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6.3 Nuisance and Rylands v Fletcher Lecture - Hands on Examples

Question:

Liz owns a house in the middle of a heavy agricultural area in North Wales. She lives with her husband, Jack, and additionally lets a family friend – Jenna – stay rent free in a converted cattle-shed. Liz has three different neighbours.

The first is Eastwards Farm, which farms pigs for the pork industry.

The second is Southfields Tree Farm, which grows softwood trees for the paper industry. It has been in business for nearly 30 years.

The third is Westwood Agricultural Products, another farm. It is currently in the process of building a new cattle farming centre, in order to meet the requirements of a new contract it has signed with the businesses it supplies. They need to begin production within the next two months to meet their quota, and so have employed builders to work throughout the night. They are scheduled to complete the project just in time.

Liz’s three neighbours are affecting her property is various ways:

When the wind is blowing from the right direction, the smell from the pig farm makes it almost unbearable to be outside of her house. Although Liz has spoken to the owners of Eastwards Farm, there is little they can do shy of closing the farm down.

Liz has recently built a garage on the south border of her property to house her vintage car collection. She notices one day that a large crack has formed in the garage wall. She refers the problem to a building inspector, who finds substantial subsistence in the land underneath the garage, caused by the root systems of the trees growing on the Southfields property. He notes that the garage is damaged beyond repair, since the foundations will need relaying. There is a significant risk that the garage will collapse otherwise.

The building works taking place on Westwood Agricultural Products’ property is keeping Jack awake all night. Liz is unaffected, since she takes a sleeping pill each night anyway.

One of Jenna’s hobbies is the breeding of African Land Snails. They are very sensitive to vibrations, and Jenna has noticed that the heavy machinery used in the building work nearby is negatively affecting their breeding patterns.

Liz comes to you, asking if it is possible in law to get her neighbours to stop their disruptive activity.

Advise Liz, concentrating on the tort of nuisance.

Answer:

The tort of private nuisance requires a proprietary interest (as per Malone v Laskey [1907] 2 KN 141), unreasonable interference, and some sort of harm to the claimant.

The first potential nuisance is the smell from the pig-farm. Liz, as a landowner, satisfies this first criterion. Unreasonable interference will be judged through the evaluation of a number of factors. The most pertinent of these in the case of the pig farm will be the character of Liz’s neighbourhood. As per Sturges v Bridgeman [1879] 11 Ch D 852, whether an activity or behaviour is unreasonable will be judged as a matter of context. Unfortunately for her, she lives in an area which deals heavily in agriculture, and thus the activity of the pig farm can hardly be described as unreasonable. There also exists a subtle public benefit argument – food production needs to happen somewhere, and it would be unwieldly to set a precedent whereby pig farming could be forcibly discontinued if it took place near any residential property.  The harm is clear, in the sense that Liz periodically loses the amenity of being able to comfortably be outside of her house. However, since the behaviour of the pig farm is not unreasonable, this claim will likely fail.

The second claim deals with the damage to Liz’s garage by the tree-farm next door. Again, Liz has a proprietary interest as a landowner. Whilst similar arguments can be employed regarding a tree farm as can be a pig farm, the neighbourhood character argument will fail, since as per St Helen’s Smelting Co v Tippings [1865] 11 HL Cas 642 it will not form a valid defence when the nuisance is property damage. Furthermore, whilst tree farming is a reasonable activity, it can be argued that it is being undertaken in an unreasonable manner, since it is causing subsidence in Liz’s property. Whilst Southfields might argue a prescription defence, this will be faulty, since the nuisance only started once Liz built the garage near the property line, so as in Sturges v Bridgeman [1879] 11 Ch D 852 the nuisance has only existed for a short amount of time. The harm is clear – encroachment onto Liz’s property by roots from the tree farm. Liz is likely to be able to recover for the damage to her garage, and obtain an injunction stopping the trees from being grown so close to her property.

The third claim is for the noise from the building site. The relevant claimant is Jack. Following Hunter v Canary Wharf [1997] AC 655, his beneficial interest as a spouse of Liz makes him a viable claimant. Whilst the construction interference is only temporary, this will not form a barrier to a claim, as in De Keyser’s Royal Hotel v Spicer Bros(1914) 30 TLR 257. This case also forms a precedent of the courts finding all-night building to be an unreasonable activity. Whilst from Westwood’s perspective it needs to get the project finished in time, this hardly forms a valid explanation of their behaviour – after all, it is not Jack’s problem that the farm has put itself on a tight schedule.  The harm is clearly loss of amenity, since Jack is prevented from sleeping. Since the behaviour is unreasonable, a claim for an injunction against all-night building is likely to be achievable.

The final harm is based around Jenna’s disrupted snail breeding. There are a number of obstacles to this claim. Firstly, Jenna has no proprietary interest – she is a lodger (as opposed to a tenant), and so lacks a proprietary interest (in line with the distinction made in Hunter v Canary Wharf). Secondly, it could be argued that Jenna has a particular sensitivity to the building operations of the neighbouring farm – breeding African Land Snails is not an ordinary use of land, as per Robinson v Kilvert [1889] 41 Ch D 88. This situation can also be likened to Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2 KB 468 – but without the case-determining malice on the part of the defendant. This particular claim will likely fail.


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