Category Archives: Nuisance

The need for good PR in rights of light cases

In Scandia Care Ltd and another v Ottercroft Ltd [2016] the developer planned a ground floor café with flats above. This included a new fire escape staircase.

The new staircase obscured the light to the neighbouring restaurant’s kitchen windows.

The restaurant applied for an injunction to get the staircase removed at a cost to the developer of £6,000 even though the loss of light was valued at a mere £886.

The Court of Appeal was unimpressed by the attitude and behaviour of the developer, whose director was thought to have acted in a peremptory and unneighbourly way.

He built the staircase in the face of legal threats knowing it would affect the light and inconsistently with undertakings not to infringe the neighbour’s light, at a time when the neighbour was not there to stop it.

The Court of Appeal therefore awarded an injunction instead of damages and in part as a deterrent to others.

This blog as been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Owner owed measured duty of care to contain damp

A person may owe a “measured duty of care” to take reasonable steps to resolve or reduce hazards on that person’s land, which that person either foresaw, or which that person ought reasonably to have foreseen.

Such a liability is to be assessed by reference not only to what the person actually foresaw, but to what the person ought reasonably to have foreseen.

In Bridgland & Anor v Earlsmead Estates Ltd [2016] an old works had been demolished next to the end gable of a terraced house. The house suffered from damp which the owner blamed on the demolition.

The owner pleaded that it was caused by “surface water” i.e. rain water penetrating the upper parts of the now exposed flank wall, and then percolating down inside the flank wall.

But the Technology and Construction Court found that to a significant and/or material extent, the damp to the lower part of the flank wall was caused by penetration of lateral ground moisture coming from the soil or material underneath the ground floor slab of the old works. The hygroscopic salts which had been found inside the house could only have been caused by that.

Given the advice the defendant’s surveyor had given it the defendant either did foresee, or ought reasonably to have foreseen:

1. that the state or condition of it’s property was causing damage to the adjoining house; and

2. that there was at least one reasonable remedial scheme, which their surveyor had identified, (internal tanking) which it could have carried out at it’s own expense to remedy that damage, and which would have been reasonable for the defendant to have implemented in all the circumstances.

In breach of duty the defendant did not take steps to implement and/or pay for that remedial scheme.

However, damage by long-standing lateral ground moisture was not pleaded by the claimants at the earlier proceedings, and so the issue of what was, or should have been, foreseen in those circumstances was not considered at trial.

Instead, the claimants’ case had focused on what was foreseeable in the context of the demolition of the former Trafalgar Works.

So it was difficult, if not impossible, to know what issues on foreseeability might have arisen had the claimants pleaded the correct cause of the damage.

The defendant won the case because the claimants’ pleadings had failed to identify the correct cause so the defendant had successfully defended against those pleadings even though the damage to the claimants’ house had always been caused by long-standing lateral ground moisture coming from the soil or material underneath the defendant’s property.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Owner liable for guest’s nuisance

Can someone be liable in nuisance to the owners of a next door property even though they do not occupy the property from which the nuisance emanates?

A landlord has restricted liability for nuisance since the tort blames the person or persons who cause(s) the nuisance. Where nuisances arise after the tenancy has begun, a landlord will not cause the nuisance unless he directly participates in it, or must be taken to have authorised it. He neither controls nor possesses the property from which the nuisance comes. The fact that he could, but did not, bring proceedings against the nuisance is not a ground for holding the landlord liable.

To be liable for nuisance, a landlord or their agent must participate directly in the act of nuisance, or the landlord must be taken to have authorised the nuisance by letting the property. The mere fact that a landlord does nothing to stop a tenant from causing the nuisance cannot be equated with participating in it, or authorising it.

An occupier is in a different position. Usually they will be responsible for a nuisance even if they did not directly cause it, since they are in control and possession of the property. Here a non-occupying owner may be regarded as an occupier of property if they have allowed others to live or carry out activities on their property, as licensees.

In Cocking & Anor v Eacott & Anor [2016] a Mother had allowed her Daughter to live in a house she owned, but did not live in. The barking of the Daughter’s dog caused a nuisance to neighbours. The Daughter never had more than a bare licence to occupy the property. She had no right to exclude her Mother from the property, Was the Mother “an occupier” for these purposes?

The Court of Appeal acknowledged that there might be cases where an arrangement might be called a “licence” but was in fact either a tenancy, or so much like a tenancy that the owner was not an “occupier” in the relevant sense. But this was not one of them.

Here the Mother was in possession and control of the property throughout her daughter’s stay there. The Mother could have abated the nuisance but chose to do nothing. The nuisance could readily have been abated by the Mother removing the dog and the occupier. The 9 months the neighbours allowed the Mother to abate the nuisance had been sufficient. The Mother was therefore liable for the nuisance.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Landlord didn’t participate or authorise so as to share tenant’s nuisance liability

The recent Supreme Court case of Coventry & Ors v Lawrence & Anor [2014] involved the claimants’ bungalow which was across some fields from a speedway track and raised a number of issues in the law of private nuisance.

One later issue in Coventry & Ors v Lawrence & Anor (No 2) [2014] was the extent to which the Landlords of the speedway track shared liability for their Tenant’s nuisance.

What follows is based on the judgment of Lord Neuberger supported by two of the other four Supreme Court Judges. Dissenting Lord Carnwath and Lord Mance delivered strong judgments whereby they would have found the Landlords here to share liability for their Tenant’s nuisance.

The idea that a distinction might be made absolving the Landlords from nuisance was particularly controversial for Lord Mance.

Landlords do not become liable for their tenant’s nuisance simply by failing to enforce a tenant’s lease covenant which would put an end to the nuisance. It would be wrong to “render [the landlord] a sort of trustee of [such a] covenant for the benefit of [a neighbour]”.

Accordingly, if the claim in nuisance against a landlord is to succeed, the claimant must prove the landlord’s “active” or “direct” participation in the nuisance.

Whether a landlord directly participated in his tenant’s nuisance must mainly pivot on what happened after the grant of the lease, although the nature and circumstances of the grant and what preceded it may also provide pointers.

The fact that a landlord does nothing to stop or discourage a tenant from causing a nuisance is not tantamount to “participating” in the nuisance. Even if a person has the power to prevent the nuisance, inaction or failure to act could not, of itself, amount to authorising the nuisance.

The fact the Landlords had erected a hay-bale wall around the stadium to discourage complaints and to keep down the noise was hardly consistent with them authorising it. It was somewhat ironic that the appellants argued that the Landlords took no steps to prevent the nuisance, and then argued that their taking of steps to reduce the nuisance supported the contention that they were liable for it.

The Landlords seeking to persuade the local authority not to take nuisance abatement action in relation to alleged noise or other nuisance emanating from their Tenant’s activities or taking a leading part in fighting off the risk of claims in common law, had more force, but, did not show that the Landlords authorised or participated in the nuisance. They were bound to oppose the imposition of restrictions which would affect the value of their reversion. The most it could do was to reinforce any other factors, that might be present, which supported the view that the Landlords had authorised or participated in the nuisance.

Apart from the above during the time that the appellants alleged nuisance, the Landlords:

– had no involvement in the activities carried on at the Stadium and the Track;

– were not in possession of the Stadium or the Track;

– took no share of the profits from the activities at the Stadium and the Track; and

– could not be said to have caused the nuisance in any way.

The Supreme Court held the Landlords were not liable for their Tenant’s nuisance.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Defendant owed no further duty to prevent tree stem falling on train

The legal liability, for fallen branches, of a landowner who owns trees can be summarised as follows:

1. He owes a duty to act as a reasonable and prudent landowner but that duty must not amount to an unreasonable burden or force the landowner to act as the insurer of nature. But he has a duty to act where there is a danger which is apparent to him and which he can see with his own eyes.

2. A reasonable and prudent landowner should carry out regular preliminary/informal inspections or observations. In certain circumstances, the landowner should arrange for fuller inspections by arboriculturalists. This will usually be because preliminary/informal inspections or observations have revealed a potential problem, although it could also arise because of a lack of knowledge or capacity on the part of the landowner to carry out preliminary/informal inspections.

3. The resources available to the owner may be relevant to how the duty is discharged.

In the High Court case of Stagecoach South Western Trains Ltd v Hind & Anor [2014] a stem fell off the defendant’s ash tree and damaged one of the claimant’s trains.

The issues were as follows:

1. Is an ordinary landowner routinely obliged to instruct an expert arboriculturalist to carry out regular inspections of the trees on his or her land? No, that was coming far too close to making the landowner an insurer of nature. In the absence of any trigger or warning sign, a reasonable and prudent landowner is not obliged, as a matter of course, to pay for an arboriculturalist to carry out periodic inspections of the trees on his or her land.

2. If not, is the landowner obliged to perform preliminary/informal inspections? An ordinary landowner, being required to act reasonably and prudently, is obliged to carry out regular preliminary/informal inspections of the trees on his or her land, especially where those trees border a highway, a railway or the property of another.

There may be cases where a landowner cannot fulfil that obligation. They may be absent for long periods, or may be physically unable. It could be that the landowner is so completely ignorant of trees that he or she would be unable to carry out a meaningful inspection, even if such an inspection was just preliminary or informal. However, here, the landowner would be obliged to instruct an arboriculturalist.

3. Did Ms Hind have sufficient knowledge and experience to carry out proper preliminary/informal inspections? Yes. She was an educated woman and a regular and enthusiastic gardener. In addition, she plainly knew a reasonable amount about trees.

4. Did she carry out proper preliminary/informal inspections? Yes. She carried out regular informal inspections/observations. She inspected the Tree and noticed its healthy foliage and the lack of deadwood.

Did she inspect it properly? Should it have become apparent to her that there was a potential problem with the Tree which required the more detailed inspection of an arboriculturalist?

She carried out the informal/preliminary inspections properly. There was nothing which should have triggered any concern or suspicion in her mind, as a reasonable and prudent landowner, that there was a potential problem with the Tree which needed to be investigated further.

Accordingly, her duty extended no further than the carrying out of periodic informal or preliminary observations/inspections of the Tree. She was capable of performing that duty and complied with that duty. There was nothing that should have put her on notice, that the Tree was anything other than healthy, or required a closer inspection by an arboriculturalist. The civil claim for nuisance and negligence against her therefore failed.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.

Contractor not liable in nuisance for event and type of damage that were not reasonably foreseeable

Three important themes can be gleaned from the decisions in Cambridge Water Co. v Eastern Counties Leather Plc [1994] and Transco Plc v Stockport Metropolitan Borough Council [2003].

1. Though liability in nuisance has traditionally been regarded as strict, i.e. it does not depend on proof of negligence, if the defendant’s use of his land is reasonable, he will not be liable in nuisance for interference with his neighbour’s enjoyment of his land.

2. Unless the case fits within the rule in Rylands v Fletcher, the defendant is not liable for damage caused by an “isolated escape”, i.e., one that is not intended or reasonably foreseeable.

3.Foreseeability of harm of the type suffered by the plaintiff is necessary if the defendant is to be liable in damages for nuisance.

In Northumbrian Water Ltd v McAlpine Ltd [2014] one of Northumbrian Water Ltd (appellant)’s sewers ran under Newgate Street, close to Newcastle city centre. Sir Robert McAlpine Ltd (respondent) was carrying out redevelopment works adjacent to Newgate Street.

The redevelopment required the sinking of a large number of concrete piles. Shafts were drilled using an earth auger and filled with concrete to create piles.

The site had been redeveloped several times before and a significant amount of excavation had been carried out. Before work started ground conditions were extensively investigated. So the respondent believed that there were no unidentified obstructions below ground level that were likely to be affected by, or interfere with, the works.

Unfortunately a private sewer which connected to the public sewer under Newgate Street had been laid under part of the site at a depth of over 3 metres.

It was not shown on the appellant’s current plans of the sewer system, but did appear on a 1908 plan, held in a Newcastle Museum, later found by one of the respondent’s employees who was following up on a private enquiry.

Part of the drain had survived the previous redevelopments and was still connected to the public sewer.

In the course of drilling the shaft to form pile No. 215 an open connection was created with the surviving drain. Whether the auger broke into the drain or simply passed close to an existing fracture (enabling the connection to be made) was not known

So, when concrete was poured to form the pile it was able to escape from the shaft into the drain and then into the appellant’s sewer. There it set and caused a partial blockage.

The appellant sued to recover the major expense it had incurred in clearing the obstruction.

The Court of Appeal held that such redevelopment of land in an urban context could only be regarded as normal and reasonable, save where it involved unusual methods of working.

Constructing concrete piles by the method adopted in this case was not unusual or liable to trouble neighbouring landowners.

The respondent, or the people it was responsible for, knew that concrete can seep out of shafts drilled for piles into surrounding voids in the sub-soil.

But there was no reason to think that the respondent should, because of that, have foreseen the possibility that concrete might escape the confines of the site and find its way into neighbouring land.

Had it not been for the abandoned drain, there was no reason to think that it would have done.

The respondent was not negligent in failing to discover the existence of the drain and so the escape of concrete into the appellant’s sewer was not reasonably foreseeable.

So the respondent was not liable to the appellant in nuisance.

The claim in nuisance failed because the escape of concrete from land occupied by the respondents and the resultant damage to the appellant’s sewer were not foreseeable.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Flat owner had no right to lay new pipes outside its leased property

In Yeung v Potel & Anor [2014] a four-storey property at 50 Warwick Gardens, London W14 was divided into four flats, each one being above the other.

The Flat 3 occupier carried out building works which caused damage to Flat 4 and nuisance to its occupants. He did not give notice to the claimants of what he was proposing to do. Nor did he serve any Party Wall Act notice on the claimants.

In the County Court damages were assessed at £87,627.05. This figure included £4,000 general damages and £12,850 VAT, due on the remedial costs.

The principal issues before the Court of Appeal were
whether the occupant of Flat 3 had a right of access to Flat 4 to facilitate the proposed moving of a gas pipe and gas meter.

National Grid PLC was willing to do the work, but would need temporarily to shut off the gas supply in Flat 4 for that purpose.

In Flat 3 there was a ceiling attached to joists. Above that there was a gap and then a separate set of joists, which supported the floor of Flat 4. On the underside of the floor joists there was, or had been, a lath and plaster ceiling.

Clause 1 of the Flat 3 and 4 leases defined the flats as including the ceilings and floor of and in the flat the joists or beams on which those floors were laid but not the joists or beams to which those ceilings were attached.

In fact Flat 3’s ceiling had been raised so the defendant’s let was extended no further than up to the ceiling which existed from 1964 until 2008.

So by removing that ceiling and installing a new ceiling at a higher level the defendant had already trespassed on the claimants’ property or on property retained by the Landlord.

Flat 3’s owner was wanting to lay the pipes within what used to be the void between Flat 4’s floor joists and Flat 3’s previous ceiling.

The defendant had, in effect, carried out a “land grab” by raising the ceiling of his flat.

There would be no objection to the defendant re-routing the gas pipe within his own let. Whether he could do so outside that depended what rights he benefited from granted by his own lease and what reservations he benefited from under other flat leases.

Schedule 1 to the leases included rights in the leases. These included:

4. The right to use the service pipes and wire which now are or may at any time hereafter be in under or passing through the remainder Building or any part of the Building.

5. The right to enter upon other parts of the Building usually on notice for the purpose of maintaining or renewing and of laying down service pipes and wires causing as little disturbance as possible and making good any damage caused.

In respect of each flat Schedule 2 to the leases reserved corresponding rights in favour of the rest of the Building. Except that the right of entry only extended to “renewing” sewers, drains, watercourses, cables, pipes and wires, it did not include “for the purpose of…laying down any new sewers drains and watercourses cables pipes and wires”.

E.g. computer cables different from and additional to the electric wires already in a property would not be replacements for those electric wires.

The question therefore arose whether there should be implied into the reservations clause the additional words “or laying new”. But if the parties had considered that the reservations clause had been insufficiently wide, they could and should have amended it by means of the general updating deed of variation they had entered into a few years earlier.

The court interpreted the reservations clause to mean either (a) the lessor or (b) the lessees of other flats could enter Flat 3 or Flat 4 for:

i) Repairing, cleaning or maintaining sewers, drains, watercourses, cables, pipes and wires.

ii) Renewing sewers, drains, watercourses, cables, pipes and wires.

In that context “renewing” pipes or wires meant substituting new pipes or wires as replacements for the pre-existing ones. It did not extend to laying new and additional pipes or wires of a different character from the pre-existing ones.

Re-routing a gas pipe so that it lay within an area outside the let flat was not authorised by the rights or reservations in the leases.

This blog has been posted out of general interest. It does not remove the need to get bespoke legal advice in individual cases.

Supreme Court Judgment on Planning & Historic Property Nuisance Claims

The recent Supreme Court case of Coventry & Ors v Lawrence & Anor [2014] involved the claimants’ bungalow which was across some fields from a speedway track and raised a number of issues in the law of private nuisance namely:

How far a defendant may contend that he has established a prescriptive right to commit what would otherwise be a noise nuisance;

The court concluded that you can obtain by long use a prescriptive right to commit what would otherwise be a nuisance by noise, or, in short, to transmit sound waves over neighbouring property.

But you had to ask whether the nature and degree of the activity over a period of at least 20 years, taken as a whole, would make a reasonable person on the receiving end of that noise aware that a continuous right to enjoy making noise was being asserted and ought to be challenged if the plan was to resist it.

Here there were some non fatal gaps in the defendant’s claimed use of the track. However what was fatal to this defence was that they had failed to show that their activities during the 20 years amounted to a nuisance. It was even insufficent to show that the activity has created a noise for 20 years. What had to be established was that the activity had (or a combination of activities had) created a nuisance over 20 years.

How far a defendant to a nuisance claim can rely on the fact that the claimant “came to the nuisance”;

In this case the speedway track had been going since 1976, the year after it got planning permission. Other motor sports and greyhound uses had been added to the planning later. However the claimants had only been there since April 2006 and their predecessors since 1984.

The court said that the victim “coming to the nuisance” was no defence to a nuisance claim. This stemmed from the fact that nuisance is a property-based legal wrong. The right to allege a nuisance ran with the land. So it would be odd if a defendant was no longer liable for nuisance merely because the neighbour had changed, even though his neighbour’s property was still being used the same way.

It followed that it might be a defence for a defendant that an activity had only become a nuisance because the claimant had changed the use of, or built on, their land.

The extent, if any, to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality;

Here the court got into most difficulty. The court accepted the initial premise that the defendant’s activities are to be taken into account when assessing the character of the locality. The leading judgment then said that they would however not be acceptable so far as they amounted to a legal nuisance which appears entirely circular.

However it said they would be deemed lawful for those purposes if a court had already awarded damages instead of an injunction in respect of them.

Looking at the judgment the court do not seem to have squared the circle here. Perhaps the test is whether seen against the backdrop of the locality the defendant’s activities stand out as being a legal nuisance to the claimant which the claimant ought not reasonably to be expected to put up with at all, or at any rate without compensation.

How far the grant of planning permission for a particular use can affect that use being a nuisance;

The court adhered to orthodoxy. Granting planning permission did not mean that that development was entirely lawful. It just meant that the public law, public interest hurdle of planning permission had been cleared. Things could be a legal nuisance in the 19th century even when the requirement for planning permission had not existed.

Anyway it would be wrong in principle if a planning authority could deprive a property owner of their right to object to a nuisance, without compensation, when there is no appropriate provision for them getting such compensation in planning laws.

The approach to be adopted by a court when deciding whether to grant an injunction to restrain a nuisance, or whether to award damages instead, and the relevance of planning permission to that issue

Current authorities on this point were inconsistent.

The leading judge said the approach of the courts should be much more flexible than that suggested in some of them. It was entirely a matter for the court’s discretion.

Damages could be based on the loss of value to the claimants’ property caused by the nuisance.

But it was also suggested that damages should not be limited to this if the defendant might have paid the defendant more for a licence to commit the nuisance.

However, the leading judgment said there were factors militating against nuisance damages being assessed based on the benefit to the defendant in no injunction being granted.

As the court had heard no argument on the issue and held differing views, rather than cloud the issue further, the leading judgment said the fairest way to deal with the point was to refuse the defendants permission to raise it, but to hold instead that the judge’s order should contain a proviso that the defendants be free to argue for the judge’s injunction stopping the nuisance noise to be discharged, and damages awarded instead.

The decision whether to award damages instead of an injunction may be dependent on a number of issues, including the behaviour and attitude of the parties The trial judge would be better able to assess these. However the defendants would have to give the claimants sufficient notice of their intention to raise such arguments to enable the claimants to prepare.

However some members of the court indicated that the fact planning permission had been granted would not of itself cause the court to order damages rather than an injunction.

This blog is posted out of general interest. It does not replace tne need to get proper legal advice in individual cases.