BY Chimwemwe Tembo and Mwaba Phiri
Law of Tort - Nuisance
Nuisance refers to a situation or disturbance that interferences with use of enjoyment of someone’s property. They are two types of nuisances; public and private nuisance. Private nuisance is an unlawful indirect interference with a person’s enjoyment of land. While public nuisance is an unreasonable, unwarranted, or unlawful interference with a right common to the general public, to put it simply, it is an act affecting the public at large or some considerable portion of it[1].
Public
nuisance is generally a criminal offence punishable by the state, as compared
to private nuisance which is a common law tort, that causes a claimant to
suffer loss or harm resulting in legal liability against the person who commits
the tortious act. Therefore, the main focus of this article will be to discuss
private nuisance, its elements, defenses and remedies that may be available.
Private nuisance is a tort which deals with
disputes between adjacent landowners. According to Hunter v
Canarey Wharf[2], private nuisance may
come in three forms; the first of which is nuisance by encroachment on a
neighbour's land, secondly, nuisance may be committed by a direct physical
injury to the neighbour's land. Finally, it may come in the form of
interference with a neighbors’ quiet enjoyment of his land.
RATIONALE
OF THE TORT
The rationale is seeking to balance between the
right of one person to use their land in whatever way they wish and the right
of their neighbor not to be interfered with. The court seeks to balance the
interests of both the plaintiff and the defendant. This was illustrated in case National Hotels Development Corporation (T/A
Fairview Hotel) v. Motala [3], Where the appellant
used to play loud music at night on the terrace of his hotel much to the
annoyance of the respondent who lived nearby. Without this music, the appellant
argued, he would have less customers which in turn would mean financial loss
for him. The court in striving to strike a balance, noted that the sensible
approach to be taken is to allow the music to be played at reasonable levels,
up to a reasonable hour. The blanket ban was too harsh as it ignored the rights
of the defendant which equally need to be recognized and protected. In that
regard, the appeal was allowed to the extent that the complete ban on the
playing of music on the terraces was set aside. Instead, the court permitted
the playing of music on the terraces up to 21.30 hours during weekdays and
22.30 hours during weekends.
WHO CAN SUE? The court in Hunter v Canary Wharf,
[4] held that in order to
sue under private nuisance a claimant must have legal interest in the land.
They must have proprietary interest or de
facto exclusive possession in the land, these include owners, occupiers,
tenants with de facto exclusive possession. Persons who cannot sue include
Family/guests of the owner Employees Licensees. The court further stated
that the rationale of awarding damages for nuisance, where there has been
personal discomfort, are assessed on the basis of compensation for diminution
of the amenity value of the land rather than damages for that personal
discomfort.
Further
in order to success in claiming under this tort the burden of proof claimant
must proof rest on the claimant to prove the following elements.
REQUIREMENTS
OF THE TORT OF NUISANCE
1.
CONTINUOUS INTERFERENCE
This
requires that there should be a continuous interference with the claimant's use
or enjoyment of their land or some right over it. This interference must be
ongoing and persistent rather than a one-time event. While the interference
need not be constant throughout the day, it must be frequent or regular to
constitute a nuisance. For instance, in De Keyser's Royal Hotel Ltd v Spicer Bros
Ltd[5],
where a noisy and dusty pile machinery operating at night during temporary
building works was held to be a private nuisance. Even though the interference
was limited to nighttime hours, it was deemed to be sufficiently continuous to
constitute a nuisance.
However,
there are rare instances where a single act can be considered a private
nuisance. This evident in Crown River Cruises Ltd v Kimbolton
Fireworks Ltd[6],
where a firework display was held to be a nuisance because it was inevitable
that for 15 to 20 minutes debris of a flammable nature would fall upon nearby
property causing damage. In this case, while the interference was limited in
duration, the severity and inevitability of the damage were sufficient to
warrant the conclusion that it constituted a nuisance.
The
concept of continuity is crucial in determining whether an interference is
actionable in nuisance, it is not enough that the interference is merely
occasional or temporarily rather the interference must be ongoing, persistent
and it must have a substantial impact on the claimant's use or enjoyment of
their land.
2.
UNLAWFUL INTERFERENCE OR
UNREASONABLENESS
To
establish a claim in private nuisance, the claimant must demonstrate that the
defendant's conduct was unreasonable thereby making the interference with their
land unlawful. This principle is often summarized as "use your property as
not to injure your neighbor's land."
When
assessing the reasonableness of the defendant's conduct, several factors have
to be taken into consideration:
(i)
The Locality
The
character of the neighborhood is a significant factor in determining whether an
interference is unreasonable, it was stated in the case of Sturges v Bridgman[7],
that “what would be a nuisance in a quiet residential area might not be
considered a nuisance in a more industrial or commercial area”. For
example, the noise from a factory might be considered reasonable in an
industrial estate but unreasonable in a residential neighborhood.
(ii) Sensitivity of the Claimant
The
sensitivity of the claimant's use of the land is another relevant factor where the
law generally applies a standard of tolerance based on the expectations of a
"normal" neighbor. Consequently, a claimant who has an unusually
sensitive use of their land is less likely to succeed in a nuisance claim. In Robinson
v Kilvert[8], the claimant's
paper which was unusually sensitive to heat was damaged by heat emanating from
the defendant's adjoining premises. The claim failed because ordinary paper
would not have been affected by the temperature. Meanwhile, in McKinnon
Industries v Walker[9],
where fumes from the defendant's factory damaged delicate orchids. Because the
fumes would have damaged flowers of ordinary sensitivity, the interference was
deemed to be a nuisance.
(ii) Utility of the Defendant's Conduct
The
utility of the defendant's conduct is also another relevant factor, whereby if
the defendant's conduct is socially useful or necessary, the court may be more
willing to tolerate a certain level of interference. However, the utility of the
defendant's conduct must be weighed against the severity of the interference
and the reasonableness of the claimant's use of their land. In the case of Harrison v Southwark Water Co[10]
the defendant, a water company was undertaking building work in a residential
area. The claimant argued that the noise and disruption caused by the work
amounted to a nuisance. However, the court held that the building work did not
constitute a nuisance because it was necessary to provide essential water
services to the community.
The
also court emphasized the utility of the defendant's conduct in its decision
and that the provision of water is a vital service that benefits the entire
community. While the building work caused some inconvenience to the claimant,
the court found that the benefits of the work outweighed the interference. In
contrast, in Adams v Ursell[11],
where a fried fish shop was found to be a nuisance in a residential area. The
claimant argued that the smell and smoke from the shop interfered with their
enjoyment of their property. The defendant argued that the shop provided a
valuable service to the community, particularly to the poor people who were his
customers. However, despite the utility of the defendant's conduct, the court
found that the interference was unreasonable. The court stated that the
character of the neighborhood was a relevant factor in determining whether an
activity constituted a nuisance. A fried fish shop was not considered a
suitable use of a residential area and the interference it caused to the
claimant was deemed to be excessive.
DEFENCES UNDER THE TORT OF NUISANCE
1.
STATUTORY COMPLIANCE
Statutory
compliance occurs when a defendant has acted in accordance with a statute or
other legislative authority, this means that the defendant's conduct has been
authorized by law and therefore it cannot be considered unlawful. In such
instances the defendant's actions are deemed to be reasonable even if they
cause some inconvenience or discomfort to others.
A
classic example of statutory compliance is the case of Allen v. Gulf Oil[12]
. In this case, Gulf Oil was authorized by the Gulf Oil Act 1965 to
compulsorily acquire land and construct a refinery. Although the act itself did
not specifically address the operation of the refinery, it impliedly authorized
Gulf Oil to do so and when claimants sued for nuisances caused by the refinery,
the court held that Gulf Oil was not liable as the court’s rationale was that
since the company's actions were authorized by statute, they were not
unreasonable and therefore did not constitute a nuisance.
Similarly,
in Dabson and Ors v Thames Water Utilities Ltd[13],
the claimants alleged that the defendant's sewage works had caused a nuisance
by emitting foul odors and polluting the local environment, the defendant
argued that it had complied with all relevant environmental regulations and
permits issued under the Environmental Protection Act 1990. The court held that
while statutory compliance is generally a strong defense to nuisance, it is not
an absolute defense. In Dabson, the court found that the defendant had acted
reasonably in complying with the environmental regulations. The court
considered factors such as the nature of the defendant's activities, the
location of the sewage works and the steps taken by the defendant to mitigate
any potential nuisance. Based on these factors, the court concluded that the
defendant's statutory compliance was a sufficient defense to the nuisance
claim.
It
is important to note that the mere fact that a defendant is complying with a statute
does not automatically absolve them from liability for nuisance. The statute
must be clear and unambiguous in its authorization of the defendant's conduct.
If the statute is open to interpretation or if the defendant's actions exceed
the scope of the statutory authority, they may still be liable for nuisance.
2.
PRESCRIPTION
This
principle is rooted in the case of Sturges v. Bridgman[14],
where a confectioner's workshop had been operating for over 20 years before a
doctor built a consulting room next door. The court held that the
confectioner's long-standing use of the workshop had established a prescriptive
right therefore preventing the doctor from claiming nuisance.
Prescription
in the context of nuisance means that a defendant's continued and uninterrupted
use of property in a particular manner for a sufficiently long period can
confer a legal right to continue that use, even if it causes inconvenience or
annoyance to others. This is based on the idea that if a nuisance has persisted
for an extended time without objection, it is reasonable to assume that the
affected parties have acquiesced to it.
3.
PLANNING PERMISSION
Planning
permission is a complex legal issue with varying degrees of applicability
depending on the specific circumstances of each case. While the general
principle is that planning permission does not grant immunity from nuisance
claims, there are situations where it can be relevant.
For
instance, in the Supreme Court case of Coventry and others v Lawrence and another[15],
provided valuable insights into the interplay between planning permission
and nuisance. The court emphasized that while planning permission may not be a
direct defense, it can be relevant in two ways:
1. Evidence of Relative Importance:
Planning permission can provide evidence of the relative importance of the
permitted activity within the context of the surrounding area. This can be
helpful in assessing whether the nuisance is reasonable or excessive.
2.
Conditions and Agreements: If a planning permission includes detailed
conditions or agreements that address the potential for nuisance, these can
serve as a benchmark for determining whether the activity is being carried out
in a reasonable manner.
However,
the court also made it clear that planning permission is not a definitive
defense. The question in a nuisance claim remains whether the defendant's
activity is causing unreasonable interference with the plaintiff's enjoyment of
their property.
In
cases where the nuisance arises from a pre existing activity that is
subsequently affected by planning permission, the court may consider factors
such as whether the claimant came to the nuisance or whether the defendant's
activity has become more intensive due to the planning permission. It is
important to note that the admissibility of planning evidence in a nuisance
claim can vary depending on the specific circumstances and the arguments
presented by the parties. In some cases, expert evidence or other documentation
may be necessary to support the relevance of planning permission.
4.
NECESSITY
Necessity
can be invoked when there is an immediate threat of serious harm that cannot be
avoided by any other reasonable means. The actions taken to retaliate the harm must
be proportionate to the threat and must not cause more harm than they prevent.
Additionally, there must be no reasonable alternative available to the
defendant to avoid the harm. Instances of situations where necessity might be a
defense include self defense, prevention of crime
and natural disasters. For instance, a doctor may trespass onto private
property to reach a patient in need of urgent medical attention if there is no
other way to access the patient. Similarly, a person may use reasonable force
to defend themselves or others from an imminent attack, even if that force
causes damage to property or injuries to the attacker.
However,
the defense of necessity is not absolute, the actions taken must be reasonable
and proportionate to the threat and the burden of proof is on the defendant to
establish that the defense applies. Furthermore, the defense of necessity may
be overridden by other legal principles, such as if the defendant's actions are
motivated by malice or intent to harm.
A
notable case that illustrates the application of the defense of necessity is in
the case of Vincent v. Lake Erie Transportation Co[16],
where a ship was moored in harbor during a storm and to prevent the ship
from sinking, the captain intentionally allowed it to come into contact with
the plaintiff's dock causing damage. The court held that the captain's actions
were justified by the defense of necessity as the damage to the dock was less
than the potential harm to the ship and its crew.
5.
ACT OF GOD
According to Justice Blackburn in
the case of Ryland v. Fletcher[17],
“an act of God is a circumstance which no human foresight can provide
against and of which no human prudence is bound to recognize the possibility”. In
other words, it is the interference with the enjoyment of a person's property
which occurs by an extraordinary event that is not the result of a human action
or negligence. For example, a tree falling into a neighbor's property during a
severe storm causing damage. The property owner can invoke the Act of God defense
if they can prove that the storm was extraordinary and that they were not
negligent in maintaining the tree.
REMEDIES FOR THE TORT OF NUISANCE
In
the tort of nuisance, damages are the most common remedy awarded to a plaintiff
who has suffered interference with their enjoyment of their property. The only
effective remedy for a nuisance already committed by the defendant is an award
of damages, the normal remedy for any further commission is an injunction[18].
Damages aim to compensate the plaintiff for the loss or harm they have
experienced.
TYPES OF DAMAGES
1.
GENERAL DAMAGES
These are awarded to compensate the plaintiff
for the loss of enjoyment of their property as well as any physical discomfort
or inconvenience caused by the nuisance. The court will consider factors such
as the severity of the interference, its duration and the plaintiff's
sensitivity to the nuisance.
2.
SPECIAL DAMAGES
These
are awarded to compensate the plaintiff for specific financial losses that can
be directly attributed to the nuisance. Examples include loss of profits,
increased expenses and damage to property.
In
the case of Hunter v. Canary Wharf Ltd[19],
where the plaintiffs claimed nuisance due to interference with their television
reception caused by the construction of a tall building. The House of Lords
held that the plaintiffs could not recover damages for interference with
television reception, as it was not a recognized property right. However, the
case did provide guidance on the factors to be considered when assessing
damages in nuisance cases.
3.
INJUNCTIONS
An Injunction is an
equitable remedy provided where in the law where damages are an insufficient
remedy. An injunction is an order which restricts the defendant from doing an
act of nuisance, or discontinue plans for threatened nuisance. temporary or
permanent injunction may be granted by the court depending on the circumstances
of the case.
In the case of Kennaway v Thompson[20],
the appellant built her house on land near a lake on which there was a
water-skiing and motorboat-racing club. She knew ahead of time of the
activities but did not think that they would disturb her. However, over the years
the activity increased and she brought action for an injunction. The lower
court found that there was a nuisance but refused to grant an injunction,
rather awarding her £1,000 for damages to that date and £15,000 for damages
likely to be incurred in the future. Kennaway appealed seeking an injunction,
which was allowed
The issue in the
case was whether the plaintiff could successfully seek an injunction
as a remedy in the circumstances?
The
reasoning of the court was that once the plaintiff had proved that the
club had caused a nuisance that interfered in a substantial and intolerable way
with the enjoyment of her house, she was entitled to be granted an injunction.
However, he clarified by stating that the injunction must protect her from
excessive noise, but not prevent the club from organizing events about which
the plaintiff cannot reasonably complain. As a result, the injunction laid out
detailed provisions about how and when the club could operate.
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[1]Cornell Law School” Private Nuisance”, https://www.law.cornell.edu> accessed
25 October 2024
[2] [1997] UKHL 14
[3] 2002 ZMSC 129
[4] ibid
[5] 1914.
[6] 1996.
[7] 1874.
[8] 1889.
[9] 1951.
[10] 1891.
[11] 1913.
[12] 1981.
[13] 2009.
[14] 1879.
[15] 2015.
[16] 1910.
[17] 1868.
[18] Winfield and Jolowitz,
[19] 1997.
[20] 1980.