Private nuisance

Held, that one-off oil spill did not represent a continuing nuisance regardless of the continued presence of the oil on the claimants' land

No continuing nuisance existed in the present case because, outside the claimants' land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants' land

Oil leak was a one-off event or an isolated escape, and the oil pipe was no longer leaking after (first) six hours

Cause of action accrued and was complete once the claimants' land had been affected by the oil: there was no continuing cause of action for as long as the oil remained on the land.

While continuing control will almost always be present in a case of continuing nuisance, this is not a necessary requirement; this is because the person who has created a nuisance can be sued in the tort of private nuisance even though that person may no longer have control over the state of affairs that is causing the continuing nuisance.

In general terms, the tort of private nuisance is committed where the defendant's activity, or a state of affairs for which the defendant is responsible, unduly interferes with (or, as it has commonly been expressed, causes a substantial and unreasonable interference with) the use and enjoyment of the claimant's land

Nearly always the undue interference with the use and enjoyment of the claimant's land will be caused by an activity or state of affairs on the defendant's land so that the tort is often described as one dealing with the respective rights of neighbouring landowners or occupiers

But the creator of the nuisance can be sued whether or not that person still has (or perhaps ever had) any interest in the land from which the nuisance emanates

Tort of private nuisance is actionable only on proof of damage and is not actionable per se

Such requirement is satisfied for private nuisance by establishing the undue interference with the use and enjoyment of the land

That includes physical damage to the land itself and damage to buildings or vegetation growing on the land

But commonly there will be an undue interference with the use and enjoyment of land - as by the impact of noise or smell or smoke or vibrations or being overlooked - even though there is no physical damage to the land or buildings or vegetation.

If complained conduct amounts to private nuisance, the permission of Advocate-General was immaterial.

Existence of planning permission for a given use was of very limited relevance to the question whether that use constituted a private nuisance

Such planning permission may at best provide some evidence of the reasonableness of the particular use of land in question

Planning authorities were concerned with the public interest in development and land use, as that interest was defined in the planning legislation and any relevant development plans and policies

Planning powers did not exist to enforce or override private rights in respect of land use, whether arising from restrictive covenants, contracts, or the law of tort.

Such a change or the introduction of a new activity may in some circumstances and to some degree be compatible with the existing character of the locality, and to that extent not involve the creation of a nuisance

With or without planning permission, the character of an area may be susceptible over time to gradual change and development

Each step in the process may be said by itself to fit with the existing character and be largely imperceptible, though, ultimately, the difference resulting from the totality of all the steps may be considerable

In the meantime, those occupying property, living or working, in the area, would have had time to adapt

Such a process was quite different from the one brought about by an activity which increased in intensity or was introduced for the first time and brought about a radical change over a relatively short period

In the latter case and to the extent that the increased or new activity went beyond anything which would fit with the existing character of the locality, an aggrieved occupier could have cause for complaint about a resulting nuisance.

Guidance provided by the Supreme Court (UK) in relation to cases where damages may be awarded instead of an injunction.

Planning permission granted by planning authority establishing, by condition, a framework of acceptable noise levels and time limits with the benefit of expert advisers

Where the evidence showed that such a set of conditions had been carefully designed to represent the (planning) authority's view of a fair balance, they were not binding on the judge, but they may help to bring some order to the debate

However, if the defendant sought to rely on compliance with such criteria as evidence of the reasonableness of his operation, the onus was on him to show compliance

By contrast, evidence of failure to comply with such conditions, while not determinative, may reinforce the case for a finding of nuisance under the reasonableness test.

Mere fact that the activity which was said to give rise to the nuisance had the benefit of a planning permission was normally of no assistance to the defendant in a claim brought by a neighbour who contended that the activity caused a nuisance to his land in the form of noise or other loss of amenity

Seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing him with compensation

Planning authority could be expected to balance various competing interests, which would often be multifarious in nature, as best it could in the overall public interest, bearing in mind relevant planning guidelines

Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constituted a nuisance

However, there would be occasions when the terms of a planning permission could be of some relevance in a nuisance case; thus, the fact that the planning authority took the view that noisy activity was acceptable after 8.30 am, or if it was limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point in a case where the claimant was contending that the activity gave rise to a nuisance if it started before 9.30 am, or was at or below the permitted decibel level

While the decision whether the activity caused a nuisance to the claimant was not for the planning authority but for the court, the existence and terms of the permission were not irrelevant as a matter of law, but in many cases they would be of little, or even no, evidential value, and in other cases rather more.

Character of any locality may not conform to a single homogeneous identity, but rather may consist of a varied pattern of uses all of which needed to coexist in a modern society

Due account also needed to be taken of the process by which the pattern of uses had developed

Not unreasonable to start from the presumption that the established pattern of uses generally represented society's view of the appropriate balance of uses in a particular area, taking account both of the social needs of the area and of the maintenance of an acceptable environment for its occupants

Law of nuisance was there to provide a residual control to ensure that new or intensified activities did not need lead to conditions which, within that pattern, went beyond what a normal person should be expected to put up with

In such circumstances, if someone bought a house next to a (sports) stadium, he should not be able to sue for nuisance, even though the noise may be highly disturbing to ordinary home life on match days

Significant disturbance on match days may be regarded as a necessary price for an activity regarded as socially important, provided it was subject to proper controls by the public authorities, including the police, to ensure that the disturbance was contained as far as reasonably practicable

Claimant who had bought a house next to a stadium should not be able to sue for nuisance not because he came to the nuisance, nor (necessarily) because it had continued for many years; rather it was because it was part of the established pattern of uses in that area, and society attached importance to having places for professional sports within urban areas

Such a claimant could however sue if there was something about the organisation, or lack of it, which took the disturbance beyond what was acceptable under the reasonableness test.

Where a claimant had established that the defendant's activities constituted a nuisance, prima facie the remedy to which he was entitled (in addition to damages for past nuisance) was an injunction to restrain the defendant from committing such nuisance in the future

Prima facie position was that an injunction should be granted, so the legal burden was on the defendant to show why it should not be granted

When a judge was called on to decide whether to award damages in lieu of an injunction, there should not be any inclination either way, and the outcome should depend on all the evidence and arguments

In some cases, the grant of planning permission for a particular activity (whether carried on at the claimant's, or the defendant's, premises) may provide strong support for the contention that the activity was of benefit to the public, which would be relevant to the question of whether or not to grant an injunction

Accordingly, the existence of a planning permission which expressly or inherently authorised carrying on an activity in such a way as to cause a nuisance by noise or the like, could be a factor in favour of refusing an injunction and compensating the claimant in damages

Court in such cases would have to weigh up all the competing factors

In some cases the court may well be impressed by a defendant's argument that an injunction would involve a loss to the public or a waste of resources on account of what may be a single claimant, or that the financial implications of an injunction for the defendant would be disproportionate to the damage done to the claimant if he was left to his claim in damages

In many such cases, particularly where an injunction would in practice stop the defendant from pursuing the activities, an injunction may well not be the appropriate remedy.

Most uses of land said to be objectionable could not be restrained by injunction simply as between the owner of that land and his neighbour

If the use of a site for an activity was restrained by injunction, that prevented the activity as between the defendant and the whole world; yet it may be a use which was in the interest of many other people who derived enjoyment or economic benefits from it of precisely the kind with which the planning system was concerned

Injunction prohibiting the activity entirely would operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account

Solution to such a problem was to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property

In a case where planning permission had actually been granted for the use in question, there were particularly strong reasons for adopting such a solution, as it was what the law normally provided for when a public interest conflicted with a proprietary right.

Defendant, faced with a contention that his activities gave rise to a nuisance, could rely on those activities as constituting part of the character of the locality, but only to the extent that those activities did not constitute a nuisance

If the activities couldn't be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood

In many cases, it was fairly clear whether or not a defendant's activities constituted a nuisance once one had established the facts, and questions as to the precise identification of the locality or its character did not have to be addressed

However, in some cases, the court may have to go through an iterative process when considering what noise levels were acceptable when assessing the character of the locality and assessing what constituted a nuisance

Any other activity in the neighbourhood could (also) properly be taken into account when assessing the character of the neighbourhood, to the extent that it did not give rise to an actionable nuisance or was otherwise unlawful

Other uses which may not have obtained a specific sanction (through being agreed to by the claimant, through a prescriptive right or through the court refusing an injunction), but which were unobjectionable as a matter of law, may therefore (also) be taken into account.

Although it might well be a defence, at least in some circumstances, for a defendant to contend that, as it was only because the claimant had changed the use of, or built on, his land that the defendant's pre-existing activity was claimed to have become a nuisance, the claim should fail.

Where the court decided to refuse the claimant an injunction to restrain a nuisance, and instead awarded him damages, such damages were conventionally based on the reduction in the value of the claimant's property as a result of the continuation of the nuisance

Arguably where a claimant had a prima facie right to an injunction to restrain a nuisance, and the court decided to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimant's property

Damages in such a case might well, at least where it was appropriate, also include the loss of the claimant's ability to enforce his rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction.

Assessment of the character of the locality for the purpose of assessing whether a defendant's activities constituted a nuisance was an issue of fact and judgment for the judge trying the case

Sometimes, it may be difficult to identify the precise extent of the locality for the purpose of the assessment, or the precise words to describe the character of the locality, but any attempt to give general guidance on such issues risked being unhelpful or worse

Character of the locality must be assessed by reference to the position as it was as a matter of fact, save to the extent that any departure from reality, or artificial assumption, should be made as a matter of logic or legal requirement (the presumption of reality)

Accordingly, in a nuisance claim, one started with the proposition that the defendant's activities were to be taken into account when assessing the character of the locality.

Planning decisions may require individuals to bear burdens for the benefit of others, the local community or the public as a whole

However, it was generally no defence to a claim of nuisance that the activity in question was of benefit to the public.

Defendant could possibly obtain by prescription (a form of deemed grant that arose as a result of long use) a right to commit what would otherwise be a nuisance by noise.