Thinking about Nuisance.

Original Article
May 10th, 2019


Recently the RICS commissioned legal opinion as to whether the presence of combustible cladding on a building may be sufficient basis for a cause of action in nuisance against the owner of a neighbouring building. 

The full opinion is published on the RICS website, but as it comes hot on the heels of Williams v Network Rail we thought this might be a useful prompt to revisit the tort of nuisance.

What is nuisance?
Nuisance is an established tort that evolved principally during the 19th Century with the development of the Industrial Revolution and the need to protect neighbours as land usage became more sophisticated with the expansion of manufacturing.

There are two types of common law nuisance – private and public.

Private nuisance

Private nuisance is actionable in tort and gives a person the rights to protection from ‘interference’ of their use or enjoyment of land. The most common acts associated with private nuisance are the physical encroachment on land, physical damage or undue interference thus affecting the neighbouring landowner’s comfortable and convenient enjoyment of his land.  

Nuisance may be something physical (trees encroaching on land, for example) but can also be intangible, such as smells or noise.

Public nuisance

Public nuisance is traditionally a criminal offence often defined as an unreasonable, unwarranted or unlawful interference, which can be either an ‘act’ or an ‘omission’, which endangers or interferes with the lives, comfort, property or common rights of the general public. A public nuisance can give rise 

to a civil claim for damages. An example might be where a landlord is in breach of a state’s housing codes; this could be both a public nuisance as well as a private nuisance to the individual tenants.

Another example is environmental legislation, which comes under public nuisance and gives authorities the ability to act quickly where a ‘nuisance’ might endanger the health of the public.

Private nuisance is more often encountered than public nuisance and this article focuses on private nuisance.

The essence of nuisance

The main purpose of private nuisance cases is to balance the competing interests of neighbouring owners and occupiers and to decide at what point interference from one of the parties becomes intolerable and therefore actionable in law. Or, to put it another way, the tort of nuisance is an action against unreasonable behaviour. This can be challenging in itself – what may constitute a nuisance in one locality, may not necessarily be so in another. Or, as Lord Justice Thesiger said in the case Sturges v Bridgman (1879), “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.”

However, not every interference will constitute a nuisance. As a rule of thumb, the longer the interference lasts and the greater the extent, then the more an action in nuisance is likely to succeed (although, if a single activity results in a dangerous situation this may be sufficient for a successful action).

Another consideration is how ‘sensitive’ is the use of the land affected by a potential nuisance? Again, a general rule is that a claim in nuisance is unlikely to succeed if the use would not be unreasonable in other circumstances. This is well summarised by Lord Justice Lopes in the case Robinson v Kilvert (1889) where he said, “A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade.”

The courts will also consider foreseeability of harm, utility of the activity being carried out that is causing the potential nuisance and any maliciousness involved in the activity (while the latter is not on its own sufficient for a nuisance claim to succeed, it may contribute to recognition of the nuisance).

A recent recap on main principles 

The most recent high-profile nuisance case is probably Williams v Network Rail Infrastructure Ltd (2018). In this case Stephen Williams and Robin Waistell made claims in private nuisance for the effects of Japanese knotweed on their properties which Network Rail had allowed to grow on its adjacent land. You may recall that Messrs Williams and Waistell owned two adjoining semi-

detached bungalows in South Wales. Network Rail owns the land immediately behind the claimants’ properties. On the Network Rail land was a stand of Japanese knotweed.

Of course, we are familiar with this case. The nuisance of loss of amenity was determined when it was agreed that actual physical damage was not required, and that the mere presence of Japanese knotweed rhizomes was sufficient in itself to cause an interference with Mr Williams’ quiet enjoyment of his property. As a result, Mr Williams was entitled to damages for the diminution in the amenity value of his property which was the result of the presence of Japanese knotweed. (Interestingly, the claim of nuisance from encroachment did not succeed as the knotweed had not actually damaged Mr Williams’ property.)

In his judgement, Sir Terence Etherton, the Master of the Rolls, provides a very useful summary of the current principles of private nuisance. 

  • A private nuisance is a violation of real property rights. These include the rights of the owner of the land but also include a legal interest in the land (for example an easement) or interference with the right to use and enjoy the land.
  • The categories of such violation can be summarised as:
    • Nuisance by encroachment
    • Nuisance by direct physical injury
    • Nuisance by interference with a neighbour’s quiet enjoyment or amenity.

But Sir Terence Etherton MR observed that rigid categorisation of nuisance is not always helpful where new social conditions could emerge and there needs to be careful consideration of factual situations on a case by case basis. 

  • Although an established principle of nuisance is that the claimant is entitled to damages where the defendant is found liable, in some instances, in particular interference with an easement or profit a prendre (where a person is entitled to take some items from the land of another, for example a right to catch fish) then it is not necessary to prove a specific damage.
  • Nuisance may be caused by inaction or omission as well as by some form of positive activity – so an owner may be liable if they fail to act reasonably to remove a hazard of which they are aware and where it was foreseeable that this hazard could risk damaging the neighbour’s land.

Other practical examples
Tree roots
In the case of Delaware v Westminster City Council (2001), two plaintiffs claimed damages and interest from the Westminster City Council in its capacity as the highway’s authority. Westminster, as the highways authority, owned a plane tree growing in the footpath some 4 metres from the front boundary of the property.The first plaintiff was Delaware Mansions Ltd, a management company owned by the tenants of the flats. The second plaintiff was Flecksun Ltd, a wholly-owned subsidiary of Delaware. Flecksun had acquired the freehold of Delaware Mansions from the original owners and developers, the Church Commissioners, in 1990. The tree in question was probably present when the flats were originally built.

In 1989, before Flecksun owned the freehold, the occupants noticed cracks in the building and this was reported to Westminster by the original freeholders.  The council had refused to remove a mature plane tree that was causing damage to the building, despite being on notice from the owners of that building of the damage being caused. The new owners spent over £570,000 carrying out underpinning works and claimed the cost from the council.

Lord Cooke noted, “Having regard to the proximity of the plane tree to Delaware Mansions, a real risk of damage to the land and the foundations was foreseeable on the part of Westminster….” He went on to say, “It is arguable that the cost of repairs to the cracking could have been recovered as soon as it became manifest. That point need not be decided, although I am disposed to think that a reasonable landowner would notify the controlling local authority or neighbour as soon as tree root damage was suspected. It is agreed that if the plane tree had been removed, the need to underpin would have been avoided and the total cost of repair to the building would have been only £14,000 (joint statement of facts and issues, paragraph 23). On the other hand the judge has found that, once the council declined to remove the tree, the underpinning and piling costs were reasonably incurred…”

The House of Lords held the council liable for that sum. The claimant was not merely entitled to damages for the damage to the property that had occurred during its period of ownership but also for the continued nuisance. If the tree had been removed the need to underpin would have been avoided and the total cost of repair to the building would have been only about £14,000.

Dangerous structures
In the case of Birmingham Development Company v Tyler (2008), BDC owned a site that had formerly been a wharf and factory. It commenced demolition works on the site in June 2006, intending to start piling works in November 2006.
Mr Tyler owned a factory on land adjoining BDC’s site. This was a three-storey building with workshops, offices and a basement. It had been built in the 1930s.

The demolition operations carried out by BDC revealed a “section of brickwork 6 metres wide x 1 metre high at the top of Mr Tyler’s flank wall that appeared haphazard, unbonded, loose and dislodged.” Further work revealed two further areas of concern on the factory wall. The state of the original section of the wall was such that the demolition contractor felt their employees were at risk of harm from potential collapse of the wall. However, the demolition work continued.

BDC sued Mr Tyler alleging that the defective wall constituted a nuisance and that Mr Tyler should act to remedy the nuisance. The claim was for an injunction restraining an alleged nuisance and for damages on the basis that these defects presented a danger and so interfered with BDC’s enjoyment of its property.

The court determined that it was not sufficient by merely proving fear of something for a person to claim that a neighbour’s property or activities are dangerous. What is required is for the proof to be well-founded i.e. that the property is actually dangerous. But in the judgement Lord Justice Rimer did record the following:

“In addition, there is in my judgment no doubt that, whilst the existence on the neighbouring property of what the old reports used to refer to as a tumbledown house may not in itself be tortious, a claimant will or may have a complaint in nuisance if that house borders his own property and its state of dilapidation is such that it presents a real danger of collapsing on to his property. For the claimant to live in the shadow of such a danger will obviously be to interfere with his enjoyment of his property. It may prevent him from using part of it for fear of what will happen if there is a collapse. It may require him to vacate it altogether. In such a case the claimant may well, subject to all the issues of reasonableness discussed in the authorities, have a claim in nuisance against the neighbour requiring him to make his house safe from the risk of collapse onto his property.”

In conclusion
The problem with nuisance, as with torts generally, is that it is difficult to glean many consistent rules from the extensive body of case law. Cases in this area tend to turn on their own facts and no two circumstances are likely to be identical. (Birmingham Development Company v Tyler might have taken a very different turn had the demolition contractors actually left the site.)The RICS obtained legal opinion from a leading QC in commercial property law as to whether a legal liability in nuisance could be created by a neighbouring building with known ACM combustible cladding. The view of the QC was that the presence of a combustible cladding alone was not sufficient to give rise to a claim in nuisance, but it will be interesting to see if and how this might change over time, particularly if the value of neighbouring properties is affected, if lenders get very nervous or perhaps if people actually vacate so great is their fear of fire emanating from a neighbour.