6 SIMULACIÓN DEL EDIFICIO OBJETO DE ESTUDIO
6.5 Definición de los horarios y de las cargas para simulación
Nuisance
5.1 Private nuisance
5.1.1 The definition, character and purpose of the tort
1 Defined as ‘continuous, unlawful and indirect interference with a person’s enjoyment of land or some right over, or in connection with it’.
2 It only applies to an ‘indirect’ interference – direct is trespass.
3 It concerns prevention more than compensation.
4 It concerns the relationship between neighbours.
5 There are three key elements to neighbourhood:
continuity – involving a recurring state of affairs;
people should be free to use their land as they wish, so long as it does not harm their neighbours;
neighbours are subject to many trivial disputes, so there is a risk of the courts being flooded with claims.
6 Only ‘unreasonable’ interference is a nuisance:
so there is no protection against interference classed as reasonable;
but if classed as unreasonable it is irrelevant whether it was reasonable for the defendant to engage in such behaviour.
7 The test is: what conduct is sufficient to justify legal intervention?
8 The court must strike a balance between conflicting interests and this now involves balancing the rights of the individual against that of the wider community even where violation of human rights (Article 8) is involved (Hatton v UK (2003);
Dennis v MoD (2003); Marcic v Thames Water Utilities Limited (2003)).
5.1.2 Who can sue in nuisance
1 Nuisance usually affects occupiers, so traditionally a claimant is the holder of a legal or equitable title – but might include:
a) a landowner out of possession;
b) an occupier suing for the benefit of others affected;
c) a tenant, but not his/her family:
limiting a landlord’s responsibility for the state of property (Habinteng Housing Association v James (1994));
so Law Commission Report No 238, 1996 recommends updating the implied covenant of fitness for human habitation in the Landlord and Tenant Act 1985;
at one point an occupier’s family harassed by offensive telephone calls was included (Khorasandjian v Bush (1993)), but overruled by Hunter v Canary Wharf (1997).
5.1.3 The ingredients of the tort
There are three key elements:a) unlawful use of land;
b) indirect interference with land;
c) indirect interference with the claimant’s use or enjoyment of his/her land.
The unlawful (unreasonable) use of land
1 Interference alone is insufficient – it must be unlawful.
2 Unlawful means unreasonable so, in balancing competing interests, the question is whether in all of the circumstances it is reasonable for the claimant to suffer the particular interference (Barr v Biffa Waste Services Ltd (2012)).
3 In assessing the defendant’s conduct the court is analysing fault (so there must be foreseeable damage), but in a more flexible way than with negligence – so a defendant might be excused liability for not having the resources to avoid the nuisance (Solloway v Hampshire County Council (1981)), but see Hurst & another v Hampshire County Council (1997), CA.
4 Many key factors are used to assess what is unreasonable.
a) The locality:
The activity may be a nuisance in a residential area but not in an industrial one (Sturges v Bridgman (1879), where vibrations were a nuisance to a doctor’s waiting room).
So it can include a common facility in the wrong area (Laws v Florinplace (1981)). with the ordinary comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions …’ (Knight-Bruce VC in Walter v Selfe (1851)).
Where the claimant suffers physical damage the use of land is unreasonable (Halsey v Esso Petroleum (1961),
where smuts from a refinery affecting the claimant’s car were a nuisance even though in an industrial area).
This does not apply if protected by public policy (Miller v Jackson (1977)).
It does not apply if the use of land is an absolute right (Stephens v Anglian Water Authority (1987)).
It does not apply if the activity is seen to be to the public benefit (Ellison v Ministry of Defence (1997)).
d) The sensitivity of the claimant – if a claimant’s own use of land is hypersensitive to the interference he may fail (Robinson v Kilvert (1889)). But the Court of Appeal in Network Rail Infrastructure Ltd v CJ Morris (2004) has now suggested that there may now be no need to apply such a test.
e) Malice and the conduct of the defendant:
the loud noise of guns used to frighten breeding silver foxes (Hollywood Silver Fox Farm v Emmet (1936));
vibrations from machinery (Sturges v Bridgman (1879));
hot air rising to an upstairs flat (Robinson v Kilvert (1889));
pollution of rivers (Pride of Derby Angling Association v British Celanese (1953)).
The use and enjoyment of land
1 Judges have limited the extent of ‘enjoyment’ in nuisance.
2 So there is no right to protect pure pleasure or aesthetics (Bridlington Relay v Yorkshire Electricity Board (1965)) and, in the USA, Amphitheatres Inc. v Portland Meadows (1948).
3 Confirmed in Hunter and another v Canary Wharf Ltd (1997).
4 A functional use supporting pure entertainment or leisure can create liability (C rown River Cruises Ltd v Kimbolton Fireworks Ltd (1996)).
5 So lowering the tone of the neighbourhood is not usually actionable, but see Laws v Florinplace (1981).
6 If personal injury is involved the claimant must have a proprietary interest (Malone v Laskey (1907)), and see also Hunter v Canary Wharf (1997).
5.1.4 Who can be sued in nuisance
1 The creator of the nuisance, who does not have to be the occupier (Southport Corporation v Esso Petroleum (1953)).
2 A person authorising the nuisance. Compare Tetley v Chitty (1986) with Smith v Scott (1973).
3 A person who adopts the nuisance:
either of a stranger or trespasser (Sedleigh Denfield v O’Callaghan (1940));
or of a previous occupier (Anthony and others v The Coal Authority (2005));
or of a natural occurrence (Leakey v National Trust (1980)).
4 Landlords can be liable to tenants:
this is the most effective modern defence, since so many activities are licensed (Hammersmith Railway v Brand (1869) and Allen v Gulf Oil Refining Ltd (1980));
not available if a discretion is improperly exercised (Metropolitan Asylum District Hospital v Hill (1881));
where statute provides another remedy a nuisance action is not available (Marcic v Thames Water Utilities Limited (2003));
not available for negligence (Home Office v Dorset Yacht Co (1970));
unlike Parliament, planning authorities cannot authorise a nuisance except where they have statutory authority to do so.
Compare Wheeler v Saunders (1995) and Gillingham BC v Medway (Chatham) Dock Ltd (1993) and see also Watson v Croft Promosport (2009) – the issue is whether the character of the land has changed (Coventry v Lawrence (2012)).
2 Prescription: this is a defence unique to nuisance – 20 years without complaint and the right to complain lapses (Sturges v Bridgman (1879)).
3 Act of a stranger or trespasser, but not if adopted (Sedleigh Denfield v O’Callaghan (1940)).
4 Consent: e.g. tall building (Kiddle v City Business Properties Ltd (1942)).
5 The common enemy rule: each landowner can protect against a common enemy e.g. flooding (Arscott v Coal Authority (2004)).
6 Public policy:
both sides should be considered (Miller v Jackson (1977));
usefulness is insufficient excuse (Adams v Ursell (1913)).
7 Coming fresh to the nuisance is no defence (Bliss v Hall (1838)).
5.1.6 Remedies
1 Damages.a) Test of remoteness is the same as in The Wagon Mound (No. 2) (1961) – foreseeability.
b) Claimant can recover for physical loss, depreciation in value, and business loss.
2 Injunction:
a) an order to prevent the nuisance from continuing (Kennaway v Thompson (1981));
b) it can be coupled with damages. 1 Relationship with trespass to land:
a) the difference is between direct and indirect interference.
b) repeated trespasses can be nuisances (Bernstein v Skyways (1940)).
2 Relationship with Rylands v Fletcher (1868):
a) one involves non-natural use of land, the other involves unreasonable use (but the distinction is now blurred – see Arscott);
b) before Cambridge Water v Eastern Counties Leather (1994) there was no requirement for damage to be foreseeable in R v F;
c) nuisance can be committed by a non-occupier, unlike R v F;
d) R v F, at least in theory, involves strict liability;
e) R v F covers isolated escapes, nuisance is a continuous state of affairs.
3 Relationship with negligence:
a) negligence requires the existence of a legal duty;
b) no claim in negligence for interfering with enjoyment;
c) nuisance is about creating a balance, but the merest damage in negligence can justify a claim.