Understanding Private Nuisance Law in Property Disputes: A Legal Analysis

1. The Appeal of Nuisance Christopher Stead www.pumpcourtchambers.com

2. Introduction What is private nuisance? • Whilst an actionable nuisance is incapable of exact definition, Clerk and Lindsell (24thed.) 19-01 has several helpful sketches: • “The essence of nuisance is a condition or activity which unduly interferes with the use or enjoyment of land.” • “[Private] Nuisance is an act or omission which is an interference with, disturbance of or annoyance to, a person in the exercise or enjoyment of…his ownership or occupation of land or of some easement, profit, or other right use of enjoyed in connection with land.”

3. Introduction Categories of nuisance? • Broadly speaking, there are three: – Causing encroachment on a neighbour’s land – Causing physical damage to a neighbour’s land or building or works or vegetation upon it – Unduly interfering with a neighbour’s comfortable and convenient enjoyment of their land • However, note: “The difficulty with any rigid categorisation is that it may not easily accommodate possible examples of nuisance in new social conditions or may undermine a proper analysis of factual situations which have aspects of more than one category but do not fall squarely within any one category, having regard to existing case-law.” (per Sir Terence Etherton MR in Network Rail v Williams [2018] EWCA Civ 1514 at [41])

4. Introduction Categories of nuisance?

5. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 Background: Japanese Knotweed – claim for residual diminution in value C bought property in Nant-y-Moel, as an investment (rental) in 2010 Adjoined D’s land Knotweed on D’s land – probably present for 50 years – likely to have spread onto C’s land prior to 2004 2017 – C became concerned, and in 2019 raised it with D

6. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 First instance: D in breach of relevant duty in nuisance starting in 2013 (publication of RICS paper in 2012 and needing to begin treatment) and ending in 2018 when treatment programme began Initial encroachment historic, but loss suffered by C continues and accrues by continuation of the breach Various heads of loss claimed, but all dropped except residual diminution in value – the ‘blight’ effect However – relying on Williams – residual diminution in value not recoverable

7. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 First appeal: “The only actual damage in this case, which is not physical, is diminution in value. However I consider Williams is authority that such economic damage is not recoverable. The phrase ‘the purpose of the tort of nuisance is not to protect the value of property as an investment or a financial asset’ could not be clearer. I accept [counsel for the claimant’s] argument that this is damage leading to a loss which is consequential on the nuisance found. However, it is not recoverable damage, it is pure economic loss.” C appealed again to the Court of Appeal Permission granted (damages in view were £4,900)

9. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 Birss LJ, at [37]: “In the section of Williams which refers to the purpose of the tort of nuisance and to economic loss (paras 46-48), the key word is simply in para 46. [The recorder’s conclusion that the presence of knotweed on NRs land within seven metres of the claimants properties was an actionable nuisance simply because it diminished the market value of the claimants respective properties, because of lender caution in such situations, was wrong in principle. – Williams, 46] This part of the judgment is about the elements necessary to complete the tort of nuisance. The ratio of Williams here is that there is no actionable nuisance caused by knotweed on a defendant’s land simply because it diminishes the market value of the claimant’s land. The reason why not is a policy reason which characterises such a claim as one of ‘pure economic loss.’ That phrase does not mean that in a case in which the elements of the tort of nuisance are satisfied, the claimant cannot recover for damage to their economic interests (para 64 of Williams says the opposite). What the phrase is referring to is the mechanism by which the harm of loss has been caused.”

10. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 Birss LJ, at [38]: Where the knotweed is only on D’s land, then reduction in market value is not a nuisance. However, ”Williams itself later recognises that if the value of the claimant’s property is diminished as a result of an interference with the claimant’s quiet enjoyment or amenity, due to physical encroachment of knotweed from the defendant’s land into the claimant’s land, damages including diminution in value of the property will be available. Putting it another way, the reasoning in para 48 of Williams, which the judges below relied on, is nothing to do with recoverability of damages in a case in which the tort of nuisance is complete.”

11. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 Birss LJ, at [42]: What to do with the submission that proving a non-trivial encroachment is not enough? “I reject this submission. As I read para 55, the two points – future risk and increased difficulty in development – are given simply as examples of interference with amenity in order to illustrate why knotweed can fairly be called a ‘pernicious weed’ and a ‘natural hazard.’ Reading Williams as a whole, the point being made is a distinction between ‘pure economic loss’, i.e. loss without physical damage or physical interference which is not actionable, and cases in which there is physical change to the claimant’s property as a result of the presence there of knotweed rhizomes. Once that natural hazard is present in the claimant’s land (to a non- trivial extent), the claimant’s quiet enjoyment or use of it, or putting it another way the land’s amenity value, has been diminished. For the purposes of the elements of the tort of nuisance that amounts to damage…and it is the result of a physical interference. If consequential residual diminution in value can be proved, damages on that basis can be recovered. They are not pure economic loss because of the physical manner in which they have been caused.” (emphasis added)

12. 1 – Davies v Bridgend County Borough Council [2023] EWCA Civ 80 Postscript: Causation is still established because it is a continuing nuisance – the harm persists despite encroachment beginning before the breach of duty, and therefore present loss is caused by the breach of duty [48] New RICS guidance suggests Japanese knotweed is no longer the ‘bogey plant’ it was once thought to be [4] – does this mean that over time, damages for residual diminution in value are likely to decrease in any event? Evidence – Ds could get expert evidence to take into account decreasing diminution over time, and/or evidence as to whether C is likely to realise the capital loss during the period of diminution [55]. This might reduce the damages for diminution in value Permission to appeal to the Supreme Court– granted in May 2023

14. 2 – Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] 2 WLR 1085 Background: Oil spill off the Nigerian coast – 120km – leak from flowline into the ocean, lasting 6 hours Slightly less than 6 years later – Cs, landowners, sued various Ds in nuisance More than 6 years after the leak – Cs applied to amend claim form and particulars, including substitution of new defendant What about limitation? Cs argued – as long as undue interference with land was continuing, the nuisance continued and the cause of action accrued on a daily basis First instance and Court of Appeal – oil spill was a single escape, and the cause of action accrued when oil first struck the land

15. 2 – Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] 2 WLR 1085 • • Lord Burrows JSC on nuisance [18]: (i) The tort of private nuisance is a tort to land (i e it is a property tort). It is concerned with the wrongful interference with the claimant’s enjoyment of rights over land (and the concept of land includes buildings and rights, such as easements, which attach in law to the land). Only a person with a legal interest in the land can sue and the law is concerned to protect the claimant against a diminution in the utility and amenity value of the land. (ii) Nuisance can be caused by any means and does not require a physical invasion. Anything short of direct trespass on the claimant’s land which materially interferes with the claimant’s enjoyment of rights in land is capable of being a nuisance. The interference may be by something tangible (the example given being Japanese knotweed) or something intangible such as fumes, noise, vibration or an unpleasant smell. It can include intrusive overlooking. (iii) The interference must be substantial and must be an interference with the ordinary use of the claimant’s land. The use of the defendant’s land must also go beyond what is ordinary use. At a general level, what is involved is the balancing of the conflicting rights of landowners. This has sometimes been expressed by saying that the interference with the use and enjoyment of land must be “unlawful” or !!undue!! or, although Lord Leggatt JSC advised caution in using this term, “unreasonable”. (iv) In deciding whether there is a private nuisance one must have regard to the character of the locality. (v) Coming to a nuisance is no defence. That is, at least as a general rule, it is not a defence that what was previously not a nuisance has subsequently become one because the claimant has acquired or started to occupy the land affected or has changed its use. (vi) It is not a defence to a claim for private nuisance that the activity carried on by the defendant is of public benefit although this may be relevant in determining the appropriate remedy. • • • • •

16. 2 – Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] 2 WLR 1085 • Lord Burrows JSC on a continuing nuisance: – Language must be precise – ongoing interference or damage with Cs’ land is a continuing nuisance in the sense of being a continuing problem – but that is not what is meant in the legal sense – “In principle, and in general terms, a continuing nuisance is one where, outside the claimant’s land and usually on the defendant’s land, there is repeated activity by the defendant or an ongoing state of affairs for which the defendant is responsible which causes continuing undue interference with the use and enjoyment of the claimant’s land. For a continuing nuisance, the interference may be similar on each occasion but the important point is that it is continuing day after day or on another regular basis…The cause of action therefore accrues afresh on a continuing basis.” [26] – Tree roots is a good, albeit not necessarily paradigm, example

17. 2 – Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] 2 WLR 1085 • Lord Burrows JSC – The consequence for damages – causes of action so far accrued – cannot be given for future causes of action, and so C must keep coming back to court [28] – Conversely, if limitation period is six years, damages cannot be recovered for causes of action that accrued more than six years before issuing proceedings [32] – A continuing nuisance is a continuing cause of action, but if a defendant ‘continues’ a nuisance in the sense of not abating a nuisance created by another/nature, this does not make it a continuing cause of action [33]

18. 2 – Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] 2 WLR 1085 • Lord Burrows JSC applying ‘continuing nuisance’ to the present case: – Cs’ submission – continuing nuisance because the oil continues to be present on Cs’ land – Rejected: • “There was no continuing nuisance in this case (and there would be no continuing nuisance in the example of the one-off flood) because, outside the claimants’ land, there was no repeated activity by the defendants or an ongoing state of affairs for which the defendants were responsible that was causing continuing undue interference with the use and enjoyment of the claimants’ land.” [37] – If Cs were right, then limitation would run indefinitely until Cs’ land were restored – The cause of action had accrued when the land was affected by the oil. There was no continuing cause of action for as long as the land remained affected – This is not like a tree roots case, with (a) an ongoing situation for which D is responsible which (b) continues to cause interference with use and enjoyment [38] – NB – no need for D to have control over the continuing nuisance in a case where there is a continuing nuisance – D might no longer have control and still be liable [44]

20. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 Background: Blavatnik Building – Tate Modern art museum – top floor viewing gallery – panoramic views of London 500,000 – 600,000 people every year (300 at a time) 34 metres away – Neo Bankside residential and commercial development – glass walls – flats on 13th-19thfloors “part of what catches the eye is the apparently clear and uninterrupted view of how the claimants seek to conduct their lives in the flats” (Mann J, [203], [2019] Ch 369) Lots of visitors found this very interesting – pictures, social media, binoculars, waving Is this an actionable nuisance?

21. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 Held: Mann J – no, because (1) using the top floor as a viewing gallery is reasonable, (2) the flats have glass walls, and (3) Cs could take remedial measures Court of Appeal (Sir Terence Etherton MR, Lewison and Rose LJJ) – no, because ‘overlooking’ does not amount to nuisance, no matter how annoying or oppressive it is Lords Sales and Kitchin, JJSC – no, because D’s use is reasonable, reasonable reciprocity and compromise (‘give and take’) requires Cs to accept a neighbour has freedom to use their property (Cs must be “willing to live with what may be a new and unusual use of a neighbour’s land, if it is in accordance with the objective principle of reasonable use, in order to accommodate the same interest in free development of land which both landowners have” [215] , and Cs could have taken self-help measures (‘curtains, blinds, and the like’) “of a comparatively modest and normal kind which would reduce [the] intrusion to an acceptable degree in the context of the locale” [226]. Lords Leggatt, Lloyd-Jones (JJSC) and Reed (PSC) – yes Because…

22. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Core Principles of private nuisance – [9]-[43]: The scope of private nuisance – a tort of land which protects C against diminution in utility and amenity value of C’s land, “and not personal discomfort to the persons who are occupying it” Nuisance can be caused by any means – anything short of trespass to C’s land materially interfering with C’s enjoyment can be nuisance – even in cases of physical ‘invasion’, it is interference with amenity or utility value that is the basis of the claim. ‘Visual intrusion’ can be an “intolerable interference with [one’s] freedom to use and enjoy their property” [16] ‘Unreasonable’ does not add anything to ‘unlawful’ in terms of interference, and is not “an actual test for determining liability” [20]. The principles for determining unlawful interference require first asking “whether the defendant’s use of land has caused a substantial interference with the ordinary use of the claimant’s land.” ([21], emphasis original)

23. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Core Principles of private nuisance (2) – [9]-[43]: Unlawful interference (ctd.): 1 – interference must be substantial – measured objectively, by the standards of an ordinary or average person in C’s position 2 –the ordinary use of land – one cannot ‘increase the liabilities of their neighbour’ Lord Leggatt then turned ‘ordinary user’ the other way – “even where the defendant’s activity substantially interferes with the ordinary use and enjoyment of the claimant’s land, it will not give rise to liability if the activity is itself no more than an ordinary use of the defendant’s own land.” [27] Citing Bramwell B in Bamford v Turnley (1862) 3 B&S 66, at 83-4: “There must be, then, some principle on which such cases [involving inconvenience but not nuisance] must be excepted. It seems to me that that principle may be deduced from the character of these cases, and is this, viz, that those acts necessary for the common and ordinary use and occupation of land and house may be done, if conveniently done, without subjecting those who do them to an action.” (emphasis added by Lord Leggatt) ‘Ordinary’ cuts both ways – give and take, live and let live

24. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Core Principles of private nuisance (3) – [9]-[43]: Ordinary user (ctd.): Bamford v Turnley – the question on appeal was whether a direction to the jury requiring them to return a verdict for D if they found D’s use was reasonable – this was not the proper test, but whether it was “common and ordinary use of land” Barr v Biffa Waste Services Ltd [2013] QB 455 – CA held that ‘reasonable user’ is a ‘shorthand for traditional common law tests’ and not a new test of reasonableness Accordingly, comments by Lord Goff in Cambridge Water v Eastern Counties [1994] 2 AC 264, 299, that seemed to import ‘reasonable user – the principle of give and take’ as a test of reasonableness did not, in fact, do that – they restated the Bamford principle of Bramwell B. Reciprocity and equal justice – “This principle of reciprocity explains the priority given by the law of nuisance to the common and ordinary use of land over special and unusual uses. A person who puts his land to a special use cannot justify substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him.” [35] Freedom to build

25. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Core Principles of private nuisance (4) – [9]-[43]: Three concluding principles: > importance of the character of the locality – Belgrave Square vs Bermondsey > coming to the nuisance is no defence > activity for public benefit is no defence (but goes to remedy)

26. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Nuisance at the Tate? Straightforward application of the law as summarised – constant observation, seven days a week, by hundreds of thousands a year, with photographs and social media coverage – “it is beyond doubt that the viewing and photography which take place from the Tate’s building cause a substantial interference with the ordinary use and enjoyment of the claimants’ properties.” [48] The flats were in a locality in which an occupier cannot expect the same privacy as, e.g., a rural dwelling. However, because of the principle of ‘common and ordinary use’, the Tate could not avoid a finding of nuisance: “Inviting members of the public to look out from a viewing gallery is manifestly a very particular and exceptional use of land. It cannot even be said to be a necessary or ordinary incident of operating an art museum. Hence, the Tate cannot rely on the principle of give and take and argue that it seeks no more toleration from its neighbours for its activities than they would expect the Tate to show for them.” [50] The order of building, and knowledge in planning, would not change this outcome Unsurprising there are so few cases – visual intrusion that would trigger actionable nuisance is rare. However, and crucially – technological developments have “markedly increased” the potential of such claims [103] Public interest – the view is amazing - not a defence to liability, because “it is not a justification for carrying on an activity which substantially interferes with the ordinary use of your land that the community as a whole will benefit from the interference.” [121] However – whilst public interest does not justify those suffering the nuisance to bear the loss (i.e. the question of liability), it may play a role in determining “whether it is sufficient to compensate the loss by awarding damages or whether the activity should be stopped by an injunction.” [126]

27. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 - Lord Leggatt JSC Where did the lower courts go wrong? First instance [53]-[88]: (1) Wrong test – does operating the viewing gallery constitute an unreasonable use of the land?’ Reasonableness does not matter – it should have been ”whether the operation of a viewing gallery is necessary for the common and ordinary use and occupation of the Tate’s land.” [55] (2) Wrong application – (a) ‘Sensitive’ buildings – glass walls – haven’t Cs’ increased D’s liability by applying their property to special use?  It depends – sensitivity to ordinary use (what if the Tate were another block of flats instead?) or sensitivity to abnormal use? If the latter – sensitivity does not afford a defence, and could not, if nuisance is to be workable, and would be wrong in principle. (b) Self-help remedies – blinds, films, or net curtains?  A burglar cannot argue that C’s house would not have been burgled if it had better locks  Responsibility for avoiding nuisance is placed entirely on the victim  If an ordinary use by the neighbour, then self-help remedy might be appropriate – but ”What is not acceptable is to place the burden on the claimant to mitigate the impact of a special use of the defendant’s property.” [84]

28. 3 – Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4; [2023] 2 WLR 339 – Lord Leggatt JSC Where did the lower courts go wrong? Court of Appeal [89]-[113]: Nuisance does not encompass ‘overlooking’ Construction in a particular way, or what happens on one property re another?  Category difference between being ‘seen’ and the level of visual intrusion – smelly cooking vs noxious odours from industrial production  Neither precedent nor policy justify the exclusion of visual intrusion from categories of nuisance  Lack of authority on overlooking is not equal to lack of authority on visual intrusion – construction of Tate top floor so as to overlook is not the complaint, but constant surveillance and photography is  On policy:  Not harder to judge than other forms of nuisance  Planning law is not a substitute for common law rights  ‘Invasion of privacy’ and damage to interest in property is not mutually exclusive – “An important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers.” [112]

29. Thank you