Tort of Nuisance: Rules and Remedies

Who can sue for nuisance?

According to Bamford v Turnley, private nuisance refers to ‘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’. Before the Gosling family can contemplate any remedies against their neighbours for the civil wrong committed against their land, they must be capable of initiating a suit in the first place. It follows that a person affected by the nuisance must have a legal interest in the land. This has been the general rule in nuisance cases since the decision in Maloney v Laskey where it was held that a woman could not sue for nuisance because the husband was a mere tenant and did not have interest in land, hence could not sue in nuisance.

However, an exception was later made in the case of Khorasandjian v Bush where it was the court’s ruling that a woman living in her mother’s house could be granted an injunction to preclude telephone harassment. Interestingly, this position was soon reversed to the original one in Maloney to the extent that a claimant must have an interest in land to sue in nuisance. Therefore, the Gosling family having purchased the property sometimes back are entitled to sue in nuisance. Some authors have thus criticised the manner of flexibility of tort of nuisance terming as suffering from poverty of principle and one area of law that has lost all sense of that for which it stands for.

An occupier of land may be liable for nuisance arising from naturally arising hazards. In support of the this position, the Privy Council held a defendant liable for a naturally occurring danger that took place on his land owing to the fact that he had knowledge of the same but did not take reasonable steps to correct it. In the same breath, the Strickland family can be said to have failed to correct the situation with the yew roots leading to damage of the barn.

The rationale for the tort of nuisance is protection of the rights of an occupier with regard to unreasonable interference with his enjoyment of that land. However, a balance must be struck between protection of one land owner in enjoyment of his land and his neighbour’s rights to use his land as he pleases. The solution in such cases is never straight forward and depends on the circumstances of each case as in the present scenario. In as much as the Stricklands have a right to use their land in the manner they wish, such usage should not unreasonably interfere with the Goslings’ enjoyment of their land. As a result, the right to swing your hand ends at the point where another person’s begins.

Locality or Neighbourhood

In deciding whether an action constitutes actionable nuisance, the court will look at the reasonableness of the use of land in consideration of the nature of the neighbourhood. This is important because what constitutes reasonable nuisance in an industrial area is different from a residential area. In this scenario, the Goslings and Strickland’s locality can be said to be a residential area. Therefore, there are cations that will constitutes nuisance. In Thompson-Schwab v Costaki, it was found that operating a brothel in a residential area amounted nuisance regardless of whether there was no noise from the premises. Conversely, disturbing smells emanating from adjoining premises in an industrial area were found to be reasonable in the circumstances of the case. It follows that noise and wood dust from the workshop in the Stricklands property amounted to an unreasonable interference considering the nature of the neighbourhood.

Planning permission

In some cases, one may obtain planning permission from the authorities that results in the change of the nature of the locality. They can then proceed to do industrial activities in a residential area by virtue of a planning permission. Although, in the present scenario there is no evidence of a planning permission obtained by the Stricklands. Even if they had a planning permission, the same does not offer a blanket immunity against nuisance and may not alter the nature of the neighbourhood at all. The position is that planning permission granted under a statute does not bar an action in nuisance. Either way, the Goslings would still be liable in nuisance. Again the Goslings would still be liable in nuisance because of the physical damage caused to the adjoining property as distinguished from amenity damage.

Additionally, the European Convention on Human Rights acknowledges the need to respect a person’s private and family life, his home and his correspondence subject to certain limitations prescribed by law and necessary in a democratic society. The Goslings do have a right to have their private and family life respected by their neighbours who should not let their actions interfere with their normal life. In a case where a family sued in negligence based on article 8 of the convention, the court awarded damages but did not grant the declaration sought to preclude Harrier jets from flying over their home, on the basis of public benefit. The Stricklands, though, cannot rely on the defence of public benefit because their actions were for their own interests.

Duration

A continuing nuisance increases the likelihood of a conclusion that the use of land was an unlawful interference. In Spicer v Smee, the court found that faulty wiring was a continuing nuisance because it was the cause of the fire that spread to the neighbour’s property. Similarly, the roots of the yew tree in the Stricklands’ property is a continuing nuisance in the present scenario. An action for nuisance will most likely be successful for the Goslings if they choose to pursue the matter. Again, it does not matter whether the work being carried out in the land was temporary, as long as it unreasonably interferes with the other party’s enjoyment of the land.

Sensitivity

A defendant will escape liability where it can be shown that the claimant (their use of land) is extremely or abnormally sensitive. As a consequence this can be a defence used by the Stricklands to escape liability for the dust, smell drying up of orchids or death of the carp. But all is not lost, because they can still show that the activity would have amounted to a nuisance to a reasonable person in ordinary course of enjoying his land in an ordinary manner. Alternatively, it would still suffice to show that the Stricklands had violated their right to normal enjoyment of the land and still be able to sue for damages occasioned to an abnormally sensitive property.

The last point afore will help the family win the suit whether their enjoyment of the land was unusually sensitive or not. Hence, a claimant was entitled to damages for damage to his orchids irrespective of the sensitive nature of the flowers. The Privy Council proceeded to rule that the defendant’s use of his land for steel manufacturing constituted unlawful nuisance. While it is possible that the orchids in the garden and the carp were sensitive, that is not a bar to suing for damages as seen in the decided case above.

Malice

If a defendant actions are fuelled by malice, the chances of being found unreasonable are very high. In the present scenario, the Stricklands were approached by the Goslings about the yew roots but did not take any action to correct their actions. This may lead to a conclusion of malice on their part. A defendant who in response to noise from a neighbour banged his walls was found to be liable for nuisance. The same position was held in Hollywood SilverFox Farm v Emmett where the defendant was found liable in spite of the unusual sensitivity of the claimant foxes since his actions had been fuelled by malice. In the same vein, the Stricklands’ omission to deal with the roots of the yew can be imputed to malice on their part.

Remedies

The Gosling family can apply and be granted an injunction against the actions of their neighbours. An injunction order from a court of law will restrict the nuisance of the Strickland family by requiring Frank to shut down the work shop, cut down the yew tree and stop the painting businesses. However, an injunctive relief will only be used where the damage is of a permanent nature and cannot be adequately be compensated by monetary damages. Damages is the standard remedy for nuisance claims. The essence of damages is to return the plaintiff to his original position before the nuisance was visited upon his land causing injury.

There is a varying opinion on the issue of damages in lieu of injunction and different judicial offices have shown different approaches to the matter. In the case of Shelfer v City of London Electric Lighting Co, the Court of Appeal reversed the decision of the trial judge awarding damages but refusing an injunction. Smith LJ then stated the rule in granting an injunction in cases of nuisance. It was his opinion that where: the injury to the claimant’s legal rights is small; it is one which can be quantified in monetary terms; it can be sufficiently compensated by small amount of money; and the nature of the case is such that granting an injunction would be onerous to the defendant, then damages will be granted in place of injunction.

In most nuisance cases, damages may not solve the nuisance. For instance, the Gosling family can be compensated for the loss occasioned to their land but the yew tree will still continue growing roots, chemicals will still seep into their garden, and noise will still emanate from the workshop. Therefore, it is only fair and reasonable that a partial or full injunction is granted against their neighbours to preclude the continuation of the nuisance in addition to damages for injury suffered. As stated earlier injunctions will not be granted where the damage can be adequately compensated by monetary damages and where the utility of the land is more important than the interference. In a given case, the court refused to grant an injunction since the utility of the cricket ground was more important than the interference to the claimant. Instead, he only received compensatory damages. For the Gosling family, they can argue that their neighbour’s utility of the land is not more important than their enjoyment of their own property, given that it brings no public benefit.

Bibliography

Table of cases

Bamford v Turnley (1860) 3 B & S 62; 122 ER 25

Christie v Davey [1893] 1 Ch 316

Coventry v Lawrence [2012] EWCA Civ 26

De Keyser’s Royal Hotel v Spicer Bros (1914) 30 TLR 257

Dennis v Ministry of Defence [2003] EWHC 793

Dunton v Dover District Council [1977] QB 87

Gillingham Borough Council v Medway Docks [1993] QB 343

Goldman v Hargrave [1967] Ch 645 Privy Council

Hirose Electrical v Peak Ingredients [2011] EWCA Civ 987

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

Hunter v Canary Wharf [1997] 2 All ER 426

Khorasandjian v Bush [1993] QB 727

Maloney v Laskey [1907] 2 KB 141

McKinnon Industries v Walker [1951] WN 401

Miller v Jackson [1977] 1 QB 966

Robinson v Kilvert (1889) Ch D 88

Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 Court of Appeal

Spicer v Smee [1946] 1 All ER 489

St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642

Thompson-Schwab v Costaki [1956] 1 WLR 335

Wheeler v JJ Saunders [1996] Ch 19

Journals

• Gearty C, The place of private nuisance in a modern law of torts. (The Cambridge Law Journal 1989)214-242
• Nolan D, 'A tort against land': private nuisance as a property tort. Rights and Private Law (Hart 2011)459-490.