Nuisance

• What is nuisance in law?


  'Noise, smell, vibration, pollution.'

  'Use of land, in a way that affects others' enjoyment of their land.'

  A property delict.
• Plus quam tolerabile


  more than tolerable
• Types of nuisance


  Industrialisation may damage water on somebody else's land - for example

  This is a nuisance.

  
  

  Water pollution, air pollution - superseded by modern statutory regimes, but the common law still exists.

  
  

  Trespass

  
  

  May include harm to property and also 'amenity nuisances', which make life miserable for one individual or the wider community.
• Chalmers v Dixon (1876) 3R 461


  an accumulation of combustible materials

  
  

  this was a nuisance as it was a hazardous substance
• Kerr v Earl of Orkney


  Liable for things escaping from your building and causing a nuisance for others.
• Issues with nuisance


  Whether the nature of the harm needs to be foreseeable - here the answer is probably yes in both Scotland and England, though the main authority is English

  
  

  Whether planning permission can stop something being a nuisance (probably not, but it may change the nature of the locality e.g. to industrial use).

  
  

  The extent to which 'statutory authority' is a defence.
• Cambridge Water v Eastern Counties Leather [1994] 2 AC 264

  they thought a chemical would evaporate however it didn't and got into the water.
• Watt v Jamieson 1954 SC 56


  Ingress of sulphurous water vapour from a neighbour's gas heater; flue connected through a common gable. Caused damp, discolouration, crumbling of brick and plaster, damage to stonework and dry rot

  
  

  ordinary use was not a defence to a nuisance action; and may not be anormal use here; and went to proof.

  
  

  a certain amount of inconvenience, annoyance, disturbance and even damage must just be accepted as the price... for staying... in a city tenement. The critical question is whether what he was exposed to was plus quam tolerabile ... [in] all the surrounding circumstances
• Factors to be considered in a nuisance case


  More than is tolerable - in context, case by case basis.

  
  

  The location of a nuisance - some activities may be expected in the town but not the country, or vice versa - can you think of examples of either?

  
  

  The sensitivity of the pursuer - this will be an argument for the defender! So we would look at this from the point of view of the reasonably robust person.
• MacBean v Scottish Water [2020] CSOH 55, [2021] CSIH 36


  Remedial works were undertaken to address smell nuisance from a wastewater treatment plant; subsequently the impact was 'irregular,faint [and] transient' [para 79].

  Note also public interest question - there is a clear public interest in having wastewater collected and treated.
• Public Interest


  Public interest does not prevent something being a nuisance and is not a defence, but, may affect the remedies
• Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co1948 SC 5


  Noxious fumes, but a significant public interest; held this was not a reason to refuse the proof; and then, 1949 SLT (Notes) 14, that 'reluctantly', interdict would be deferred for remedial works.
• Webster v Lord Advocate 1985 SC 173

  Nuisance action regarding the noise of the Military Tattoo and of the construction of the stands. Castlehill - Google Maps

  
  

  Would it make a difference if the Tattoo had taken place for many years before Ms Webster bought her flat?

  
  

  'It is clear that whether the man went to the nuisance or the nuisance came to the man, the rights are the same
• Agents of change principle


  Planning (S) Act 2019 s 25 -new developments may be subject to planning conditions re noise insulation, to avoid difficulties with 'existing cultural venues or facilities'.
• Interdict


  Where there is an ongoing nuisance (more than tolerable, in context, etc.) an interdict is always available (but may be delayed).

  
  

  Where the nuisance is ongoing it may be less important to aver fault (it may' speak for itself', res ipsa loquitor).

  
  

  Interdict is useful for ongoing issues, such as neighbourhood amenity. However where there has been loss or harm to property, interdict will only be useful if the problem will recur, and anyway will not compensate for the harm.
• Requirement for fault or culpa

  In Scotland where there is a claim for damages, there must be some element of fault or culpa.
• RHM Bakeries v Strathclyde Regional Council 1985 SC (HL) 17


  The bakery was flooded with sewage from a collapsed sewer.

  The pursuers averred the flooding was caused by the sewer which SRC owned, but did not aver any failure to take reasonable care to maintain it. They also averred that SRC had an absolute duty to maintain the sewer under s 2 of the Sewerage (Scotland) Act 1968.

  
  

  
  

  In the House of Lords, it was held that to be liable in damages there must be some degree of fault; and that the duty under s 2 to maintain was not absolute.

  
  

  However it was not necessary to 'aver the precise nature of the fault' and it would be sufficient to aver that the collapse was evidence of failure of the duty to maintain (at p 44)
• Argyll & Clyde HB v SRC 1988 SLT 381


  They had not specified the nature of the fault or the type of maintenance that would be required, so their pleadings were inadequate.
• Kennedy v Glenbelle Ltd 1996 SC 95.


  This involved damage to an upper flat cause by removal of a load bearing wall in the basement. Glenbelle Ltd. owned the basement and did not appear; the second defenders were Charles Scott, consulting engineers. There was a claim against both defenders: in nuisance, in that the engineers instructed the works which they should have known would cause harm, and in negligence, for failing to take reasonable care.

  
  

  Culpa could arise in 5 ways: by malice; intent; recklessness; negligence; or perhaps by conduct with a 'special risk of abnormal damage' where fault could always be inferred (p 99). If negligence, the normal rules of negligence would apply.
• Modern statutory law and statutory nuisance


  A wide variety of statute may relate to activities that could be a nuisance at common law - for example the Anti-Social Behaviour etc. (Scotland) Act 2004, or the Protection from Harassment Act 1997.

  The Environmental Protection Act 1990 Part III as amended contains a UK-wideregime for statutory nuisance.

  
  

  This replaced previous provision in a series of Public Health Acts from the mid -19th century, addressing nuisance activities in urban environments.

  
  

  Why might a public regime have been necessary for nuisance activities in an industrialising and urbanising society? Why did the common law not suffice?

  
  

  This regime covers many of the 'amenity' activities that might still be a problem today - from noise and dumping of waste (though there are other controls on that) to keeping animals in cities.
• Statutory nuisance under the EPA 1990 as amended s79


  S 79 defines statutory nuisances as being 'prejudicial to health or a nuisance', i.e. including anything that is a nuisance at common law.

  It specifies that statutory nuisances include:

  the state of premises; smoke, fumes and gases; dust, steam, smell or effluvia; accumulations or deposits; the keeping of animals; insect infestations; artificial light; noise; and 'any other matter declared by any enactment to be a statutory nuisance'.
• s80 EPA 1990


  The rules are enforced by local authorities (s 80) which can serve abatement notices on the person responsible, the owner if a structural issue, or the owner or occupier if the responsible person cannot be found. There are special rules on noise, both 'street noise' and noise from other houses.
• Conclusions


  Nuisance is the use of land that interferes with others' enjoyment of their land.

  
  

  In Scotland, nuisance can protect neighbourhood amenity as well as damage to property.

  The usual remedy for a nuisance is interdict.

  
  

  A nuisance must be 'more than is tolerable', in context.

  
  

  If the pursuer wishes to claim damages they will have to aver some fault, which may be malice, or intention, or recklessness, or negligence. If the fault is negligence, the general rules of negligence will apply.

  
  

  Modern statutory provisions are often available for amenity nuisances but the common law also applies.