The Locality Principle in Tort of Nuisance: Balancing Individual and Collective Interests, Slides of Law

Download The Locality Principle in Tort of Nuisance: Balancing Individual and Collective Interests and more Slides Law in PDF only on Docsity! Hello I’m Vera Bermingham a teaching fellow on the Undergraduate Laws Programme. In this blog I’m going to talk about the locality principle in the Tort of nuisance. Where an interference causes personal discomfort and inconvenience (loss of amenity) the court undertakes a balancing exercise to determine if it amounts to an actionable private nuisance. One of the considerations relevant to this exercise is the nature of the locality in which the defendant’s activity is carried out; a person may have to tolerate a greater level of interference from smell or noise in an industrial area than what would have to be tolerated in a rural area. This was explained by Thesiger LJ in Sturges v Bridgman (1879) in the following way: ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’ An important qualification to the nature of the locality rule was established in St Helen’s Smelting Co v Tipping (1865) in which a distinction is made between a neighbour’s activities which cause physical damage and those which merely affect the use or enjoyment of land. Where the interference causes physical damage the locality rule does not apply. In St Helen’s Smelting Co v Tipping the plaintiff purchased a valuable estate in an area where industrial smelting was a well-established activity. The defendant had acquired neighbouring land for the purposes of engaging in copper works and this activity commenced soon after the plaintiff purchased his property. The plaintiff brought an action in nuisance in respect of the large quantities of noxious substances emitted from the defendant’s smelting works which damaged the trees, shrubs, and crops on his land and prevented him from having a beneficial and healthy use of his estate. The defendant contended that the whole neighbourhood was devoted to similar manufacturing purposes and that smoke from one manufacturing process was as injurious as the smoke from the other. He claimed that the smoke sometimes united so it was impossible to say to which of the smelting processes caused a particular harm. The defendant further argued that in industrialised areas claims in nuisance should take account of public interest and the law must not allow persons to bring actions in respect of every matter of annoyance. The House of Lords upheld an injunction to restrain the defendants from creating the nuisance caused by the smelting works: where there is there is physical damage to the property the nature of the locality is irrelevant - property damage must not be inflicted wherever the defendant is carrying on the activity. The nature of the locality may change over time: change can be incremental, or it may be development of the locality brought about by planning permission. Where planning permission is granted for a large-scale strategic development which changes the character of the locality, the question of whether an interference arising from the activity on the land amounts to a nuisance will be decided with reference to its present use (with the development) and not the previous nature of the locality. For example, in Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) the local residents were unable to succeed in nuisance for the disturbance created by a commercial dock development because the granting of planning permission was held to have changed the character of the neighbourhood. The permission in this case was ‘not merely permissive’ it was granted specifically to enable the operation of a commercial port. The nuisance was foreseen by the local residents who objected and petitioned at the time planning permission was under consideration. Nevertheless, the nature of the locality was assessed in the context of a locality containing a commercial port and in these circumstances the noise from the lorries was not excessive. Buckley J. reasoned (at least in part) that the public interest in a particular development of land may outweighing the private interest(s). However, in Coventry v Lawrence (2014) the Supreme Court firmly rejected the reasoning that planning permission can play a role in determining the character of the locality. The appellants in this case bought a house in a predominantly rural area and sought an injunction to restrain the alleged noise nuisance arising from a nearby speedway racing stadium and a motocross track. Planning permissions covering the activities complained of had been granted and the question for the court was the extent to which planning permission might change the character of the neighbourhood. In overturning the Court of Appeal decision that the grant of planning permission had by itself changed the nature of the locality, the Supreme Court clarified that planning permission could not authorise a nuisance. It would seem wrong in principle that, through the grant of a planning permission, ‘a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing her with compensation, when there is no provision in the planning legislation which suggests such a possibility’. According to Lord Neuberger: A planning authority has to consider the effect of a proposed development on occupiers of neighbouring land, but that is merely one of the factors which has to be taken into account. The planning authority can be expected to balance various competing interests, which will often be multifarious in nature, as best it can in the overall public interest, bearing in mind relevant planning guidelines. Some of those factors, such as many political and economic considerations which properly may play a part in the thinking of the members of a planning authority, would play no part in the assessment of whether a particular activity constitutes a nuisance—unless the law of nuisance is to be changed fairly radically. Quite apart from this, when granting planning permission for a change of use, a planning authority would be entitled to assume that a neighbour whose private rights might be infringed by that use could enforce those rights in a nuisance action; it could not be expected to take on itself the role of deciding a neighbour’s common law rights.