Handout # 6 Law Unit 2

CASE SUMMARIES FOR NUISANCE

There are two types of nuisance in English law: Public nuisance and Private nuisance. In some instances, the same set of facts can produce liability in both kinds of nuisance, although the two types of nuisance are very much distinct. Private nuisance is concerned with protecting the rights of an occupier in respect of unreasonable interference with the enjoyment or use of his land. The parties to an action in private nuisance are generally neighbours in the popular sense of the word and the courts undertake a balancing exercise between the competing rights of land owner to use his land as he chooses and the right of the neighbour not to have his use or enjoyment of land interfered with. Public nuisance is a crime but becomes actionable in tort law if the claimant suffers 'particular damage' over and above the damage suffered by the public generally. A vast range of interferences are capable of amounting to an actionable nuisance. Some examples include: Nuisance from flooding - Sedleigh-Denfield v O' Callaghan [1940] AC 880 The council undertook some work on the defendants land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendants workers had clean ed the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Lord Maugham: My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe. Nuisance in the form of smells - Wheeler v JJ Saunders [1996] Ch 19 The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another

Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance. Peter Gibson LJ: The defence of statutory authority is allowed on the basis of the true construction of the scope and effect of the statute. Parliament is presumed to have considered the competing interests in the particular circumstances which are the subject of the statute and to have determined which is to prevail in the public interest in authorising the particular development and use of land and whether or not compensation is to be paid to those whose common law rights are adversely affected by the authorised development and use. But in the case of planning permission granted pursuant to the statutory scheme contained in the town and country planning legislation it is far from obvious to me that Parliament must be presumed to have intended that in every case it should have the same effect on private rights as direct statutory authority, regardless of the circumstances that were in fact taken into account. True it is that Parliament by that legislation has provided a mechanism for regulating the development and use of land in the public interest and that it has delegated to the local planning authority the function of making planning decisions; but Parliament will also have been aware of the range of such decisions and the variety of possible circumstances in which they may be taken. It would also have been aware of the limited scope open to an objector to challenge a grant of planning permission. Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to and prevail that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge.

Encroachment by tree branches or roots -Lemmon v Webb [1894] 3 Ch 1 A neighbour could cut back branches overhanging his property without giving notice to the owner of the tree provided he could do so without entering the others land. Nuisance noise - Kennaway v Thompson [1981] QB 88 The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Clubs waters since the early 1960s. 1972 the claimant moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the clubs waters were often used as a venue for both national and international races. The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The claimant appealed. Held: Appeal allowed and an injunction was granted. Lord Cairns Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances. Cricket balls - Miller v Jackson [1977] 3 WLR 20 The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether. Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space. Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance. Disturbance from a brothel Thompson-Schwab v Costaki [1956] 1 WLR 335 Where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to amount to an actionable nuisance as the activity was considered offensive in itself. There was no need to demonstrate that the activities were noisy.

Some interferences are not capable of giving rise to an actionable nuisance: Interference with television reception-Hunter v Canary Wharf [1997] 2 All ER 426 690 claims were made against Canary Wharf ltd. The claimants lived in the Isle of Dogs and complained that the erection of the Canary Wharf Tower interfered with their television reception. In addition, a second action against London Docklands Development Corporation involved 513 claims for damages in respect of excessive amounts of dust created during the construction of the tower. Some of the claimants were owners or tenants of properties, but many of the claimants had no proprietary interest in lane at all. Some were children living with parents, some were relations or lodgers with use of a room and some were spouses of the tenant or owner of the property. The two issues the House of Lords were required to consider were: 1. Whether interference with television reception was capable of giving rise to an actionable nuisance 2. Whether an interest in property was required to bring an action in nuisance Held: 1. There is no right of action in nuisance for interference with the television reception. 2. An interest in property is required to bring an action in nuisance. Khorasanjian v Bush overruled in so far as it holds that a mere licensee can sue in private nuisance. Lord Hoffman: In this case, however, the defendants say that the type of interference alleged, namely by the erection of a building between the plaintiffs' homes and the Crystal Palace transmitter, cannot as a matter of law constitute an actionable nuisance. This is not by virtue of anything peculiar to television. It applies equally to interference with the passage of light or air or radio signals or to the obstruction of a view. The general principle is that at common law anyone may build whatever he likes upon his land. If the effect is to interfere with the light, air or view of his neighbour, that is his misfortune. The owner's right to build can be restrained only by covenant or the acquisition (by grant or prescription) of an easement of light or air for the benefit of windows or apertures on adjoining land. In relation to planning permission: "In a case such as this, where the development is likely to have an impact upon many people over a large area, the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law. It enables the issues to be debated before an expert forum at a planning inquiry and gives the developer the advantage of certainty as to what he is entitled to build." Interference with a view

PRIVATE NUISANCE
Private nuisance is essentially a land based tort. In order to bring a claim in private nuisance, a claimant must have an interest in the land in which he asserts his enjoyment or use has been unreasonably interfered with. Malone v Laskey [1907] 2 KB 141- The claimant was injured when vibrations from an engine on an adjoining property caused a bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as she did not have a proprietary interest in the house. Her husband was a mere licensee through his employment as a manager. This requirement was departed from in Khorasandjian v Bush but reinstated in Hunter v Canary Wharf: (see case summary above) Khorasandjian v Bush [1993] QB 727 The claimant was an 18 year old woman who was being harassed by the defendant a 23 year old man. He had threatened her with violence, behaved aggressively when he saw her, shouted abuse at her, he would pester her with phone calls at her parents and grandparents house. He had spent time in prison for threatening to kill her. She obtained an injunction in civil law against him to prevent him using violence to, harassing, pestering or communicating with her. The defendant appealed against the injunction on the ground that the judge had no jurisdiction to grant such an injunction as harassing, pestering or communicating did not constitute any tort known to law. Whilst the persistent telephone calls were capable of constituting the tort of nuisance, the claimant did not have an interest in the land and therefore had no cause of action in tort law. Held: His appeal was dismissed. 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 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. NB this case was overruled in Hunter v Canary Wharf The claimant must possess a right to the enjoyment of the facility that is being deprived. Bury v Pope (1587) Cro Eliz 118 HELD: The owner of land was held entitled to erect a house against his neighbour's windows even though they had enjoyed light for over 30 years. In the absence of an easement, there is no right to light There was no right to a particular water depth in Tate & Lyle but the action succeeded based in public nuisance:

Tate & Lyle v GLC [1983] 2 AC 509 - Tate & Lyle operated a sugar refinery on the bank of the river Thames. They had a jetty from which raw sugar would be offloaded from barges and refined sugar would be taken. The sugar would be taken be larger vessels and then transferred to smaller barges to enable them to get to through the shallow waters. As part of development Tate & Lyle wished to construct a new jetty and dredge the water to accommodate the larger vessels. At the same time the GLC was constructing new ferry terminals. The design of the ferry terminals was such that that it caused siltation of the channels. After using the channels for a short while, Tate & Lyles larger vessels were no longer able to use them. Further dredging at the cost of 540,000 was required to make the channel and jetties usable by the vessels. Tate & Lyle brought an action in negligence and nuisance to recover the cost of the extra dredging. Held: The claim in negligence and private nuisance failed since they did not possess any private rights which enabled them to insist on any particular depth of water. The claim succeeded in public nuisance since the interference caused by the ferry terminals affected public navigation rights. Tate & Lyle suffered particular damage as a result of this interference. There is no such requirement that the defendant has any interest in land: Thomas v National Union of Miners [1985] The actions of miners striking were held to constitute a nuisance. Scott J considered that the miners returning to work should be entitled to use the public highway to enter the colliery without harassment and abuse shouted at them by the picketers.

Jones v Portsmouth City Council [2002] EWCA Civ 1723 The claimant ran an insurance brokers in London road, Portsmouth. London road was owned by Hampshire County Council (HCC). There were two trees situated on London road outside the claimants premises. The roots of which encroached on the claimants property and the abstraction of moisture from the ground caused by the roots led to subsidence of the property. HCC had an agreement with the defendant, Portsmouth City Council (PCC) that PCC would be responsible for maintaining the trees on all highways in Portsmouth. Held: PCC were liable for nuisance despite the fact that they did not own or occupy the land because they had lawful exercise of control over the tree. However, they must have used land: Southport Corporation v Esso Petroleum [1953] 3 WLR 773 -The defendants oil tanker ran aground in an estuary partly due to weather conditions and partly due to carrying a heavy load and a fault in the steering. The master discharged 400 tons of oil in order to free the tanker. The oil drifted onto the claimants land including a marine lake which it had to close until it had been cleaned at a substantial cost to the claimant. The claimant brought an action in negligence and nuisance. The trial judge found for the defendant and the claimant appealed. Held: Appeal allowed (Morris LJ dissenting) the defendant was liable in negligence and public nuisance. Lord Denning on private nuisance:

In order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment of the plaintiff's land. "The ground of responsibility", said Lord Wright in Sedleigh-Denfield v. O'Callaghan, reported in 1940 Appeal Cases at page 903; "is the possession and control of the land from which the nuisance proceeds." Applying this principle, it is clear that the discharge of oil was not a private nuisance, because it did not involve the use by the defendants of any land, but only of a ship at sea. A person with ownership rights in the land may be liable in nuisance even where they were not the creator of the nuisance if they authorised it: Tetley v Chitty [1986] 1 All ER 663 A council allowed a go-kart club to use their land for a race track. Nearby residents brought an action in nuisance. The council were held liable for authorising the activities of the go-kart club. The noise was an ordinary and necessary incident to go-kart racing which was the purpose for which the permission to use the land was granted.

The authorisation must relate to the nuisance, a landlord will not be liable merely for allowing occupation of the creator of the nuisance: Smith v Scott [1973] Ch 314-Lewisham Borough Council acquired property next door to the claimants home in order to house homeless families. The Council placed a troublesome family in the property who committed several acts of nuisance against the claimants. The council knew the family were troublesome although the terms of the tenancy agreement prohibited acts of nuisance by the tenants. Held: The Council were not liable for the acts of the tenants. Whilst they were aware that the family might commit acts of nuisance, they had not authorised the nuisance. Vice-Chancellor: "In general, a landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance The exception is not based on cause and probable result, apart from express or implied authority. In the present case, the corporation let No. 25, Walpole Road to the Scotts as a dwelling house on conditions of tenancy which expressly prohibited the committing of a nuisance, and, notwithstanding that the corporation knew the Scotts were likely to cause a nuisance, I do not think it is legitimate to say that the corporation impliedly authorised the nuisance." Hussain v Lancaster City Council [1999] 2 WLR 1142 The claimants own a shop and residential property which is situated on a housing estate owned by the defendant. The claimants suffered severe harassment, including racial harassment which was predominantly from tenants and their families from the housing estate. The harassment took the form of congregating outside the shop, intimidation, shouting abuse and threats, throwing bricks, stones and balls, smashing windows, burning objects put through the door. The defendant was aware of the harassment from 1991. The council had sent letters to the perpetrators threatening them with eviction if they continued to harass the claimants, however, this was ineffective and the council did not in fact take possession proceedings against any of the perpetrators. The Council had the power to evict them for causing a nuisance under the tenancy

agreements and under the Housing Act 1985. The claimants brought an action against the council for their failure to prevent the nuisance when it was in their power to do so. The defendant Council applied for a strike out which was refused. The council appealed. Held: The appeal was allowed and the claim struck out. The case was outside the scope of nuisance since the acts of the perpetrators did not involve the tenants use of the tenants land. Furthermore the Council had neither authorised nor adopted the nuisance. Similarly a landlord will not be liable for the noise created by a tenant, where the noise itself does not constitute a nuisance. London Borough of Southwark v Mills [1999] 3 WLR 939 Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council. Held:There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist. A further way in which an owner or occupier may be liable for the acts of the creator of the nuisance is where they have adopted or continued the nuisance: Sedleigh-Denfield v O' Callaghan [1940] AC 880 The council undertook some work on the defendants land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had negligently placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The defendants workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the claimant and caused substantial damage. The claimant brought an action in nuisance for the damage caused. The defendant argued that he had neither consented to nor had knowledge of the existence of the culvert. Held: The defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Lord Maugham: My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.

Page Motors v Epsom Borough Council [1982] LGR 337 The claimant ran a car sales business. There was open land adjacent to their business premises, which was owned by the defendant Council. Gypsies moved onto the land and caused nuisance to the claimant in various forms including the burning of rubber, failure to control dogs, obstructing access and damaging the fences. Held: The council were liable as they had an immediate right of possession of the land. The council had adopted and continued the nuisance as their motive for not enforcing a possession order was the possibility of the gypsies moving to another site within the borough. Ackner LJ:"It is of course common ground that the council owned the land upon which the gypsies created the nuisance. They had an immediate right to possession of that land and were in a position in law, and indeed in fact to control the property. The responsibility, if any, which attaches to them in these circumstances is by virtue of their being the occupiers of that land. ..In my judgment the judge was wholly correct in concluding that the council adopted and continued the nuisance constituted by the activities of the gypsies on the Nonsuch Estate. He stated that a primary motive' for not enforcing the possession order was the possibility that the gypsies might have moved to another site within the borough. That was making use of the gypsy encampment on the Nonsuch Estate, even though the motive may merely have been to buy time to enable a solution to be found. He rejected, rightly in my judgment, the submission of Mr. Schiemann, for the council, that a defendant cannot be held to have adopted' a nuisance unless there is proved a positive desire on his part to use for his own benefit that which is causing a nuisance to the plaintiff. He concluded that by not taking steps to remove the gypsies from the Nonsuch Estate the council were enabled to contain the borough council's gypsy problem during the five-year period described above and which elapsed before the solution was found. That they were allowing the site to be used as an unsupervised caravan site pending a decision as to the removal of the gypsies is clear from the evidence of Mr. Schofield, the only officer of the council to give evidence. He confirmed that a water supply was made available to the gypsies by the provision of a standpipe, and skips were put on the site, presumably at convenient points, for the disposal of their refuse. Moreover so far as sewage disposal was concerned, there were disposal points for the contents of elsans and these were dealt with from time to time by the council." Similarly an owner or occupier may be liable for hazards naturally arising: Leakey v National Trust [1980] QB 485 The claimants land had been damaged by falls of soil and other debris from the defendants land known as Burrow Mump. The falls were caused entirely by nature there was no human activity involved that would have caused the fall. The defendants were aware of the risks since 1968. They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides. Following the exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs Leaky noticed a big crack appear in the bank above her house. She informed the National Trust and offered to pay half the cost of making it safe. Her offer was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance.

Held: The National Trust were liable following the Privy Council decision in Goldman v Hargrave. A defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard. Megaw LJ: The defendant's duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man - not the average man - can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. Just as, where physical effort is required to avert an immediate danger, the defendant's age and physical condition may be relevant in deciding what is reasonable, so also logic and good sense require that, where the expenditure of money is required, the defendant's capacity to find the money is relevant. But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour's capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant. Goldman v Hargrave [1967] 1 AC 645 A 100 foot red gum tree on the defendants land was struck by lightning and caught fire. The following morning the defendant contacted a tree feller to cut down the tree saw it into sections. The wood was still smouldering and the defendant failed to douse it with water to eliminate the risk of fire. Over the next few days the weather became very hot and reignited the fire which spread to neighbouring property. Held: The defendant was liable for the naturally occurring danger that arose on his land as he was aware of the danger and failed to act with reasonable prudence to remove the hazard. The owner or occupier is only expected to do what is reasonable taking into account their resources: Holbeck Hall Hotel Limited v Scarborough Borough Council [2000] 2 ALL ER 705 The claimants owned Holbeck Hall, a four star hotel situated on South Cliff in Scarborough. The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. As a result the hotel became unsafe and had to be demolished. The claimants brought an action based on the principle in Goldman v Hargrave and Leakey v National Trust. The trial judge found for the claimant and the Council appealed. Held: Appeal allowed, the Council were not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant. Stuart Smith LJ: the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own.

His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour's interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.
UNLAWFUL INTERFERENCE

Private nuisance requires an unreasonable use of land by the defendant which leads to an unreasonable interference with the claimant's use or enjoyment of their own land. This requires a balancing exercise of competing rights often referred to as the principle of give and take. Unreasonable interference alone is insufficient: London Borough of Southwark v Mills [1999] 3 WLR 939 Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council. Held: There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist. Mills & Baxter were tenants in council properties owned by the defendants. Their complaints related to the lack of soundproofing in the flats which meant they could hear the day to day activities of their neighbours such as walking across the floor, using the toilet, watching television. They brought actions in nuisance against the Council. Held: There was no nuisance. Nuisance is based on the concept of reasonable user. The use of the flats was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The council could not therefore be liable for authorising a nuisance that did not exist. In assessing the reasonableness of the use and reasonableness of the interference, the courts take all the circumstances into account. In particular the courts will consider:

1. 2. 3. 4.

The nature of the locality/neighbourhood Duration Sensitivity Malice

1. Locality/Neighbourhood

The reasonableness of the use of land will be assessed with regard to the nature of the locality in deciding whether there exists an actionable nuisance. As Thesiger LJ stated in Sturges v Bridgman, "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey" Sturges v Bridgman [1879] 11 Ch D 852 The defendant ran a confectionary shop which operated a noisy pestle and mortar. It had done so for over 20 years but had no neighbouring property so there were no complaints as to its use. The claimant then built a consulting room for his practice as a physician adjacent to the defendants noisy shop. The claimant brought an action in nuisance to obtain an injunction to prevent the continuance of the noise. The defendant, relying on the Prescription Act, argued that he had obtained the right to be noisy by operating the noisy pestle for over twenty years. Held: The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right. Thus, for the pruposes of nuisance, a higher level of disturbance is considered reasonable in an industrial area than would be regarded as reasonable in a residential area: Hirose Electrical v Peak Ingredients [2011] EWCA Civ 987 The defendant manufactured food ingredients for use in curries. It operated in an industrial estate. The claimant operated a business manufacturing parts for mobile phones with 26 employees situated two doors down from the defendant. The claimant brought an action following complaints by their employees regarding the smells emanating from the defendants premises. The trial judge found for the defendant and the Court of Appeal dismissed an appeal by the defendant. Mummery LJ: "First, the deputy judge was entitled to attach significance to the location of the premises and the character of the Crownhill Industrial Estate. The light industrial character of that Estate covered Peak's food additive manufacturing, which was permitted on both planning grounds and by the user covenant in its lease. The activities in Unit 20 were carried on without objection or intervention on environmental or health and safety grounds by the relevant statutory authorities. While those matters are obviously not conclusive against the existence of a private nuisance, they are relevant indicators of the levels of discomfort and inconvenience caused by the smell." The running of a brothel in a respectable residential area was held to constitute a nuisance: Thompson-Schwab v Costaki [1956] 1 WLR 335 The where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to amount to an actionable nuisance as the activity was considered offensive in itself. There was no need to demonstrate that the activities were noisy.

PLANNING PERMISSION Planning permission may have the effect of changing the nature of the locality: Gillingham Borough Council v Medway Docks [1993] QB 343 The defendant had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night. It was held that where planning permission is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously. The claimants actions therefore failed. Buckley J: "Parliament has set up a statutory framework and delegated the task of balancing the interests of the community against those of individuals and of holding the scales between individuals, to the local planning authority. There is the right to object to any proposed grant, provision for appeals and inquiries, and ultimately the minister decides. There is the added safeguard of judicial review. If a planning authority grants permission for a particular construction or use in its area it is almost certain that some local inhabitants will be prejudiced in the quiet enjoyment of their properties. Can they defeat the scheme simply by bringing an action in nuisance? If not, why not? It has been said, no doubt correctly, that planning permission is not a licence to commit nuisance and that a planning authority has no jurisdiction to authorise nuisance. However, a planning authority can, through its development plans and decisions, alter the character of a neighbourhood. That may have the effect of rendering innocent activities which prior to the change would have been an actionable nuisance." However, planning permission does not confer immunity from an action in nuisance and may not involve changing the nature of the locality: Wheeler v JJ Saunders [1996] Ch 19 The claimant, Dr Wheeler, owned a farm which had a farmhouse and some holiday cottages. He lived in the farmhouse and let out the holiday cottages. He leased the farm to the defendant, JJ Saunders ltd. JJ Saunders obtained planning permission to build a Trowbridge house on the farm for the purpose of keeping pigs for breeding. Two years later he obtained permission to build another Trowbridge house. The second house was built just 11 meters from the farmhouse and holiday cottage. Dr Wheeler brought an action in nuisance in relation to the noise and smells emanating from the pig houses. The trial judge found for the claimant and ordered damages and an injunction. The defendant appealed contending that since they obtained planning permission for the Trowbridge houses, any smells or noise in relation to the pigs cannot amount to a nuisance. Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council v Medway Dock merely states that the granting of planning permission may

change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance. Peter Gibson LJ: The defence of statutory authority is allowed on the basis of the true construction of the scope and effect of the statute. Parliament is presumed to have considered the competing interests in the particular circumstances which are the subject of the statute and to have determined which is to prevail in the public interest in authorising the particular development and use of land and whether or not compensation is to be paid to those whose common law rights are adversely affected by the authorised development and use. But in the case of planning permission granted pursuant to the statutory scheme contained in the town and country planning legislation it is far from obvious to me that Parliament must be presumed to have intended that in every case it should have the same effect on private rights as direct statutory authority, regardless of the circumstances that were in fact taken into account. True it is that Parliament by that legislation has provided a mechanism for regulating the development and use of land in the public interest and that it has delegated to the local planning authority the function of making planning decisions; but Parliament will also have been aware of the range of such decisions and the variety of possible circumstances in which they may be taken. It would also have been aware of the limited scope open to an objector to challenge a grant of planning permission. Prior to the Gillingham case the general assumption appears to have been that private rights to claim in nuisance were unaffected by the permissive grant of planning permission, the developer going ahead with the development at his own risk if his activities were to cause a nuisance. The Gillingham case, if rightly decided, calls that assumption into question, at any rate in cases, like Gillingham itself, of a major development altering the character of a neighbourhood with wide consequential effects such as required a balancing of competing public and private interests before permission was granted. I can well see that in such a case the public interest must be allowed to and prevail that it would be inappropriate to grant an injunction (though whether that should preclude any award of damages in lieu is a question which may need further consideration). But I am not prepared to accept that the principle applied in the Gillingham case must be taken to apply to every planning decision. The Court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge. Watson v Croft Promosport [2009] 3 All ER 249 The claimants live in close proximity to Croft Motor Circuit and brought an action in nuisance for the excessive noise generated by the defendants seeking an injunction to restrain the continuation of the nuisance and damages as compensation for its commission in the past. The former owners of the land had been granted planning permission to use it as a motor racing circuit in 1963. It was used as a motor racing circuit between1963-1979. The land was sold in 1979 and there was no motor racing taking place between 1979 -1994. The defendant then acquired the land and restarted the motor racing on the land. The defendant defended on the grounds that the granting of planning permission had changed the nature and character of the area and the use for motor sport was therefore

reasonable. The trial judge held that despite the planning permission the use of the land for motor sports was an actionable nuisance and the area was still essentially rural despite the planning permission. However, he refused to grant an injunction awarding damages in lieu. The defendant appealed against the finding of nuisance and the claimant appealed against the refusal of the injunction. Held: The defendants appeal was dismissed. The claimants appeal was allowed. Following Shelfer v City of London there must be exceptional circumstances before an injunction may be refused. Jackson LJ summarised the position with regards to planning permission in Coventry v Lawrence: Coventry v Lawrence [2012] EWCA Civ 26 The claimants brought a nuisance action against the defendant in respect of the noise generated by motor sports conducted on their land. The motor sports included speedway racing, stock car racing banger racing and motorcross. Planning permission had been granted in 1975 for the construction of a speedway stadium and for the construction of a further motorcross stadium in 1992. The defendant held a certificate of lawful use under the Town and Country Planning Act 1990. The claimant purchased a house 864 meters from the track in 2006. The trial judge found for the claimants and awarded damages and an injunction. The defendants appealed contending: 1) the judge had failed to properly take into account the effect of planning permission on changing the character of the locality. 2). The claimants had come to the nuisance which had been operating for many years. 3) the defendants had acquired a right by prescription to causes such nuisance. Held: Appeal allowed on the first ground. There was no need to consider the second and third grounds. Jackson LJ: In the light of the authorities cited above, I would summarise the law which is relevant to the first ground of appeal in four propositions: i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance. ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality. iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality. iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then: a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;

b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance. In January 2006, when the claimants purchased Fenland, the position was this. For the last thirteen years various forms of motor sports had been taking place at the Stadium and the Track on numerous occasions throughout the year. These noisy activities, regarded by some as recreation and by others as an unwelcome disturbance, were an established feature, indeed a dominant feature, of the localityThe noise of motor sports emanating from the Track and the Stadium are an established part of the character of the locality. They cannot be left out of account when considering whether the matters of which the claimants complain constitute a nuisance. Where the nuisance results in physical damage as oppose to amenity damage the locality is irrelevant: St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642 The claimant owned a manor house with 1300 acres of land which was situated a short distance from the defendants copper smelting business. He brought a nuisance action against the defendant in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The defendant argued that the use of property was reasonable given the locality and the smelting works existed before the claimant purchased the property. Held: Where there is physical damage to property, the locality principle has no relevance. It is no defence that the claimant came to the nuisance. Lord Westbury LC: My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an, action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely, the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their

neighbours, would not apply to circumstances the immediate result of which is sensible injury to the value of the property.

2. Duration
Most nuisances consist of a continuing state of affairs. In most instances the claimant is seeking an injunction to prevent the continuance of such nuisances. In general the longer the nuisance lasts the greater the interference and the greater the likelihood of it being held to be an unlawful interference. However, an activity which is temporary may constitute a nuisance: De Keyser's Royal Hotel v Spicer Bros (1914) 30 TLR 257 An injunction was granted to prevent building work taking place at night despite the fact the work was only temporary in nature. The interference was considered unreasonable since it interfered with the claimants sleep. Whilst a continuing state of affairs may be found in order to impose liability, Spicer v Smee [1946] 1 All ER 489 A fire broke out on the defendants property caused by faulty wiring. The fire spread to neighbouring property owned by the claimant. The claimants action for nuisance succeeded. The faulty wiring was classed as a continuing state of affairs. a single act is capable of amounting to a nuisance. Crown River Cruises v Kimbolton Fireworks [1996] 2 Lloyds Rep 533 The defendant conducted a firework display. Some burning debris from the display landed on a nearby barge which caught fire. The defendant was liable despite the nuisance only lasting twenty minutes.

3. Sensitivity
If the claimant is abnormally sensitive or their use of land is particularly sensitive, the defendant will not be liable unless the activity would have amounted to a nuisance to a reasonable person using the land in a normal manner. Robinson v Kilvert (1889) Ch D 88 The defendant carried on a business of making paper boxes. This required a warm dry atmosphere. The defendant operated from the basement of their premises and let out the ground floor to the claimant. The claimant used the premises for storage of brown paper. The heat generated from the defendants operations damaged the brown paper belonging to the claimant. Held: The defendant was not liable. The damage was due to the special sensitivity of the paper. Cotton LJ: "It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life. Here it is shewn that ordinary paper would not be damaged by what the Defendants are doing, but only a particular kind of paper, and it is not shewn that there is heat such as to incommode the workpeople on the Plaintiff's premises. I am of

the opinion, therefore, that the Plaintiff is not entitled to relief on the ground that what the Defendants are doing is a nuisance." Lopes LJ: "I think the Plaintiff cannot complain of what is being done as a nuisance. 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." Network Rail v Morris [2004] EWCA Civ 172 The claimant ran a recording studio in Croydon. The studio was situated 80 metres from the London to Brighton main line railway track. In 1994, new track circuits were installed which operated the signalling system on the rail track. This circuit system generated an electro-magnetic field which interfered with the use of the electric guitars on the claimants premises. This resulted in him losing several clients. The claimant brought an action in nuisance for the interference. Held: The defendant was not liable. The use of amplified electric guitars fell into the category of extraordinary sensitive equipment. Furthermore the interference was not foreseeable. If, however, the claimant has established that the defendant has infringed their right to ordinary enjoyment of the land, they can also claim damages for any damage incurred to unusually sensitive property: McKinnon Industries v Walker [1951] WN 401The defendant manufactured steel and iron products 600 feet from the claimants property. The claimant had a dwelling house and also a commercial florists and nursery. As part of his business he specialised in growing orchids which are known for their particular sensitivity. The claimant brought an action in relation to noxious fumes and smuts which had deposited over his shrubs, trees, hedges and flowers causing them to die. Held: The defendants actions constituted an unlawful nuisance and therefore the claimant was entitled to recover damages in respect of the orchids despite the sensitive nature of the flowers.

4. Malice
Where the defendant acts out of malice, the actions are more likely to be held unreasonable: Christie v Davey [1893] 1 Ch 316 The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. She lived in a semi-detached house which adjoined the defendants property. The defendant had complained of the noise on many occasions to no avail. He took to banging on the walls and beating trays and shouting in retaliation. Held: The defendants actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 The claimant bred silver foxes for their fur. Silver foxes are particularly timid and if disturbed when pregnant they are prone to miscarry. If alarmed when they have young they may devour them. The defendant was the claimants neighbour. He objected to the fox farm and fired a gun on his own land close to the breeding pens with the intention to scare the foxes and impede breeding. The claimant brought an action in nuisance. Held: The defendant was liable despite the abnormal sensitivity of the foxes because he was motivated by malice. Public benefit

Whilst the benefit to the community is not a defence it may be a factor considered when assessing if the use is reasonable: Miller v Jackson [1977] 3 WLR 20 The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether. Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space. Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance.

PUBLIC NUISANCE
Tate & Lyle v GLC [1983] 2 AC 509 Tate & Lyle operated a sugar refinery on the bank of the river Thames. They had a jetty from which raw sugar would be offloaded from barges and refined sugar would be taken. The sugar would be taken be larger vessels and then transferred to smaller barges to enable them to get to through the shallow waters. As part of development Tate & Lyle wished to construct a new jetty and dredge the water to accommodate the larger vessels. At the same time the GLC was constructing new ferry terminals. The design of the ferry terminals was such that that it caused siltation of the channels. After using the channels for a short while, Tate & Lyles larger vessels were no longer able to use them. Further dredging at the cost of 540,000 was required to make the channel and jetties usable by the vessels. Tate & Lyle brought an action in negligence and nuisance to recover the cost of the extra dredging. Held: The claim in negligence and private nuisance failed since they did not possess any private rights which enabled them to insist on any particular depth of water. The claim succeeded in public nuisance since the interference caused by the ferry terminals affected public navigation rights. Tate & Lyle suffered particular damage as a result of this interference. Nuisance is subject to the rules on remoteness of damage: Cambridge Water v Eastern Counties Leather [1994] 2 AC 264 The defendant owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the Claimant water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher. Held: Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

REMEDIES IN NUISANCE
1. Damages

2. Abatement

3. Injunctions

Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 The Electricity company caused structural damage to a house and nuisance to its occupier. The trial judge awarded damages but refused an injunction. The Court of Appeal reversed this allowing an injunction. Lindley LJ: ever since Lord Cairns' Act was passed the Court of Chancery has repudiated the notion that the Legislature intended to turn that Court into a tribunal for legalising wrongful acts; or in other words, the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict. Neither has the circumstance that the wrongdoer is in some sense a public benefactor (e.g. a gas or water company or a sew er authority) ever been considered a sufficient treason for refusing to protect by injunction an individual whose rights are being persistently infringed". A L Smith LJ: Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that -(1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: -then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.

It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff's legal right to light to a window in a cottage represented by 15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment. Miller v Jackson [1977] 3 WLR 20 The defendants were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether. Held: The defendants were liable in both negligence and nuisance (Lord Denning dissenting) However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space. Lord Lane would have granted the injunction stating that the decision in Sturges v Bridgeman involves the assumption that it is no defence for the defendant to show that they came to the nuisance. Kennaway v Thompson [1981] QB 88 The defendant was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Clubs waters since the early 1960s. 1972 the claimant moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the clubs waters were often used as a venue for both national and international races. The claimant brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The claimant appealed.

Held: Appeal allowed and an injunction was granted. Lord Cairns Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller v Jackson doubted.

Defences
Coming to a nuisance is no defence See Miller v Jackson [1977] 3 WLR 20 See Kennaway v Thompson [1981] QB 88

1. Statutory authority

Allen v Gulf Oil Refining [1981] AC 1001 The claimant brought an action in nuisance for the smell, noise and vibration created by an oil refinery which had been constructed by the defendant on their land. The defendants action in constructing the oil refinery was authorised by an Act of Parliament. Held: The defendant was not liable as it had a defence of statutory authority. Lord Wilberforce: "The respondent alleges a nuisance by smell, noise, vibration, etc. The facts regarding these matters are for her to prove. It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site conforming with Parliament's intention, without creating the nuisance alleged, or at least a nuisance. Involved in this issue would be the point discussed by Cumming Bruce LJ in the Court of Appeal, that the establishment of an oil refinery, etc. was bound to involve some alteration of the environment and so the standard of amenity and comfort which neighbouring occupiers might expect. To the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex (as to which different standards apply Sturges v. Bridgman (1879) 11 Ch.D.852) Parliament must be taken to have authorised it. So far, I venture to think, the matter is not open to doubt. But in my opinion the statutory authority extends beyond merely authorising change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site not, I repeat, the existing refinery, but any refinery however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy."

NB Planning permission does not authorise a nuisance and is therefore no defence

2. Prescription