Chapter 13 Nuisance
1. Introduction
a) Tort of nuisance deals with wrongdoings that arise from one party’s
unreasonable use of land in a manner that interfere with the use and enjoyment of
land by others or cause loss or damage to others.
b) Negligence (Personal injury, property damage, economic loss) – did not deal
with use and enjoyment of land, or peaceful living on the land. But claimant can
bring an action under nuisance. Claimant must have some proprietary interest in
the property to sue under nuisance (only Proprietary interest will be protected;
hence u can only sue for damage to property, amenity value of property and use
and enjoyment of property). However, public nuisance can deal with personal
injuries. Private nuisance is limited to proprietary interest.
c) Three forms of nuisance:
i) Statutory Nuisance – there is a specific statute prohibiting certain nuisance and the
tortfeasor breaches the statute (liability & remedy will state in the statute and not based
on common law principle). [not our syllabus]
ii) Public Nuisance – this is where nuisance is public in nature in that its effect is so
wide-ranging and indiscriminate as to affect the public in general, instead of just an
individual or small class of people. Nuisance that affects a group of people, which is not
large enough to constitute “the Queen’s subjects” (QS-public), will entitle the group to
bring a class action under private nuisance instead. Public nuisance generally also
involves the use of land that is open to public.
iii) Private Nuisance – this is where nuisance is private in nature in that one party’s use
of his private property causes interference or damage to another party’s use of his private
property. The effect is more contained and specific to a particular person (private
nuisance) or persons who form a small class of public (class action for private nuisance),
and whose use of private property is affected. Rule in Rylands v Fletcher is a sub-
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species of private nuisance (unique to private interference in the form of physical escapes
from land causing damage to property belong to another *physical escape of something
from the land may also amount to public nuisance= depends on how many ppl are
effected)
* one-time event and it done deliberately – trespass to land
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2. Public Nuisance
a) Definition of Public nuisance
i) In Attorney General v PYA Quarries (1957), Lord Romer stated: “Any
nuisance is ‘public’ which materially affects the reasonable comfort and
convenience of life of a class of Her Majesty’s subjects.” *HM subjects
mean public.
ii) The Archbold: Criminal Pleadings, Evidence and Evidence (2015)
states: “A person is guilty of a public nuisance who (a) does an act not
warranted by law, or (b) omits to discharge a legal duty, if the effect of the
act or omission is to endanger the life, health, property or comfort of the
public, or to obstruct the public in the exercise or enjoyment of rights
common to all Her Majesty’s subjects.” Guilty of a public nuisance =
criminal offence
b) Characteristics of Public nuisance
i) can be prosecuted through criminal proceedings. It can also give rise to a
civil claim for damages. Claimant want to have additional damages instead
of punish the defendant under criminal law. Damages may be awarded once
the requirement under tort are satisfied.
ii) Public nuisance includes any conduct, behaviour or activity that
inconvenience, injury, loss or damage to the local community as largely.
iii) Exp: private construction/repairs (obstruct the highway/road users) or
noise from commercial or entertainment activities and dust from factories
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c) Element/requirement for public nuisance (claimant must show that the
nuisance was public in nature and special damage was caused) [prosecution under
criminal offence no need to prove special damage was caused]
i) Public in nature
- In AG v PYA Quarries 1957, the D used a blasting system in their quarry
which caused noise and vibrations, and threw out dust, stones and splinters
which affected people living nearby. CA held that this could amount to a
public nuisance. As to what would amount to nuisance that is public in
nature, Lord Denning stated: “Nuisance may be considered public in
nature if it is so widespread in its range and so indiscriminate in its
effect that it would be unreasonable to expect each affected member of
public to bring an action to put an end to it.”
Another Q in this case: How many ppl have to be affected in order for
them to amount to a public nuisance? This Q was examined in PYA, where,
as there were only 30 houses nearby, the quarry owners argued that they
were too few for the problem to amount to a public nuisance. The court
accepted that 30 householders was enough to amount to public nuisance. It’s
not involved only 2 or 3 householders. The court declined to give guidance
on numbers and said that the issue of whether the number of people affected
by nuisance could enough for the problem to amount to a public nuisance is
a QoF. As long as the test is satisfied, it is public nuisance. Test: Lord
Denning above.
- In R v Ruffell (1991) the nuisance consisted of an “acid house” party. A
side road to the site had been blocked by traffic. There had been very loud
music playing all night. The woodlands around the site had been littered
with human excrement. The class of people affected by the nuisance were
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the local residents. It was held that nuisance was public in nature based on
the extent of its effect. In R v Rimmington [2006] the House of Lords held
that sending racially offensive materials to members of the public was not a
public nuisance. Their reasoning was that sending individual letters to
individual people did not constitute a nuisance affecting a class of people.
ii) Special Damage
- In the old case of Benjamin v Storr 1874, the claimant kept a coffee house
in the Covent Garden area of London, and the D regularly left his horses and
carts outside, obstructing the highway and blocking out light from all the
shops in the row. The nuisance affected all the shopkeepers, but as a result
of the nature of the claimant’s business he was bale to prove that he had
suffered a special damage because the smell of the horses put his
customers off.
- Special damage may also arise where the nuisance cost the claimants
additional money but the general public only suffers inconvenience. In Tate
& Lyle Food and Distribution Ltd v Greater London Council 1983, the
defendant council built some ferry terminals in the River Thames, which
caused excessive silting on the riverbed. This caused inconvenience to river
users in general, but the claimant were more affected because access to their
jetty was blocked and they had to spend a lot of money having the
riverbed around it dredged. HL held that this amount to special damages.
[consequential economic loss arising from the defendant activities]
- In Re: Corby Group Litigation (2009), children born with deformities
caused by poisonous substances released by the defendant from its factory.
The court found the defendant’s activity to constitute public nuisance and
awarded damages recognizing physical harm to the children as a form of
special damage flowing from the public nuisance. [as mentioned above
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public nuisance can cover personal injury but private nuisance only deal
with property]
3. Private Nuisance
a) Definition of private nuisance: Lord Denning in Miller v Jackson (1977)
described private nuisance as “the unreasonable use by a man of his land to the
detriment of his neighbour.” Unreasonable or unlawful use can suffice.
b) Characteristics of private nuisance:
i) Indirect interference: interference that occur through the carrying out of
some activity or keeping of objects on one’s own land, rather than
directly, such as throwing rubbish into a neighbour’s land. Such direct
interference will amount to trespass to land.
ii) Tort related to land not person: Private nuisance is described as a tort
related to land as its only protects use, amenity and enjoyment of land as
well as any damage to land or property [consequential losses – act on
land – nuisance – property damage]. The claimant (neighbour) must have
proprietary interest (e.g. u are a tenant or occupier of the house, and u have
the Proprietary interest/right to use the house) in their land in order to bring
an action for private nuisance against the defendant who created nuisance.
[no action of negligence because loss of enjoyment of use is not the damage
protected under tort of negligence but under nuisance]
iii) Strict liability: Private nuisance is also described as mostly involving
strict liability, in that defendants may be liable for causing nuisance even
where there did not do so intentionally, maliciously or through carelessness.
A defendant who unrealizingly interferes with his neighbours use and
enjoyment of his land may, thus, be liable. This was affirmed in Barr v
Biffa Waste Services Ltd 2012, where it was held that liability is strict in
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that there was no requirement for the claimant to allege or prove negligence
or breach of condition. Once the interference is deemed unreasonable it is
for the defendant to show lawful excuse for committing nuisance. Hence,
only require proof of unreasonableness of the interference [use of land
and its effect is unreasonable]. The court will not concern that even if you
have taken sufficient precautions or cares or you have no intention to do so,
the court will only look at the gravity of the interference e.g. no reasonable
person can be expected to get along with it, nuisance is established. No need
to prove intention, negligence element but if it was the case, it is more likely
that nuisance will be established (e.g. u do it deliberately, the court will not
let him escape)
iv) When liability may be fault-based instead of strict liability (rare
occurrence; most of the time is strict liability): In cases where the
nuisance has caused property damage and the claimant seeks damages as the
remedy, the law states that fault must be established before the defendant is
ordered to pay damages. the defendant will only be liable to pay damages,
for harm that he could foresee. [Wagon Mound NO1]. Sedleigh-Denfield v
O Callaghan further adds that where the occupier knows of something
offensive on his land caused by a third party or other natural circumstances
which can be removed or dealt with by taking proper action, he may be
liable for failing to act accordingly. The knowledge coupled with failure to
act establishes the necessary fault on his part for the imposition of liability.
Thus, private nuisance becomes fault-based also when the claimant brings
action against one who did not create nuisance but is in control of land from
which nuisance arises either through a natural act or the act of a third party.
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c) Interests protected under private nuisance
i) In Hunter & Others v Canary Wharf Ltd (1997), Lords Hoffman,
Lloyd and Goff stated that damage to land or property, disruption of
enjoyment of land and loss of use or amenity value of land are the only
type of losses that may be recovered under private nuisance. This is because
private nuisance is land or property tort and only interests linked to
proprietary rights may be protected. In this case, it was held that interference
with television reception (interference was caused by the construction) was
not capable of constituting actionable nuisance and Lord Hoffman and
Hope explained that the right to television signal reception was “not a
right obtained from possession of land (not a proprietary interest)” and the
interference had to be “substantial and fanciful” for liability.
Lord Lloyd of Berwick said: “Private nuisances are of three kinds. They are
(1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct
physical injury to a neighbour’s land; and (3) nuisance by interference with a
neighbour’s quiet enjoyment of his land.”
ii) In Bone v Searle (1975), it was held that a drop in the value of land (drop
of the price of the land=pure economic loss) is not a kind of loss protected
by private nuisance law. Also, in Network Rail Infrastructure v Williams
(2018), the CA clarified that the purpose of the tort of nuisance is not to
protect the value of property as a financial asset but to protect the landowner
in their use and enjoyment of the land. It is wrong to effectively extend the
tort of nuisance to a claim for pure economic loss, i.e. diminution.
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iii) Transco plc v Stockport Metropolitan Borough Council (2004), Lord
Hoffman explained that consequential damage arise from the nuisance such
as loss of profit, damage to livestock and chattel and repair costs may be
claimed but not mere annoyance, illness, death or injury.
d) Proprietary Interest Requirement
i) Because private nuisance is a tort concerned with protection of proprietary
interests in land, the claimant must possess proprietary interest in his land
before bringing an action. In Sedleigh-Denfield v O Callaghan, it was held
that “a balance has to be maintained between the right of the occupier to do
what he likes with his own, and the right of his neighbour not to be
interfered with.”
ii) In Malone v Laskey (1907) it was held that only those with proprietary
or possessory interest in land may sue for private nuisance. In this case,
claimant’s claim for private nuisance was denied because the claimant
lacked legal interest in the property and a license was deemed insufficient.
License is not PI. However, in Khoransandjian v Bush (1993), a different
approach was taken, e claimant’s father owned the property in which the
claimant lived. She faced nuisance in the form of threats, disturbance and
harassment from her neighbour. Despite lacking proprietary interest in the
property, the claim was allowed on the basis that the property was the
claimant’s home where she lived and she had substantial link with land.
The court did not apply the proprietary interest requirement. The court
highlighted a lacuna in the law at the time, i.e. that if the claim is not
allowed, there would be no remedy to the claimant since she would not
have been able to bring the unique facts of her case within the protection of
any other branch of law. This case wrongly allow the claim for a personal
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interest that are not related to land and allow the claim without proprietary
interest.
NOTE: this case will not be followed anymore after the enactment of
Protection from Harassment Act 1996 which had filled the lacuna in
Khoransandjian. Also, the further case law suggested that the person must
have proprietary interest.
iii) Hunter v Canary Wharf Ltd (1997) made it clear that legal interest is
required to sue under private nuisance. Lord Goff stated that only
freeholders, tenants in possession, licensees with exclusive possession or,
exceptionally, people in possession but without a right to be there (rare, e.g.
someone unwillingly detained in psychiatric hospitals but who still have
legal possession of their land), can sue, and not mere licencees. Lord Goff
also further said that Spouses may have exclusive possession of land subject
to the Matrimonial Homes Act 1983 and the Family Law Act 1996.
With regard to the substantial link with land (as seen in Khoransandjian) ,
Lord Hoffman further went on to explain that to allow someone who only
has a substantial link with land to sue would result in a number of claimant’s
seeking remedy. This would create problems as “damages cannot be
increased merely because more people are in occupation and therefore suffer
greater collective discomfort.” Hence, it is clear that those who have no
proprietary interest and only establish a substantial link with land cannot sue
under private nuisance.
iv) Academic such as Nolan in “A Tort Against Land” said that
proprietary interest is needed to sue.
v) Those who do not have proprietary interest would therefore be unable to
sue under private nuisance. In such cases, some claimants have resorted to
framing their claim as an action for violation of Article 8 ECHR, under S6
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Human Rights Act 1998. (suing under HRA the defendant is the public
body and hence this is the limited alternative way because if the defendant is
the individual, u cannot sue under HRA and if u have no PI, u cannot sue)
vi) Dobson v Thames Water Utilities 2009: The D was a public authority
within the terms of the HRA. The issue was as to the rights of non-title
holders to damages in nuisance and related causes. There are some non-title
holder claimants include children. Dobson made it clear that those who
have no PI can sue under S6 HRA 1998 relying on A8 of the ECHR
provided the defendant is a public authority within the terms of the HRA.
Also, they cannot get a separate remedy under S8 HRA 1998 for violation
of the A8 ECHR (meaning to say that only simple owners (children)
whose parents had not received damages under private nuisance would
be granted compensation under HRA otherwise it would be only a paper
victory for the children under HRA if at all they could claim // If they can
get remedy under private nuisance they will not get remedy under HRA
1998). Also, damages under HRA is generally not more than the CL
damages’
vii) McKenna v British Aluminum Limited 2002: The Court upheld that it
in the absence of proprietary interest in land, a claim in nuisance could not
be sustained and stated that claimants without the necessary interest may
instead pursue a claim under HRA 1998, arguing violation of Article 8
ECHR.
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e) Additional requirements when suing a non-creator of nuisance
1) Creators of nuisance
-usually be the person who is using and controlling the land which cause the
nuisance – its his activity that cause the nuisance
-IF D is the Creator of nuisance = no need to prove fault = the degree of personal
responsibility is enough for liability = can proceed to prove the other requirements
-In Sedleigh-Denfield v O’Callaghan (1940) [case of non-creators ; occupier],
the council undertook some work on the defendant’s land at the request of a
neighbouring landowner. They had placed a culvert in a ditch but they had
negligently placed a grate in the wrong place which rendered the grate useless and
the culvert became prone to blockages. A heavy rain storm caused a blockage and
the ditch became flooded. The flood spread to neighbouring property owned by the
claimant. The claimant brought an action in nuisance for the damage caused. The
defendant argued that he had neither consented to nor had knowledge of the
existence of the culvert. It was further argued that since the nuisance was not
created by the defendant, but by the act of a third party instead, the defendant
was not the creator. The court found the defendant liable even though it was not
the creator of the nuisance, because there was knowledge of the circumstances
giving rise to nuisance and a failure to abate the same. As such, the defendant’s
responsibility for the nuisance was established through its continuation and
adoption of the nuisance. Although here liability was allowed against one who
did not create the nuisance, the judges clarified that all that was needed for
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liability to arise is “some degree of personal responsibility”, which would
usually be found on the part of the party creating the nuisance.
2) Non-creator of nuisance
-maybe the owner who did not cause the nuisance e.g. landlord or occupier at
present but nuisance was caused by a 3 rd party (e.g. landlord’s tenant, previous
owner, council or nature)
-degree of personal responsibility is needed to be liable. Fault is needed to prove
that the non-creator knew about the nuisance.
-landlord: personal responsibility + control = maybe liable (PR- if he knew,
authorised and directly or actively participated in the nuisance , landlord did not
directly use the property, but still have control and possession)
-occupier at present: personal rep + use + control =maybe liable (PR- knew
about the nuisance but did nothing to remove it, and therefore are continuing and
adopting the nuisance, also the occupier is still using and control the land.)
(i) Landlords:
-Fault need to be established by proving that the landlord knew of the use of
land by tenant, amounting to nuisance; and authorized the same by
failing to take appropriate action and today we must also show that the
landlord actively/directly participated in the nuisance (Coventry).
-Tetley v Chitty (1986): Landlord knew tenant was renting the premise to
carry out go-karting activities but allowed the tenancy for the said purpose.
It was held that knowledge and lack of prohibition on landlord’s part
amounted to authorization of nuisance.
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- In Hussain v Lancaster County Council (1998), the claimant owned a
shop and residential property which was situated on a housing estate owned
by the defendant. The claimant suffered severe harassment from tenants and
their families from the housing estate. The defendant was aware of the
harassment. The council had sent letters to the perpetrators threatening them
with eviction if they continued to harass the claimants, however, this was
ineffective and the council did not in fact take possession proceedings
against any of the perpetrators. The Council had the power to evict them for
causing a nuisance under the tenancy agreements and under the Housing
Act 1985. The claimants brought an action against the council for their
failure to prevent the nuisance when it was in their power to do so.
The council was not found liable here because the tenancy agreement
prohibited anti-social behaviour by tenants (they already put such clause
in the agreement, hence you cannot say council has authorized). Further, the
nuisance did not arise from the tenancy or use of property but from
personal resentment towards the claimant on grounds of race and ethnicity.
Thus, the council did not authorize the nuisance. [mere knowledge of the
nuisance (nuisance must arise from the use of property) is not enough,
must prove that the D had also authorize the nuisance]
-Coventry v Lawrence 2014: A landlord who knowingly let its premises to
a tenant who is likely to commit nuisance cannot be deemed to have
authorized the nuisance. It is inevitable that the landlord will have
knowledge of the use of the property but this knowledge is insufficient to
establish fault on the landlord’s part. Something more is needed: ‘active’ or
‘direct’ participation in the commission of the nuisance.
In Coventry , the claimants and her partner brought an action for nuisance
against the occupiers of a Stadium, David Coventry. The claimants were the
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owners and occupiers of a residential bungalow, Fenland, some 850 yards
away. The nuisance arose from the use of the Stadium for speedway
racing and other motorcar racing, and the use of the track for motorcycle
racing and similar activities. The claim was brought not only against
Coventry and his trading company, but also against the respective landlords,
Terence Waters and Anthony Morley. One of the issues in this case was
whether the landlords could be liable for nuisance created by tenants. SC
held that the landlords is not liable.
SC: “The intended uses of the Stadium and the Track were known to the
landlords at the time of the lettings and those uses have in fact resulted in
nuisance, but that is not enough to render the landlords liable in nuisance as
a result of the letting. Also, they can be said to have authorized the nuisance
because nuisance in this case is an inevitable consequence of letting the
stadium and track. But If the claim in nuisance against the landlords is to
succeed, it must be based on their ‘active’ or ‘direct’ participation.
Although there is little authority on the issue, the question whether a
landlord has directly participated in a nuisance must be largely one of fact
for the trial judge, rather than law.”
[mere knowledge + authorization =is not enough for liability under
nuisance] Active / Direct participation = Question of Fact =Look at what
happened after the lease was granted, the nature of the lease, terms etc, and
nature of activity and landlords’ participation, or what happened (dealings)
right before lease was granted
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(ii) Occupiers:
- This fault will usually be established by proving that the occupier knew of
the nuisance but took no action to remove it, thereby continuing and
adopting the nuisance.
- According to Lord Atkin in Sedleigh-Denfield v O Callaghan, “ If a
man permits an offensive thing on his premises to continue to offend – that
is, if he knows that it is operating offensively, is able to prevent it, and omits
to prevent it – he is permitting the nuisance to continue.” According to Lord
Wright in Sedleigh-Denfield v O Callaghan, “an occupier is not prima
facie responsible for a nuisance created without his knowledge and
consent. If he is to be liable a further condition is necessary, namely, that he
had knowledge or means of knowledge, that he knew or should have known
of the nuisance in time to correct it and obviate its mischievous effects. The
liability for a nuisance is not, at least in modern law, a strict or absolute
liability… [He] may have taken over a nuisance… 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.” Hence,
knowledge is enough. No need to prove that the occupier has the
intention or is negligent in not taking action.
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- In Page Motors v Epsom BC (1981) the defendant was found liable for
nuisance committed by gypsies who were trespassing on the defendant’s
land. The claimant owned a business in the neighbouring land and suffered
loss because of nuisance by the gypsies. Sedleigh-Denfield was applied the
was liable for nuisance. Fault was established in that the defendant was
aware of the presence of the gypsies causing nuisance but failed to act,
thereby adopting and continuing the nuisance. In Lemon v Webb (1894)
& Smith v Giddy (1904), much older decisions, the defendant was held
liable for nuisance triggered by acts of nature. Here, the defendant, occupier
of land on which trees grew, were liable for branches that overhung the
neighbour’s property causing nuisance. The defendant was liable for
continuing the nuisance by failing to act. [also got knowledge]
- In Goldman v Hargrave (1967), lightning struck the defendant’s tree and
set it on fire. The defendant chopped down the part that was on fire
intending to let it burn out. However, the wind blew and reignited the
burning portion and caused the fire to spread to the claimant’s property.
Claimant sued in negligence, occupier’s liability and private nuisance. The
defendant was found liable under negligence and occupier’s liability but not
private nuisance. Where nuisance is caused by an act of nature, as long as
some steps were taken, the defendant will not be regarded as adopting
nuisance. It does not matter that the steps were not sufficient to stop the
fire. However, under negligence principles, liability could be established
because the defendant owed a duty of care to take adequate action (no need
to be absolute but it must be reasonable and sufficient: Latimer v AEC Ltd)
and his actions fell below the reasonable standard of care. [Hence, for
occupier (non-creator) to escape private nuisance, some steps taken will
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be enough, to need to be actually sufficient or reasonable that a RM
would do]
-Leakey v National Trust 1980 : liability can arise under private nuisance if
occupier did nothing, also liability can arise under negligence because
failure to act will definitely fell below reasonable standard of care.
-Lambert v Barratt Homes (2011), no liability was found where the
occupier did take reasonable care to avoid harm to the neighbour’s property
-Where nuisance cannot be prevented (nothing practical that D could have
been done), D will not be liable if he has done nothing. Especially where the
occupier cannot afford the measures to stop the nuisance, the D is not
expected to take disproportionate steps or incur unrealistic costs to stop
nuisance. [Holbeck Hall Hotel v Scarborough Borough Council (2000)]
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1. Establishing Private Nuisance
1) Unreasonable Interference
-In Sedleigh-Denfield, it was held, “An occupier may make in many ways a
use of his land which causes damage to the neighbouring landowners and yet
be free from liability… a useful test is perhaps what is reasonable
according to the ordinary uses of mankind living in society, or, more
correctly, in a particular society.” (Lord Atkin)
-In a more recent decision on how nuisance is to be established, the Court of
Appeal in Barr v Biffa Waste Services Ltd. (2012), reiterated the age-old
test of ‘unreasonableness’ laid down in Walter v Selfe (1851). On the test of
unreasonableness, it was held, the test is simply what an ordinary person
could reasonably be expected to put up with… [this is the current test of
reasonableness] “For any nuisance, there is no absolute standard, it is a
question of degree whether the interference is sufficiently serious to
constitute a nuisance, which is to be decided by reference to all the
circumstances of the case.” “There must be a real interference with the
comfort or convenience of living, according to the standards of the
average man i.e. “… not merely according to elegant or dainty modes and
habits of living, but according to plain and sober and simple notions
among the English people.”
-Courts are assisted by a number of factors relevant to the question of
‘unreasonableness of interference’:
a) Locality
- In Barr v Biffa Waste Services Ltd, it was held that the character
of the neighbourhood must be taken into account in determining
whether the interference was unreasonable. There was a nuisance.
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-In Sturges v Bridgman 1879, the claimant was a doctor, who sued a
confectioner for the noise caused by his industrial equipment. The
court took into acc the fact that the area in which they both
worked consisted mainly of doctors’ consulting rooms and
concluded that there was a nuisance, explaining that what would be a
nuisance in a quiet residential area would not necessarily be so in
a busy industrialized one.
- In Baxter v Camden London Borough Council (2001) the
claimant complained of interference in the form of loud noises from
others living in the same block of flats. The court held that taking into
account the type of flats and locality, the volume of noise was not
unreasonable. Hence, no unreasonable interference no nuisance.
“Occupiers of low cost, high density housing must be expected to
tolerate higher levels of noise from their neighbours.”
- In Gillingham Borough Council v Medway Dock (1993), it was
argued that the unused dockyard adjacent to their residential area
when revived into a bustling commercial hub, was a nuisance in
the area because the locality had always been residential in
nature. In that context, such an activity was too noisy. The
defendant, however, argued that the grant of planning permission
converted the character of the locality from residential to
commercial, and in the new context, the activity was no longer a
nuisance because it was reasonable interference with permission now.
- In Wheeler v J J Saunders 1995, the D has a pig farm and
obtained planning permission to extend it and build 2 pig houses
close to the claimant’s land, resulting in strong smells drifting across
the claimant’s property. CA held that in this case the planning
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permission did not altered the character of the neighbourhood
(distinguish Gillingham where planning authority had allowed the
change of the nature of the locality for the benefit of the local
community). In this case, the planning permission merely
authorised the expansion of one existing business (can build
another 2 pig houses)
-In Coventry v Lawrence (2014) discussed above, the SC clarified
the law on planning permits, character of locality and unreasonable
interference. In this case, planning permission had been granted in
1975 for the construction of a speedway stadium and for the
construction of a further motor cross stadium in 1992. The defendant
held a certificate of lawful use under the Town and Country
Planning Act 1990. The claimant purchased her house in 2006. The
defendant argued that planning permission meant that the
character of the locality had changed and thus that the
defendant’s activity was no longer unreasonable. Claimant won in
first instance but D appealed. Nonetheless the SC proceeded to find
that the defendant’s activity was still unreasonable against the
backdrop of the changed locality because it could not be carried
out without causing nuisance. [meaning granting of permission
does not mean that the relevant activity is lawful or reasonable]
SC made it clear that planning permission will not always mean that
the nature of a locality has changed so as to make the relevant activity
reasonable; it is a question of fact in each case.
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