An Introduction to the Tort of Nuisance – Part 1

….an interference or disturbance must be shown to be unreasonable in order to pursue an action in nuisance, which by default must means that there are some occasions when interferences or disturbances will be reasonable

Source: http://www.mylubbock.us/

I have recently written a number of articles which discuss the Tort of Negligence which tends to get a great deal of publicity with legal specialists offering their services on a no win no fee basis.  You will see television adverts, billboards, newspaper and magazine articles, unsolicited emails and sometimes cold calling from legal companies trying to convince us that we have a legitimate claim in negligence for one reason or another.  A further area of Tort law which is just as significant, but less well known is the Tort of Nuisance.

In the case of Walter v Selfe (1851) the definition of nuisance is defined as: ‘…..an inconvenience materially interfering with the ordinary comfort, physically, of human existence, not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions among the English people’.  It is always interesting to read a judge’s decision and particularly the language that is used in ‘older cases’.  The vast majority of nuisance cases relate to an ‘unreasonable’ interference with the use and enjoyment of land or property.  What is also interesting is the fact that an interference or disturbance in nuisance must be shown to be unreasonable in order to pursue an action, which by default must means that there are some occasions when interferences or disturbances will be reasonable.  As an example let us consider a person who is working night shifts and therefore has to sleep during the day.  Does noise from a neighbouring property (during the day), constitute an unreasonable interference or disturbance?  It is unreasonable to expect the neighbour to be completely silent and an action in nuisance by the night worker is highly likely to fail.  On the other hand if the noise complained of can be proved to be excessive and persistent then the outcome could be very different.   The definition of what is considered as unreasonable interference is further clarified in the case of Carley v Willow Park Golf Course Ltd. (2002), ‘Interference must be such as would not be tolerated by the ordinary occupier. No use of land is reasonable if it produces substantial discomfort to others, or materially damages their property’.

Source: http://metro.co.uk/

Examples of what may constitute nuisance are not limited to noise as per the example above, and can include things such as odour, lighting, waste, air quality, bonfires and so on……  Nuisance can be categorized as public nuisance, private nuisance and statutory nuisance and I will endeavour to explain the difference between each over the course or this and the next few articles.

Public Nuisance is defined as an unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the public. As it is the general public that are affected, actions in public nuisance will mean that a number of people are affected (sometimes a considerable amount of people), not just an individual. Public nuisance is considered as a criminal action, where proceedings are brought by the Government who will typically seek an injunction to remedy the nuisance, not damages.  Sometimes however damages will accrue as a result of a successful injunction resulting in a defendant suffering financial consequences to rectify the impact of the nuisance. For example, a manufacturer who has polluted a river or stream may be served with an injunction preventing them from further pollution (the nuisance) and be fined for the costs of any clean up or re-mediation works.  Also, in some situations a criminal sentence may also be handed down by the courts.

There are a number of previous cases which provide examples of public nuisance including Benjamin v Storr (1874). For the purposes of his business, Storr kept horses and vans standing outside Benjamin’s coffee house throughout the day which caused an obstruction to the highway (a public nuisance). Benjamin complained that he had suffered special damage due to the vans and horses obstructing light, resulting in increased expense incurred for keeping gas lights burning throughout the day.  He further alleged that the smell of the horses was offensive and deterred customers from using the coffee house.  The court found in favour of the plaintiff (Benjamin) and demonstrates that a defendant can be found guilty of public nuisance (the obstruction of the highway) and also be faced with an action in tort for the loss and disruption resulting from the nuisance. 

Other examples of cases of public nuisance to look at include Tarry v Ashton (1876), Attorney General v PYA Quarries Ltd (1957), Dollman v Hillman (1974) and Tate & Lyle Industries v Greater London Council 1983), however, to conclude this article I would like to finish with a case that always generates some discussion with my students, the outcome of which, at first glance does seem a little unfair;

Wandsworth London Borough Council v Railtrack plc (2001), The defendant (Railtrack) owned a bridge which attracted large numbers of pigeons.  Interestingly, although the owner was not at fault, they were held liable to contribute to the local authority's costs of the bridge to deal with the nuisance.  As stated above, at first glance it does seem unfair that the defendant could be held responsible for what is effectively ‘the forces of nature’.  The justification from the courts for their decision was that the number of pigeons were enough to constitute a public nuisance, and the defendants became liable where they had not remedied the nuisance after a reasonable time. The judge went onto state; ‘the fact that the pigeons were wild, and that the nuisance was one of inconvenience rather than the causing of actual damage were not relevant. The local authority's request was reasonable’.

The above introduces the tort of nuisance and provides some case examples to demonstrate the point.  As with all areas of law, further reading will help to deepen understanding where I have provided some other cases for further reading and research. In my next article I will consider private nuisance.

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Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Law of Land & Property - Part 2 - Fixture or Chattel?

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it. 

Source: http://www.ecoinstaller.net/

Anyone who has bought and sold property over recent years will be very familiar with the pack of information that they receive from their legal advisors which details or schedules out all of the fixtures and fittings that will form part of the property/land.  This is important because there were often conflicts between a purchaser and a seller in respect of what formed part of the property/land and what did not.  It is therefore interesting to see what the law says about what is a fixture (and therefore forms part of the property/land) and what is a chattel (which does not).

The definition of a fixture is sometimes subject to heated debate, however in general terms the law considers a fixture as something that is permanently fixed to the property/land and therefore is deemed to form part of it.  Fixtures will therefore include things like buildings together with anything that is permanently attached to it.  If something is secured in place by anything other than its own weight, it is highly likely to be considered as a fixture.  A chattel on the other hand and hardly surprisingly is the exact opposite, being something that is easily removed and therefore cannot be considered as permanent. Chattels are therefore generally considered as temporary and easy to move (although there a number of exceptions to this, which will be considered later).  Before proceeding it is worth clarifying that the law considers ‘tenant fixtures’ in a very different way to other types of fixtures.  For the purposes of this article I will not be discussing tenant fixtures, which is a topic I will save for a future article.

Property is usually bought and sold under a contract which therefore allows the buyer and seller to come to whatever agreement they want in respect of fixtures and chattels.  Where this agreement is lacking, whether by ignorance or wilfulness and a dispute ensues the parties will sometime go court in order to resolve the dispute. Under the doctrine of judicial precedent the courts in the UK are bound by decisions made in similar previous cases so it is worth looking at some previous cases to help us to understand how the courts decide what is a fixture and what is a chattel.

Source: http://www.theglasgowstory.com/

The case of Holland v Hodgson (1872) is commonly referred to where the question in respect of fixtures and chattels.  The case related to whether some factory machinery (looms) were a fixture and formed part of a factory or if they indeed were chattels.  As stated above the law relating to tenant fixtures has evolved since this case however the test used for determining whether something is a fixture of a chattel is still relevant.  In deciding whether something is a fixture or a chattel the Judge identified two tests.  Firstly, the degree on annexation (how and the extent to which something is fixed) and the purpose of the annexation (the reason for fixing the item). In explaining the test the Judge went on to say that ‘articles that are only attached to the land by their weight are not usually considered to be part of the land, unless they were actually intended to form part of the land’. In order to demonstrate this point the judge gave an example of a dry stone wall, stating that ‘a pile of stones, randomly stacked in the middle of a field, would not be part of the land but when they have been arranged, packed, and formed into a stone wall, then they clearly are intended to be part of the land’. In any case it is the responsibility of the person/party claiming that an object forms part of the land to prove it.

In the case of Berkley v Poulett (1976) a dispute arose relating to whether certain items sold at auction were deemed to be fixtures and therefore formed part of the property/land or whether they were chattels.  The items in question were some pictures fitted into panelling in a wall and in the garden, a heavy marble statue resting on plinth and a sundial.  The Court of Appeal considered the test used in Holland v Hodgson and concluded that the pictures, although fixed to the wall were chattels as ‘they were put on the walls to be enjoyed as pictures, rather than with the intention of making them part of the land’. The statue was also not attached to the land, but was placed on a plinth that was attached to the land. The Court concluded that the plinth formed part of the land, but the statue did not, because there was no evidence that the statue was designed as part of an ‘architectural scheme’. The sundial was also determined to be a chattel, because it had been detached from its pedestal many years earlier.

If we contrast the case of Berkley v Poulett with the case of D’Eyncourt v Gregory (1866) we can see how the courts arrived at a different decision for similar items. In this case a sundial was also held to be a chattel rather than a fixture, however, in the garden, statues, figures, vases, and stone garden seats that were part of the architectural design of the grounds were deemed to be fixtures, whether or not they were attached to the ground.

In most property transactions the question of whether something is a fixture or a chattel is relatively straightforward however in instances where this is bought into question it is worth being aware that there is precedent for determining this and resolving disputes.  As stated above, in a future article I will tackle the issue of ‘tenant fixtures’, where we will find that the law differs from that stated above.

Please feel free to share this article and other articles on this site with friends, family and colleagues who you think would be interested

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.