What a nuisance! A practical approach to nuisance claims and recent case law. A paper by Joseph Ollech of Falcon Chambers given to the Junior PLA South West Group in April 2017

 

What a nuisance! A practical approach to nuisance claims and recent case law.

Joseph Ollech, Falcon Chambers.  April 2017

“What is a place in this obscene state of dilapidation but a Nuisance? What is a man in your obscene state of dilapidation but a Nuisance? Then, as you very well know, you cannot do without an audience, and your audience is a Nuisance…in short,” said Mr. Traveller, summing up in a quietly and comfortably settled manner, “you are a Nuisance, and this kennel is a Nuisance, and the audience that you cannot possibly dispense with is a Nuisance, and the Nuisance is not merely a local Nuisance, because it is a general Nuisance to know that there CAN BE such a Nuisance left in civilisation so very long after its time.”

From: Tom Tiddler’s Ground, by Charles Dickens

 

Introduction

  1. This talk, as one may have guessed from the title, focuses on the subject of nuisance, and in particular private law nuisance. But as everyone here is no doubt familiar with the principles of nuisance I will not be taking up your time by dealing at length with the basics.  I will briefly summarise the essential outline of the tort of nuisance just so as to set the context, and then go on to use some recent decisions of the Court of Appeal as a platform for considering some particular problems and issues that may arise in this context.

 

Nuisance 101 – a reminder

  1. At its heart private nuisance flows from conduct by one person that interferes with another person’s use or enjoyment of land or of some right, such as an easement, that is connected with land. It can arise in a number of ways – physical encroachment on land, physical damage, or undue interference with the neighbour’s comfortable and convenient enjoyment of his land.  The causes of such interference may be physical – such tree roots growing across land, or affecting foundations – or they may be intangible, such as noise or smells.   Unlike trespass, it is not actionable per se; there generally needs to be actual damage in order for there to be a cause of action.

 

  1. The principle is that in order to be actionable a nuisance must be a “real” or “substantial” interference with the comfort and convenience of living – and that is judged by the objective standard of the average or reasonable man. It looks to “what is reasonable according to the ordinary usages of mankind living in society…” [Sedleigh-Denfield v O’Callaghan [1940] AC 880] and not one of “mere delicacy or fastidiousness…not merely according to elegant or dainty modes and habits of living but according to plain and sober and simple notions…” [Walter v Selfe (1852) 4 DE G&SM 315 at 323].

 

  1. Of course, context is also relevant, and so to give you a quote from a slightly more recent decision: whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” [Sturges v Bridgman (1879) 11 Ch D 852 at 864].

 

  1. In short: (a) the claimant must have a proprietary interest in the land or right that is subject to the nuisance (or in the case of interference with an easement, at least a possessory right); (b) the interference does not need to be physical but it does need to be continuous or recurrent; (c) factors relevant in judging its severity include the extent of the harm, intensity, locality, malice, and/or any abnormal sensitivity of the claimant or the property.

 

Forster v The Secretary of State for Communities and Local Government [2016] EWCA Civ 609

  1. I now fast forward to the 21st century, and this recent decision of the Court of Appeal. This is an interesting case because it concerned planning law issues and an unusual argument regarding potential future nuisance.  That latter part was particularly unusual because the claimant’s case was that a decision to grant planning permission to her neighbour meant that it was she herself who might one day in the future be found liable in nuisance to that neighbour.

 

  1. The essential facts were as follows. Ms Forster owned and operated a pub called the George Tavern in Stepney.  She operated it as a nightclub and live music venue on Friday and Saturday nights with a licence to remain open until 3am in the morning, which was said to constitute a major part of her income with the pub being otherwise relatively quiet in terms of turnover during the week.

 

  1. Planning permission was granted to a developer to demolish a single story building next door and erect in its place a three storey building with commercial use on the ground floor and six residential flats on the floors above, against several grounds of objection that had been lodged by Ms Forster. One particular objection was based on the possibility that Ms Forster might subject be to complaints by future residents of the flats regarding noise emanating from the George – notwithstanding that the Inspector had concluded that the residents would not be subjected to unreasonable levels of noise.  In the Court of Appeal it was argued, on her behalf, that that there was a risk –

…unacknowledged by the Inspector, that such complaints might ultimately lead to the revocation of her late night music licence or the grant of an injunction in a private nuisance claim which would curtail the activities that keep the George going.

 

  1. The first point to note is that it is predicated on the principle that it is no defence to a claim in nuisance that that claimant “came to the nuisance”, i.e. that the defendant was there first. That this is not an effective defence was confirmed recently by the Supreme Court in its first decision in Coventry v Lawrence [2014] UKSC 13 (of which more anon).  This proposition dates back to a clutch of nineteenth century authorities, and has been consistently applied notwithstanding Lord Denning MR’s minority dissenting voice in the well known cricket ground case of Miller v Jackson [1977] QB 966.

 

  1. Thus Ms Forster anticipated correctly that if she were sued in the future for nuisance caused by noise emanating from her nightclub and late night music sessions it would be no answer for her to say that she was operating her business there first.

 

  1. The second point to note, therefore, is that the Court of Appeal was concerned with assessing the relevance of the possibility that future claims in nuisance might be made.

 

  1. At first instance Lindblom J held that if “….residents of the flats in the new development were not going to be subjected to unreasonable levels of noise, it would follow that those residents would not be likely to complain about such noise and the spectre of future proceedings against Ms Forster could therefore reasonably be discounted…but in any event the inspector’s task was to make planning judgments on the land use planning issues before him, and not to anticipate the likelihood of future proceedings against Ms Forster as owner of the George Tavern. He cannot be criticised for not venturing into the law of nuisance…”.
  2. The Court of Appeal, however, did not rule out the possibility that such claims could be a relevant planning consideration. Laws LJ said that “the impact of a prospective planning permission on the viability of a neighbouring business may in principle amount to a material planning consideration.”  But Ms Forster’s difficulty was that in order to raise such an argument properly it needed to be clearly raised before the Planning Inspector (emphasis added):

with a sufficient degree of particularity and supporting evidence to enable the Inspector to reach an objective and reasoned decision on the point.  If it is advanced in purely general terms, that would most likely do no more than invite the inspector to embark upon a merely speculative exercise; and such a process would be unorthodox and illegitimate. No doubt there are situations where the threat posed by a prospective planning permission to a neighbouring business will stare the Inspector in the face: the prospect of a new retail outlet across the street from an established shop selling the same range of goods is an instance. But in other cases, and this is surely one, the alleged effects of the proposed development will by no means be so clear. Where that is so, an evidence-based case needs to be made.

In my judgment no such case was presented by the appellant to the Inspector.

  1. And making the same point again, in different words:

There are, certainly, references to a risk that the appellant’s live music licence might or would be lost. But the case she seeks to make is that such a risk (or the risk of an injunction) might eventuate as a result of complaints about noise notwithstanding a conclusion by the Inspector that the noise levels would be reasonable. In my judgment such a case would require chapter and verse – at least some material, if it could be found, to raise the possibility that the licensing or nuisance regime might reach a different conclusion, and to enable the Inspector to form some assessment of the degree of risk involved. Nothing of the kind was put before the Inspector. He was in no position to make any judgment as to the gravity of the risk which the appellant feared.

 

  1. Just as an aside, a passing comment by Laws LJ will no doubt bring a weary smile of recognition to litigators’ faces when he disagreed with Lindblom J’s view that claims in the future could be discounted as unlikely. He said that Humanity being what it is, people are liable to complain about anything; the question here is whether there is any objective possibility of quantifying, however roughly, the likely prospects of success of such complaints. There is none.

 

  1. Clearly in reaching this conclusion (on this issue only – the appeal did in fact succeed on a different ground relating to loss of light) the Court of Appeal did not rule out the possibility of Ms Forster’s argument per se as being hypothetical or speculative. Her argument failed because she did not adduce evidence of her to substantiate her claim as to the potential nuisance that would be caused by her venue to the neighbours, and the likelihood that they would be able to bring successful claims against her.

 

  1. That much is of interest to planning cases and how defensive objections such as this could properly be made. But looking at the point as a matter of private law nuisance, what might be the result if that approach were inverted – i.e. can a claimant bring a claim alleging potential future nuisance by a defendant and seek injunctive relief to prevent or restrain activity that may become a nuisance?  What if you learn that your neighbour plans on holding an all night or all weekend rave and that the noise is likely to be a substantive nuisance?  Prima facie such a claim ought not be possible because absent damage there is no cause of action.

 

  1. But there is, of course, the possibility of an equitable remedy by way of quia timet Injunctive relief is an equitable remedy, and equity is flexible enough to allow a person to seek an injunction even though an infringement of a right has not yet taken place.  The claimant, however, must establish his or her right and also establish a strong case that of likely interference with that right – “no one can obtain a quia timet order by merely saying ‘Timeo” [per Lord Dunedin in AG for the Dominion of Canada v Ritchie Contracting and Supply Co Ltd [1919] AC 999 at 1005].

 

  1. What will be required is proof of imminent danger of substantial damage. In one of the older cases (Crowder v Tinker (1816) 19 Ves 617) it was said that the claimant had to show that the threat “is attended with the extreme probability of irreparable injury to the property of the plaintiffs, including also danger to their existence.”  In Litchfield-Speer v Queen Anne’s Gate Syndicate No.2 Ltd [1919] a Ch 407 it was confirmed that “in all cases of apprehended nuisance the authorities show that if the plaintiff proves that he will certainly sustain substantial damage by what the defendant is about to do the Court will restrain the defendant from doing the act and will not wait until the plaintiff has sustained the damage”.

 

  1. In Forster Laws LJ reached his conclusion without once referring to the case law or standard of proof required in claims for quia timet Nevertheless his overall conclusion is consistent with the approach the court would adopt in such cases.  The common denominator is that if a claimant advances a case based on the possibility of future events then he or she will bear a heavier burden of establishing a positive case that the threatened activity is bound to, or very likely to, result in substantial damage and/or that such damage will not be easily compensated for in damages.

 

  1. This is good advice in the ordinary private law context; and it also serves as useful guidance in the planning context – should one be advising in a case concerning the impact of the potential grant on neighbours. In the unusual “reverse” scenario of the Forster case the claimant may well have been better served (on the nuisance issues) to have gathered evidence as to the decibel levels her business emitted at the weekend, together with expert evidence as to the effect that noise might have on neighbours allowing for soundproofing and insulation conditions etc that the developer had to meet.  In the more likely scenario of objections by neighbours to the grant of planning permission for a night club the same kind of considerations would apply.

 

Cocking v Eacott [2016] EWCA Civ 140

  1. This case addresses the interesting question of whether an owner of property may be responsible for nuisance that is committed by another person who actually occupies the property.

 

  1. Before explaining the facts and the analysis in this particular case it is necessary refer to one of the Supreme Court decisions in the Fen Tigers raceway litigation. You are doubtless familiar with the first decision of the Supreme Court in Coventry v Lawrence [2014] UKSC 13, which is one of the most important leading decisions on nuisance and damages in lieu of an injunction – but it was much reported and written about at the time and I do not digress to deal with it in any detail tonight.

 

  1. In short, the Supreme Court ruled that it was possible to acquire by prescription an easement to carry on an activity that would otherwise be a noise nuisance, confirmed that coming to a nuisance was not a defence, that in assessing the nature of the locality in order to gauge nuisance a defendant could rely on his own activity on the land provided that it was a lawful part of an established pattern of use for the area, and emphasised that the Shelfer criteria for assessing damages in lieu of injunctive relief were not be treated as strict tests. It was held that the primary defendant, who occupied and operated the raceway under a lease, was liable in nuisance.

 

  1. But the case returned to the Supreme Court for the further determination of several questions in [2014] UKSC 46 – and in particular for determination of the issue as to whether the landlord was also liable in nuisance. Lord Neuberger explained that:

The law relating to the liability of a landlord for his tenant’s nuisance is tolerably clear. Lord Millett explained in Southwark London Borough Council v Mills [2001] 1 AC 1, 22, that, where activities constitute a nuisance, the general principle is that “the . . . persons directly responsible for the activities in question are liable; but so too is anyone who authorised them”. As he then said, when it comes to the specific issue of landlords’ liability for their tenant’s nuisance, “it is not enough for them to be aware of the nuisance and take no steps to prevent it”. In order to be liable for authorising a nuisance, the landlords “must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property”.

 

  1. Previous authority indicated that “authorising” a nuisance required there to be a “virtual certainty” or a “very high degree of probability” that a letting will result in a nuisance before the landlords can be held liable for the nuisance [Smith v Scott [1973] Ch 314]. Authority to conduct a business is to not be taken as authority to conduct it in such a manner as to cause a nuisance unless the business cannot be operated without causing a nuisance.  “Participation” requires actual participation; mere receipts of the rent and refraining from taking action could not itself amount to such participation [Malzy v Eicholz [1916] 2 KB 308.

 

  1. I do not go further into the application of those principles to the facts in the Fen Tigers case, save to say that by majority of 3:2 it was held that various acts by the landlord did not amount to “participation”. The essential point I draw from this decision is that the usual position is that a landlord is not liable for his tenant’s nuisance unless he or she (a) authorises it by virtue of the lease or (b) actively participates in it.

 

  1. It is also useful, at this point, to refer to another line of authority that concerns public authorities, and the possibility that they will be held liable for the acts of a third party. In Page Motors Ltd v Epsom & Ewell BC (1981) 809 LGR 337 a local authority was held liable in nuisance for having knowingly allowed travellers to trespass on its land, and thereby cause nuisance to an adjoining occupier. The Court of Appeal held that it was under a duty, once it became aware of the nuisance, to take reasonable steps to remove the cause of the nuisance subject to being allowed a reasonable period of time to do so.  In reaching this conclusion Akcner LJ pointed out that (emphasis added):

…the appellant owned the land upon which the gypsies created the nuisance. It had an immediate right to possession of that land and was in a position in law, and indeed in fact, to control the property. The responsibility, if any, which attaches to it in these circumstances is by virtue of its being the occupier of that land.

 

  1. Ackner LJ also reminded himself of Lord Wright’s formulation in Sedleigh-Denfield that:

The liability for nuisance is not, at least in modern law, a strict or absolute liability. If the defendant by himself or those for whom he is responsible has created what constitutes a nuisance and if it causes damage, the difficulty now being considered does not arise. But he may have taken over the nuisance, ready made as it were, when he acquired the property, or the nuisance may be due to a latent defect or to the act of a trespasser or stranger. Then he is not liable unless he continued or adopted the nuisance, or, more accurately did not without undue delay remedy it when he became aware of it, or with ordinary and reasonable care should have become aware of it. This rule seems to be in accordance with good sense and convenience. The responsibility which attaches to the occupier, because he has possession and control of the property, cannot logically be limited to the mere creation of the nuisance. It should extend to his conduct if, with knowledge, he leaves the nuisance on his land.

 

  1. The distinction therefore appears to be one of control. Where there is a lease the landlord is no longer in control of the site, and accordingly it is more difficult to attach liability to him unless he authorises or participates.  Where there is no lease, blame attaches more easily as the owner of the site is better able to control or regulate the activities on the site.

 

  1. This distinction was made more clearly by Astill J in Winch v Mid Bedfordshire BC 07.2002 (unreported) where a local authority was again held liable for nuisance committed by occupiers of a gypsy site that it owned, given its persistent failure to tackle the problems. Each resident on the site occupied it under licence from the defendant. He said:

The occupier of land is liable for acts of nuisance unless he proves that he has not caused the Nuisance and has done all that he reasonably can to prevent the acts. The so called “landlord and tenant test” is found in Smith v Scott 1973 Ch 314 . The legal owner of land is only liable for acts of nuisance emanating from land caused by a person to whom he has granted a lesser legal interest if the acts have been expressly authorised by him. That is because he is not deemed to be the occupier. The “landlord and tenant test” was applied in Hussain v Lancaster County Council 2000 QB 1 ; Mowan v London Borough of Wandsworth 2001 33 HLR 616 and Southwark LBC v Tanner 2001 AC 1 .

In Page Motors v Epsom Borough Council ; Lippiatt v South Gloucestershire Council and A-G v Corke the person causing the nuisance was or arguably was a licensee and the Council were deemed to be the occupiers and liable as such. The claimants must prove that the defendant is the occupier.

  1. In Cocking v Eacott the court was concerned with a privately owned residential dwelling, with no lease in place. The second defendant was therefore not a landlord, and the nuisance causing first defendant was not a tenant.  The second defendant also did not live in the property from which the nuisance emanated.  The second defendant was, however, the first defendant’s mother and licensor.

 

  1. The facts were these. Ms Kim Eacott lived at 7 Merryhill Terrace, which was owned by her mother, Mrs Waring. She occupied under a bare licence from her mother, who paid all the bills and maintained it. Ms Eacott was held to have created two types of nuisance that affected her next door neighbours – the Cockings – one by the excessive barking of her dog and another by intentional abusive shouting.  At first instance Mrs Waring also held liable for the barking of the dog, which she had knowledge of but had done nothing to abate, notwithstanding that “she was in complete control of the property”.  She was held not to be liable for her daughter’s shouting which she mostly did not know about and which had ceased after an ASBO had been granted against Ms Eacott.  The main issue on the appeal was whether it was right in law to hold that she was liable for the barking when she was the licensor of the property, but did not actually reside there.

 

  1. The question before the Court of Appeal, therefore, were whether she fell to be as a landlord and judged in accordance with the Coventry v Lawrence approach, or whether she was to be judged in accordance with the “occupier” test. For the claimant it was argued that there was every justification for not treating Mrs Waring as a landlord – she had a right to immediate possession and was in law and fact in a position to control the property.

 

  1. Vos LJ came to the conclusion that the “occupier” test applied, and that for these purposes Mrs Waring was the occupier even though she did not reside there. I set out fairly long quote from his decision because it brings together usefully a number of the points that have been developed above, and signposts the important decision in Sedleigh Denfield which is also relevant to the underlying law.

 

When I first looked at this case, I thought that there might be a lacuna in the law in relation to the liability for nuisance of a licensor of residential property. But on a more careful reading of the authorities, it seems to me that the law in this area is well-established and relatively clear. There are, as Mr MacBean was ultimately constrained to accept, two possible tests: one for those in “occupation” of property and one for “landlords” of property. His main contention was that a licensor of residential property should be treated as a landlord rather than an occupier.

In considering who is liable for nuisance, it is important to understand the nature of the tort. It is an action in respect of some condition or activity (normally undertaken on one property) that unduly interferes with another person’s use or enjoyment of another property: see Clerk & Lindsell , 21st ed (2014), para 20-01. The persons that may be sued for nuisance are divided by the editors of Clerk & Lindsell into three classes: (a) the wrongdoer, (b) the occupier, and (c) the landlord and tenant.

The rules applicable to the liability of a landlord for nuisance are not directly applicable where no tenancy exists. But it is instructive to examine the nature of the landlord’s liability because it impacts to some extent on the nature of the occupier’s liability. As Lord Neuberger PSC explained in the Lawrence case, landlords do not become liable for their tenant’s nuisance by simply failing to enforce a covenant, and conversely, if they would otherwise be liable they cannot escape liability just by including a covenant in the lease. To be liable for nuisance, a landlord must either participate directly in the commission of the nuisance by himself or his agent, or must be taken to have authorised the nuisance by letting the property. The fact that a landlord does nothing to stop a tenant from causing the nuisance cannot amount to participating in it.

The landlord has limited liability because the tort looks to blame the person or persons who causes the nuisance. In cases arising after the start of the tenancy, a landlord will not cause the nuisance unless he directly participates in it. He has neither control over nor possession of the property from which the nuisance emanates. The fact that he could, but did not, bring proceedings which would result in an abatement of the nuisance has been definitively been held not to be a ground for holding the landlord liable.

25 An occupier has, however, been held to be in a different position. He will normally be responsible for a nuisance even if he did not directly cause it, because he is in control and possession of the property. The cases show that an owner may be regarded as an occupier of property for these purposes even *1088 if he has allowed others to live or undertake activities on his land. In the Sedleigh-Denfield case [1940] AC 880 , 903, 905 Lord Wright made clear that the liability attaches to an occupier because he has possession and control over the property. There was a debate before us as to whether the principle to be extracted from the Sedleigh-Denfield case was either (i) that an occupier is liable if he continues or adopts the nuisance by failing to abate it without undue delay after he became aware of it or with reasonable care should have become aware of it (as Lord Wright said, at pp 904–905), or (ii) that an occupier is liable if he continues the nuisance by failing to take any reasonable means to abate it after he became aware of it or should have done so (which was how Viscount Maugham, at p 894, and Lord Romer, at p 913, put the matter). In fact, both Lord Atkin, at p 899, and Lord Porter, at p 919, formulated their propositions in a similar way to Lord Wright, so I think that Mr MacBean’s submission that the obligation on an occupier was limited to taking “reasonable means” to abate the nuisance was ill-founded. Rather, Ackner LJ was right in the Page Motors case 80 LGR 337 , 345–346 to cite only Lord Wright’s formulation, since he was in the majority.

In these circumstances, it remains to consider whether a licensor in the position of Mrs Waring was correctly regarded as an “occupier” of the property for the purposes of the application of Lord Wright’s test in the Sedleigh-Denfield case. In my judgment, she was on the facts of this case. The judge held that Mrs Waring was in control of the property, notwithstanding that she did not live there. She allowed her daughter to live there. She knew of the nuisance in 2009, but the judge only held her liable for the period starting in July 2011, nine months after the delivery of the letter before action in September 2010. That might have been regarded as generous, since she was defending her daughter’s misconduct from as early as July 2009. The judge did not think that the falling out that seems to have occurred between mother and daughter after January 2012 made any difference to Mrs Waring’s liability.

Conclusion

  1. This discussion of recent case law has allowed me to illustrate various aspects of private law nuisance and some of the issues that can arise – coming the nuisance, future nuisance, quia timet injunctive relief, and liability for acts of third parties. There has also been a chance to make brief passing mention of matters such as prescriptive rights to cause a nuisance, and the possibility of damages in lieu of injunctions. There are many more facets to private law nuisance that may usefully be the subject of many separate talks – its relationship to other torts such as negligence, and the rule of in Rylands v Fletcher, liability of occupiers for the state and condition of their land (Leakey v National Trust etc), the measure of damages, the distinction between public and private nuisance and more.

 

  1. I doubt, however, that you will consider it to be a nuisance at all that this talk must, however, end. Thank you for bearing with me all this way.

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