A slew of high-profile cases deal with some very different kinds of nuisance, ranging from overlooking to oil spills and from sewage to Japanese knotweed. Mathew Ditchburn and Lucy Redman draw out some of the common themes.
The judgment in Manchester Ship Canal Co Ltd v United Utilities Water Ltd (No 2) [2024] UKSC 22; [2024] PLSCS 121 marks the latest of four significant decisions that the Supreme Court has handed down on the law of nuisance in under 18 months.
Don’t overlook your neighbours
These began with Fearn and others v Board of Trustees of Tate Gallery [2023] UKSC 4; [2023] EGLR 14, one of the most widely reported judgments of 2023, in which the Supreme Court found that the Tate Modern’s panoramic viewing gallery created an actionable nuisance, as it led to neighbouring residents being overlooked.
While widely seen as a case broadening the law of nuisance to include overlooking, the Supreme Court emphasised that the case was not about “mere” overlooking, but about the Tate’s “exceptional use” of its land.
To be actionable, any nuisance must amount to a “substantial interference” with enjoyment of neighbouring property. There must be give and take between neighbours; however, they can only be expected to tolerate one another’s “common and ordinary” use of their land. The Tate’s use of its land – which allowed thousands of people a week to look into its neighbours’ living rooms – went far beyond that.
The Supreme Court was also emphatic that, despite the fully glazed layout of the neighbouring flats, the residents were not required to mitigate the effects of the viewing gallery by, for example, installing net curtains, which it likened to blaming a victim of burglary for not installing stronger locks. The issue was not that the flats were particularly sensitive to being overlooked, but the Tate’s extraordinary use of its land.
Despite some initial concerns, this judgment has not opened the floodgates for disgruntled neighbours to complain about one another’s balconies or patios. The fact that the dispute was finally resolved by the parties agreeing restrictions on the Tate viewing gallery, which reduced its impact on the neighbouring residents, demonstrated the Supreme Court’s key message about give and take and neighbourly conduct.
Continuing nuisance
In Jalla and another v Shell International Trading and Shipping Co Ltd and another [2023] UKSC 16; [2023] EGLR 24, the Supreme Court reiterated the definition of private nuisance as being something that occurred when one person’s actions (such as overlooking or creating noise or smell) caused a substantial and unreasonable interference with the other’s use and enjoyment of their land, resulting in damage.
In Jalla, the Supreme Court considered continuing nuisance, which occurs when there is a repeated activity, or ongoing state of affairs, which affects the use and enjoyment of land. This type of nuisance was already established for repeated instances of smoke, noise, smells, vibration and (following Tate) overlooking, but here it concerned an oil spill off the coast of Nigeria. Harrison Jalla argued that oil 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.
Whether or not the oil spill was a continuing nuisance was key to the case. If it was not, the limitation period for bringing a claim in nuisance for the initial oil spill in 2011 (six years under English law and five years under Nigerian law) would have long expired.
The Supreme Court was clear that, in order to create a continuing nuisance, there would have to be a “repeated activity or ongoing state of affairs” which interfered with Jalla’s use and enjoyment of his land “day after day or on another regular basis”.
That test was not satisfied in the case because the oil spill was caused by one “isolated escape” which had been stopped within six hours and not repeated. Jalla’s claim arose when the oil hit his land, and there was no continuing cause of action for the whole period the oil remained on his land.
If the Supreme Court had allowed Jalla’s claim, it would potentially have undermined the rules about limitation periods, and changed the remedy for nuisance from liability for the damage caused to a responsibility to restore the affected land. The claim, therefore, failed.
Causation
The court considered another continuing nuisance arising from the encroachment of Japanese knotweed onto neighbouring land in Davies v Bridgend County Borough Council [2024] UKSC 15; [2024] PLSCS 86.
Marc Davies had bought his house in 2004. Japanese knotweed had spread from neighbouring land owned by Bridgend County Borough Council long before then, but an actionable nuisance only arose in 2013, when the Royal Institution of Chartered Surveyors published an information paper which ought to have made the council aware of the risk of damage to Davies’ land, until 2018 when the council took steps to treat it.
Even though the Japanese knotweed had been treated, Davies claimed damages arguing that the ongoing “blight” of knotweed had reduced the value of his property. The County Court decided that this claim was not for the damage caused by the knotweed, but for “pure economic loss”, which is not recoverable under English law. The Court of Appeal overturned this and said that Davies’ losses flowed from the nuisance caused by the Japanese knotweed, so were recoverable.
The Supreme Court upheld the council’s appeal. The case essentially turned on causation: Davies 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.
While the Supreme Court acknowledged that the council had breached its duty to treat the knotweed during that period, the actual “damage” had occurred in 2004 when Davies bought the property, long before the council’s duty to treat the knotweed arose. This meant there was no causal link between Davies’ loss – which would have happened anyway – and the council’s later breach of duty.
Relationship between private nuisance and statute
Finally, in Manchester Ship Canal, the Supreme Court had to decide whether the owner of the beds and banks of the Manchester Ship Canal could bring a claim in nuisance against United Utilities for discharging foul water into the canal.
The case did not consider whether the release of untreated sewage into a watercourse could be a nuisance – it is already clear that it can – but whether the statutory regime under the Water Industry Act 1991 had excluded the Manchester Ship Canal Company’s right to claim in private nuisance.
Disagreeing with the lower courts, and following a detailed consideration of the 1991 Act and wider principles of statutory interpretation, the Supreme Court concluded that statute had not excluded that right, and the Manchester Ship Canal Company could still bring a claim in private nuisance.
This was because the 1991 Act was a consolidation statute which restated the previous law, so was unlikely to have been used to make substantive changes. It was also a “detailed and elaborate” piece of legislation, so “one would not expect [that it] left an important change in the law to be a matter of implication”. Finally, in order to override fundamental common law rights – such as rights of action to protect private property – a statute must contain express language to that effect, which the 1991 Act did not.
Similarly, while legislation can alter private property rights, it would not ordinarily deprive a property owner of those rights without compensation, and the 1991 Act contained no compensation provisions, which suggested there was no intention to exclude such common law rights. In fact, the 1991 Act had expressly preserved private law rights and recourse in these circumstances.
While the judgment does not determine any claim in nuisance, it confirms that the Manchester Ship Canal Company has the right to bring a claim, and illustrates the complex intersection of public and private law rights, as well as the high bar for excluding proprietary rights through statute.
Is there a ‘public interest’ defence?
In both Tate and Manchester Ship Canal, the Supreme Court made it clear that, although considerations of the public interest will have no impact on liability for nuisance, it may be a factor in the court’s exercise of its discretion on remedies and whether to grant an injunction, or damages in lieu.
For example, the Supreme Court recognised the complex approval process for infrastructure expenditure for public benefit required for United Utilities to upgrade its network, and noted that damages may be a more appropriate remedy in those circumstances.
What this means for nuisance
While the Supreme Court will doubtless have to consider even more kinds of alleged nuisance in the future, these four judgments, taken together, clearly outline the elements needed to bring a claim for private nuisance, as well as wider considerations around limitation, causation and damage, and provide some welcome clarity for landowners and practitioners.
Mathew Ditchburn is a partner and UK head of real estate, and Lucy Redman is a senior knowledge lawyer, at Hogan Lovells
