nuisance because a natural disaster led a mound of earth from the latter’s land to collapse into the land of the claimant. The defendant was held liable in nuisance because he had failed to take measures to prevent nuisance when there was a likelihood of the mound collapsing due to such conditions.

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1. Miller v Jackson [1977] QB 966 CA.
2. Lawrence v Fen Tigers [2014] UKSC 13.
3. Network Rail Infrastructure v Williams & Waistell [2018] EWCA Civ 1514
4. Simon F. Deakin, Angus Johnston, Basil Markesinis, Markesinis and Deakin's Tort Law (Oxford: Oxford University Press 2012)
5. Ibid

Nuisance is applicable only to those claimants who have rights in the property against which nuisance is claimed. This principles was reinforced in Hunater v Canary Wharf, where Lord Goff noted that “nuisance is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.” In Hunter, the claimants claimed that the construction of One Canada Square was interfering with their television signal, thus leading to nuisance. However, as the claimants did not have an interest in the property which they occupied, the House of Lords rejected their claim, reinforcing the position taken earlier in Malone v Laskey. Consequently, only those claimants are allowed to claim private nuisance who have a proprietary or possessory interest in the property.

In the present situation, MI have been expanding their site for which purpose they have diverted drainage ditches and culverts on the land, leading to flooding in the neighbouring properties of SH and the Smiths. Mr Smith has experienced a single flood into his garden pond. This cannot give him an action in nuisance because the interference is not continuous or recurrent in nature. He may however be able to claim damages under the principles of Rylands v Fletcher, which apply strict liability to the actions of defendant in non natural user of land, which may lead to loss and damage to the neighbour’s land due to the thing being stored non-naturally escaping into the neighbour’s land.

SH can have an action in nuisance because he can establish that the actions of MI have led toindirect interference with their right to enjoy property, there is damage to the property, which was foreseeable by MI. Moreover, SH has proprietary interest in the land, and the nuisance is continuous in nature. These factors establish nuisance against SH for which he has action as per the principles of nuisance law discussed above. The remedies than can be claimed by SH are damages and injunction. Damages are recoverable because flooding has led to harm to his property. Damages would include loss of profits because SH has had their manufacturing process interrupted repeatedly due to flooding. SH can also ask for an injunction based on the principles laid down in Bybrook Barn Garden Centre v Kent County Council, in which the court granted injunction against the highway authority making the culverts that led to the flooding on the claimant’s land.

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6. Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53.
7. Leakey v National Trust [1980] QB 485 CA.
8. Ibid.
9. Hunter v Canary Wharf [1997] UKHL 14, [688].
10. Malone v Laskey [1907] 2 KB 141.
11. Paula Giliker, ‘The relationship between property law and tort law’ in Alistair Hudson (ed.), New Perspectives on Property Law: Obligations and Restitution (Routledge 2013).
12. Rylands v Fletcher [1868] UKHL 1.

To conclude, remedies in damages and injunction for private nuisance can be claimed by SH against MI but no such remedy can be made available to the Smiths because in their case, the flooding was not recurrent.

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13. Bybrook Barn Garden Centre Ltd and Others v Kent County Council [ 2000] EWCA Civ 300.

Cases

Bybrook Barn Garden Centre Ltd and Others v Kent County Council [ 2000] EWCA Civ 300.

Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 1 All ER 53.

Hunter v Canary Wharf [1997] UKHL 14.

Lawrence v Fen Tigers [2014] UKSC 13.

Leakey v National Trust [1980] QB 485 CA.

Malone v Laskey [1907] 2 KB 141.

Miller v Jackson [1977] QB 966 CA.

Network Rail Infrastructure v Williams & Waistell [2018] EWCA Civ 1514.

Rylands v Fletcher [1868] UKHL 1.

Bibliography

Books

Deakin SF, Johnston A, and Markesinis B, Markesinis and Deakin's Tort Law (Oxford: Oxford University Press 2012).

Journals

Giliker P, ‘The relationship between property law and tort law’ in Alistair Hudson (ed.), New Perspectives on Property Law: Obligations and Restitution (Routledge 2013).