Take the Trouble

Practice & Law mainly for students

take the trouble Nuisance The law may be centuries old, but it is as relevant today as ever, so, as Doug Bryden and Katie Tantum explain, you should keep up to date with your rights

The key benefit of the statutory hose suffering from a nuisance need Under both private nuisance and the nuisance regime is that it is a to know that they can take action. Rylands rule, it is relatively easy to identify low-risk, low cost solution However, the often overlapping physical damage; interference with the Tcommon law rights of action (as well enjoyment of one’s land is more ambiguous Planning permission or an as the potential for criminal sanctions) and requires the courts to perform a environmental permit does not make nuisance a complex area of law. This balancing act. The well-known quote “what article summarises the law and considers would be a nuisance in Belgrave Square of itself authorise a nuisance its implementation. would not necessarily be so in Bermondsey” may not now resonate with Bermondsey A bit more detail residents, but the message is clear. Location In private nuisance, it had been thought is still crucial in determining the extent of that a claimant must have a direct the nuisance, as are the time, frequency proprietary or possessory interest in and duration of the nuisance and the land affected by the nuisance in order hypersensitivity on the part of the claimant to claim damages at common law. and malice on the part of the defendant. However, since the Human Rights The grant of planning permission or an Act 1998 came into force and since Dobson environmental permit does not of itself v Thames Water Utilities Ltd [2009] authorise a nuisance, although it may alter EWCA Civ 28; [2009] 1 EGLR 167, the nature of the locality, which could in parties without such a proprietary interest turn lower the threshold for determining can claim compensation from public bodies, the existence of a nuisance. Unfortunately even where others in their home with such for developers, this means that even when an interest have been compensated in the hurdle of planning consent is overcome, damages under private nuisance. Damages the risk of potential claims will remain. will be awarded under the Act only where Recourse may be available under public necessary to award “just satisfaction”, nuisance, but while the tort is secure the having taken into account damages for future of the criminal offence is uncertain. nuisance and alternative remedies. The Law Commission recently consulted The rule in Rylands v Fletcher (1868) on reform in this area. One proposal LR 3 HL 330 may also be relevant. It suggested a revision of the fault element, was clarified inCambridge Water Co Ltd so that negligence is no longer sufficient: v Eastern Counties Leather plc [1994] the defendant must be shown to have acted 1 All ER 53: a landowner will be liable intentionally or recklessly. In practice, where a non-natural use of its land statutory nuisance may provide a more damages a neighbouring property. Transco effective remedy than seeking a criminal plc v Stockport Metropolitan Borough prosecution under public nuisance. Council [2003] UKHL 61; [2004] Section 79 of the Environmental 2 AC 1 stated that liability under Rylands Protection Act 1990 lists categories of may be excluded where specific statutes issues that can amount to a statutory cover the nuisance. It also shed light nuisance; these include noise and smoke on the role of insurance: the fact that from premises, fumes, gases, dust and the the neighbouring occupier is covered state of premises. The key benefit of the by insurance will not preclude liability statutory regime is that it is a low-risk, under Rylands. low-cost solution: the onus is on the local

114 www.estatesgazette.com 26 February 2011 the market the week Focus practice & Law EG Life

authority to take steps to ensure that the In December 2005, several explosions at nuisance is abated and, in doing so, they the Buncefield oil storage site resulted in why this matters also bear the cost. An abatement notice, extensive personal injuries and damage to once served, is generally an effective commercial and residential properties. The law of nuisance means that anyone enforcement procedure and carries a Hertfordshire Oil Storage, a joint venture who is adversely affected by, for example, criminal sanction for non-compliance. between Total and Chevron, had developed noise, odours, hazardous substances or the part of the Buncefield site where the dust does not have to suffer in silence. Recent landmark cases incident occurred. Recent case law suggests that the courts l Lambert v Barratt Homes Ltd The civil litigation has shown that in are widening the scope of successful (Manchester Division) [2010] EWCA claims based on the rule in Rylands, public nuisance actions: for instance, an Civ 681; [2010] 33 EG 72 and private nuisance can coexist and that interest in land is not a prerequisite In this case, the Court of Appeal private nuisance can arise out of a single to bringing a claim in private nuisance considered the scope of a landowner’s act rather than a state of affairs. There is against a public body and the failure of duty of care to its neighbours. It found no requirement in public nuisance for a the consent defence to Rylands in the that it was unreasonable to expect a local claimant to have a proximate proprietary Buncefield litigation. authority to carry out and pay for remedial interest. However, proximity may be a Private nuisance arises where the works to abate a nuisance on its land that prerequisite to recovering special damages actions of a private landowner adversely had been caused by a neighbouring owner. where the loss is sufficiently “particular, affect neighbours. The damage caused The local authority had sold part of a direct and substantial”. to the neighbouring property (physical playing field to a developer, whose works In addition, the use of the defence of damage) or property rights (such as the blocked an existing drainage ditch and consent under Rylands has been clarified: right to quiet enjoyment of the land) must culvert. This led to water accumulating in Total’s attempt to avail itself with the be substantial and unreasonable, usually the local authority’s section of the playing defence in respect of claims by those inside involving repeated harm. It must be field, which flooded, causing considerable the perimeter of the site failed: the reasonably foreseeable and any damage to the claimants’ properties. claimants had not consented to the compensation has to relate to physical The court initially found that the petroleum products being stored in an harm rather than personal injury. developer and the local authority were both unsafe manner and, in any event, Total’s Damages and injunctive relief may liable to the claimants in damages: the negligence vitiated any consent. both be sought. Damages tend to be developer for its negligence in obstructing l Corby Group Litigation v Corby District measured according to the deemed the culvert and the local authority for Council [2009] EWHC 1944 (TCC) diminution in the value of the property neglecting its duty of care to prevent the Here, it was held that children with no resulting from the nuisance. flood. However, it considered that although property interests could seek damages Recourse is also available under the local authority owed a measured duty for personal injury under public nuisance. public nuisance, which may be a tort of care, which arose as soon as it became The children had allegedly suffered or a criminal offence. This broadly aware of the nuisance, the scope of this duty birth defects arising from the council’s encompasses any interference with the depended on the particular circumstances redevelopment of a contaminated British property, life, health, morals, comfort or of the case. In this instance, it did not Steel site. convenience of the public, and can arise extend to paying for the works because Although the court found that the out of a single act. Claims can be made the developer had created the problem evidence showed that the council was for personal injury as well as damage to and did not challenge its liability. Since the liable in public nuisance and had breached property rights, and claimants do not claimants had a right to recover the entire its duty of care to the claimants between require a property interest. cost from the developer, the authority’s 1983 and August 1997, and its statutory To establish whether a statutory duty of care was held to extend only to duty under the 1990 Act, the claimants nuisance arises, a claimant must first co-operating with the remedial works. were required individually to establish show that: (i) a common law nuisance Landowners affected by nuisance caused that their particular conditions had been exists; or (ii) it is prejudicial to health. by neighbouring occupiers should take caused by those failings. Following the Establishing that it is also a common law heed: even where a duty of care to others initial judgment, the council settled the nuisance is straightforward and the arises, its scope may be limited. case for a reported £14.6m. affected party does not have to have any l Colour Quest Ltd v Total Downstream property interests in order to claim. UK plc [2010] EWCA Civ 180; [2011] Doug Bryden is head of environment By contrast, establishing that a QB 86; [2009] EWHC 540 (Comm); and Katie Tantum is a member of the statutory nuisance is prejudicial to health [2009] 2 Lloyd’s Rep 1 environment team at Travers Smith LLP can be difficult, and often requires expert evidence. In contrast to common law public nuisance, there is no requirement that statutory nuisance puts a significant part of the community in jeopardy. illus t ra t ion