Is it the fact that we live on a densely populated island fuelling the increase in the number of nuisance neighbour cases brought before the Courts? Or are we Brits just becoming less tolerant and impatient of our neighbours?
Four significant decisions concerning the law of nuisance have been handed down by the Supreme Court in the last 18 months.
The right to a view?
The first of these was the case of Fearn and others v the Board of Trustees of Tate Gallery [2023] UKSC 4, in which the Supreme Court determined that the Tate Modern's panoramic viewing gallery did create an actionable nuisance to neighbouring residents who were overlooked by anyone using the gallery. Whilst in English law, you do not have a right to a view, it now seems that you do have a right not to be overlooked. The decision in the Tate Modern case is widely seen as broadening the law of nuisance to include overlooking. However, the Court was keen to emphasise that it wasn't "mere" overlooking but was more about the museum's exceptional use of its own land.
Going back to basics, to be actionable, a nuisance must amount to a substantial interference with enjoyment of neighbouring property. There does have to be some tolerance and give and take between neighbours, but you can only be expected to tolerate one another's common and ordinary use of their land. In the museum's case, the museum was using its land to allow thousands of people every week to stand in the gallery and, therefore, have the ability to look into the neighbours' living rooms, which was far beyond common and ordinary use.
Interestingly, the Court also made it clear that although the neighbouring flats had a fully glazed layout, it was not reasonable for them to have to install net curtains, for example, to avoid being overlooked. The issue was not that the flats were particularly sensitive to being overlooked but rather that the museum was using its land in an extraordinary way.
Private nuisance
Another recent case looked at continuing nuisances, such as overlooking or creating noise or smell. In Jalla and another v Shell International Trading and Shipping [2023] UKSC 16, the Court reiterated the definition of private nuisance as occurring when one person's actions cause substantial and unreasonable interference with the others' use and enjoyment of their land, which results in damage.
Case law has already established that continuing nuisance can be repeated instances of smoke, noise, vibration, and, following the Tate decision, overlooking, but the Jalla case was concerned with an oil spill off the coast of Nigeria. The complainant had argued that oil had reached his land, causing damage and giving rise to a claim for nuisance, which continued for as long as the oil remained on his land. The key question that had to be determined in the case was whether or not the oil spill was a continuing nuisance. If it wasn't, then the limitation period for bringing a claim in nuisance for the initial oil spill, which happened back in 2011, was 6 years under English law and 5 years under Nigerian law and would, therefore, have expired well before the claim was brought.
The Court decided that in order to create a continuing nuisance, there has to be a repeated activity or ongoing state of affairs that interferes with the complainant's use and enjoyment of their land day after day or on another regular basis. They did not consider that the tests had been satisfied because the oil spill had, in fact, been caused by one isolated escape, which had stopped within six hours and hadn't been repeated. The Court decided that the claimant's claim arose when the oil hit his land and that there was actually no continuing cause of action for the whole period the oil was on his land. The claim, therefore, failed.
Japanese knotweed
Continuing nuisance has also been considered in the sphere of Japanese knotweed cases, most recently in Davies v Bridgend County Borough Council [2024] UKSC 15.
In that case, Mr Davies had bought his house in 2004. Japanese knotweed had spread from neighbouring land owned by the council long before then, but the spread and extent of the interference was severe in 2013 when the Royal Institution of Chartered Surveyors published a paper which ought to have put the council on notice to the risk to the Davies' land.
The council, however, failed to take any steps to remove the knotweed until 2018. Even though the knotweed had been treated back in 2018, Mr Davies claimed damages from the council, arguing that the ongoing blight of the knotweed had, in fact, reduced the value of his home.
When looking at the issues, the County Court decided that the claim was not for the damage caused by the knotweed but for pure economic loss, which is not something that you can recover under English law. However, upon appeal, the Court of Appeal overturned this and decided that Mr Davies' loss flowed from the nuisance caused by the Japanese Knotweed, so damages were recoverable.
When the case reached the Supreme Court, however, they upheld the council's appeal. This reversed the Court of Appeal's decision and meant that Mr Davies did not recover financial damages. The Supreme Court decided that in order for Mr Davies to succeed, he had to show that but for the council's failure to treat the knotweed between 2013 and 2018, he would not have suffered a loss.
The Supreme Court was clear that the council had breached its duty to treat the knotweed during that period, but the actual damage occurred in 2004 when Mr Davies bought his property, long before the council's duty to treat the knotweed arose. They, therefore, decided that there was no cause or link between Mr Davies' loss, which would have happened anyway, and the council's later breach of duty.
Private nuisance and statute
In another case, The Manchester Ship Canal Company Limited v United Utilities [2024] UKSC 22, the Court was asked to look at another issue, namely the relationship between private nuisance and statute.
The issue in the case that the Court had to decide was whether the owner of the beds and banks of the Manchester Ship Canal could bring a claim of nuisance against United Utilities for discharging foul water into the canal.
The case did not look in detail at whether the release of untreated sewage into water causes a nuisance, which is already clear, but whether the statutory regime under the Water Industry Act 1991 had excluded the Ship Canal Company's right to claim in private nuisance. The Supreme Court concluded that the statute had not, in fact, excluded that right and that the Ship Canal Company could still bring a claim in private nuisance.
This was because the 1991 Act was a consolidation statute that restated the previous law and, therefore, had not made substantive changes. The Court also determined that in order to override fundamental common law rights, such as a right to protect private property, a statute had to have express language to that effect, which the 1991 Act clearly lacked.
As you can see, there's a lot more to neighbour disputes than arguments over the fence, but if you're the person affected, each issue is of equal importance.
