The claimants appealed against rejection of their claims for nuisance in the form of smells emanating from the respondent neighbour’s waste processing plant. The defendant relied upon the grant of planning permission.
Held: The cause of action in nuisance is one for interference with property rights, loss of amenity value and the right to claim damages for it does not turn on any exceptional sensitivity or insensitivity of the person entitled to exclusive possession. Carnwath LJ said: ‘The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter Short of express or implied statutory authority to commit a nuisance . ., there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights’
Carnwath LJ set out the law of nuisance in this sort of case: ‘In my view this case is governed by conventional principles of the law of nuisance, which are well-settled, and can be found in any of the leading text books. Thus, Clerk and Lindsell on Torts (20th edn, 2010) Ch20, the third category of nuisance is that caused by a person ‘unduly interfering with his neighbour in the comfortable and convenient enjoyment of land’ . . Relevant to this case are the following rules. (i) There is no absolute standard; it is a question of degree whether the interference is sufficiently serious to constitute a nuisance. That is to be decided by reference to all the circumstances of the case . . (ii) There must be a real interference with the comfort or convenience of living, according to the standards of the average man . . or in the familiar words of Knight Bruce VC: ‘not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.’ (See Walter v Self [1851] 4 DeG and Sm 315 at 322, [1851] 64 ER 849 at 852). (iii) The character of the neighbourhood area must be taken into account. Again in familiar nineteenth century language, ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. (. . Thesiger LJ, Sturges v Bridgman [1879] 11 ChD 852 at 856) . . iv) The duration of an interference is an element in assessing its actionability, but it is not a decisive factor; a temporary interference which is substantial will be an actionable nuisance . . (v) Statutory authority may be a defence to an action in nuisance, but only if statutory authority to commit a nuisance is expressed or necessarily implied. The latter will apply where a statutory authority authorises the user of land in a way which will ‘inevitably’ involve a nuisance, even if every reasonable precaution is taken . . (vi) The public utility of the activity in question is not a defence . . ..’
Judges:
Arden, Carnwath, Patten LJJ
Citations:
[2012] EWCA Civ 312, [2012] WLR(D) 86, [2012] 3 All ER 380, [2012] 2 PandCR 6, [2012] HLR 28, [2013] QB 455, [2012] 13 EG 90, (2012) 141 Con LR 1, [2012] PTSR 1527, [2012] 2 EGLR 157, [2012] 3 WLR 795, [2012] BLR 275
Links:
Jurisdiction:
England and Wales
Citing:
See Also – Barr and Others v Biffa Waste Services Ltd TCC 15-May-2009
The Claimants were the residents of a housing estate who applied for a Group Litigation Order to pursue their claim of nuisance and negligence against a waste contractor. The Defendant requested the disclosure of their ‘after the event’ insurance . .
Appeal from – Barr and Others v Biffa Waste Services Ltd (No.2) TCC 2-Oct-2009
. .
See Also – Barr and Others v Biffa Waste Services Ltd (No 3) TCC 19-Apr-2011
The claimants sought damages in nuisance saying that the defendant’s waster recycling plant was causing odorous pollution of their nearby homes. . .
Costs judgment below – Barr and Others v Biffa Waste Services Ltd [No 4] TCC 19-Apr-2011
. .
Cited by:
Cited – Merthyr Tydfil Car Auction Ltd v Thomas and Another CA 11-Jul-2013
The company appealed against an award of 9,000 pounds for nuisance in the form of excessive noise and fumes.
Held: The appeal failed: ‘the grant of planning permission cannot authorise the commission of a nuisance but it may, following its . .
Cited – Thomas and Another v Merthyr Tydfil Car Auction Ltd QBD 8-Oct-2012
The claimant complained of nuisance from adjoining car auctions works belonging to the defendants. . .
Cited – Network Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
Lists of cited by and citing cases may be incomplete.
Nuisance, Planning
Updated: 05 October 2022; Ref: scu.452171