Chapter 13

Page 226
What is an unlawful interference?
Birmingham Development Company Limited v Michael Jacob Tyler, CA [2008] EWCA Civ 859
Although actual physical damage or encroachment is normally a requirement in a claim in nuisance, Birmingham Development Company (BDC) claimed in nuisance on the ground that an area of brickwork in the wall of the Taylor’s factory appeared to be in a dangerous and unsafe condition and presented “fear” of an imminent danger to workers on its site. When BDC was unsuccessfully in its attempts to get Tyler to repair the wall, they obtained an interim injunction for remedial works to be carried out. However, it subsequently transpired that the wall, despite appearances, was not dangerous. The judge dismissed BDC’s claim in nuisance and an appeal to the Court of Appeal was also dismissed because it was not enough for a claimant who asserted that his neighbour's property or activities were dangerous merely to prove that he was frightened by them. The Court held that the requirement was proof that the fear of an imminent danger was well-founded, meaning that the property or activities were actually dangerous.

Page 229, para 13.3.5
Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15.

In this case the effect of planning permissions on the nature of locality and the principle in Wheeler v JJ Saunders Ltd were considered by the Court of Appeal. Although the appellants (Watson), owners of a home located close to a motor racing circuit, were awarded damages for the diminution in value of their property and loss of amenity, they failed to obtain an injunction to restrain the nuisance created by the excessive noise and discomfort of the activity. In respect of whether the nature and character of the locality had been changed by the planning permissions, the judge held that the nature of the locality had not been changed by the planning permissions: it remained essentially rural so that the operation of the circuit did constitute an actionable nuisance. However, the respondent (Croft Promo-Sport Ltd), operator of the circuit, argued that although the motor racing did cause noise and some discomfort and inconvenience to the appellants, there was no actionable nuisance because planning permission for this activity had been granted. Croft Promo-Sport Ltd appealed on the ground that the trial judge had been wrong in not concluding that the nature and character of the locality had been changed by the planning permission.

The Court of Appeal dismissed this argument (the principle in Wheeler v JJ Saunders applied) and held that the granting of planning permission did not change the essential character of the locality. However, the Court pointed out that the implementation of the planning permission is relevant to the decision as to the level of reasonable user and in determining the question of whether the activity complained of constitutes a nuisance or not.

The question of awarding damages in lieu of an injunction in cases of nuisance was also considered. The Court of Appeal said that although the judge in this case had recognised the limitations on his discretion to withhold an injunction, he did not exercise his power to grant such an order. The justices held that damages in lieu of an injunction should only be awarded in very exceptional circumstances. This was not a marginal case; it constituted a substantial nuisance and the judge was wrong not to have granted an injunction restricting the use of the circuit. (See Para 13.3.13)

Page 243
Remedies in public nuisance: (2) personal injury
Corby Group Litigation Claimants v Corby BC [2008] EWCA Civ 463
The claimants, who had all been born with upper limb deformities, issued proceedings in negligence and breach of statutory duty against the defendant. They also made a claim in public nuisance alleging that, at a time when the local authority had been following a programme for the development of contaminated land within its area, their mothers, who lived close to the land sites, had been exposed during the embryonic stage of their pregnancies to toxic materials emitting from the land. They claimed that this exposure had caused their deformities. The local authority applied to strike out the claim in nuisance on the ground that damages for personal injury could not be recovered in public nuisance. You should note at this point that discussion in the textbook at 13.4.4 about recovery for damages for personal injury in Hunter and Canary Wharf is concerned with damages for personal injury in private nuisance rather than public nuisance. One of the important questions in Corby was whether damages for personal injury were recoverable in public nuisance. The Court of Appeal pointed out that the principle that damages for personal injury were recoverable in public nuisance was not criticized by their Lordships in either Hunter or Transco. The local authority’s application was therefore rejected because neither Hunter nor Transco had impliedly reversed the long-established principle that damages for personal injury could be recovered in public nuisance. In stating that public nuisance is a developing area of the law the Court of Appeal emphasized that the precedents in allowing recovery for personal injury in public nuisance to those adversely affected by an unlawful act or omission had not been over-ruled.

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Chapter 13