Private Nuisance and Property Rights

Question 1

Private nuisance is defined as the unlawful interference with the use and enjoyment of land.The question that this essay critically explores is whether the law of private nuisance strikes an adequate balance between the rights of the land owner and his neighbour. The question of balance between these parties is relevant because the tort of private nuisance protects a neighbouring landowner’s interest of enjoyment of his own property free from interference by the activities of the neighbour, thereby requiring a limitation on the neighbour’s right to use his property in the way that he thinks fit.The right to use one’s property the way one wants and the right to not suffer interference by the neighbour’s use of their property in a certain way involves an inherent conflict which requires balancing by the courts. It can be said that the law of private nuisance is chiefly concerned with the balancing of competing interests of the neighbouring land owners. This was noted by Lord Wright in Sedleigh-Denfield v. O'Callaghan:

“A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”

This essay critically analyses the law of private nuisance in the context of balancing the rights of the land owner and neighbour with reference toimportant judgments in this area. The essay finds that while the law of private nuisance does provide a balancing approach in general, there are at least two areas where the balance may be tilted unfairly in the favour of one party as against the other. One area is where the neighbour does not have proprietary or possessory rights in the land and the other is where the courts fail to consider economic factors before deciding to stop the defendant from continuing the offending activity, especially in the cases involving coming into the nuisance. The essay first gives a brief overview of the law of private nuisance and then explores the principle question involved in the essay through the way the courts have interpreted the law and whether the interpretation leads to balance between the rights of the land owner and the neighbour. Nuisance is determined with establishment of indirect interference with a person’s right to enjoy property.There are two elements involved in the establishment of private nuisance, the first being indirect interference and the second being unreasonableness. These two points are also relevant to balancing the interests of the neighbouring land owners, particularly the second point because every land owner should be able to use his land the way he wishes so long as it is reasonable. The balancing aspect comes into relevance when the question of reasonableness of the use of land and its indirect interference with the neighbour’s right to enjoy their own land is raised. For instance, in one case, the land owner did not maintain his own wall, and this fell on the land of the neighbour; the court held this to be a nuisance.

It is crucial to note that the tort law deals with direct and indirect interference differently, the former coming within the domain of trespass while the latter comes within the domain of private nuisance.Therefore, private nuisance comes into relevance when the claimant establishes indirect interference with the right to enjoy property as opposed to a direct interference. The liability for private nuisance is strict in nature, which means that the claimant is not required to establish the fault of the land owner/ defendant. Interference in itself is treated as actionable tort. Conversely, this means that the defendant in the case of nuisance is not allowed a defence of not being at fault. In this aspect, the law gives the right to enjoy property to the land owner to not be interfered with even without fault. For instance, in Leakey v National Trust, the defendant was held liable for nuisance caused by the collapse of mound of earth onto the claimant’s land due to a natural disaster; the defence of no fault was not allowed because the claimant established that the defendant failed to take measures to prevent foreseeable harm.However, like in the case of negligence, the law does not hold the defendant liable unless the harm foreseeable.Moreover, the indirect interference in the case of private nuisance must established as continuous nature or recurrent, unlike the case of direct interference in trespass which can lead to liability even in the case of a single instance of interference. The courts have tried to create a balance between the neighbour’s rights in their own respective properties by formulating different standards for different localities; thus, localities that are of the nature where higher industrial activity takes place would differ in the scope of nuisance from other localities. However, the case of St Helen’s Smelting Co v Tipping shows that locality is irrelevant where the neighbour’s property suffers actual physical damage from the activities of the land owner.In this case, the claimant purchased an estate a few miles from the copper works belonging to the defendant. The copper works led to emission of fumes which killed the vegetation in the neighbourhood and also injured the livestock of the claimant. The House of Lords decided that the claimant would be entitled to remedy because the damage to their right was not just in the nature of loss of enjoyment but actual physical damage to property, which would amount to a substantial level of interference. The balancing act of the courts between the rights of the land owner and the neighbour is also seen in a way economic costs of the two parties are sometimes weighed by the courts to assess whether to protect the land owner in carrying out the activity or to protect the interest of the neighbour by putting a stop to the offending activity. An early example of this is seen in Cooke v Forbes,In this case, the offending activity was theemission of fumes from a manufacturer of sulphate of ammonia, which interfered with the process carried out by the claimant in the weaving of cocoa-nut fibre matting. This process involved the immersion of the matting in bleaching liquids and then being hung out to dry; however, the matting turned from a bright to a dull and blackish colour due to the emissions of the fumes from the defendant’s land. The claimant sought to stop the defendant from continuing the activity through an injunction. While the court appreciated that the activity of the defendant’s factory was an interference with the claimant’s activity, they did not issue injunction because the damage was accidental and occasional, and defendants had taken careful precautions to avoid any exceptional risk. The claimant was however allowed to bring an action for damages. In thecontrasting case of Sturges v Bridgman,the court did not balance the rights of the land owner and the neighbour in quite the same was and allowed a claimant who came into nuisanceto stop the defendants from their activities. In Sturges v Bridgman the court considered that the neighbour had the right to stop the defendant from continuing the offending activities without considering the economic costs of the stopping of the activities of the defendant versus the economic costs of continuing the activities for the claimant. The approach taken in Sturges does not adequately balance the conflicting parties because it does not take into consideration an economic analysis of the decision. In subsequent cases as well, the courts have taken an approach that does not quite accord with the way Cooke v Forbes was decided. If the law of nuisance is concerned with striking a balance between the conflicting interests of the land owner and the neighbour, then the decision without an economic analysis of the impact on both parties is not quite achieving the purpose of private nuisance law especially in cases of neighbours who have come into the nuisance and then wish to stop the defendants’ activities that were carried on for a long period of time and this has relevance to issues of fairness and economic efficiency.An economic analysis approach, which appears to have been applied to a degree by the court in Cookehas been supported more recently by Calabresi as providing a method for better balancing of the rights of land owners and neighbours in nuisance cases through which protection may be given to nuisance maker with a liability rule. If the defendant’s activity is to continue as per the economic analysis where it is fairer or in line with public policy to continue the activity then for the neighbour to have a right to stop the activity, the latter should be prepared to compensate the defendant for the losses incurred in stopping the activity. This approach is advised for cases where the neighbour comes into nuisance.

Sedleigh – Denfield v O’Callaghan involved a situation in which the Council laid a pipe into the defendant’s land, causing water to flow on to the claimant’s land as a drain was blocked; the defendant was held to be liable for indirect interference for the actions of the trespasser.The question that arose in the case was whether the occupier was liable for the actions of the Council. The court decided that the occupier is not personally responsible for the creation of the nuisance by a trespasser unless he adopts the nuisance and despite having knowledge of it, he fails to take reasonable steps to end it.Is this an excessive stance against the defendant? It can be argued that by holding the defendant liable for the actions of a third party, the court has unreasonably tilted the balance in favour of the neighbour and ladled the defendant with a more onerous responsibility. However, it is important to recall that the courts are not holding the land owners liable for every kind of nuisance created by the third parties. Only those nuisances that the defendant land owner co-opts knowingly that it is interfering with the right of the neighbour are actionable. In Sedleigh-Denfield v O’Callaghan, the principle that was laid down has allowed courts to protect the rights of the neighbour against unreasonable actions of the defendant land owners where land owner is aware of the foreseeable harm to the neighbour’s property due to the action of the third party, co-opts the action as his own, and fails to take steps to prevent the nuisance against the neighbour. The balance comes from the fact that the defendant land owner is under a duty to stop the use of his land by himself or by a third party or even in a natural sense, where this is within his power to do so and he can reasonably foresee the implications for his neighbour for his failure to stop the state of affairs from continuing. For instance, in Goldman v Hargrave, a fire started with lightning striking a tall tree; the defendant did cut the tree back, but left it smouldering with the effect that the fire started again and spread to the claimant’s land. The court held the defendant liable for not preventing a preventable hazard. The same principle was also applied inLeakey v National Trust mentioned earlier in this essay. In these cases, one cannot say that the balance titled unduly or more onerously on the defendants because the defendants were not innocent as they were in the position to foresee and prevent the harm to the neighbour’s land. The one gap in the protection offered to neighbours in the law of private nuisance is with relation to the rights of those who are in possession but do not have an interest in the land. In Hunter v Canary Wharf, the claimants claimed nuisance caused by the construction of ‘One Canada Square’ by the defendant company as the construction led to interference with their television signal. The House of Lords held that claimants in actions in private nuisance could only be those with a right or interest in the property.This rights or interest should be a proprietary or possessory interest in the land. Lord Goff of Chieveley specifically 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.” Therefore, if the neighbour of the landowner is a person who does not have a proprietary or possessory right in the land, then an action against nuisance cannot lie. This restricts the scope of which neighbours can take action in nuisance against the land owner. Interestingly, the Hunter v Canary Wharf restricts the scope of possible claimants to the action in nuisance even when the Court of Appeal has taken a broader approach in previous decision in Khorasandjian v Bush. Rather, the House of Lords took the same narrow position as to who could be a claimants for nuisance as taken by the Court of Appeal in Malone v Laskey, wherein the court held that claimants for actions in private nuisance could only be those with proprietary or possessory interest in land.On the other hand, in Khorasandjian the Court of Appeal decided to widen the scope of category of claimants; in that case, the claimant was in domestic occupation of her parents’ house and was allowed action in nuisance against the defendant. The Hunter decision does not take into consideration the many ways in which a person can be in possession of a property and should have the right to enjoy the property without unlawful interference. This argument is made out by Wightman, as he states that for nuisance should be extended to those categories of persons who may not have rights to the land but may have an important ‘activity connection’ with the land. Indeed, as Hunter stands, only those who have a substantial link to the land have an action in nuisance. It can be argued that the decision in Hunter tilts the balance in favour of the land owner as against a neighbour who is not a person with proprietary or possessory interest in the land. Thus, while the balancing act between land owner and the neighbour is more finely dealt with where the neighbour has an interest in the property, the balance does not favour neighbours with no interest in the land.

To conclude, the law of nuisance strives to maintain a balancing act between the conflicting interests for the greater part. However, two areas that need attention are concerned with the rights of the neighbours who may not have proprietary or possessory interest in the property and the need to consider doing an economic analysis for the purpose of deciding on injunction cases so that a fairer approach can be taken to whether activities of the defendant should be stopped or allowed to continue.

Question 2: When a Private Nuisance action has been successfully proven, will damages always adequately compensate the claimant? If not, which alternative equitable remedies might be required?

Private nuisance concerns with unreasonable and indirect interference with someone else’s property interests, but with less tangible harm. Such interference must be with regard to use or enjoyment of the property interests or rights and should be continuous, unlawful or unreasonable. Private nuisance is often used to protect a claimant’s amenity interests. The ruling in Rylands v Fletcher states that a single act of interference is adequate to cause private nuisance. It needs proof of damage, including damage to the amenity interests and physical damage. There are three remedies of private nuisance. Damages is one form of remedy for private nuisance. It is paid for claimant’s loss of enjoyment or physical damage suffered. Damages can be for past harm suffered. It can be for future nuisance instead of an injunction. The other two remedies are injunction and abatement. Injunction is the main remedy to stop activities causing the nuisance. It may be perpetual that completely forbids the activity, or partial that limits the activity whenever it takes place. Abatement directly ends the nuisance. The existence of the three remedies signifies that damages alone cannot justify all activities causing private nuisance. This also signifies that alternative equitable remedies must also be available. The next paragraphs will elaborate on this issue. In case of private nuisance caused by multiple trespasses and continuous interference of one’s enjoyment of its property, the award of damages may not be enough. This was seen in the case of Raymond v Young. The neighbours of the claimant were causing such private nuisance for nearly 40 years. The court awarded injunction to stop the trespasses and harassment and also awarded damages for the loss of the value of the claimant’s property. Private nuisance protects his interest in the land only. Damages are awarded to protect the value of the property and its use and enjoyment. However, will they be sufficient to stop future continuous private nuisance? In the case of Shelfer v City of London Electric Lighting Co, the defendant’s activities caused continuous vibration and noise. They argued that the remedy must be limited to damages as an injunction would deprive many residents of electricity. The court provides injunction will not be awarded in four exceptional circumstances. If the injury to claimant’s right is small and could be quantify into monetary terms and the injury could be adequately compensated, it would be oppressive to grant an injunction. This exercise of the discretion applying these exceptions signifies a particular feature that private nuisance should acquire in order that damages can be the best option to fairly compensate the claimant. This also indicates that there are circumstances where damages cannot be sufficient. Therefore, the exercise of discretion by the court in determining the appropriate remedy should take into account a wider social interest in land use against the claimants’ interests adversely affected by the use. Such consideration must be given to find the remedy in each case. The exercise of discretion to balance the interest could be seen in the case of Sturges v Bridgman, where both the parties contribute to the nuisance and a simple monetary compensation would not have been sufficient to stop activities causing the nuisance. In this case, the noise from the confectioner's machinery was the cause of nuisance for the doctor, who had also recently constructed a consulting room adjacent to the confectionery. The confectioner was allocated liability and the court granted an injunction to the doctor. There are two ways where damages could be awarded. The court should be able to calculate the loss of value of the land of the claimant due to the private nuisance that may continue in the future; or to assess the price that a reasonable person in similar circumstances as that of the of the claimant might have charged the defendant for the privilege give to him to continue the activities. If the court cannot calculate the loss or assess the price, damages may not be sufficient to compensate the claimant. However, the question of sufficiency of the award of damages is subject to circumstances of each case, for instance when public interest is involved as an issue in question. In the case of Miller v Jackson, where the majority held that the activities of the cricket club was a nuisance, another majority held it inappropriate to grant injunction considering the contribution of the cricket club to the village life as it would otherwise deprive the village the recreation facilities offered by the activities of the club. The claimant was awarded damages for negligence and nuisance and for inconvenience and interference with the use of his property. The situation in Kennaway v Thompson was different where injunction was granted by the Court of Appeal to limit the activities of motor boat races on an artificial lake so as not to cause further nuisance. The court considered it inappropriate to award damages as injury was not small or was capable of being estimated monetarily. Even if the injury was not small, will there be situation where an award is the only option to compensate the claimant? An interesting view was adopted in Coventry v Lawrence by the Court of Appeal. The claimant’s land was 864 meters from the sports’ track of the defendant’s speedway stadium for which they had planning permission and a Town and Country Planning certificate of lawful use. The claimant filed a nuisance action against the activities of the defendant that was creating noise causing nuisance. The court considered the alteration of the character of the locality while determining whether a nuisance had been created or not. It held that the noise nuisance gave rise to a right to commit a nuisance through prescription, which is this case was motocross events more than 20 times annually year for a period of 20 years. The award of damages is sufficient in case where the injury is small, quantifiable into monetary terms and could be adequately compensated, or where public interest is involved, as is seen in Miller v Jackson, where it was the only option. It may not be sufficient if it cannot compensate the loss of the property’s value. It alone may not be capable to compensate the in case of substantial interference. The exercise of discretion to select the appropriate remedy depends on the fact and circumstances of the case. It is argued that the award of damages may reflect normative damage to protected property’s interest and it may not full redress the damage to non-proprietary interests. This is in specific reference to rights under Article 8 of ECHR, which provides for right to respect for private and family life. To elaborate on this, the two types of private nuisance must be differentiated. The first is the typical or classic nuisance action, which is seen in Hunter v Canary Wharf Ltd, or nuisance by interference with enjoyment, which is seen in Coventry v Lawrence, which would affect the enjoyment of the land. The action would perform vindicatory function, which does not principally concern the factual loss by the interference arising from activity causing effects such as smells, vibrations or noises or in other words for causing discomfort, but concerns with interference with claimant’s property interest. For such kind of nuisance, liability is established and substantial damages. The second type is nuisance caused by encroachment or by physical damages where the nuisance action principally concerns compensation a fault-based loss. In this kind of nuisance where there is a claim for physical damage arising from defendant’s failure to undertake reasonable steps to prevent the damage, for example steps to prevent fire from spreading to or trees from crashing onto claimant’s property. The concern is akin to the case of negligence, which is material loss or actual loss, and damages cannot be obtained without establishing loss. It is in respect to the first category of typical nuisance where the argument of award of damages being a normative damage and hence incapable of providing full redressal of violation of rights. In Dobson, the court held that the claimant could recover nuisance damages for loss of amenity. However, there could not be any damages for violation of Article 8. The argument against this judgment is that the claimant has suffered loss due to breach of Article 8 rights and thus, incurred normative damage, in terms of significant distress for one year, to his protected interest in the family and private life. The judgment does not provide for human rights damages.

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To conclude, reference is made here to the test of liability laid down by Lord Wright in Sedleigh-Denfield v O’ Callaghan. This is specifically regarding the non-physical damage where equitable remedies may apply. There has to be a balance between a person property’s rights to what they like with their own and that of the claimant’s property rights not to be interfered with. The test lies in what is reasonable should be in accordance with common as well as usual needs of the society or maybe of a particular area.

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