Private nuisance can be defined as an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.[1] Interference itself, is a result of either an action or an omission to act, and as per Mummery LJ, is ultimately “concerned with the legal interest in land,”[2]. Further, as per Hunter v Canary Wharf,[3] “the term ‘nuisance’ is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land.”
Three kinds of private nuisance to a neighbour’s land were identified in Canary. Nuisance by (1) encroachment, (2) direct physical injury and (3) nuisance by interference.[4] Additionally, there are three requirements to a claim in private nuisance. Firstly, there has to be an indirect interference with the enjoyment of the land,[5] as otherwise it would amount to trespass. Secondly, the interference must have caused damage to the claimant, where the term ‘damage’ extends to cover discomfort or inconvenience[6] and lastly, the interference must have been unreasonable.
The tort is of strict liability,[7] with its purpose being to regulate the conflicting interests of adjoining owners.[8] In Marcic v Thames Water Utilities Ltd,[9] the House of Lords found an action in nuisance inconsistent with the 1991 Water and Industries Act and because of the existence of a statutory scheme, Parliament had entrusted the decision of whether to make an enforcement order to the Director General of Water Services and not the courts. Hence, for strategic and policy reasons, nuisance was not the right path, which illustrates the regulatory nature of nuisance. A concern being, that the courts should not exercise the powers of the director. However, in Dobson v Thames Water Utilities Ltd,[10] the path of nuisance was applicable, where the action was based on negligence and there were operational issues, in this case chemical dosing could be initiated earlier.
The central issue for liability to arise in nuisance, is the reasonableness of the defendant’s conduct.[11] Per Lord Wright in Sedleigh-Denfield v O’Callaghan[12] as affirmed by the Supreme Court in Coventry v Lawrence,[13] “a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society.” It was held In Sturges v Bridgman,[14] that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey,” and therefore, the reasonableness of the defendant’s activity would be judged by the character of the locality. For instance, in Hirose Electrical v Peak Ingredients Ltd,[15] the smell of curry and garlic was found to be reasonable based on the light industrial state of the neighbourhood.
Whether a planning permission can authorise nuisance, has its origins in the principle that a statutory authority operates as a defence to nuisance.[16] It was established in Corporation of Manchester v Farnworth, that where the interference is the inevitable result of an act, then there can be no action in nuisance against it, for policy reasons. For instance, the refinery in Allen v Gulf Oil Refining Ltd,[17] would not be able to perform its ‘ordinary activities’ had it not been perpetrating environmental pollution. Hence, per Lord Wilberforce, “where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with an immunity from any action in nuisance.” An example being, section 1 of the Land Compensation Act 1973, under which, compensation is given for any depreciation in value of land caused by public works.[18] A notion supported by the Court of Appeal in Barr v Biffa Waste Services Ltd,[19] as cited with approval in Coventry, where it was held that in the lack of express or implied statutory authority to commit nuisance there is no basis to use a statutory scheme to exclude the common law rights.[20] Furthermore, the Planning Act 2008, offers compensation to anyone with a proprietary interest in land adjacent to the development under s.152 when the statutory immunity provided against public and private nuisance by s.158 applies. However, there is no equivalent protection against nuisance for other forms of development that are authorised by ordinary planning procedures,[21] for instance by the local planning authority. Therefore, where parliament has set up a statutory system, in which there is scope to challenge a decision, such as in Marcic, then the common law must take the back seat.[22]
Such statutes have to be interpreted under s.3 of the Human Rights Act 1998 (HRA 1998), “so far as it is possible to do so, all legislation must be given effect in a way that is compatible with the European Convention on Human Rights (ECHR).” Whereas, both Marcic and Dobson, included reference to the HRA 1998 and the requirement that public bodies, including the courts take Art.8 of the ECHR, the right to a private and family life into account. Furthermore, to strike a reasonable balance between the competing interests of the neighbours, per Lord Goff of Chiveley in Cambridge Water Co Ltd v Eastern Counties LeatherLtd,[23] “the law acknowledges that, in developed societies, there must be an element of ‘give and take’ between neighbouring occupiers of land and that a degree of interference must be tolerated for the benefit of society.” To determine when an interference has reached such an unreasonable extent so that it may be regarded unlawful, a number of factors are examined, such as “the character of the neighbourhood and the intensity, frequency and duration of the interference.”[24] Additionally, per Lord Wright in Sedgleigh-Denfield v O’Callaghan[25] “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,” was cited with approval. Examples of balancing include the case of Bellow v Irish Cement Ltd,[26] where the only source of local supply was replaced by a building that was of urgent public necessity.
Regarding the effect of a planning permission to nuisance, per Buckley J in Gillingham BC v Medway Dock Co Ltd,[27] “Parliament had delegated the task of balancing the interests of the community against those of individuals to the local planning authority.” While, Buckley J also stated that “a planning permission is not a licence to commit a nuisance.” Which notion is supported by the fact that, a planning permission is not directly authorised by Parliament but is granted under delegated powers, by the planning authority.[28] Additionally, it has been argued that if the grant of planning permission was to be treated as decisive, then nuisance would necessarily become an extremely limited tort.[29] On the other hand, it was also held that a planning permission can affect the character of the neighbourhood, and by extension change the nature of the locality. Consequently, the dockyard in Gillingham, had changed from a naval to a commercial port, whereas, there was reasonable disturbance of 24 hour operation and heavy goods movement, at all times. Hence, It could be said that, the planning authority had performed the balancing principle as it operated under the objective of improving the employment potential of the area. Moreover, decisions made by the planning authorities should reflect an attempt to consciously balance the benefits of a proposed development against any potential consequences.[30] Also, contrary to Lord Neuberger concerns in Coventry,[31] Lord Carnwath stated that judging from his 40 years of experience on the bench, a planning officer’s report is likely to be good indication of the council’s consideration of the matter.[32]
The judgment of Gillingham was considered by the Court of Appeal in Wheeler v JJ Saunders Ltd,[33] and Watson v Croft Promosport,[34] and by the House of Lords, in Hunter. In Wheeler, a planning permission was granted to replace an existing pig unit on a farm, whereas Stauton LJ emphasised the traditional view, by citing Cumming-Bruce LJ in Gulf, “that a planning authority has in general no jurisdiction to authorise nuisance but can only do so by the exercise of its power in a way that changes the character of the neighbourhood,” and as a result, held that neither of the two ways was applicable, as the new pig unit only provided the pig farm with intensified use and did not alter the character of the neighbourhood. The court in Wheeler, also considered whether a planning permission is ‘strategic’ and the effect of the public interest.[35] Whereas, it seems that the greater the public interest, the more likely it would seem to be ‘strategic’, while ‘public interest’ needs to be significant to override private interests. [36] However, such actions do not always succeed, as seen in Barr, where a company working in compliance with a permit was found to be committing nuisance.
Furthermore, the ruling of Wheeler was directly applied in Watson, where an inspector had granted permission by a unilateral agreement for the use of Circuit granted in 1963, whereas the judge stated that “the Development Plan policies weighed heavily against the project.”[37] The Court of Appeal upheld the initial judgment and found the interference examined to be nuisance and the principle mentioned in Wheeler, “that the implementation of what may properly be called a strategic planning permission may “so alter the nature and character of the locality as to shift the standard of reasonable user which governs the question of nuisance.”[38] Lastly, the House of Lords in Hunter, considered the principle of Gillingham, where Staughton L.J. commented that the principle “appears to me to be sound” and applicable in his case. In Hunter, the local authority was under a duty based on s.134 Local Government Planning and Land Act 1980, to secure the regeneration of the area. Pill LJ held that “the authorisations did not amount, nor were analogous to statutory authority but were a fast track form of planning permission.” As a result, it can be said that despite their different outcomes, the cases that followed Gillingham formed a consistent line of authority.[39]
In the recent case of Coventry, the Supreme Court addressed the issue of what weight should be given to a planning permission to do what is said to constitute a nuisance.[40] The Supreme Court held that the implementation of a planning permission can give rise to a change in the character of the locality as mentioned in Gillingham, subject to one point.[41] Per Lord Neuberger, the point being the extent, if any, to which a defendant in seeking to rebut a claim in nuisance can rely on the fact that the wording of the planning permission allows the disturbance, which is alleged to constitute a nuisance.[42] In addition, the issue of the contrasting judgments between Gillingham and the recent judgment of Hirose as opposed to Wheeler and Watson was examined.[43] Whereas, Lord Neuberger found the Court of Appeal’s conclusion on the issue unsatisfactory and held that, the grant of a planning permission does not automatically mean that nuisance is lawful, but instead, it simply means that there is no bar imposed by planning law on it. And therefore, he accepted the argument that “such a grant should have no bearing on a claim that that activity causes a nuisance.” It was also held that it is wrong in principle for a planning authority to be able to deprive a property-owner of a right to object to what would otherwise be nuisance without compensation.[44] Nonetheless, Lord Neuberger mentioned that the wording of a planning permission would be relevant in certain cases, along with any evidence that the planning authority based its decision on.[45] Lastly, an exception was recognised by Lord Carnwath, which is when the planning permission might be the outcome of a considered policy decision by a “competent authority leading to a fundamental change in the pattern of uses, which cannot be sensibly ignored in assessing the character of the area against the acceptability of the defendant’s activity to be judged.”[46]
Regarding the remedies available, an injunction is the primary remedy sought in nuisance cases and damages are typically avoided by the courts to ensure that the defendant did not buy off the damage.[47] In Coventry, the case of Shelfer v City of London Electric Lighting-Co,[48] was found to be out of date, whereas Lord Sumption found the whole jurisprudence to be in need of review.[49] And, also stated that, “an injunction should not be usually granted in a case where it is likely that conflicting interests are engaged other than the parties’ interests.”
In
conclusion, based on the current position of the courts, it is evident that a
statutory permit will continue to amount to a defence in nuisance after considering
that it is directly authorised by the parliament. Furthermore, the decision in Gillingham stands correct that a
planning permission is not a licence to commit nuisance, although the
capability of a planning permission to alter the locality has been significantly
restricted.[50]
And, apart from the exception mentioned, the mere fact that there is a planning
permission that covers the interference giving rise to nuisance will not be of
assistance. Instead, the permission will serve as evidence of the locality and
whether a person that operates under such a permission is liable will depend on
the facts of the case. However, after considering the overruling of Shelfer he might avoid an injunction.
[1] W.B.H. Rogers, Winfield and Jolowicz, 18th edition, (UK: Sweet & Maxwell Ltd, 2010) p.712 & Halsbury’s Laws, 5th Edition, (London: LexisNexis Butterworths, 2013), 592 & Barr v Biffa Waste Services [2012] EWCA Civ 312, per Coulson J at [36], “a condition or activity which unduly interferes with the use or enjoyment of land.”
[2] Winch and another v Mid Bedfordshire District Council – [2002] All ER (D) 380 (Jul), at [39]
[3]Hunter v Canary Wharf Ltd [1997] AC 655
[4] Halsbury’s Laws, 5th Edition, (London: LexisNexis Butterworths, 2013), 592
[5] J Morgan, “Privacy, Confidence and Horizontal Effect: ‘Hello’ Trouble”, CLJ 62 (2013), pp 444 – 473
[6] St Helens Smelting Co Ltd v Tipping 1 Ch App 66,“ an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom”
[7] Hollins v Fowler LR 7 HL 757, provided that the damage is reasonably foreseeable then proving fault or negligence is unnecessary to establish the tort of private nuisance.
[8] Southwark London Borough Council v Mills ; Baxter v Camden London Borough Council (No 2) – [2000] LGR 138, “It is often said to be encapsulated in the Latin maxim sic utere tuo ut alienum non laedas”
[9] Marcic v Thames Water Utilities Ltd [2003] UKHL 66
[10] Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28
[11] W.B.H. Rogers, Winfield and Jolowicz, (UK, Sweet & Maxwell Ltd, 2010), p.714 & Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264, 299
[12] [1940] AC 880,
[13] [2014] UKSC 13
[14] 11 Ch D 852
[15] [2010] All ER (D) 198 (Oct)
[16] A.M. Linden, ‘Strict Liability, Nuisance and Legislative Authorisation’ (1966) 4 Osgoode Hall LJ 196
[17] [1981] A.C. 1001
[18] P. Craig, ‘Compensation in Public Law’, 96 LQR 413
[19] [2012] EWCA Civ 312
[20] Ibid. at [46] and [89]
[21] Part 1, s.152(5)(7) of the Land Compensation Act 1973,
[22] B Harvey and A Robinson, Planning Permission and Nuisance, Environmental Law & Management
[23] [1994] 2 AC 264, 299
[24] Ibid.
[25] [1940] AC 880
[26] [1948] IR 61
[27] [1993] QB 343
[28] Look at n.21, “the analogy with statutory authority should not, however, be taken too far, because planning permission is not the direct authorisation of Parliament”
[29] Planning and Nuisance: Revisiting the Balance of Public and Private Interests in Land-Use Development, 23 JEL 285
[30][2014] UKSC 13 at [192],
[31] Coventry v Lawrence [2014] UKSC 13], at [98]
[32] Ibid. at [219]
[33] [1996] Ch 19
[34] [2009] EWCA Civ 15, at [25]
[35] [1996] Ch 19, at p.30
[36] Look at n.29
[37]Look at n.31, [81]
[38] Watson v Croft Promosport [2009] EWCA Civ 15, at [32]
[39] Look at n.22
[40] Look at n.31 , at [81]
[41] ibid. at [83]
[42] ibid. at [84]
[43] ibid. at [86] & [87]
[44] Ibid. at [90]
[45] Ibid. at [97]
[46] Ibid. at [223]
[47] S Deakin and A Johnston and B Markesinis, Markesinis and Deakins Tort Law, 7th edition, (Oxford, Oxford University Press, 2013), p.
[48] Look at n.22
[49] Look at n.31 at [161]
[50] Ibid. [165], per Lord Sumption, “suggests that a development plan or a “strategic” planning decision adopted in the public interest can of itself bring about a corresponding major alteration in the character of a neighbourhood without any need to compensate for any private nuisance thereby caused. I regard that as unsustainable in principle and fairness”