The law of nuisance

2023 will be an important year for the development of the law of nuisance. The Supreme Court justices will have handed down their judgments in Fearn v. Tate Gallery Board of Trustees [2023] UKSC 4 (can occupants of neighbouring flats expand the law of nuisance to protect a right of privacy from visitors to a viewing platform at Tate Modern) and in March it will also hear the claimant’s appeal in Manchester Ship Canal Co Ltd v. United Utilities, the judgment of the Court of Appeal having confirmed the further erosion of an aspect of private nuisance by refusing relief where there is a statutory scheme for the control of the nuisance.

Detractors of this supposed backwater of the common law (and its statutory descendants) have spoken too readily of the demise of the tort of nuisance, thinking that it would be subsumed by negligence. However, Lord Wright described the test for nuisance by reference to “what is reasonable according to the ordinary usages of mankind” (Sedleigh-Denfield v. O’Callaghan [1940] AC 880) and the judgments of 2022 show how the flexibility of the tort recommends itself to today’s judges when dealing with contemporary ways of life. At the same time, a traditional application has been favoured in property cases such as those involving flooding, noise and restrictive covenants.

Some of the judgments cannot be described as ‘ground-breaking’, but for lawyers who are not particularly familiar with how the rules may play out in court, there are some excellent (and short) paradigms which are well worth noting.

Injunctions

The conspicuous development in the law of nuisance in 2022 was the number of claims against large groups of anti-social individual and environmental protestors, including claim against “persons unknown”. These cases have included claims by local authorities in response to “street cruising” in the West Midlands, whether against participants, promoters or even spectators, and claims by highway authorities with responsibility for roads occupied by groups such as Just Stop Oil.

It is not just statutory authorities who have made applications for injunctions, some on a very urgent basis, but also private organisations such as Ineos (fracking), Balfour Beatty Group (concerning an HS2 compound), National Highways Ltd (in respect of Insulate Britain and the M25) and Esso (in respect of Just Stop Oil and Extinction Rebellion). These claims have mainly involved public nuisance, which has a different source from private nuisance. The decisions have tested the scope of interim injunctions, their duration and the relevance of Human Rights provisions, on the part of both claimants and defendants.

Strict liability

A second group of claims concerns the application of private nuisance in property disputes, in particular involving flooding and noise nuisance. The relevant rules can reliably be grouped into three, and these can conveniently be identified by these cases. Private nuisance began as a strict liability tort involving damage to property, but separate (overlapping) rules were developed, in particular in response to the industrial revolution, in respect of claims involving ‘intangible’ interferences with the use and enjoyment of land (for instance as a result of noise, odour and dust). From the 1940s (see Sedleigh-Denfield cited above), the courts began to acknowledge a third species of nuisance claim where it was alleged that damage was caused by reason of an omission (or failure to act), in contravention of a defendant’s ‘measured’ duty of care.

These key principles are represented by three claims involving flooding and one involving noise. Partakis-Stevens v. Sihan [2022] EWHC (TCC), 19 December 2022 relies on a line of strict liability flooding cases decided in the nineteenth century in respect of a defendant who altered the shape of neighbouring land, but it also applies the more recent ‘measured duty of care’ authorities in relation, in this case, to a new owner who omitted to take steps to abate the original nuisance (as to which, see also Judge v. Waugh [2022] NMICh (TCC) 23 August 2022 and House Maker (Padgate) Ltd v. Network Rail Infrastructure [2022] EWHC 1482 (TCC) 5 April 2022). In Ray v. Windrush Properties Ltd [2022] EWHC 2210 (TCC) 23 Aug 2022 the judge lays out the criteria relevant for a claim alleging noise nuisance, in this case from a busy restaurant in a well-known Cotswold town.

Nuisance and litigation

The principle of statutory authority has provided a rare defence in nuisance claims for many years. For instance, an Act of Parliament which allowed the construction of a railway or of an isolation hospital might also excuse its owners from the same consequences. Controversially, the scheme which brought about the existence of the Milford Haven Oil terminal was finally held by a majority of the House of Lords in Allen v. Gulf Oil Refining Ltd [1981] AC 1001 to extend to the ‘intangible interferences’ caused by the refinery since there can be both an implied, as well as express, form of statutory authority.

The defence of statutory authority has more recently been enlarged to cover circumstances in which the nuisance about which the claimant complains is the subject of a statutory scheme intended by Parliament to abate the nuisance in question (see Marcic v Thames Water Utilities Ltd [2002] EWCA Civ 64 [2002] QB 929. Manchester Ship Canal Co Ltd v United Utilities Water Ltd [2022] EWCA Civ 852 27 Jun 2022 is one such authority, extending the principle to provisions of the Water Industry Act 1991.

The Manchester Ship Canal Co and the Privy Council judgments deserve detailed treatment and they will be considered together in an article which also includes a review of recent group action claims involving allegations of nuisance.

Statutory nuisances

2022 saw a number of judgments concerned with the statutory nuisance and abatement notice regime under the Environmental Protection Act 1990, most of which did not identify new principles but usefully make explicit what earlier cases have decided, especially in relation to the contents of an abatement notice or order.

Frank A Smart & Son Ltd v. Aberdeenshire Council 2022 S.L.T. (Sh Ct), 14 January 2022, for instance, confirms that even in the most complex case, a local authority is entitled to require an operator simply to abate a nuisance without giving any guidance whatsoever as to what degree of noise is acceptable or unacceptable (applying Budd v. Colchester BC [1999] Env LR 739). “Abatement” does not necessarily mean that all noise needs to be eliminated, only that which is properly assessed as being part of the “nuisance” (Jones v. Chapel-le-Frith [2022] EWHC 1909 25 July 2022, citing the Aberdeenshire Council case and revisited by the Court at [2022] EWHC 2709 1 November 2022).

In motor sports, a local authority can undoubtedly hold the fort between residents and operator and “restrict” the amount of nuisance rather than abate it, leaving some “nuisance” to be produced (R (James) v. Dover District Council [2022] EWHC 961 28 April 2022).

In R (Parker) v. Teesside Magistrates Court [2022] EWHC Env LR 28 18 February 2022, Fordham J gave detailed as to how the statutory duty to award expenses should be approached after a successful s.82 claim. He also fired something of a warning shot at a party who proceeds by way of judicial review where a case stated was the appropriate route of appeal (with its strict 21-day time limit.

Gordon Wignall is a barrister at Six Pump Court 6pumpcourt.co.uk