Nuisance Law: Overview

Overview of Nuisance in Law

• Nuisance in law, modern law, and the requirement for culpa or fault will be discussed.

What Constitutes a Nuisance in Law?

• Nuisances include noise, smell, vibration, and pollution.
• Nuisance involves the use of land in a way that affects others' enjoyment of their property.
• The concept of Plus quam tolerabile is key in defining nuisance.
• The basis of managing environmental harms began in the 19th century.
• Statutory regimes have superseded water and air pollution, but common law still applies.
• Nuisance links to negligence, trespass, aemulationem vicini (actions in spite or malice), and property law, as nuisance is a 'property delict'.
• Harm to property and 'amenity nuisances,' which affect quality of life are types of nuisances.

Comparison of English and Scots Law of Nuisance

• English law recognizes both public and private nuisance.
• Public nuisance is a criminal offense, similar to breach of the peace in Scotland.
• Private nuisance in England is categorized and complex because of more cases
• Fearn & others v Trustees of the Tate Gallery [2023] UKSC 4 case provides an example.
• A private property right is typically required to sue, not a wider neighborhood issue.
• English case law should be approached with caution as the law isn't broadly the same as Scotland.
• The greatest difference between Scots law of delict and English law of tort is in the area of nuisance.
• Both jurisdictions have a similar regime for 'statutory nuisance'.

Common Types of Nuisance Actions

• Early nuisance cases often involved water pollution between riparian proprietors, such as the 'Esk cases'.
• Urban 'amenity nuisances' arose with industrialization and urbanization, involving noxious fumes, waste, and animals.
• Modern cases often involve damage to buildings from water damage or subsidence.
• Cases may concern hazardous substances, exemplified by Chalmers v Dixon (1876) 3R 461 regarding combustible materials and Kerr v Earl of Orkney (1857) 20D 298 regarding flooding.
• These categories aren't exclusive.

General Issues in Nuisance Cases

• Whether nuisance should relate to novel or extraordinary uses of land has mixed authority in England, as seen in Fearn.
• Foreseeability of harm is likely required in both Scotland and England, supported by Cambridge Water v Eastern Counties Leather [1994] 2 AC 264.
• Planning permission doesn't necessarily prevent something from being a nuisance, but it can change the nature of the locality.
• 'Statutory authority' can be a defense in nuisance cases.

Modern Law: Watt v Jamieson 1954 SC 56

• The ingress of sulphurous water vapor from a neighbor's gas heater caused damage like damp and dry rot.
• Following complaints, the heater was disconnected, but the damage remained.
• The defender claimed normal use of a dwelling house was a defense.
• The court held ordinary use isn't generally a defense and went to proof.
• The proper approach is from the victim's viewpoint and require a balance in all cases.
• The critical question is whether the exposure was plus quam tolerabile considering all the circumstances.

Factors to Consider in Nuisance Cases

• 'More than is tolerable' is considered in context on a case-by-case basis.
• The location of the nuisance is relevant, with different activities expected in urban vs. rural areas.
• The sensitivity of the pursuer is a factor, assessed from the perspective of a reasonably robust person.
• MacBean v Scottish Water [2020] CSOH 55, [2021] CSIH 36 involved smell nuisance from a wastewater treatment plant that was later mitigated.
• Public interest is relevant, such as the need for wastewater to be collected and treated.

Public Interest Considerations

• Public interest does not prevent a nuisance nor act as defense.
• Public interest may affect the remedies, such as in Ben Nevis Distillery (Fort William) Ltd v North British Aluminium Co 1948 SC 592, where an interdict was deferred for remedial works despite noxious fumes.
• Webster v Lord Advocate 1985 SC 173 pertained to nuisance action regarding noise from the Military Tattoo.
• Public interest affects nuisance remedies.

Timings and Subsequent Changes

• Length of time of the Tattoo taking place before Ms. Webster buying a flat is relevant.
• Whether the man went to the nuisance or vice versa, the rights are the same (Fleming v. Hislop (1886) 13 R (HL) 43, 49).
• Long negative prescription (20 years) may apply, according to the Prescription & Limitation (Scotland) Act 1973 s 7.
• The 'agents of change' principle, from the Planning (S) Act 2019 s 25.

Fault and Liability for Damages: Requirement for Fault or Culpa

• An interdict is always available for ongoing nuisances.
• When a nuisance is ongoing, fault may be less important and res ipsa loquitor may apply.
• Interdicts are valuable for ongoing amenity problems.
• Interdicts will only be useful if the problem recurs and will not compensate for harm for loss or harm to property.
• Nuisance had been described as 'strict' liability, especially by English cases.
• Defenses may be damnum fatale (acts of God) or acts of a 3rd party.
• An element of fault or culpa is required in Scotland.

RHM Bakeries v Strathclyde Regional Council 1985 SC (HL) 17

• A bakery flooded with sewage from a collapsed sewer which caused the flooding.
• The SRC sewer had an absolute duty to maintain the sewer under s 2 of the Sewerage (Scotland) Act 1968.
• The House of Lords held a degree of fault needed to be given as damages; the duty under s 2 was not absolute.
• A precise nature of the fault did not have to be given, but the collapse was a failure of the duty to maintain.

Sliding Scale for Culpa

• Following RHM, the pursuers in Argyll & Clyde HB v SRC 1988 SLT 381 based their case this concept but was held irrelevant and a lack of specification.
• Specification was needed to determine the fault and type of maintenance required, not just general comments.
• Relationship between culpa was considered by Kennedy v Glenbelle Ltd 1996 SC 95.
• Regarding damage to an upper flat caused by the removal of a basement wall, the second defenders were Charles Scott, consulting engineers.
• A claim was made against both defenders: in nuisance.
• Engineers should have known the works would cause harm
• The engineers failed to take reasonable case in negligence.
• Both grounds merited a proof.
• Culpa could arise in 5 ways: malice, intent, recklessness, negligence, 'special risk of abnormal damage.

Modern Statutory Law and Statutory Nuisance

• A wide variety of statutes relate to common law nuisances, for eAnti-Social Behaviour etc. (Scotland) Act 2004 and the Protection from Harassment Act 1997.
• The Environmental Protection Act 1990 Part III, as amended, provides regime for statutory nuisance.
• Provisions from Public Health Acts from the mid-19th century, addressing nuisance activities, are examples of UK-wide regimes
• Public regimes may be needed for nuisance.
• Amenity activities, noise, waste dumping, and keeping animals are covered by regime.

Conclusions Regarding Nuisance

• Nuisance is the use of land interfering with other's enjoyment of their land.
• Nuisance may protect neighborhood amenity as well as damage to property.
• Interdict is the usual remedy for nuisance.
• A nuisance is 'more than is tolerable', in context.
• Pursuer must claim some fault in order to get damages.
• Negligence will apply if the fault is determined to be that.
• Modern statutory provisions are available for amenity nuisances, but the common law also applies.