2.2.2. Nuisance

A thumb-nail sketch will be given of the tort of nuisance as presently constituted.²⁶² It is impossible to give a detailed presentation of all the constituent elements of this tort, but we will examine three specific issues: the standard of liability in nuisance, and then of particular import for public authority liability, the defence of statutory authorization, and the human rights law impact.

This is a very complex area of the law which is not easily synthesized. Nuisance is broken down into two distinct forms: private and public nuisance. Private nuisance refers to the damage caused to an individual or a limited number of persons, whereas public nuisance is concerned with a group of victims, such as the public generally.²⁶³ Public nuisance covers an eclectic number of wrongs,²⁶⁴ and is primarily a criminal (p.96) offence, whereas private nuisance is only a tort.²⁶⁵ Our focus will be upon the latter.

The essence of private nuisance is an activity which unduly interferes with the use or enjoyment of land.²⁶⁶ The tort provides protection against a wide range of interferences with land, such as noise and smells. It represents an attempt to balance competing interests of land owners and users: ‘[a] balance has to be maintained between the right of the occupier to do what he likes with his own [land], and the right of his neighbour not to be interfered with’.²⁶⁷

The crux of this tort is determining the reasonableness of the defendant's conduct. Reasonableness is assessed by making the aforementioned balance between the competing interests of land owners and users. In determining reasonableness, the court will look at all the circumstances in which the impugned act has occurred, including the character of the locality,²⁶⁸ the nature of the harm,²⁶⁹ and the duration of the impugned act.²⁷⁰ Reasonableness is defined in a very different manner from the reasonable conduct of the defendant in negligence actions. Indeed, it has been suggested that the tort of nuisance may arise even if the defendant has taken all reasonable care to avoid the interference.²⁷¹ This brings us to a consideration of the standard of liability in nuisance.

The standard of liability in nuisance is a vexed question.²⁷² In Cambridge Water Co Ltd v Eastern Counties Leather Plc, the House of Lords emphasized that reasonable care will not of itself exonerate the defendant,²⁷³ opining that the main control mechanism is the principle of reasonable user.²⁷⁴ And yet it was emphasized in Cambridge Water that there would be no liability in damages when it could not be reasonably foreseen by a person in the defendant's position that interference in property would occur.²⁷⁵ Certainly, there is a prerequisite of carelessness (p.97) where the defendant has not created the nuisance but permitted it to continue.²⁷⁶ Otherwise strict liability may still have a role to play in nuisance,²⁷⁷ although it would seem to be in decline.²⁷⁸

Even if the elements of the tort are made out, a variety of defences to liability may be invoked by defendants,²⁷⁹ the most important of which for this study is the defence of statutory authority. It has already been noted that liability in tort may be curtailed where acts are authorized by statute,²⁸⁰ and this is of particular significance in the context of nuisance actions.

The determination of the question is essentially one of statutory construction.²⁸¹ This simple proposition has given the courts considerable room for manœuvre. The basic premise is that any damage which is the inevitable result of the exercise of a statutory power or duty will not be actionable in nuisance.²⁸² The more specific the wording of the statute is in respect of the impugned activity, the more likely it will be held to have been authorized. So if Parliament authorizes a specific activity in a specific location no nuisance can arise,²⁸³ unless the authority has not acted ‘with all reasonable regard and care for the interests of other persons’.²⁸⁴ More problems are encountered where the statute leaves a wider discretion to the public authority.²⁸⁵ There is authority for the proposition that where a statutory discretion can be exercised without interfering with private rights, no interference is permitted.²⁸⁶ There are also judgments suggesting a different approach, which is more protective of public authorities.²⁸⁷ Relying upon these, Arrowsmith has thus formulated an alternative principle according to which nuisance should be authorized where to hold otherwise would ‘substantially interfere with the apparent discretion given’.²⁸⁸

We must also consider the impact of statutory nuisance clauses, which are specific sections expressly retaining liability in nuisance. Where the impugned act arises from the exercise of a statutory duty, then the existence (p.98) of a statutory nuisance clause will not affect the aforementioned rule that no nuisance action arises for loss which is an inevitable result of the exercise of a statutory duty.²⁸⁹ On the other hand, the House of Lords has indicated that if loss arises from the exercise of a permissive power the authority can be liable where there is a nuisance clause.²⁹⁰ There are problems in principle as well as practice in deciding that so much turns on the difference between statutory empowerment and obligation.²⁹¹ It is clear that the present doctrine does accord a good degree of protection to public bodies.

Finally, we must examine the human rights law impact. We have already noted the influence of human rights law on the development of the torts of negligence and misfeasance in public office earlier in this chapter.²⁹² The tort of nuisance is likely to be subject to similar influences, and signs of this are already apparent from the recent case of Marcic v Thames Water Utilities Ltd.²⁹³ The claimant's house suffered from flooding and ‘backflow’ of foul water from sewers owned by the defendant (statutory) sewerage and water undertaker. The latter had refused to carry out the major drainage work necessary to remedy this problem, as it considered that there were many other properties in respect of which there was a higher priority for expenditure to obviate flooding risk.

The claimant argued that the defendant was liable in damages both at common law and under the Human Rights Act 1998 (HRA). At first instance, the common law claims in nuisance, Rylands v Fletcher, and negligence were rejected on the basis that the defendant enjoyed a ‘non-feasance immunity’, namely that a statutory drainage undertaker is not liable for mere failure to fulfill its statutory duty to provide sufficient drains and sewers.²⁹⁴ However, a damages remedy was granted under the HRA for breach of the Convention rights protected by the First Protocol, Article 1 (right to peaceful enjoyment of possessions) and Article 8 (right to respect for private and family life) of the ECHR.²⁹⁵

The Court of Appeal took a different view, and held that the claimant was entitled to succeed under the common law of nuisance. This was sufficient to settle the case, and indeed the right to damages at common law was held to ‘displace’ the claim under the 1998 Act,²⁹⁶ thus confirming the latter's residual nature.²⁹⁷

(p.99) The Court of Appeal agreed with the judge's conclusion that the defendant had ‘adopted or continued’ the nuisance. However, it decided that the judge had been wrong to find a ‘non-feasance immunity’. Recent cases have effected ‘a significant extension of the law of nuisance’,²⁹⁸ and the older cases on which the judge had relied²⁹⁹ could no longer provide support for an immunity. The Court found that the defendant had failed to prove that it had taken all reasonable steps to avoid the nuisance.

Although the human rights point was not found to be determinative in this case, the reasoning of the lower court was nonetheless impliedly upheld by the Court of Appeal.³⁰⁰ At first instance, the judge had concluded that the defendant's inaction was incompatible with the claimant's convention rights under Article 8, and the First Protocol, Article 1 of the ECHR. The claimant was found to have been deprived of the peaceful enjoyment of his possessions—he had suffered ‘a partial expropriation’ of his property.³⁰¹ As regards Article 8, the defendant's failure to carry out works to bring to an end the repeated flooding of Mr Marcic's property constituted an interference with the enjoyment of his home.³⁰² The crucial question was whether the interference (flooding) could be justified by a competing public interest. The judge held that the appropriate test was to undertake a ‘fair balance’ between ‘the competing interests of the individual and of the community as a whole’. In this respect, the burden of proof lay upon the defendant.³⁰³ After consideration, the judge held that, despite allowing for discretion in its favour, the defendant had failed to convince the court that its system of priorities for dealing with flooding was fair.³⁰⁴ It was insufficient for the defendant simply to show that ‘the current system does not obviously fail to strike the fair balance’.³⁰⁵

The first instance decision in Marcic is a striking illustration of the potency of the judge's role under the HRA in assessing the decision-making of ‘public’ bodies, scrutinizing the public body's reasoning, assessing the ‘fair balance’ by means of cost/benefit analysis, and thus looking very closely at the merits of the decision.³⁰⁶ Moreover, the full (p.100) potential of the section 8 damages remedy under the HRA becomes apparent. There are many situations in which citizens may now argue under Article 8 ECHR that public authorities have failed to take reasonable steps to eliminate an interference with enjoyment of a home, and then leave it to the authority to show that in not devoting resources to the claimant's situation it had adopted a ‘fair balance’ between the latter's interest and its other customers. Commentators have suggested that non-feasance cases such as Hussain v Lancaster City Council,³⁰⁷ will be decided differently under the HRA.³⁰⁸

In terms of the tort of nuisance, the Court of Appeal decision is also very important. It was accepted that nuisance liability might arise from an omission to exercise statutory powers. The argument that there should be a blanket protection for public bodies for non-feasance was dismissed. The Court of Appeal was seemingly not swayed by the judge's argument that the policy of the Act should determine whether there could be nuisance liability.

Commentators have detected the influence of human rights law in shaping the nuisance remedy in this decision.³⁰⁹ The re-characterization of ‘reasonable steps’ as a defence to nuisance,³¹⁰ rather than an integral element,³¹¹ as well as Lord Phillips later doubting whether proof of reasonable steps should exculpate anyway,³¹² may be partially explained by the new ‘rights-based’ approach infiltrating tort law, with a shift away from fault proved by the claimant.³¹³ This decision may also mark the start of a wider reappraisal of the tort of nuisance. Various aspects of the tort may be in the judicial sights. Lord Phillips in Marcic expressed reserves about whether the fault requirement in cases of ‘continuing and adopting’ nuisances would be compatible with human rights exigencies, and we will examine this point further in the next chapter.³¹⁴ In terms of (p.101) the ability to bring an action, the Strasbourg case law, unlike the common law,³¹⁵ does not lay down a requirement of a property interest in order for an individual to assert his right to respect for private and family life and the home.³¹⁶