The law has always protected the rights of persons who suffer any type of injury by the act or omission of another. In relation to this, Bridge development Ltd’s potential liability in relation to any potential nuisance actions will be discussed in the light of the expansion they did with Ashenhurst Hall to increase the number of visitors by converting it into a theme park. One of the main concerns include the traffic causing considerable inconvenience to the residents of Ashenhurst village wherein a milk tanker had to pour a couple of litres of milk down the drain. Also, the noise emanating from the theme park, such as piercing screams from theme park rides, is affecting neighboring homes and the animals residing in a nearby wildlife sanctuary. In addition to this, waste from the theme park has not been collected properly which is affecting another farmer’s land. Lastly, a theme park ride has caused damage to a sewer pipe owned by a local water company. With these concerns in mind, it is important to define what constitutes tort, nuisance and whether or not these acts are within the realm of the definition of tort or nuisance. In view of this, case analysis would also be done to further shed light on the various rulings the court has made regarding the issues at hand. In this manner, the potential liability of Bridge Development Ltd would be easier to abate.
Definition of Tort Torts are a group of civil wrongs that in some way bring injury to persons or property and for which the law provides a remedy in the form of an award of a sum of money. The term civil wrong refers to the fact that a suit based on tort is not prosecuted prosecuted by the state in a criminal proceeding but rather is initiated by a private party acting as the plaintiff. 1
Public Nuisance and Private Nuisance Nuisance is a common law tort. There are two types: public nuisance and private nuisance. To the present day, causing a public nuisance has been treated both as a crime and a
1
Academic American Encyclopedia, s.v. ”tort.”
tort, the ingredients of each being the same. Public nuisance may be likened to a statutory nuisance which is a criminal offence and is the statute version of the common law tort of nuisance. A public nuisance is an act or a failure to act that inconveniences or harms the public at large. It is a criminal offense, punishable by fine or imprisonment. A private nuisance, on the other hand, is an act that interferes with your use and enjoyment of your own land. You can settle a private nuisance problem by a civil lawsuit, directing the wrongdoer to pay for the damage and to discontinue the nuisance. 2 In Lord Lloyd in Hunter v Canary Wharf [1997] 2 All ER 426 3, the court stated that private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and (3) nuisance by interference with a neighbour's quiet enjoyment of his land.
Moreover, foreseeability of harm is a prerequisite
of the recovery of damages in private and also in public nuisance. In De Keyser's Royal Hotel v Spicer Bros Ltd (1914) 30 TLR 257 4, noisy pile driving at night during temporary building works was held to be a private nuisance.
Statutes related to Nuisance The statute which specifically addresses the problem on nuisance is embodied in the Environmental Protection Act of 19905. Section 79(1) of the Environmental Protection Act 1990
establishes nine categories of statutory nuisance (the state of premises, smoke
emissions, fumes or gases from dwellings, effluvia from industrial trade or business premises, accumulations or deposits, animals, noise from premises, noise from vehicles or equipment in
2
Family Legal Guide, Reader’s Digest, s.v. ”nuisance.” United Kingdom Parliament, Hunter and Others v. Canary Wharf Ltd. Hunter and Others v. London Docklands Corporation, retrieved 13 November 2006, < publications.parliament.uk/pa/ld199697/ldjudgmt/jd970424/hunter01.htm>. 4 Essays-r-Us, Negotiation Plan, retrieved 13 November 2006,
. 5 Office of Public Sector Information, Environmental Protection Act 1990, retrieved 13 November 2006, < opsi.gov.uk/ACTS/acts1990/Ukpga_19900043_en_4.htm>. 3
a street and other matters declared by other Acts to be statutory nuisances). Section 33 controls the dumping of waste. Another relevant statute is the Water Industry Act 1991. Section 85 of the Water Resources Act 1991 makes it an offence to pollute controlled waters and Section 94 sets out the principal general duty of every sewerage undertaker: to ensure its area is properly drained. To this end the undertaker must provide an appropriate system of sewers and to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained.6
Injunctions, Damages, Abatements and Criminal Penalties Courts may issue injunctions against nuisances, ordering that they be stopped, removed, limited or restrained. A defendant can be ordered not to continue an existing nuisance or not to proceed with a threatened one. Injunctions are drastic remedies granted when the threat or harm is serious and there is likelihood that it will reoccur if not stopped. Injunctions may give a defendant a choice. In some cases, it is appropriate to award money damages in a private nuisance case to compensate the plaintiff for the harm he has suffered – whether or not an injunction is issued. Summary abatement, on the other land, is stopping a nuisance without resorting to legal action. One must give proper notice to the person responsible for the nuisance before trying to stop it. Anyone who tries to abate a nuisance summarily must not unnecessarily damage property, cause personal injuries, or disturb peace. 7
Analysis At present, the boundaries of tort are blurring. This is mainly due to the public/private nuisance divide and existence of the rule in Rylands v Fletcher. Rylands v. Fletcher ( 1868)
6
Office of Public Sector Information, Water Industry Act 1991, retrieved 13 November 2006, < opsi.gov.uk/acts/acts1991/Ukpga_19910056_en_1.htm>. 7 Family Legal Guide, Reader’s Digest, s.v. ”nuisance.”
LR 3 HL 330, a landmark English legal case, in which the Court of the Exchequer Chamber first applied the doctrine of strict liability for inherently dangerous activities. It established a rule related to, though arguably distinct from, the tort of nuisance.8 However, recent cases like Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, has not been that strict as in the Rylands v. Fletcher case. In the Transco case, the House of Lords has held that a water supply piped by a local authority to a block of flats on their land was a normal use of land with the consequence that when water escaped from the supply, the rule in Rylands v Fletcher (1868) LR 3 HL 300, which imposes liability without the need to prove negligence, did not apply.9 In the case of Bridge Development Ltd, however, it is clear that some of the company’s conduct may constitute as tort but the more serious ones that affect the public may be considered as statutory nuisances which is a criminal offence and is the statute version of the common law tort of nuisance. The leading modern authority on public nuisance is Attorney General v PYA Quarries Ltd [1957] 2 QB 169. Denning LJ on p 191, said, "that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large."10 Also, to be considered a statutory nuisance, according to the case of Wyvernhoe Port v. Colchester Borough Council [l985] JPL175, where it is said: "To be within the spirit of this Act a nuisance, to be a statutory nuisance, has to be one interfering materially with the personal comfort of the residents, in the sense that it materially affected their well being
8
Wikipedia, Rylands_v._Fletcher, retrieved 13 November 2006, < en.wikipedia.org/wiki/Rylands_v._Fletcher >. United Kingdom Parliament, Transco Plc v Stockport Metropolitan, retrieved 13 November 2006, < publications.parliament.uk/pa/ld200203/ldjudgmt/jd031119/trans-1.htm>. 9
10
United Kingdom Parliament, Regina v. Rimmington, retrieved 13 November 2006, .
although it might not be prejudicial to health." 11 "Statutory Nuisance Law and Practice, Oxford University Press" further elaborated that "Whereas to the lay person anything that annoys him is a nuisance, the legal test for noise/nuisance is objective. The noise must be both excessive and unreasonable." With these definitions in mind, it is now proper to address the potential liability of Bridge Development Ltd in relation to any potential nuisance actions. The acts complained of cannot, however, be treated as a whole. The different concerns will be discussed one by one since there are different complainants for a specific issue. First among these issues is the traffic congestion which caused Farmer Green to pour 1,500 litres of milk down the drain. The traffic congestion was felt during the opening day wherein all the public roads were blocked with traffic causing inconvenience to the residents of Ashenhurst village. This issue, however, cannot be treated as a statutory nuisance. The court has yet to abate a disturbance based solely on traffic congestion. They also take into consideration the fact that the said traffic congestion may be a sign that the place also provides employment and tax revenue. Without malicious intent from Bridge Development Ltd, Farmer Green cannot sue for damages. This is important as illustrated in the case of Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264 wherein the court has stressed the principles of reasonable user and reasonable foreseeability: It was the absence of reasonable foreseeability of harm of the relevant type that excluded liability in that case. However, if other violations, that are statutory nuisances, occur, the court may find it proper to abate such nuisance. It is ruled in the case of Sedleigh-Denfield v O'Callaghan [1940] AC 880, the House of Lords held that an occupier of land "continues" a nuisance if, with knowledge or presumed knowledge of its existence (in that case a defective grating giving
11
RichardBuxton.co.uk, Wyvernhoe Port v. Colchester Borough Council, retrieved 13 November 2006, < richardbuxton.co.uk/reference/view.php?table=transcripts&id=145&flag=name>.
rise to flood damage), he fails to take reasonable means to bring it to an end when he has reasonable time to do so. 12 The most important concern is the noise that Ms. Bourne, along with the village residents, have been complaining about since they are unable to sleep because of the high level of noise. Moreover, the said noise has been causing distress to the animals residing at the nearby wildlife sanctuary owned by Mr. Goode. In a very similar case, Roper v. Tussauds Theme Parks Ltd(2005), the court has ruled that noise from a nearby theme park is indeed a nuisance and has declared that a statutory noise nuisance existed and ordered such theme park to abate the nuisance.13 It is clear then that noise does not only qualify as a tort but is indeed a statutory nuisance. The fact that Ashenhurst hall has been open for public viewing since the early 1960s will not excuse it for being potentially liable for the noise that the new development has created. The fact that a locality is a noisy one, or of an industrial character, does not, in itself, constitute a defense to nuisance. In Rushmer v Polsue and Alfieri Ltd[1906], Cozens-Hardy LJ said: "It does not follow that because I live, say in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most approved pattern and is reasonably worked." Noise produced by industrial and manufacturing processes or by using equipment associated with such activities is a complicated area of control. As the above words of Cozens-Hardy LJ
12
Law Teacher, Private Nuisance, retrieved 13 November 2006, < lawteacher.net/Tort/Nuisance/Nuisance %20Lecture.htm>. 13 RichardBuxton.co.uk, Roper v Tussauds, retrieved 13 November 2006, < richardbuxton.co.uk/reference/view.php?table=transcripts&id=118&flag=name>.
show, taking the best available steps to mitigate the noise does not necessarily mean that a common law nuisance cannot be established.14 Also, with regards to the piercing screams at frequent intervals which are causing distress to the animals residing at the nearby wildlife sanctuary owned by Mr.Goode, The Protection of Animals Act 1911 makes it an offense to infuriate or terrify any animal. Any person or organization may initiate proceedings under this Act. The courts alone must decide whether an offence has been committed. Although there has been no case yet on theme parks causing distress to animals, the Fireworks Act 2003 orders the Secretary of State for securing that there is no risk that the use of fireworks will have the following consequence - death of animals or injury or distress to animals. It is clear then that the law protects even the animals and to avoid any nuisance that may cause distress to them. The injury to the animals, therefore, may constitute statutory nuisance. The most palpable nuisance among the acts of Bridge Development Ltd is its problematic waste disposal. The problem with the disposal was further aggravated by the fracture which caused the overloading and resulted in litter and rotting food overflowing and polluting farmer Green’s land. This is a clear violation of the general tort law which is effectively encapsulated in the concept of "duty of care" owed by one individual to another. This duty was set out in the landmark case of Donoghue v Stevenson(1932). The "neighbour principle" which states that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. The "Duty of Care" was introduced under the Environmental Protection Act. Anyone who imports, produces, carries, keeps, treats or disposes of waste is subject to a duty of care whereby they must take all reasonable and applicable measures: to prevent another person illegally treating, keeping, depositing or otherwise disposing of the waste, to prevent the escape of waste and to ensure
14
Scottish Executive, Rushmer v Polsue and Alfieri Ltd, retrieved 13 November 2006, < scotland.gov.uk/Publications/2005/10/2192231/22366>.
that transfer of the waste only occurs to an "authorized person" and that the transfer is accompanied by a written description of the waste.15 This problem is definitely a statutory nuisance and must be dealt with by the council. The last issue to discuss is the landslide which occurred in relation to the multilevel log flume ride. It started when the water from the ride seeped through a crack and collected behind a wall adjoining a railway line and eventually pushed the water over resulting to a landslide which damaged a sewer pipe owned and managed by the local water company. This is clearly a case of public nuisance since not only is there damage to another’s property but the property damaged is relevant to the public at hand. It is a source of water for the community therefore any damage to it will definitely affect the public. This definitely constitutes statutory nuisance.
CONCLUSION It is clear that the acts which the individuals have complained of against Bridge Development Ltd definitely constitute not only tort but statutory nuisance. It is clear that although only a few individuals have voiced their concern about the said acts, the public at large is affected by the said acts. As we stated earlier, when the public’s interest is at hand, it is not only a tort but a statutory nuisance, which is, a crime. Not only was the damage foreseeable, but the actual harm is definitely excessive. The fact that the government has granted authority to Bridge Development Ltd for the expansion does not excuse it from complying with the requirements provided by law. Said compliance must continuously exist, not only during the beginning but throughout the whole period of operation.
15
WasteOnline, The Controlled Waste Regulations 1992, retrieved 13 November 2006,
