1

[NUISANCE]
Nuisance is of 3 (three) kinds, chronological discussion was given below: 1. Private Nuisance; (in respect of ar !ashing) ". Public Nuisance; (line of ars) 3. #$land v %letcher; (escape of detergent)

[PRIVATE NUISANCE]
&he following ele'ents are re(uired to solve Proble' of Nuisance, chronological s$ste' should be followed: 1. )efinition of Private Nuisance. ". !ho can sue* 3. !ho can be sued* +. !hat a'ount to nuisance* !hat are nuisances* !hich occur nuisances* ,. !hich factors available on the facts-reasonableness* .. )efenses (onl$ for the defendant). /. #e'ed$ (onl$ for the clai'ant).

[Definition]
Private Nuisance has been defined b$ !infield and 0olowic1 as 2continuous, unlawful and indirect interference with a person3s use or en4o$'ent of land, or so'e right over, or in connection with it5. &he 6ouse of 7ords confir'ed in Hunter v Canary Warf Limited that 2Private Nuisance is a tort which attaches to land and onl$ those with interest in the land affected 'a$ bring an action5 learl$, the interference here relates to the en4o$'ent of propert$ free fro' an$ anno$ance. Private nuisances are of 3 (three) kinds. &he$ are 1) nuisance b$ encroach'ent on a neighbor3s land as held in Davey v Harro Cor!oration ; ") nuisance b$ direct ph$sical in4ur$ to a neighbor3s land as held in Sed"ei#$%Denfie"d v &'Ca""a#$an ; and 3) nuisance b$ interference with a neighbor3s (uiet en4o$'ent of his land as held in Tet"ey v C$itty. 6ere 3s case will fall within the 888 categor$. Davey v Harro Cor!oration where the plaintiff9s house was da'aged b$ the roots which ca'e fro' trees on the ad4oining land, the

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propert$ of the defendants. :n an action for da'ages for nuisance. it was held that if trees encroached onto ad4oining land, whether b$ branches or roots, and caused da'age, an action for nuisance would lie against the owner of the land on whose propert$ the trees stood. No distinction was to be drawn between trees that were planted and those that were self;sown, and it was no defence to sa$ that da'age was caused b$ natural growth. Sed"ei#$%Denfie"d v &'Ca""a#$an <n occupier of land =continues3 a nuisance if he fails to take reasonable 'eans to bring it to an end when he has ti'e to do so; it if he 'akes an$ use of the erection or artificial structure which constitutes the nuisance. 7and was a ditch in which at a later date was placed a pipe or culvert for carr$ing off rainwater, the pipe not being laid b$ ), or with their knowledge, or consent, and thus b$ a trespasser. &he$ subse(uentl$ beca'e aware, through their servants, of its e>istence and the$ in fact used it for the draining of their fields. &o prevent leaves or other 'atter blocking the opening of the pipe a grating was placed, not at so'e little distance fro' its opening where it would have been effective, but on the top of the pipe itself, with the conse(uence that during a heav$ rainstor' the pipe beca'e choked with leaves, so that the water overflowed on to 3s pre'ises causing da'age in respect of which he clai'ed to recover da'ages. :t was held that ) 'ust be taken to have had knowledge of the e>istence of the unguarded pipe on their land, notwithstanding that it was placed there b$ a trespasser, and, conse(uentl$, the$ were responsible for the da'age caused to appellant. Tet"ey v C$itty :n <ugust 1?@A the defendant council granted per'ission to a go;kart club to develop a go;kart track on land belonging to the council, and in 0anuar$ 1?@1 it granted a seven;$ear lease to the club for the e>press purpose, inter alia, of using and developing the site as a go;kart track. &he plaintiffs, who were rate pa$ers in the area near the track, brought an action against, inter alia, the council clai'ing da'ages for noise nuisance and an in4unction restraining the operation of the track. &he council contended i) that the$ were not liable in nuisance since the$ had neither created nor per'itted an$ nuisance to be caused b$ the club either e>pressl$ or i'pliedl$ and ii) that in order to succeed the plaintiffs had to show not 'erel$ that the alleged nuisance was a likel$ conse(uence of the use of the land but that it arose as a necessar$ conse(uence and the plaintiffs had failed to show that: 6eld, the council were liable in nuisance because the noise generated b$ the go;karting activities was an ordinar$ and necessar$ conse(uence or a natural and necessar$ conse(uence of the operation of go;karts on the council3s land, and the

council as landlords had given e>press or at lease i'plied consent to the nuisance on their land. %urther'ore, in the circu'stances da'ages were a wholl$ insufficient re'ed$ and the plaintiffs were therefore entitled not onl$ to da'ages but also to an in4unction restraining the council fro' per'itting the continuation of go;karting on the land. &here 'ust be a continuous interference over a period of ti'e with the clai'ant9s use or en4o$'ent of land. :n [De (ey)er*) Roya" Hote" v S!i+er ,ro) Ltd] Nois$ pile driving at night during te'porar$ building works was held to be a private nuisance. &here are onl$ rare e>a'ples where a single act has been held to a'ount to a private nuisance. :n [Cro n River Crui)e) v (im-o"ton .ire or/)] :t was held that a firework displa$ constituted a nuisance.

[W$o +an )ue0]

&he tort of private nuisance protects clai'ants against interference with the use or en4o$'ent of their land. :n other words, it protects their rights in their land. :t is hardl$ surprising that onl$ those with rights in the land i.e. an interest in land or e>clusive possession will be able to sue as held in [1a"one v La)/ey] where her (wife) clai' was dis'issed b$ the ourt of <ppeal as she had no interest over the land and [Hunter v Canary W$arf Limited] includes land owners and tenants but e>clude licensees. In [1a"one v La)/ey] the lai'ant lived with her husband who occupied a house as license. Bibrations fro' the use of an engine on the defendant ad4oining land caused a bracket to fall in to the lai'ant causing her in4ur$. 6er clai' in nuisance was dis'issed b$ the ourt of <ppeal as she had no interest in the land on which to found a clai'. :t 'eans that the guest of the landlord do not have such right. &he basis of the tort of (private) nuisance has alwa$s been an interference with one9s right to peaceful en4o$'ent of land; it is a tort against land, not against the person. &he te>tbook case that de'onstrates this is in [1a"one v La)/ey], in which it was held that a person occup$ing a house as a license was not able to sustain an action in nuisance against a neighbor. &hat this decision has the potential to leave valid clai's unsatisfied was recogni1ed b$ the ourt of <ppeal in [($ora)and2an v ,u)$]. :n that case, the person who 'ight have had standing to sue under the principle in Calone had suffered no da'age, and therefore had no clai'. &he person who had suffered da'age was a licencee, and therefore had no title to sue. &he ourt therefore decided that the law of nuisance could be invoked b$ those who had a 9substantial link9 to the land, and this would include the relatives of landowners.

:n fact, principle of Calone v 7aske$ see's to have been overlooked 'ore often than not; in rown #iver ruises, for e>a'ple, the clai'ants were licencees of a river barge, not even lessees. &he Dhorasand4an principle that occupiers with a 9substantial link9 to the landowner had title to sue ;; was overturned b$ the 6ouse of 7ords in Hunter V Canary W$arf. &he 6ouse restated the principle that nuisance was a tort against propert$ and, in an$ event, it would be difficult to deter'ine where the standing to sue ended on the basis of the 9substantial link9 test. :n short, developing the law as the ourt of <ppeal suggested would significantl$ change the ver$ nature of the tort. T$e Hou)e of Lord) $e"d t$at ($ora)and2an $ad -een in+orre+t3 .or di)tur-an+e of te"e!$one +a""in#4 Prote+tion of Harra))ment A+t4 5667 re8uired3 Private nuisance can onl$ be brought b$ those who have a sufficient interest in the building, such as a tenant or propert$ owner. Eutcher #obinson and Ftaples 7i'ited were fir's occup$ing an office building which was affected b$ work being carried out b$ 7ondon &ransport. &he 4udge did not consider the$ had a sufficient interest in the propert$. Gnl$ a person who has a proprietar$ interest in the land affected b$ the nuisance will succeed in a clai', e.g. as owner or reversioner, or be in e>clusive possession or occupation of it as tenant or under a licence to occup$ (but there 'a$ be ano'alous e>ceptions, per 7ord 6ope, 6unter v anar$ !harf). :n Calone v 7aske$ where the P was using a toilet. &he lavator$ cistern fell on her head because of vibrations fro' 'achiner$ on ad4oining propert$. 6er clai' failed as she was 'erel$ the wife of a 'ere licensee, and had no proprietar$ interest herself in the land. 6owever, toda$ she would be able to clai' in negligence in 6unter v anar$ !harf. &his rule was upheld b$ the 6ouse of 7ords in 6unter v anar$ !harf over;ruling the ourt of <ppeal decision in Dhorasand4ian v Eush. 6owever, the wife of a ho'eowner would be able to sue as she has a beneficial interest in the 'atri'onial ho'e, per 7ord 6off'an, 6unter v anar$ !harf. Note that 4us tertii (right of a third person) is not a defence to an action of nuisance. < person who is in e>clusive possession of land 'a$ sue even though he cannot prove title to it as held in %oster v !arblington H) .

[W$o +an -e )ue0]

&he clai'ant can act against various people. %irst of all, he can act against the person causing the nuisance, even if that person is not occup$ing land in the surrounding area. %or e>a'ple, in Fouthport orporation v Isso Petroleu' 1?,. an action was held to lie against the owners of an oil tanker which discharged oil into the sea. Fecondl$, the defendant can act against a person who occupies the land fro' which the nuisance e'anates, even if this defendant has not activel$ caused the nuisance. &here are a nu'ber of areas of uncertaint$ here. i) :t is not clear whether there can

be liabilit$ for nuisances arising fro' the natural state of the land (rather than the defendant9s actions). ii) :t is not clear whether there can be liabilit$ for nuisances caused b$ previous occupiers of the land. Probabl$ if the defendant could not reasonabl$ have been e>pected to know of the nuisance, he will not be liable. :f the defendant 'akes use of the thing that causes the nuisance. :n Lea/ey v Nationa" Tru)t where the ourt held that the occupier would also be liable for a nuisance arising out of a condition of his land if he knows of the risk and fails to take an appropriate action to reduce the nuisance. Third, if the occupier of the land fro' which the nuisance e'anates is not the freehold proprietor, then an action 'a$ lie against the landlord. &his will be the case if the landlord knew of the intended use of the land and sanctioned it (&etle$ v hitt$) or if the landlord has reserved the right to enter and 'ake repairs, and the nuisance results fro' a failure to repair. T$e +reator of t$e Nui)an+e9 to bring sue for nuisance it need to identif$ potential defendants and the ke$ point is that who is creating the nuisance. T$e o++u!ier9 generall$ the occupier of the pre'ises fro' which the nuisance e'anates will be liable for that nuisance. &his is sub4ect to (ualification where the nuisance is caused b$ :ndependent ontractor, &respasser and <ct of Jod. :ndependent ontractor: <n :ndependent ontractor 'a$ be the cause of a nuisance. :n [,o er v Peate] where the defendant e'plo$ed a contractor to de'olish his house. &he ad4oining house was da'aged as a result of work. :n this regard, the court held liable the occupier. &respassers: the occupier will be liable if the nuisance is adopted b$ using the state of affairs for the occupier3s own purpose or where the nuisance is continued. ountr$ ouncil ase where the )efendant did not resist the authorit$ for ad4oining of the land and the clai'ant land was flooded. :n this regard, the defendant has the dut$ to take care of the sitting of the pipe. &he principal is that the )efendant will be liable for the act of the trespasser. :n Sed"ei#$%Denfie"d v &'Ca""a#$an it was held that an occupier would be liable for a nuisance created b$ a trespasser. IN Hu))ain v Lan+a)ter City Coun+i" where it was held that a landlord is not liable in nuisance if an independent third part$ or a trespasser over who' the landlord had no control. <ct of Jod: generall$ a nuisance resulting fro' an act of Jod would not i'pose liabilit$ on the occupier. Eut the scenario 'a$ be different where the occupier is aware for the nuisance to be occured. :n [:o"dman v Har#rave] where it was held that the defendant owed the clai'ant a dut$ to abate the nuisance which he was aware arose fro' the natural state of affairs. &he

principal is that if the occupier 'akes sure that the act of Jod 'a$ da'age the propert$ of the )efendant. :n this regard, the )efendant will be liable. Land"ord)9 there are 3 (three) situations where the clai'ant 'a$ sue the landlord in addition to an$ clai' against the': 1. !here the landlord has e>pressl$ or i'pliedl$ authori1ed the nuisance. :f the landowner per'its the nuisance, then he will be liable instead of the tenant. :n [Tet"ey and ot$er) v C$itty and ot$er)] where the land was leased out for the purpose of Darate lub. &he land lord, local authorit$, was well aware of the potential proble' and such would cause in the wa$ of noise. :t was held that a noise was a natural and necessar$ conse(uence of the use of karat 3 ". !here the landlord knew or ought to have known of the nuisance before letting. 3. !here the landlord covenanted to repair or has a right to enter to repair.

[W$at amount) to a Private Nui)an+e]

Nuisance is not actionable per se thus the clai'ant 'ust prove da'age; &he lai'ant need to prove that the )efendant has caused interference to the lai'ant3s use or en4o$'ent of his land. &he ordinar$ use of ho'e will not a'ount to a nuisance, even if it disco'forts neighbor due to low sound [Sout$ ar/ L,C v 1i"")4 ,o;ter v Camden]

The Courts have recognized nuisance in the following situations:

Noise is a kind of nuisance: it is well established that noise can constitute a nuisance. :n 6asle$ v Isso Petroleu' where it was held that 8888888888 but not all interference gives rise to liabilit$. &here 'ust be give and take between neighbors, and the interference 'ust be substantial not fanciful as held in K!alter v FelfeL F'ell is a kind of nuisance: K<da's v HrsellL %u'es, heat M dust are a kind of nuisance: KCatania v National Provisional EankL &ree roots which da'age one3s house: K)ave$ B 6arrow orporationL Gverflows fro' blocked drains M culverts: KFedleigh;)enfield v G3 allaghanL Euilding falling on to the neighbouring land: K!ringe v ohenL &ree which overhanging neighbour3s land: K7e''on v !ebbL #unning a brothel in an respectable residential street could be considered as nuisance: K&ho'pson;Fchwab v ostakiL

The Courts have refused to recognize nuisance in the following situations:

&he right to view: K<;J )ouglth$L where &he right to an unrestricted flow of air in the absence of an ease'ent: KEland v Cosele$L where :n the absence of an ease'ent, the right to light: K)alton v <ngusL where &here could be no right to freedo' fro' interference with television reception: in [Hunter and ot$er) v Canary W$art Limited] where for construction a building, the clai'ant was not able to watch &B. &he clai' was dis'issed. :n [,rid"in#ton Re"ay v <or/)$ire E"e+tri+ity ,oard] it was held that interference with recreational facilities did not constitute an actionable nuisance as that was not so i'portant a part of a householder3s en4o$'ent of his propert$ as to be protected in nuisance.

[.a+tor) of Nui)an+e=Unrea)ona-"e=Un"a fu" Interferen+e)]

&he clai'ant 'ust prove that the defendant9s conduct was unreasonable, thereb$ 'aking it unlawful. &he rule is so use $our own propert$ as not to in4ure $our neighbor3s propert$. <s to i'pair'ent of the en4o$'ent of land, the governing principle is that of reasonable user ; the principle of give and take as between neighboring occupiers of land. &he court will take the following factors into account in assessing the reasonableness or otherwise of the defendant9s use of land: 7ocalit$: No one reasonabl$ e>pects the sa'e level of peace and (uiet in urban and industrial areas which are to be found in rural areas. &his 'eans that nuisance will be 4udged according to the area in which it occurs. :n [Stur#e) v ,rid#man] it was stated that 2what would be a nuisance in Eelgrave F(uare would not necessaril$ be so in Eer'ondse$5. :n [La ) v ."orin!"a+e Limited] an in4unction was granted to prevent the use of a shop converted to a se> shop and cine'a in a residential area5. )uration: this is the 'atter of co''on sense and that nuisance need to be continuous. &he longer and 'ore fre(uent the interference, the 'ore likel$ it will be found to be a nuisance and there 'ust be a continuous interference over a period of ti'e with the clai'ant9s use or en4o$'ent of land . :n KDe (ey)er') Roya" Hote" Limited v S!i+er ,rot$er) Limited L. )uration of interference is one of the factors. :n this regard, the court will take into account in deciding whether a noise a'ounts to a nuisance. &he shorter the duration of the interference, the less likel$ it is to be unreasonable K6arrison v Fouthwark and Bau>hall <ter oL :n [Andre) V Se"frid#e > Co Limited] where de'olition work created an e>cessive a'ount of nuisance and dust which interfered with her business of

hotel. No in4unction was granted, as building work is not unreasonable use of land but the clai'ant was paid da'ages. Calice: this indicates the 'otive of the defendants. &he state of 'ind of the defendant would also see' to be relevant in assessing whether the defendant3s use of land is reasonable or not* :n [C$ri)tie v Davey] where the plaintiff succeed in obtaining an in4unction where her neighbor, frustrated b$ the noise of 'usic lesions in her ho'e the defendant anno$ed her b$ knocking, whistling etc. Cainl$, the defendant disturbed the singer in singing at ho'e and [Ho""y ood Si"ver .o; .orm Limited v Emmett] where sa'e principal was established as above. :t is clearl$ activated b$ 'alice, so pri'a facie he would see' to have co''itted a nuisance. <bnor'al sensitivit$ of the lai'ant: if the co'plain is based on the abnor'al sensitivit$ of the clai'ant, the court will not interfere. Nuisance onl$ operates to protect the clai'ant3s reasonable use of their right of the land. :n KRo-in)on v (i"vertL where the clai'ant stored brown paper on the ground floor of a warehouse. &he paper needed particular condition for storage. 6eat fro' the base'ent, used b$ the defendant caused da'ages to the paper. :t was held that there were no nuisance. 6eating would not have caused proble's ordinar$ use of the pre'ises. :t was the particular character of the paper being stored that led to the da'age. &he clai' failed because ordinar$ paper would not have been affected b$ the te'perature. Noise is pri'a facie actionable [Ha")ey v E))o Petro"eum Co] but if the lai'ant is being abnor'all$ sensitive about the nakedness and the gestures in which there would not be actionable [Hea"t$ v 1ayor of ,ri#$ton]. T$ere are many +ate#orie) of nui)an+e -ut in determinin# $et$er t$e nui)an+e i) a+tiona-"e t$e Court) mu)t -a"an+e t$e rea)ona-"ene)) of t$e Defendant') a+tivity $i+$ +reated t$e nui)an+e a#ain)t t$e rea)ona-"e need) of t$e C"aimant to u)e or en2oy $i) !ro!erty3 In Ho"-e+/ Ha"" Hote" Limited v S+ar-orou#$ ,orou#$ Coun+i" where a liff belonging to the )efendant ouncil gave awa$ and as a conse(uence a hotel on neighboring land belonging to the lai'ant was destro$ed. &he case was particularl$ difficult because while the defendant was foreseen the 'assive slip which destro$ed the hotel, :n that case, the ourt held that an Gccupier that failed to 'eet the 'easured dut$ to take reasonable steps to prevent the nuisance occurring on its land should onl$ be liable to the e>tend of the da'age that ought to have foreseen.

[Defen)e) avai"a-"e for t$e defendant]

Prescription: the defendant 'ust show that he has been co''itting the nuisance for "A (twent$) $ears, and that the clai'ant did not ob4ect in that ti'e. %or prescription to succeed, the defendant needs to show that he has ac(uired a prescriptive right against the defendant. :f the defendant 'oves pre'ises to the area of the nuisance, the defendant cannot rel$ on a prior period of non;co'plaint. :n this connection, " (two) points should be noted 1) it does not appl$ to public nuisance and ") ti'e will start fro' the 'o'ent the clai'ant is aware of the nuisance as held in [Stur#e) v ,rid#man] this is onl$ for private nuisance not for the public nuisance. Ftatutor$ authorit$: if the nuisance b$ the activit$ of the local authorit$, it 'a$ be a defence that it is acting within the scope of authorit$ and therefore the$ are authori1ed b$ the act of the parlia'ent and this is the (uestion of interpretation of the relevant <ct. &here is no nuisance if the defendant9s action is specificall$ authori1ed b$ statute. <ct of Jod and act of stranger: 'a$ also constitute a defence. %or e>a'ple, water overflowing fro' the defendant9s well in an unusuall$ heav$ rainstor' as held in KJold'an v 6argraveL and in KFedleigh;)enfield v G3 allaganL. &he 7aw #efor' ( ontributor$ Negligence) <ct, 1?+,: is applicable to nuisance and therefore is a defence. <gree'ent to the e>istence of the nuisance is also a defence.

Ineffective Nuisance (Not Defence):

Focial Htilit$: the defedant3s activit$ is of social utilit$ and benefit to the general co''unit$ does not a'ount to a defence. :n K<da's v HrsellL where and in KEellow v e'ent oL where o'ing to the nuisance: Fo'eone ca'e near to the nuisance activities does not prevent that person to clai' re'ed$. &herefore, lai'ant 'oved to the nuisance is irrelevant. :n KEliss v 6ullL where the clai'ant who had 4ust 'ove to the area was granted an in4unction to prevent a nuisance caused b$ a tallow;chandler$. Nui)an+e i) e))entia""y a tort of )tri+t "ia-i"ity in t$e )en)e t$at it i"" -e no defen)e to )$o t$at nui)an+e a) not +reated intentiona""y or even t$at t$e Defendant u)ed a"" rea)ona-"e +are3

1A

[Remedie) avai"a-"e for t$e +"aimant0]

&here are 3 (three) 'ain re'edies. &hese are 1) :n4unction, ") )a'ages and 3) <bate'ent. :n4unction: an in4unction is the powerful weapon because ourt passes the order to the )efendant to stop the activit$ causing nuisance. <n in4unction is the re'ed$ of choice where a nuisance is continuing. :t is needful to state that an in4unction should be granted unless the in4ur$ suffered b$ the clai'ant is trivial or te'porar$ in nature KFwaine v Jreat Northern #ailwa$L. &he ke$ point of :n4unction is that it is the discretionar$ re'ed$. !here da'ages are inade(uate, there in4unction 'a$ be granted. )a'ages: )a'ages is the residuar$ re'ed$ in the tort of nuisance because in 'ost cases the plaintiff wants an in4unction to stop the nuisance. Eut in 'ost cases, clai'ant wants da'ages, for e>a'ple: where the nuisance is not continuous or where the clai'ant3s propert$ had alread$ been da'aged b$ nuisance. &he ourt has the power, under Fection ,A of the Fupre'e ourt <ct, 1?@1, to award da'ages in lieu of an in4unction. :n [S$e"fer v City of London E"e+tri+ Li#$tin#]4 the ourt of <ppeal held that da'ages should onl$ be awarded where: a) the in4ur$ to the clai'ant3s legal rights is s'all. b) the da'age is capable of being esti'ated in 'one$. c) the da'ages can be ade(uatel$ co'pensated b$ a s'all 'one$ pa$'ent. d) the case is one which it would be oppressive to the defendant to grant an in4unction. <bet'ent: &his is the re'ed$ of self;help, e.g. re'oving over;hanging tree branches, which are a nuisance the person affected b$ nuisance has the right to take action to reduce or eli'inate the nuisance. !here tree branches overhand the clai'ant3s land, for e>a'ple: the offending branches can be lopped without entering the defendant3s land. are 'ust be taken not to cause unnecessar$ da'age to the trees and the branches 'ust be returned to the defendant. :n [De"a are 1an)ion) Limited v We)tmin)ter City Coun+i"] the 6ouse of 7ords a'ounts it as a re'ed$ of li'ited utilit$ and onl$ worth considering in relation to a 'inor proble's.

[R<LAND V .LETCHER]
,rief .a+t Summary9 water fro' )efendant3s reservoir escaped onto Plaintiff3s land because of an unknown latent defect in )efendant3s subsoil. Plaintiff sued )efendant for trespass. F$nopsis of #ule of 7aw: Gne who lawfull$ brings so'ething onto his land, which though har'less while it re'ains there will naturall$ do 'ischief if it

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escapes the land, will be strictl$ liable for its escape. %acts: Plaintiff was da'aged b$ his propert$ being flooded b$ water, which, without an$ fault on his part, broke out of a reservoir constructed on )efendants3 land. !ater in the reservoir would not have escaped fro' )efendant3s land and no 'ischief would have been done to Plaintiff, but for a latent defect in )efendant3s subsoil. Plaintiff sued )efendant for trespass. Gpinions are taken fro' the inter'ediate appellate court. :ssue: :s )efendant liable to Plaintiff in trespass for da'age caused as a result of a defect in )efendant3s land if the$ were not aware of the defect* 6eld: 0udg'ent for Plaintiff. )efendant 'ight lawfull$ have used the land for an$ purpose for which it 'ight in the ordinar$ course of the en4o$'ent of the land be used. :f b$ the laws of nature, water entered Plaintiff3s land, then Plaintiff could not have recovered against )efendant. 6owever, )efendant used the land for the purpose of introducing that, which in its natural condition, was not in or upon it. <s a result, the water ca'e to escape and enter Plaintiff3s land. )efendant should be held liable at their own peril. : concur with the 4udg'ent for Plaintiff. :f a person brings, or accu'ulates, on his land an$thing, which, if it should escape, 'a$ cause da'age to his neighbor, he does so at his peril. &he (uestion is not whether the )efendant has acted with due care and caution, but whether his acts have occasioned the da'age. :n this case, the da'age sustained b$ Plaintiff was occasioned b$ the unnatural escape of water fro' )efendant3s reservoir. )iscussion: :n this case the court adopts a theor$ of strict liabilit$ for owners who bring unnatural things upon their land, which later escapes. &he lai'ant need to prove + (four) points to 'ake liable the defendant:

1. &hat the defendant brought so'ething into his land for his own purpose; ". &he thing was so'ething likel$ to do 'ischief if it escaped; 3. &hat the defendant 'ade a Nnon;natural useN of his land; +. &he thing escaped and cause da'age and which causes foreseeable. 5? T$e defendant -rou#$t )omet$in# into $i) "and :n law, there is a difference between things that grow or occur naturall$ on the land, and those that are added there artificiall$ b$ the defendant. %or e>a'ple, rocks and thistles naturall$ occur on land. 6owever, the defendants in #$lands v %letcher brought water into the land. &he thing need not be dangerous itself but it 'ust be likel$ to cause da'age. In Cro $ur)t v Amer)$am ,uria" ,oard where the defendants owned a piece of ground, which was used as a ce'eter$, and the$ fenced it round with a wall two feet high, with, at two places, open iron railings two feet high on the top of the wall. :n the part of their ground opposite these railings, and about four feet within the sa'e, the defendants planted $ew trees, which in course of ti'e grew through and be$ond the railings, and pro4ected over the ad4oining land which was occupied b$ the plaintiff and was rented b$ hi' for the purpose of pasturing his horse therein. &he horse,

1"

having eaten a (uantit$ of $ew leaves fro' the branches pro4ecting over the plaintiff9s 'eadow, was poisoned and died. 6eld that: the defendants had placed on their land trees which were likel$ to do 'ischief if their branches and leaves were not confined to the defendants9 land; the plaintiff was not guilt$ of negligence for he was not bound to e>a'ine all the boundaries of the field which he had hired, so as to see that no tree likel$ to be in4urious to his horse was pro4ecting over it; and, therefore, the defendants were liable to the plaintiff for the loss of the horse. In 1u)#rove v Pande"i) where a Cotor ar was stored in a garage with petrol in the tank. &he car caught fire and a neighbour3s house was da'aged. &he owner of the ar was held liable. In S$iffman where a flag pole escaped fro' a building b$ falling and causing da'age. :t was held to be a dangerous thing. @? T$e t$in# mu)t e)+a!e9 &here 'ust be an escape of the dangerous substance fro' the defendant9s land. &he thing 'ust 'ove fro' the land controlled b$ the )efendant to the land controlled b$ the lai'ant. &his is clear fro' #$land v %letcher but it was e>plained in Raid v A Lyon) > Co Limited where a''unitions were 'anufactured b$ the defendants. &he clai'ant was a''unitions inspector. Gne person was killed and the clai'ant was in4ured b$ e>plosion. &he ourt held that there was no negligence in the e>plosion. &he lai'ant could not succeed in his clai' under #$land v %letcher , e>plaining E)+a!e for the purpose of #$land v %letcher 'eans escape fro' the place in which the defendant has occupation of, or control over, to a place which is outside his occupation control. B? Non%natura" u)e of t$e "and :n order to find out NGN N<&H#<7 HFI, 7ord Porter in Read v A Lyon) > Co Limited said that it needs to consider all the circu'stances of ti'e and practice of 'ankindOO. Fo that what 'a$ be regarded as dangerous or non natural 'a$ var$ according to the circu'stance.

C?3 .ore)eea-i"ity of Dama#e Gnl$ foreseeable har' would be recoverable. :n the following case the defendant would not be liable because of the absence of foreseeabilit$ of da'ages. In Cam-rid#e Water Co3 V Ea)tern Countie) Leat$er PLC where a'bridge !ater o. purchased a borehole in 1?/. to e>tract water to suppl$ to the public. :n 1?@3 it tested the water to ensure that it 'et 'ini'u' standards for hu'an consu'ption and discovered that it was conta'inated with an organ chlorine solvent. Gn investigation, it e'erged that the solvent

13

ca'e fro' the Iastern ounties 7eather P7 tanner$, about 1.3 'iles fro' the borehole. Fince the tanner$ opened in 1@/? until 1?/., the solvent it used had been delivered in +A gallon dru's which were transported b$ fork lift truck and then tipped into a su'p. Fince 1?/., solvents had been delivered in bulk and stored in tanks. :t was then piped to the tanning 'achiner$. &here was no evidence of an$ spills fro' the tanks or pipes, and it was concluded that the water had been conta'inated b$ fre(uent spills under the earlier s$ste'.
a'bridge !ater o. clai'ed da'ages against Iastern ounties 7eather plc alternativel$ for negligence, nuisance and under the rule in #$lands v. %letcher. <t

first instance it was found that Iastern ounties 7eather plc could not have foreseen this t$pe of da'age and, therefore, disallowed the clai's in nuisance and negligence. %urther, it was found that the actions of Iastern ounties 7eather plc constituted a natural use of the land and conse(uentl$ dis'issed the clai' based on the rule in #$lands v. %letcher. a'bridge !ater o. 7td. successfull$ appealed. Iastern ounties 7eather plc then appealed to the 6ouse of 7ords. &he 6ouse of 7ords unani'ousl$ found that Iastern ounties 7eather plc was not liable for the water conta'ination. &he 'ain issue was whether the foreseeabilit$ of the da'age suffered b$ a'bridge !ater o. was relevant to a clai' under the rule in #$lands v. %letcher. &he 7ords accepted the original finding that a reasonable supervisor e'plo$ed b$ Iastern ounties 7eather plc would not have foreseen that the solvent would leak fro' the tanner$ floors down into the water source. :t was thought at the ti'e that an$ spilt solvent would evaporate and that the onl$ foreseeable risk was that if large (uantities were spilt, so'eone 'ight be overco'e b$ the vapour. In Perry v (endri+/) Tran)!ort Limited where the )efendant stored 'otor coaches on their land. &he petrol tank of the coach were e'pt$. hildren look off the fuel cap and threw it a lighted 'atch. &he clai'ant was in4ured because of e>plosion. &he )efendant was not held liable because it was the act of stranger and the sa'e was not foreseeable. In Tran)+o PLC v Sto+/!ort 1,C where the suppl$ of water for do'estic purpose in large pipes which were not 'aintained at high pressure did not a'ount to non natural use of land and foreseeabilit$ was i'possible. W$o +an )ue0 :n #$land v %letcher no indication is given that the lai'ants need to have a proprietar$ interest in the land. <lthough there was a decision per'itting non occupiers of land to sue for da'ages [In S$iffman v &rder of t$e Ho)!ita" of St Ao$n of Aeru)a"em] and [Perry v (endri+/) Tran)!ort Limited]3 :N this regard, there was an inconsistent with the position in Private Nuisance as set out in Hunter v Canary W$arf where it was held that interest upon the land is 'andator$ for sue.

1+

Eefore, Tran)+o v Sto+/!ort 1etro!o"itan Coun+i" it was not clear whether the clai'ant would need a right in land to sue. &ransco confir'ed that the lai'ant 'ust have so'e right in the land to sue.

W$o +an -e )ued0 :n Read v Lyon) the ourt took a view that the )efendant would be the person, even if it were onl$ as a 'ere licensee, fro' whose land the thing had escaped onto another3s land. :n ,riti)$ Ce"ane)e v AH Hunt liabilit$ could lie on the person fro' whose control the =thing3 had escaped. %irst of all it need to consider whether P has incurred an$ liabilit$ under the rule in #$lands v %letcher which is that a person who for his own purposes, brings onto his lands and collects and keeps there an$thing likel$ to do 'ischief if it escapes 'ust keep it in at his peril and if he does not do so, he is pri'a facie answerable for all the da'age which is the natural conse(uence of it escape. :n addition, the defendant 'ust have 'ade a non natural use of land and the har' caused 'ust be foreseeable ( a'bridge !ater o v Iastern ounties 7eather plc). &he whole are of #$lands was recogniged b$ the 6ouse of 7ords in K&ransco v Ftockport Cetropolitan Eorough ouncilL where &he (88888)8have been brought into 3s land for 3s purpose. &he$ have been brought into 3s land in the sense that the$ are not so'ething that is there b$ nature (F'ith v Denrick). &he ( 88888) are clearl$ likel$ to do 'ischief if the$ escape and there has been an escape fro' 3s pre'ises as re(uired b$ (#ead v 7$ons) . <s it is foreseeable that the (88888) would cause har', we 'ust deter'ine whether or not there has been a non natural use of land. :n #$lands v %letcher itself the word natural was used to 'ean so'ething on the land b$ nature.

[PU,LIC NUISANCE]
&he 'ost co''onl$ used definition is that given b$ 7ord 0ustice #o'er in Attorney :enera" v P<A Duarrie) Limited where the ourt held that 2a public nuisance was a nuisance which 'ateriall$ affects the reasonable co'fort and convenience of life of a class of 6er Ca4est$3s sub4ect5 and the persons affected b$ the nuisance are the public or a section of the public.

1,

Private Nuisance is concerned with the protection of interest in land so it is arguable that the plaintiff 'ust have an interest in the land affected but there is no such re(uire'ent in Public Nuisance. :t is onl$ actionable as a tort if the clai'ant has suffered da'age over and above other 'e'bers of the public. Public Nuisances arise when the interference does not affect the clai'ant3s land but the public as a whole and the clai'ant has suffered special da'age, for the clai'ant, there are " (two) 'ain concerns: 1) has the nuisance affected a class* ") an an$ one prove special da'age* 5? Ha) t$e nui)an+e affe+ted a +"a))0 :t 'ust be shown that the person affected b$ the nuisance constituted the public or a section of a public. :n Attorney :enera" v P<A Duarrie) Limited where the defendant used a blasting s$ste' in their (uarr$ which caused noise and vibrations and threw out dust, stones, which affected people living nearb$. &he ourt of <ppeal held that this could a'ount to a public nuisance. &he case also established that it is not necessar$ that ever$ 'e'ber of a class has been affected b$ the nuisance. @? Can any one !rove )!e+ia" dama#e0 the clai'ant 'ust establish is an action in public nuisance is that he suffers special da'age. :n ,en2amin v Storr where the lai'ant has a offee house in the covenant area of 7ondon and the defendant regularl$ left his houses and carts outside. &he nuisance affected all the shop keepers but because of the nature of the clai'ant3s business, he was able to prove that he had suffered special da'age, because the s'ell of the horses put his custo'ers off. Pu-"i+ Nui)an+e and t$e $i#$ ay9 :t is public nuisance to obstruct the highwa$ or to create a danger on, or close to the highwa$ as held in Trevett v Lee where .:t is sufficient if the highwa$ is unreasonabl$ obstructed. :n Dymond v Pear+e it was held that the defendant had co''itted a public nuisance in leaving his lorr$ on the highwa$. < public nuisance can also be created where the obstruction of the highwa$ is of te'porar$ nature. :n ,ar-er v Pen"ey where a (ueue waiting to get into the defendants theatre was a public nuisance when it 'ade it difficult for the plaintiff to get access to his pre'ises. Picketing (Ftriking) on the highwa$ 'a$ also constitute public nuisance as held in Hu--ard v Pitt3 [Defen)e)] Ftatutor$ authorit$ is the 'ost i'portant defense to the public nuisance.

1.

[Remedie)] Eoth in4unctions and da'ages are available for public nuisance. Public Nuisance is also a cri'e as well as a tort.

[&vera"" di)+u))ion) re#ardin# Pu-"i+ Nui)an+e] DE.INITI&N < public nuisance is co''itted b$ an$one 2who does an act not warranted b$ law, or o'its to discharge a legal dut$, if the effect of the act or o'ission is to endanger the life, health, 'orals, or co'fort of the public, or to obstruct the public in the e>ercise or en4o$'ent of rights co''on to all 6er Ca4est$3s sub4ects5. :n a si'ilar fashion #o'er 70 in <ttorne$ Jeneral v P.Q.<. Ruarries 7i'ited the ourt held that 2an$ nuisance is public which 'ateriall$ affects the reasonable co'fort and convenience of life of a class of 6er Ca4est$3s sub4ects.5 Public nuisance is basicall$ a cri'e as well as tort. [ELE1ENTS &. PU,LIC NUISANCES] PHE7: G# FI &:GN G% &6I PHE7: : the sphere of the nuisance 'a$ be described generall$ as =the neighborhood3, but the (uestion whether the local co''unit$ within that sphere co'prises a sufficient nu'ber of persons to constitute a class of the public is a (uestion of fact in ever$ case5 per #o'er 70 <;J v P.Q.<. Ruarries 7td.. #o'er 70 also suggested that 2it is not necessar$, in '$ opinion, to prove that ever$ 'e'ber of the class has been affected; it is sufficient to show that a representative cross;section of the class has been so affected5. :n the sa'e case )enning 70 declined to provide an 2answer the (uestion how 'an$ people are necessar$ to 'ake up 6er Ca4est$3s sub4ects generall$.5 Eut at the sa'e ti'e he held that where 2onl$ two or three propert$ owners are affected b$ it, then the$ ought to take proceedings on their own account to stop it and not e>pect the co''unit$ to do it for the'5. 0an de Nul (HD) 7td v NB #o$ale Eelge ("AAA I! <): Iven if the infringed rights are used b$ ver$ s'all section of people that 'a$ also a'ount to a 'atter of public nuisance. :n this case a siltation caused in the estuar$ b$ 0an de Nul3s dredging operations, which had affected so'e of the berths of $acht clubs and wharves, was held to have had a sufficientl$ significant effect on access to parts of the estuar$ to a'ount to a public nuisance. FPI :<7 )<C<JI: for establishing a tortuous clai' of public nuisance has to prove special da'age, affecting the public or section of the public. :n the absence such proof he can 'ake an application to the <ttorne$ Jeneral to grant per'ission to an individual to allow that individual to co''ence proceedings. W$at /ind of dama#e mu)t t$e +"aimant )$o 0

1/

Professor Dodilin$e, 2Public nuisance and particular da'age in the 'odern law5 offers the following classification of the heads of special or particular da'age: a. Ph$sical in4ur$ to person or propert$; b. 7and depreciation; c. 7oss of custo' or business; d. )ela$ and inconvenience causing e>pense. &he preponderance of authorit$ in Ingland suggests that dela$ and inconvenience cannot a'ount to special da'age unless it is acco'panied b$ so'e pecuniar$ loss ( !interbotto' v 7ord )erb$). Dodilin$e suggests that this li'itation 'a$ ste' fro' an accidental confusion of ter'inolog$. Professor Carkesinis and )eakin suggested that probabl$ the prevailing view for the ti'e being in Inglish law is whenever the clai'ant can show that the right he shares with others has been appreciabl$ 'ore affected, than the others, b$ the defendant3s behaviour, would have a clai' S#ose v Ciles) (1@1,)T.:n &ate 7$le :ndustries v J7 %err$ ter'inals (1?@3 67) constructed b$ the defendants in the &ha'es caused silting which obstructed large vessel3s access to the clai'ants3 4ett$ and clai'ants had to spend large su's in dredging operations. &heir clai' in private nuisance was dis'issed because the 4ett$ itself was unaffected and the$ had no propert$ in the river bed. Eut it was held that the silting had caused interferences with the public right of navigation which the clai'ants en4o$ed along with other river users. &hus, the e>penditure incurred b$ the clai'ants was considered as a special da'age to entitle the' to bring an action in public nuisance.
EEA1PLES &. PU,LIC NUISANCE

<t co''on law, public nuisances cover a wide variet$ of activities such as: 1. carr$ing on an offensive trade. ". keeping disorderl$ house. 3. selling food unfit for hu'an consu'ption . +. obstructing the highwa$. ,. throwing fireworks about in the street. .. holding an ill;organi1ed pop festival. /. telephone calls.
D&ES THE DE.ENDANT HAS T& PR&VE T& ,E AWARE &. THE NUISANCE0

Jenerall$, fault is an ingredient action of public nuisance. Eut it would be sufficient to show that ) had either actual knowledge or constructive knowledge. &hat is to sa$

1@

either he knew or ought to have known of the conse(uence of the nuisance. !andsworth 7ondon Eorough ouncil v #ailtrack plc < "AA1: !here feral (unta'ed) pigeons roosting under a bridge fouled the pave'ent beneath and passing pedestrians with their droppings, thereb$ interfering with the right of the public to use and en4o$ the public highwa$, the owner of the bridge was liable to the highwa$ authorit$ in public nuisance if it knew of the nuisance, had the opportunit$ and 'eans to abate it but had failed to do so. )elaware Cansions 7td and <nother v !est'inster it$ ouncil ("AA1 HD67): !here there is a continuing nuisance of which the defendant knew or ought to have known, reasonable re'edial e>penditure 'ight be recovered b$ the owner who had had to incur it. &he owner of a 'ansion block in 7ondon was therefore entitled to recover da'ages for the cost of re'edial work 'ade necessar$ b$ da'age caused b$ the encroach'ent of the roots of a tree on an ad4oining highwa$ before it purchased the propert$ in 1??A because, although there had been no new da'age after that date, the highwa$ authorit$ had declined to re'ove the tree and was therefore continuing the nuisance. Gne point could be 'entioned that if the clai'ant ask for an in4unction the fault principle could be irrelevant (Carkesinis and )eakin "AA3, p +?A). 6owever, the 6:J6!<Q scenario should be considered carefull$. &,STRUCTI&N &. THE HI:HWA< Perhaps the 'ost co''on instance of public nuisance is an unlawful obstruction or interference with the public3s right of passage along the highwa$. %or e>a'ple, in astle v Ft. <ugustine3s 7inks, the defendant golf club was held liable for so sitting one of its fairwa$s that golf balls were fre(uentl$ sliced on to the highwa$, with the result that the plaintiff was in4ured while driving along the road when a ball crashed through the windscreen of his car. WHAT &,STRUCTI&NS ARE ACTI&NA,LE0 Iver$ obstacle on the highwa$ does not constituting an actionable nuisance. &he defendant is liable onl$ if he creates an unreasonable risk. :f the obstruction is reasonable in ter's of duration and degree, such as a van delivering goods to a shop, it is generall$ not actionable. !hether an obstruction is unreasonable will be a 'atter of opinion based on facts in &revett v 7ee (1?,,). &o conduct one3s trade in such a 'anner as to cause a foreseeable obstruction is actionable, and if such obstruction causes loss of custo' to other traders, that is special da'age (7$ons, Fons M o. v Julliver ( < 1?1+)). Eut the defendant is not liable for an obstruction, such as a (ueue outside his shop, which is be$ond his control. Fuch as shortage of supplies in conse(uence of war. 53 NATURAL PR&AECTI&N !hereas in the case of natural pro4ections (for e>a'ple, trees) it see's that negligence 'ust be proved. Iven though the source of the nuisance is plain to see

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the occupier will not be liable until he knew or should have known that it is a danger SNoble v 6arrison (1?".); Eritish #oad Fervices 7td v Flater (6 1?.+)T. @3 ARTI.ICIAL PR&AECTI&N !hereas in the case of artificial pro4ections (for e>a'ple, a protruding la'p;bracket) the liabilit$ 'a$ be strict if ) erects it or which has been occurred due to )3s o'ission. Eut it appears fro' the case that if the da'age has been caused b$ an unforeseeable act of trespasser or b$ a secret and unobservable operation of nature, the liabilit$ would onl$ be i'posed if ) is negligent. :n a recent ourt of <ppeal decision it has been reflected that negligence liabilit$, as opposed to strict liabilit$ should be the nor' of the 'odern law in this regard S#owe v 6er'an (1??/)T. @3 C&NDITI&N &. THE HI:HWA< < highwa$ authorit$ is under a dut$ to 'aintain the highwa$ and 'a$ be liable in negligence, nuisance or for breach of statutor$ dut$ under the 6ighwa$s <ct 1?@A. &he clai'ant 'a$ clai' for personal in4ur$ and propert$ da'age. 6owever, this right of action for non;repair does not e>tend to clai's for pure econo'ic loss where vehicle could not get to its destin$ for the condition of the highwa$ S!entworth v !iltshire ount$ ouncil ( < 1??3T. &he <ct provides that it shall be a defence to prove that the authorit$ had taken such care as in all the circu'stances was reasonabl$ re(uired to 'ake sure that the part of the highwa$ to which the action relates was not dangerous for traffic. Fec ,@ of &he 6ighwa$ <ct 1?@A provided that the following factors are to be taken into account: 1. the character of the highwa$ and the traffic which was reasonabl$ to be e>pected to use it; ". the standard of 'aintenance appropriate for a highwa$ of that character 3 the state of repair in which a reasonable person would have e>pected to find the highwa$; +. the highwa$ authorit$3s knowledge (actual or constructive) will be a'ong circu'stances which will be weighted b$ the courts in deciding whether the authorit$ is in breach of its dut$; ,. where the highwa$ authorit$ could not reasonabl$ have been e>pected to repair that part of the highwa$ before the cause of action arose, what warning notice of its condition had been displa$ed. &he authorit$ does not owe a dut$ of care to e>ercise its statutor$ powers for the benefit of road users as to alleviate known dangers i'pairing visibilit$ on land ad4oining the highwa$ SFtovin v !ise (67 1??.)T. [NUISANCE > HU1AN RI:HTS]

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Now it needs to consider the causes of action in regard to nuisance that 'ight arise under the 6u'an #ights <ct, 1??@. <rticle @ of the Iuropean onvention on 6u'an #ights, which was brought into Hnited Dingdo' as law, establish the right to respect for private and fa'il$ life and ho'e. <lso <rt 1 of the %irst Protocol of I 6# states that persons are entitled to the peaceful en4o$'ent of their possessions and <rt " established a right to life. <s regards <rt @ of I 6#, in 7ope1 Gstra v Fpain the court held that the construction of a treat'ent plant ne>t to the applicants house had caused local pollution and health proble' which was violation of <rt @. Fection .(1) of 6u'an #ights <ct, 1??@ 'akes it unlawful for the public authorit$ to act in an$ wa$ inco'patible with a onvention right. Fection .(.) of the <ct an act includes a failure to act both the govern'ent and local authorit$ could be held liable for breaches of <rt @. <n action under the 6u'an #ights <ct 1??@ would raise no proble's as regards interests in land, recover$ of econo'ic loss or application to personal in4uries.

[&VERALL DISCUSSI&N=S A,&UT NUISANCE]

Nui)an+e
Nuisance is one of the oldest actions in the common law. The object of nuisance is to protect a person's proprietary interest in land, as opposed to protecting any personal interests. There are two types of nuisance: public and private. Public nuisance is a crime which will be prosecuted by the appropriate authority though individuals can sue for damages if they have suffered special damage. Most of this tutorial is concerned with private nuisance. Private nuisance re uires that the !efendant is using his land in an unreasonable manner. "f a #laimant is successful at trial they can claim damages and$or an injunction to prevent the nuisance from continuing or occurring in the future.

Pu-"i+ and Private Nui)an+e9 t$e Di)tin+tion

"t is important to be able to distinguish between public and private nuisance. Private nuisance is a tort which protects an individual's enjoyment of their property whereas public nuisance is a broad criminal principle where an act$omission endangers life, health, morals, property or comfort of the public. % person who commits a public nuisance may incur some civil liability as well &in the same way that someone who commits an assault occasioning actual bodily harm can be sued for compensation'. Though, as mentioned above, this is only possible where the #laimant suffers some special damage which goes beyond what the public at large has suffered. (or e)ample, the obstruction of a highway will affect everyone but it may particularly affect the person who owns commercial premises whose entrance is bloc*ed. "n %ttorney +eneral v P,% -uarries, an injunction was granted against the !efendant in respect of its uarrying operations. "t reduced vibration and dust and then appealed against the order. "t was argued that the trial judge had not distinguished between public

"1 and private nuisance and the uarrying was only a private nuisance for which the %ttorney +eneral was not permitted to see* an injunction. The #ourt said that a nuisance will be public if enough people are affected by it to constitute a class of the public. "t is not necessary to show that every member of the class has been affected but that a representative only. % public nuisance is wide spread and indiscriminate. The court held that the nuisance in this case was wide enough to be a public nuisance. %nother good e)ample is Tate . /yle "ndustries v +/#, where the !efendant erected ferry terminals in the Thames causing silt to come up which made it difficult for large vessels to doc* at the #laimant's doc*. The action in private nuisance failed because a proprietor was not entitled to object to an alteration to the depth of the water which did not threaten to cause damage to his land but merely affected a public river. The #laimant succeeded in public nuisance however as they had suffered special damage beyond the average river user &they had to pay for dredging to clear the water'.

Private Nui)an+e
The purpose of private nuisance is to protect the owner of land from unreasonable interference from their nearby neighbours. 0hether the interference is unreasonable, rather than simply being annoying, is a uestion of fact to be decided in each case. The courts have generally ignored any benefits which flow from the !efendant's nuisance1 they tend simply to as* whether it is a nuisance or not. "n 2amford v Turnley, #laimant complained that !efendant's burning of bric*s on his property resulted in smo*e and smell which affected #laimant's enjoyment of the land. The !efendant won at trial and there was an appeal, in which the !efendant argued that the activity had a public benefit. The court held that this argument failed. 3owever, public benefit can be ta*en into account as a factor in the balancing process. Though, as a rule, if public benefit is to ta*e precedence over private rights, it should be determined by statute. Thus, when railways were being built, statute provided for rights of compulsory land ac uisition with the payment of compensation to those affected. "f the role being underta*en is important enough &e.g. a weapons factory during war time', it seems unli*ely that private rights would prevail, rather an award of damages would be made. 4ne might uestion how this fits with the 35% 67789 The answer is it fits well. "n !ennis v Ministry of !efence, the #laimant owned a large estate adjoining an 5%( airbase used to train pilots. The harrier planes hovered in the air causing a lot of noise. The #laimant argued that this was a nuisance or alternatively that it infringed %rt 8 and %rt 6 of Protocol 6 & uiet enjoyment of property'. The !efendant argued that the public benefit was paramount. The court held that the activity was a nuisance and that public interest is not to be ta*en into account in deciding whether there is a nuisance. "t can be ta*en into account in deciding the remedy though i.e. damages or an injunction. The court held that the nuisance could continue but that the !efendant had to pay damages.

Locality
3ow important is the location of the nuisance in relation to the #laimant's property9 "n :t. 3elen's :melting v Tipping, the #laimant bought property in ;une 68<= and a few months later the !efendant began smelting wor*s one and half miles away and the #laimant claimed that the fumes caused damage to plants on his property. The 3ouse of /ords found for the #laimant. 4ne of the issues for the 3ouse of /ords was whether the judge's direction to the jury had been correct in law1 the judge said that there was no liability for nuisance if !efendant's activities were carried on in a convenient and suitable place. The court stated that in order for it to be a nuisance there must be >material injury to property>, and in such a case the location of the nuisance is irrelevant. 0hereas if only

"" simple discomfort is caused, the location of the activity is relevant. 3owever, in the latter case, a landowner has to put up with >those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and public at large>. This does not apply where material injury to property is concerned. 0hy has the law chosen to distinguish between damage to property and damage to the enjoyment of the property &*nown as loss of amenity'. 0hy the automatic conclusion in the first but the balancing e)ercise in the second9 /oss of amenity would include things such as a bad smell or noise. The reasoning is two?fold: &6' a material injury is never reasonable, &@' smells and noise are part and parcel of living in busy areas li*e a city where there may be many shops but not of a property in the countryside. %s such, the locality becomes relevant to how reasonable it is for the !efendant to carry on the activity. "t is interesting to note that the grant of planning permission by a local authority does not mean that an action in nuisance cannot be brought, as the court is not bound by administrative decisions and an award of compensation may be re uired: 0heeler v ;; :aunders A677<B #h 67. 3owever, where the new building will change the character of the locality, the assessment of whether it constitutes a nuisance is to be made based on how the locality is after the development and not before. :o a residential area which has planning permission for a factory &and it can be said that this changes the >character of the neighbourhood>' the locality considered by the court will not be a residential area but a residential area with a factory in it: 3unter v #anary 0harf A677CB %# <DD. #learly the latter locality will ma*e it much more reasonable for there to be noise or smell annoyance.

Sensitivity of the Claimant's Use of Land

"n 5obinson v Eilvert &6887' F6 #h ! 88, the #laimant was a tenant leased to him by the !efendant which was used as a paper warehouse. The !efendant retained the use of the cellar which he re uired to be very hot and dry. %s a result the floor of the warehouse heated up and dried #laimant's paper ma*ing it less valuable. 4ne issue for the #our of %ppeal was whether an action in nuisance would succeed. The court held that heat in itself is not a no)ious thing and as it was not e)cessive there was no nuisance. 4rdinary paper would not be affected by the heat and the #laimant cannot therefore complain that his sensitive paper is affected. %s long as the !efendant is behaving reasonably, the #laimant cannot use the sensitivity of their trade as an e)cuse.

Malice
"n #hristie v !avey A687GB 6 #h G6<, the #laimant's family were a musical family and practiced music in the house. The !efendant ne)t door got annoyed and wrote saying they had been disturbed but what sounded li*e howling of a dog and dreadful scrapings on a violin. The letter was ignored and the !efendant started ma*ing noise in his house whenever the music was going on such as *noc*ing on the wall, beating trays. The #laimant sought an injunction and the !efendant counter claimed for an injunction. The court held that the noises made by !efendant were not of a legitimate *ind and were e)cessive and unreasonable as they were done deliberately and maliciously to annoy the #laimant. Thus the injunction was granted to #laimant. 3owever, it is different where the action being done by !efendant does not amount to a nuisance. "n 2radford #orporation v Pic*les A687DB %# D8C, Pic*les owned land with a spring on it that supplied water to #laimant's dams. Pic*les wanted to divert the water rendering #laimant's dam useless. The trial judge found that the purpose of the draining was not to allow Pic*les to uarry stone but so that he could get the #laimant to pay him. The 3ouse of /ords held that #laimant was not entitled to an injunction. "t was said that the act was lawful even though the motive was malicious as motive is irrelevant. Malice is not a relevant factor unless it

"3 affects the reasonableness of !efendant's actions. Pic*les can be understood because it was perfectly lawful for the !efendant to do with his property as he pleased, he was not causing a nuisance to anyone. "f he had chosen to direct his water towards a person's property &causing damage' rather than directing it away, there would have been a claim. Nuisance law is historically concerned with preventing something emanating from !efendant's land and not the opposite.

Negligence and Fault

4ne of the more confusing issues in nuisance is whether it re uires fault &i.e. at the least negligence' for liability. The answer seems to be that it depends on &6' what remedy is being sought and &@' what is meant by fault. "t appears that if an injunction is being sought, the uestion of fault is irrelevant. The !efendant may have acted carefully with their land but an injunction can still be granted if the activity is an unreasonable use of land. 3owever, is fault re uired when damages are sought9 "n #ambridge 0ater v Hastern #ounties /eather A677FB @ %# @<F, it was said that a failure to ta*e reasonable care will not establish liability in nuisance. 3owever, this does not mean that liability is unaffected by foreseeability. The use of the land may be unreasonable because it could foreseeably result in nuisance to the neighbour. "t is not a defence in nuisance, as it is in negligence, to show that they too* reasonable steps to avoid the harm. "f the activity constitutes a nuisance that is all that is re uired.

Nuisances Created by Third Parties

There are a number of cases where the !efendant will be liable for a nuisance created on their land by a third party. "n this category, the basis of liability appears similar to that in negligence. 0here the only cause of action is nuisance, the !efendant will be liable only for loss of amenity of the land. 0hereas if there is also a cause of action in negligence, the liability in nuisance will mirror that of the negligence. "n :edleigh?!enfield v 4'#allaghan A67F=B %# 88=, the !efendant owned land on which a pipe had been built ta*ing water away from a ditch. "t was built by the local authority without the !efendant *nowing and amounted to trespass. The local authority was meant to put a grate on the pipe preventing debris from entering but instead left it at the side. The #laimant owned neighbouring land which became flooded after the debris bloc*ed the pipe and flooded. "n order for the !efendant to be liable they needed to have had *nowledge of the cause and probable effects of the nuisance. The !efendant *new of the danger and were able to prevent it but did not ta*e any reasonable steps. 4ne reason why nuisance was argued and not negligence was because of negligence's reluctance to impose liability for omissions. %nother benefit of arguing a case in nuisance is that loss of amenity of land is not actionable e.g. bad smells or noise. These bad smells or noise would have to result in property damage or financial loss to be actionable. :edleigh is also authority for the proposition that a single isolated incident can be the basis of a nuisance claim, it need not be an ongoing activity.

Nuisance and Acts of Nature

"f an occupier can be liable for third party acts how about nuisance created by nature. The courts have not always been consistent. "n /emmon A687FB it was not doubted that an occupier of land on which trees grew whose branches overhung into the neighbour's property had committed a nuisance, provided that there was some damage. 3owever an occupier who allowed thistles to grow on his land was not liable when seeds blew onto neighbouring land resulting in the proliferation of thistles. "t was said that there was no duty to an adjoining property to cut thistles which grew naturally: +iles v 0al*er &687='.

"+ "n +oldman v hargrave A67C<B, lightening struc* the !efendant's property and set fire to a tree which became a fire ris* &assumedly because it was now easier for it to catch on fire again'. The !efendant too* some steps to alleviate the ris* which were inade uate and a fire later started which damaged #laimant's property. %pplying :edleigh?!enfield the Privy #ouncil held that the occupier of land owed a duty to remove any haIards, natural or not. The duty was based on the occupier's *nowledge of the ris*s and foresight of possible damage to the neighbour. The occupier had to ta*e reasonable steps. The resources of the occupier can be ta*en into consideration. The #ouncil held that the present case should have been brought in negligence not nuisance. The leading Hnglish case is /ea*ey v National Trust A678=B -2 F8D, where the #laimant owned two houses at the base of a large mound on the !efendant's land. %s a conse uence of natural weathering part of the mound had bro*en off and fallen onto the #laimant's land and the !efendant was aware of this. /ater a large crac* formed in the mound and the !efendant refused to ta*e action claiming they were not responsible for natural movement of the land. :hortly after debris fell onto the #laimant's land. The #laimant brought an action for an injunction and damages. The court held that the claim was essentially for failing to ta*e reasonable steps &negligence' but that nuisance was an appropriate vehicle.

The Nature of Private Nuisance

0ho can bring an action for nuisance9 3istorically only a person with a possessory or proprietary interest could. "n 3unter v #anary 0harf A677CB %# <DD, two appeals were heard by the 3ouse of /ords relating to nuisance form construction in canary wharf. There were two issues: &6' whether interference with television signals by new buildings was nuisance and &@' who could bring a claim. The 3ouse of /ords held that there was no cause in respect of the television signals and that only those with e)clusive possession could sue in nuisance. H)clusive possession is a right that belongs to a freeholder or a leaseholder. The decision in 3unter has not been well?regarded by everyone. The underlying approach is the approach which has characterised nuisance law historically, namely, the protection of land. Thus the fact that the television signal was disrupted did not damage the land but simply posed an inconvenience and annoyance. This can be contrasted with where the inconvenience and annoyance affects the amenity of the land. %rguably, however, in the case of a disrupted television signal there is not much difference: the lac* of a signal ma*es the property less enjoyable just as the presence of smell or sound would. The court in this case simply too* the view that the discomfort caused was not great enough and, perhaps, did not affect the land in uit a direct way as a bad smell or noise would do.

efences
Claimant coming to the Nuisance "n Miller v ;ac*son A67CCB # purchased a house adjacent to a cric*et ground where cric*et had been played for C@ years. 2alls fre uently hit the walls of the house or went into the garden some causing damage to the property. The cric*et club erected a fence which was insufficient and offered to place a net over the garden and install unbrea*able glass. These offers were rejected and sought an injunction and damages. The court agreed that the cric*et activities amounted to a nuisance even though they had been going on long before the #laimant moved in but thought an injunction was inappropriate. The court held that there was no defence of coming to the nuisance as it would be against public policy to allow an nuisance to continue simply because it had been for a number of years. 3owever, it was said in /ea*ey that it may be a defence if the #laimant *nows fully that the nuisance is ta*ing place but still elects to go there and by word or deed demonstrated their willingness to accept it. "t is possible for a volenti non fit injuria defence to apply in

", nuisance. 3owever, the facts of /ea*ey were best viewed as a claim in negligence not nuisance so too much should not be read into this judgment. Thus the best view is that it cannot be said that the #laimant has consented to the activities unless it is absolutely clear. 3owever, as was mentioned above, a #laimant can only has the right to e)pect the enjoyment of property which is consistent with the locality. "t is possible for a nuisance which has been a nuisance for @= years to have a defence of prescription under the Prescription %ct. This obviously would not be the case if &6' the #laimant moved in less than @= years ago and &@' the nuisance has been ongoing for less than @= years. Statutory Authority and Planning Permission "t has long been the case that there is no liability for doing something which Parliament has permitted &provided it is done without negligence'. "n %llen v +ulf 4il refinery A6786B %# 6==6, the !efendant built a refinery under the +ulf 4il 5efinery %ct 67<D and the #laimant complained that it produced noise and vibrations. The 3ouse of /ords held that the %ct gave implicit protection against actions in nuisance. /ess straight forward are cases involving the grant of planning permission by a local authority. The #ourt of %ppeal in %llen A678=B held that it did not have the same effect as statutory authority. "t was said that the only authority the council had to authorise a nuisance, if any, was its power to permit the change of character of a locality as discussed above: +illingham 2orough #ouncil v Medway A677GB. The !ule in !ylands v Fletcher 0e have seen above how liability can sometimes be imposed for single isolated incidences, though the law of negligence would sometimes be a better fit. 3owever, there is an e)ception for cases falling with the principle in 5ylands v (letcher. This rule provides that where there has been an escape of a dangerous thing in the course of non?natural use of the land, the occupier is liable for damage which occurs as a result as long as it was foreseeable. This is regardless of whether there has been any fault i.e. strict liability. There are, however, some defences. "n 5ylands v (letcher &68<<' /5 6 H)ch @<D. the !efendant employed independent contractors to build a dam on the land they occupied. They didn't *now that there were five unused mine shafts below the dam and that there was a connection between these mines and the #laimant's mines. 0hen the reservoir was filled water burst into the shafts and flowed into #laimant's mines. The #laimant sought damages. The court said that if a person brings something onto their land which might cause damage if it escapes, they must be liable when it does escape. % distinction was drawn between where the flooding resulted from water brought onto the land or because of some natural collection of water. Nuisance and !yland v Fletcher #ambridge 0ater v Hastern #ounties /eather A677FB. The !efendant used a chemical in its tannery which ended up spilt on the floor. 4ver time it seeped into the ground and was carried by an underground river to a borehole several miles away. The water in the borehole was polluted and would not satisfy the minimum health re uirements and the #laimant had to find an alternative source of water. %n action was brought in negligence, nuisance and under 5ylands1 all failed. The 3ouse of /ords refused the claim on the basis that it was not foreseeable. This does not mean that the escape itself was foreseeable but that the type of harm done would be foreseeable if there was an escape. Thus though spillage of the chemical was foreseeable, pollution of the borehole was not. The escape of the chemical too* place over a long period of time and could hardly be described as isolated, but this did not pose a problem for the application of 5ylands v (letcher.

". 3ow then does nuisance differ from the rule in 5ylands9 The answer is because in nuisance the use of the land has to be unreasonable, whereas in 5ylands it must be non?natural. The court also made clear that the rule did not permit recovery for personal injury as this, in the law generally, re uired at least negligence and thus strict liability was not a high enough standard. Though arguably if it was foreseeable, why not. 3owever, economic loss may be recoverable if it is conse uent on property damage but not if it stands alone. "sca#e "n 5ead v ; /yons A67FCB %# 6D<, the #laimant was an inspector of munitions and had been injured when a high e)plosive shell went off whilst being manufactured at !efendant's factory. There was no negligence alleged and liability was sought under 5ylands v (letcher. The 3ouse of /ords rejected the claim because there had been no 'escape'. Hscape means escape from a place where the !efendant has occupation or control to a place outside his occupation or control. Thus if the #laimant had been injured just outside the gates there would have been liability but not if she was inside the premises. angerous Things %lmost anything can be 'dangerous' for the purpose of 5ylands v (letcher such as, fire, gas, fumes, water, poisonous vegetation, a flag pole, rusty wire. "n an unusual case %ttorney +eneral v #or*e A677GB, the !efendant allowed people onto his land to live in caravans. These people engaged in anti social activities which too* place off !efendant's land. The court held that these people were 'dangerous' within the meaning of 5ylands v (letcher. Non$Natural Use of Land "t is not clear what use of the land constitutes a non?natural use. "t was said in #ambridge 0ater that the storage of chemicals on the land is the typical e)ample of a non?natural use of the land. The case law beyond this is mur*y. "t was said in 5ic*ards v /othian A676GB %# @<G that it must be a special use which brings with it increased danger as opposed to an ordinary use of the land. This would greatly reduce the number of cases where 5ylands v (letcher could be applied. (or e)ample, there are many things which people do ordinarily on land and which don't bring any special danger &such as build a road' but which cannot be considered natural uses of the land. "t was suggested by the commentator 0illiams that the non?natural use test basically means that there must be an unreasonable ris* of harm i.e. balance the ris* against the reasonableness of carrying it on. 3owever, it seems that this cannot be correct because of the comment made in #ambridge 0ater. There was no ris* storing the chemicals and it was not unreasonable to do so yet it was still held to be a non?natural use of land. The best approach is to as* whether, in view of the way land is used in the broader community, the !efendant put his land to a use which was different. :o in 5ylands itself the water in the dam was non?natural even though it was small in uantity whereas a fire in a house is natural even though the fire has no safety guard around it. Private Nuisance and Negligence% %s has been stated earlier one of the most fundamental areas of overlap between the tort of nuisance and the tort of negligence is that of the test of reasonableness. The fact that reasonableness of forseeability is not normally ta*en into account in the tort of private nuisance does not mean that a claimant is automatically e)onerated of a forseeable and malicious damage done by him. Moreover there are also cases, albeit very rare, where a concurrent liability arises out of both nuisance as well as

"/ negligence. 2ut in most of these cases the courts stic* to proving nuisance, because proof of private nuisance more or less covers the remedies that are available under negligence. Private Nui)an+e and Stri+t Lia-i"ity9 !etermining liability in case of private nuisance is not easy because there are very few cases that have truly e)plored the uestion. 2ut there seems to be a general consensus that the *ind of liability attached with nuisance is strict liability. This assertion follows from the following observations1 firstly, considering the uestion of negligence, it is redundant to as* if the defendant had been negligent in carrying out the act. "f it is intolerable to the claimant by ordinary, sensible standards, then the defendant is automatically liable. #onclusion: Jnder the tort of private nuisance, a claimant mostly see*s the remedy of injunction rather than damages. The logic being that, he may be allowed to go bac* to the free and peaceful usage of his property as was the case before the defendantKs intolerable activities. 3owever "njunctions are granted by courts on a discretionary basis. The courts may, therefore, even reject the prayer for an injunction even if an actionable nuisance is proved. This may seem unfair to the reader but if considered in the light of the case of 3unter v. #anary 0harf /imited, where the court refused to award damages to the plaintiff just because the construction of a house by the defendant was interfering with his television signals, the stand of the courts seems justified. (urthermore, cases of private nuisance essentially raise uestions of fact rather than uestions of law. "t is therefore impossible to come up with any infallible form of redressal of such grievances. :uch cases need to be considered by weighing the veracity of claims of substantial interference and unreasonable intrusion. These factors though essentially separate often form a precondition for the e)istence of the other.

[WRITIN: ST<LE=S] Nuisance, particularl$, private nuisance is a co'ple> and confusing area of tort. &he confusion arises because of there are few hard and fast rules as to what a'ount to nuisance, rather than the nu'ber of guidelines. &he (uestion re(uires an anal$sis of the law relating to private and public nuisance as well as #a$land v %letcher. :n addition that it also raises the possibilit$ of negligence which re(uires the discussion of the concept of foreseeabilit$ and re'oteness. %irst of all, it need to deter'ine whether 888888888constitutes a nuisance or not* :n this fact, Ualal3s co'plaint is essentiall$ concerned with 888888 which is clearl$ recogni1ed as a categor$ of nuisance. &he 888888888 would a'ount to a nuisance. &ort law concerns the protection of propert$ rights, in this case P3s right to en4o$ her propert$ without interference.

"@

)uration of interference is one of the factors. :n this regard, the court will take into account in deciding whether a noise a'ounts to a nuisance or not, the shorter the duration of the interference, the less likel$ it is to be unreasonable. 6owever, not all interference will necessaril$ give rise to liabilit$. &here 'ust be give and take between the neighbors. &he har' 'ust be foreseeable and the interference 'ust be substantial not 'erel$ fanciful. :n deciding whether the particular case is unreasonable or not, the court take into account the series of guidelines rather than an$ rigid rules. :t is clearl$ activated b$ 'alice, so pri'a facie he would see' to have co''itted a nuisance. &hus Ualal has no re'ed$ in respect of 0ewel3s action. %inall$ it need to consider whether an$ re'edies that 'ight be available to Ualal. &he re'edies available against Ualal would be da'ages to co'pensate for past nuisance and an in4unction to prevent further nuisance. &he lai'ant will probabl$ seek an in4unction.