Tort

Nuisance Parties: Lecture 13A2

Requirements for Private Nuisance

1 Claimant must have an interest in land
2 Defendant has interfered with the claimant’s use or enjoyment of that land
3 Interference is unreasonable
4 Defendant created the interference or is otherwise responsible for the interference
5 Interference has caused damage to the claimant

Claimant must have an interest in land

Hunter v Canary Wharf Ltd [1997] AC 655; [1997] 2 All ER 426
It is only claimants with an interest in land who have title to sue in private nuisance. There is
a need to maintain a clear distinction between nuisance and negligence:
(a) Nuisance protects a claimant’s right to use and enjoy land;
(b) Negligence protects a claimant’s bodily integrity (among other things).

Hunter disapproved the earlier CA decision in

Khorasandjian v Bush [1993] QB 727
The claimant was aged 18, and lived with her parents. The defendant was a former
boyfriend who pestered her after the relationship ended with telephone calls to her and her
mother at her parents’ and grandparents’ homes, among other aggressive forms of
behaviour. Violent behaviour etc could be dealt with in the tort of trespass. The question
was whether the court could make an order restraining the defendant from harassing,
pestering or communicating with the claimant.
The traditional position was that such an injunction could be made in favour of the mother
provided she had a freehold or leasehold interest in the family home. But not in favour of
the daughter, because she was a mere licensee with no proprietary interest.
Dillon LJ:
“To my mind, it is ridiculous if in this present age the law is that the making of
deliberately harassing and pestering telephone calls to a person is only actionable in

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 the civil courts if the recipient of the calls happens to have the freehold or a leasehold
proprietary interest in the premises in which he or she has received the calls.”

Servitudes
Rights to light are an example of a servitude in land law, and are one of the established
common types of interests in land that can be protected by the law on private nuisances.
For example, the claimant owns land with a building with a window that gets light from the
Sun shining across the defendant’s land. The defendant builds on their land, with the new
building blocking the amount of light that reaches the claimant’s window. This is potentially
an actionable nuisance (Regan v Paul Properties [2006] EWCA Civ 1319).
Also potentially protected on the same basis are:
(a) Private rights of way
(b) Rights to support from neighbouring land owned by the defendant (Holbeck Hall
Hotel v Scarborough Borough Council [2000] QB 836; [2000] 2 All ER 705).

Defendant responsible for the interference

A defendant may be liable for a nuisance if they:
(a) created an unreasonable interference with the claimant’s land, or
(b) continued a nuisance by failing to take reasonable precautions to prevent an
interference with the claimant’s land after becoming aware of the existence of the
potential interference

Creator of the nuisance

The person who creates a nuisance is liable, regardless of whether they have any property
interest.
Thomas v National Union of Mineworkers (South Wales Area) [1986] Ch 20; [1985] 2 All ER 1
Striking miners picketing in the road could be liable in private nuisance even though they
had no relevant property interest in the vicinity.

Occupier of land
Often the defendant will be the occupier of land from which the nuisance came.
The occupier might be the owner or a tenant. They are liable for nuisances they cause
themselves, or for which they are vicariously liable.

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Matania v National Provincial Bank [1936] 2 All ER 633
Independent contractors were doing renovation work on a flat owned by the defendant.
This caused noise and dust interference with the claimant’s flat below the flat owned by the
defendant.
Held: the defendant was liable, because the work involved a special danger of nuisance,
being inevitable from the work that was being done.

Sedleigh-Denfield v O’Callaghan [1940] AC 880

An occupier of land (the defendant, an order of monks) was liable for a nuisance originally
caused by workers employed by the local authority. The workers had installed a pipe which
took water away from a ditch on the defendant’s land. The workers had done this very
badly, and a grate that they had installed which was intended to keep out leaves in fact got
clogged up by leaves, causing flooding to the claimant’s adjoining land.
Why was the defendant liable? Because before the relevant flooding the defendant knew
the pipe existed, and that it was a potential source of danger. The defendant then did
nothing, so in effect allowing the source of danger of flooding to continue.

Continuing a nuisance
Leakey v National Trust [1980] QB 485; [1980] 1 All ER 17
The defendants occupied land which included a large mound known as Burrow Mump,
which was a natural feature of the terrain. After a very hot summer the soil dried out, and
the defendants became aware that Burrow Mump had become liable to landslips. The
defendants took no precautions. There was a landslip, and debris fell onto the claimant’s
land. The claimants sued for the cost of removing the debris.
This was a case where the defendant had failed to take precautions against a known danger,
rather than having created the danger.
Held: As the defendant had not actually caused the danger, but knew about the danger, the
defendant would be required to take such steps as would be “…. reasonable to expect of
him in his individual circumstances” per Lord Wilberforce. This means the extent of the
steps the defendant will be expected to take will have to take into account the defendant’s
resources.

Bybrook Barn Garden Centre v Kent County Council [2001] BLR 55

The claimant’s garden centre was badly damaged by water flooding from a culvert built and
maintained by the defendant. When built the culvert was perfectly adequate. Further

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development in later years meant the culvert was no longer large enough to cope with the
volume of water.
Held: The council knew of the limited capacity of the culvert and were under a duty to take
reasonable steps commensurate with their resources. It is the resources of the particular
defendant that matters, not whether objectively it might be reasonable to pay for the
necessary upgrade. On the facts the council had the resources, so it was liable for the
flooding damage.

Holbeck Hall Hotel v Scarborough Borough Council [2000] QB 836

The council owned land neighbouring the claimant’s hotel, which was located just inland
from the cliff edge. The council knew there was a danger of the cliff collapsing, but had done
nothing either to make collapses more likely, or to prevent further collapses. However, the
council did not know how serious the risk of further landslips was, and that could only have
been discovered by commissioning expensive geological surveys.
Held: The council could be liable if they did not take reasonable precautions. Those
precautions could have been limited to warning the claimant of the risk of further landslips.

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