Nuisance

Nuisance

1. About activities that originate within the defender's property but cause damage or disturbance outwit the defender's boundaries

   • TYPE OF HARM
     • No Physical Damages but, interference with enjoyment
       • Ireland v Smith - a flock of hens in a built up residential area creating a terrible racket in the morning; the noise created was a nuisance
         • ** Webster v Ld Advocate - Pursuer was one of the inhabitants of Ramsey garden. She sued the organisers of the annual Edinburgh Tattoo (argued the noise was very loud, and the preparation for sittings was a nuisance) Held: Court did not agree that the Tattoo constituted the nuisance, but agreed the the osundof putting the metal structure . In principle constituted a material invasion of her rights- this was therefore a nuisance (organisers were given an ultimatum to reduce noise levels
           • Davidson v Kerr - D complained because next door neighbours were on shifts at odd times; she said this was nuisance. The court held that normal domestic nuisances
             • Laws v Florinplace - complained successfully when dress shop was converted into a sex ship; the Court held it was an affront to a reasonable sensibilities (probably would not stand up today
               • **Globe (Aberdeen) Ktd v North of Scotland Water Authority - working on sewage network; the pavements outside pub were messy and unpleasant and lost business - constituted an actionable nuisance -economic loss because it derived from loss of amenity
                 • Hunter v Canary Wharf- large construction site in the 1990s; nearby residents very miffed blocking television reception - claim dismissed blocking view not a nuisance but the dust generated bu construction site was nuisance
     • Physical Damage
       • RHM Bakeries v Strathclyde Regional Council-- where the defenders sewer overflowed and caused flood damage to bakery; nuisance
         • Cunningham v Cameron - blocked boiler build up from heat caused fire; nuisance
           • Cowrie Castle Properties- expose neighbours property to the elements; actionable nuisance
             • Ben Nevis Distillery v North British Aluminum - noxious fumes coming off aluminium works cause crop damage; actionable nuisance
         • **Kenedy v Glenbelle - Defenders were the proprietors of a basement flat in glasgow; removed load bearing wall - structural damage- nuisance
           • Watt v Jamieson - boiler fumes

2. DETERMINING LIABILITY FOR NUISANCE

   • FIRST TEST: CULPA/FAULT -- may be constituted malice, intent, recklessness, negligence and conduct which creates a special risk of abnormal danger/damage
     • DAMAGES - Fault or culpa MUST be proved
     • RHM Bakeries v Strathclyde- no strict liability
       • Christie v Davey - The defendant had complained of noise from his music teacher's neighbours house by banging on the walls, and beating trays as well as shouting in retaliation. His actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions
         • Sedleigh-Denfield v O'Callaghan [1940] AC 880 - The defendants “knew the danger, they were able to prevent it and they omitted to prevent it” (Lord Atkin at 899). a drain had been built on the defendant’s property sometime back (third party) the layout of the drain - it kept flooding on to the next door neighbours yard- they had ample opportunity to address that hazard and deemed to have adopted it
       • Chalmers v Dixon - successful claiming damages - If you are a proprietor of land and you introduce dangerous material or activity. Either you have to excercise due care to prevent injury OR if there is no way to prevent injury then you are at fault for bringin them on the land in the first place,and therefore are under a HEIGHTENED duty of care- very close to being strict liability
         • Leakey v National Trust [1980] QB 485 - property slipped down mudslide - had been made aware uphill proprietors liable to downhill
     • INTERDICT- Culpa does not need to be pled or proved ; a claim for future damages is not permitted in lieu of interdict but the pursuer may claim for the cost of taking preventative measures to protect property against future dame or disturbance
       • Logan v Wang 1991 SLT 580- The inferior proprietor will be entitled to object if the owner of the higher ground unduly and unnecessarily presses this right with damaging consequences for him/her Claims for future damages as an alternative to interdict are not permitted, although the cost of preventative measures is allowable: See Whitty, “Nuisance” para 150. (Note that Scots and English law differ in this respect.) Scots courts will not allow trade-off.
       • GA Estates Ltd v Caviapen Trs Ltd (No 1) 1993 SLT 1037
   • SECOND TEST: EVALUATING GRAVITY OF THE HARM : If physical damage has been caused, this test does not require lengthy consideration. It has more significance when what is alleged is interference with comfortable enjoyment of property.
     • The plus quad tolerabile test - more than is tolerable
     • Relevant Factors in evaluating the gravity of the harm
       • The Extent of the harm
         • burning mineral waste-has to go beyond sentimental, speculative or trivial; It is irrelevant that the nuisance was known to exist before the complaining owner bought his property, and it is no defence to the perpetrator to say that the party complaining willingly moved into the area where the nuisance already existed
         • Bone v Seale [1975] 1 All ER 787 - but it doesn't have to be so bad that it makes you physically sick Davidson v Kerr [1997] HousLR 11- domestic noise of people coming and going; trivial Other factors such as the frequency of the disturbance and the time of day may be relevant in evaluating the extent of the harm. (hen case)
       • the appropriateness of the use in the particular locality
         • Maguire v Charles McNeil Ltd 1922 SC 174 - forged masters in Kinney park in Glasgow; neighbours were archbishop of glasgow etc when introduced new machine- the pursuers complained. General character was industrial area.
       • the pursuer's conduct
         • Capacity to reduce disturbance— Has the pursuer has taken reasonable measures to reduce the harm suffered? What is reasonable? Webster v Lord Advocate 1985 SC 173 - edinburgh tattoo - not reasonable to expect to keep windows shut all the summer and to install double glazing
       • Sensitivity to harm of the person and property affected
         • Ultra-sensitivity on the part of the pursuer or his or her property is not normally a relevant consideration. Armistead v Bowerman (1888) 15 R 814 - pursuer was hatching very delicate salmon eggs; defenders were upstream doing normal forestry works sent mud downstream which caused the salmon eggs perished; Was this nuisance? No because it was not fair to expect all proprietors in implement special safety measures it is for you to implement special measures
       • Relevance of the public interest
         • - Webster v Ld Advocate 1985 SC 173 per per the Lord Ordinary, Lord Stott, at 180: “Interest cannot overrule law”. Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co Ltd 1948 SC 592
       • ECHR, Article 8?
         • Art 8 does not offer a blank check to those failures and omissions by local authority - *Marcic v Thames Water Utilities [2004] 2 AC 42 Local discretion - inappropriate for Art 8 to be used; there was a statutory scheme - hadn’t gone through the regulator/statutory complaints scheme Wasn’t proportionate to impose liability Cf Hatton v United Kingdom (2003) 37 EHRR 28

3. TITLE TO SUE

   • - Title to sue in nuisance until traditionally been regarded as reserved to aggrieved owners and tenants of neighbouring property (Hunter v Canary Wharf [1997] AC 655), although the question arises whether ECHR Article 8 compels reconsideration of other categories of occupier. See McKenna v British Aluminium [2002] Env LR 30 not about your person; only protects owners and tenants

4. LIABILITY IN NUISANCE FOR ACTIONS OF OTHERS

   • - Stewart v Malik 2009 SLT 205 (independent contractor) Powrie Castle Properties v Dundee City Council 2001 SCLR 146 (independent contractor)
   • But contrast Lippiatt v South Glos Council [2000] QB 51 (nuisance caused by litter etc left by encampment of travelling people) - English law- the council had allowed an encampment of travelling people next to farm land - the court held the local council could be held liable be in nuisance with Hussain v Lancaster City Council [2000] QB 1 (racial harassment suffered by neighbour at the hands of landowner’s tenants) — Not specifically connected to their use of land

5. Defences

   • (i) Statutory authorisation - Defence available where the statute expressly authorised the nuisance, or alternatively if the creation of a nuisance was an inevitable consequence of the operations expressly authorised (Allen v Gulf Oil Co Ltd [1981] AC 1001). Smell noise and vibration by the oil refinary had a statutory defence (inevitable result); the court did point out if they had acted carelessly then nuisance could applyHowever, this statement must be weighed against Human Rights Act 1998, s 6(1) (unlawful for a public authority to act in a way which is incompatible with a Convention right).Note also that planning authorities have no jurisdiction to authorise a nuisance: i.e. the grant of planning permission is in itself no defence to an action brought in nuisance. At the same time, the effect of the grant of planning permission may be to change the character of a locality over time. Wheeler v Saunders [1995] 2 All ER 697 - smell from pig farms; had planning permission; the cour
   • (ii) Volenti not fit injuria etc No defence that the pursuer knowingly “came” to the nuisance (see e.g. Webster v Lord Advocate 1985 SC 173), but valid defence if pursuer indicated that s/he was willing to accept the nuisance, or if pursuer can be proved to have acquiesced in the nuisance in such a way as to imply consent. If positive indication willing to accept nuisance, then defence.