conversion is founded on property—that is, a denial of the claimant’s legal title. Liability for conversion is strict: the defendant need only intend the voluntary act in question and not necessarily the consequences of that act for the claimant. For example, an auctioneer who sells the claimant’s property in good faith on behalf of a client with no title cannot plead ignorance or mistake in order to escape liability.146 A claimant’s remedy lies in an action for damages representing the market value of the chattel as well as any special loss. However, it is also open to him to request the equitable remedy of specific restitution.147

506 NUISANCE

506-1 PUBLIC NUISANCE

‘Few words in the legal vocabulary are bedevilled with so much obscurity and confusion as “nuisance”. Once tolerably precise and well understood, the concept has eventually become so amorphous as well nigh to defy rational exposition.’148

The first thing to be aware of is the distinction between private and public nuisance:

Private nuisance traditionally was, and still is confined to invasions of the interest in the use and enjoyment of land, although occasionally an occupier may recover for incidental injury from a public nuisance sustained by him in the exercise of an interest in land, such as for illness caused by noxious gases from an adjoining factory. A public nuisance, in contrast, consisting in an interference with a public or common right, such as an obstruction of the highway, can confer a cause of action on a private individual, although no rights or privileges in land of his have been invaded at all.149

In other words, private nuisance primarily covers interference with land but not personal injury, whereas a public nuisance claim can also be for personal injury.150 In most cases, the interests of the claimant and the defendant have to be balanced, which is comparable to the situation of establishing negligence (Section 805).

According to Lord Denning, public nuisance ‘covers a multitude of sins, great and small’.151 Like many other torts, it is also a crime. Public nuisance implies an unlawful act or omission causing annoyance to the general public but the nuisance needs to be so widespread that it would not be reasonable to expect one person to bring

146Consolidated Co. v Curtis [1892] 1 QB 495.

147Torts (Interference with Goods) Act 1977, s 3(2)–(3).

148Fleming (1998), 457. See also Markesinis and Deakin (2008), 509; Dobbs II (2011), § 398, 615–616.

149Fleming (1998), 459–460. See also Winfield and Jolowicz (2010), para. 14.4: ‘Private nuisance may be described as unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.’

150Markesinis and Deakin (2008), 551.

151Lord Denning LJ in Southport Corp. v Esso Petroleum Co. Ltd [1954] 2 QB 182, 196.

proceedings.152 Examples are failing to repair a highway, carrying on an offensive trade, keeping a disorderly house, selling food unfit for consumption, or holding a poorly organized pop festival.153

An excellent illustration is Tate & Lyle Industries Ltd v GLC.154 Th e defendants constructed ferry terminals in the Thames, which caused the landing stage belonging to the claimant to become silted up, which led to him having to perform dredging operations. His damages claim in private nuisance was rejected because the landing stage itself was not affected, and the claimant did not have any property rights with regard to the riverbed. However, the claim was awarded on the basis of public nuisance, since the silting up had infringed the public right of navigation, which was a right of the claimant and of all other users of the river.

Public nuisance further requires that the damage suffered is ‘special’.155 Th is means that the damage is not related to general inconvenience and is distinct from that of the general public.156 Th e prevailing view is ‘to allow the action whenever the claimant can show that the right he shares with others has been appreciably more affected by the defendant’s behaviour.’157 Th is, for instance, is the case if a passer-by is injured by the collapsing wall of a building. However, if that person had been in the building at the moment of the collapse, he would not have a claim in public nuisance, because in that event there is no infringement of a common right. In such a case, the victim has to base his claim on the tort of negligence or the Occupiers’ Liability Acts (Section 1504-1).158

A public nuisance claim for special damages generally requires negligent conduct but this is presumed and it is up to the defendant to prove that he did not act negligently.159 Liability seems to be less strict as regards falling natural projectiles (see Section 1504-2).

Th e tort of public nuisance is a good illustration of the way the common law has developed: ‘The mess that public nuisance is in is partly due to the haphazard and piecemeal growth of a legal system developed solely by practitioners without the kind of doctrinal backing that universities provided to the law of the Continent of Europe.’160 See further on public nuisance, Section 1504-2.

152Attorney General v PYA Quarries Ltd [1957] 2 QB 169; Lunney and Oliphant (2010), 634–635.

153Winfield and Jolowicz (2010), para. 14.2.

154Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509. See also Stephen Tromans, ‘A Tale of Sugar and Silt, or, Muddy Waters in the House of Lords’, CLJ (1984), 21–23. See further Jan de Nul (UK) v AXA Royale Belge SA [2002] 1 Lloyd’s Rep 583 (CA).

155Markesinis and Deakin (2008), 551.

156Winfield and Jolowicz (2010), para. 14.3; Fleming (1998), 461.

157Markesinis and Deakin (2008), 551.

158Fleming (1998), 461–462.

159Markesinis and Deakin (2008), 550.

160Markesinis and Deakin (2008), 550. See also Von Bar (1998), N 269: ‘why should it not be possible simply to replace these diffuse and ill-defined categories with interests protected by the general duty of care in negligence?’

506-2 PRIVATE NUISANCE AND THE RULE IN RYLANDS V FLETCHER

Private nuisance is an act that is not trespass and interferes with a person in the enjoyment of his land or premises or a right he has over the land of another person.161 Examples are producing smoke, noise, or smells, or causing crowds to assemble and thus preventing others from entering their land or premises. Private nuisance may also play a role in liability for damage to the environment (Section 1414-1).

A single act will generally not suffice for an action in private nuisance: there must be either a repetition or a continuing state of affairs. However, a single act of nuisance may fall within the scope of the statutory nuisance rule in s 73(6) of the Environmental Protection Act 1990 (Section 1414-2).

In 1997, the House of Lords confirmed in Hunter v Canary Wharf Ltd that only persons with a proprietary interest in land have standing to file a claim for private nuisance. This also covers the owner, freeholder, leaseholder, or someone in exclusive possession or occupation of it as a tenant or as a licensee with exclusive possession of the land. It excludes, for example, family members and lodgers. ‘Exclusive possession de jureor de facto, now or in the future, is the bedrock of English land law.’162 Hence, the tort of private nuisance is preserved as a monument for the protection of property rights.163

In 1993, the Court of Appeal had allowed a claim in private nuisance by an adult daughter living in her parents’ home against persistent nuisance calls to the home.164 Hunter made clear that the daughter would not have standing in private nuisance for lack of a proprietary interest. By then she could, however, have relied on the Protection from Harassment Act 1997 (Section 504-5). People affected by other forms of nuisance but without a proprietary interest may rely on Article 8 ECHR (see Section 1416-4).165

Private nuisance is said to be strict, which means that taking all reasonable care is no defence.166 Th is, however, may be different if the nuisance is caused by a third party or by nature. An example is the case of a local authority that laid a defective pipe on land without the landowner’s knowledge. It was held that the landowner was only liable in private nuisance from the time he had knowledge of the existing nuisance effectively caused by the local authority.167

161Winfield and Jolowicz (2010), paras. 14.1 ff.

162Hunter v Canary Wharf Ltd [1997] AC 677, 703, per Lord Hoffmann.

163See Section 1414-1. See also the minority opinion of Lord Cooke in Hunter v Canary Wharf [1997] AC 677; Lunney and Oliphant (2010), 663–672. The limitation does not apply to a claim in public nuisance: see Corby Group Litigation Claimants v Corby BC [2008] EWCA Civ 463; Maria Lee, ‘Personal Injury, Public Nuisance, and Environmental Regulation’, KLJ 20 (2009), 129–136.

164Khorasandjian v Bush [1993] QB 727.

165Th e husband, wife, or civil partner of a homeowner would also have standing because he/she has a beneficial interest in the matrimonial home: Hunter v Canary Wharf Ltd [1997] 2 WLR 684, per Lord Hoffmann.

166Rapier v London Tramways Co. [1893] 2 Ch 588.

167Sedleigh-Denfield v O’Callaghan [1940] 3 All ER 349; Lunney and Oliphant (2010), 656–659. See on a risk caused by nature Goldman v Hargrave [1967] 1 AC 645, on which see further Section 808-3. See also

Th e harm caused by the nuisance must be foreseeable. The Cambridge Water case (Section 1414-2) concerned a company that had leaked chemicals onto land in the 1970s, which ultimately caused damage to adjacent land via underground streams. The House of Lords stated that a claim in private nuisance required that the possibility of nuisance of this type was reasonably foreseeable for someone such as the defendant. In this case, the harm was considered not to be foreseeable and therefore the private nuisance claim was dismissed.168

Not every type of damage is recoverable under private nuisance which only covers material damage, loss of amenities, and diminution of the utility of the land (loss of property value).169 In Hunter v Canary Wharf Lord Hoffmann stated that consequential damage could be recovered in nuisance (eg loss of profits, chattels, or livestock) but not inconvenience, annoyance, or illness.170 More generally, damages for personal injury are not recoverable in nuisance:171 such damage typically falls under the tort of negligence (Section 503).

Th e key issue in establishing private nuisance is whether the defendant has used his land in an unreasonable way. This requires balancing the interests of the defendant and the claimant. See for more detail, Section 1414-1.

Th e available remedies are damages and an injunction. The starting point is that if nuisance is established, an injunction is, in principle, to be awarded.172 Under certain circumstances, however, damages may be awarded in substitution for an injunction.173 The courts have taken a pragmatic approach in this respect: for example, a court awarded a partial injunction for boat races by limiting the number of boats and the noise they could make.174 In another case, the court refused to award an injunction against the activities of an RAF operational and training base for Harrier Jump Jets. Instead, it awarded damages of £950,000, representing the loss of capital value, the loss of use, and the loss of amenity.175 A more peaceful but no less important activity (cricket) also led to a refusal to grant an injunction even though nuisance was established.176

A tort strongly linked to private nuisance is the Rule in Rylands v Fletcher which dates from the 1860s and initially embodied a rule of strict liability. The tort implied that if someone kept something dangerous on his land, and this dangerous thing

Smith v Littlewood [1987] AC 241, on which B. S. Markesinis, ‘Negligence, nuisance and affirmative duties of action’, LQR 105 (1989), 104 ff; Lunney and Oliphant (2010), 494–503.

168Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264, on which see Van Gerven (2000), 172–175; Lunney and Oliphant (2010), 654–656. See already The Wagon Mound (No. 2) [1967] 1 AC 617 (PC); Home Brewery v Davis [1987] 2 WLR 117, 128.

169Lunney and Oliphant (2010), 658.

170Lunney and Oliphant (2010), 663.

171Lord Bingham in Transco v Stockport MBC [2004] 2 AC 1; Lunney and Oliphant (2010), 664.

172Shelfer v City of London Electric Lighting Co. [1985] 1 Ch 287.

173Lunney and Oliphant (2010), 673.

174Kennaway v Thompson [1981] QB 88; Lunney and Oliphant (2010), 673.

175Dennis v Ministry of Defence [2003] EWCA Civ 793.

176Miller v Jackson [1977] QB 966.