Hilary Term [2014] UKSC 13 On appeal from: [2012] EWCA Civ 26
JUDGMENT
Coventry and others (Respondents) v Lawrence and another (Appellants)
before
Lord Neuberger, President Lord Mance Lord Clarke Lord Sumption Lord Carnwath
JUDGMENT GIVEN ON
26 February 2014
Heard on 12, 13 and 14 November 2013
Appellant Stephen Hockman QC William Upton (Instructed by Richard Buxton Environmental and Public Law)
Respondent Robert McCracken QC Sebastian Kokelaar (Instructed by Pooley Bendall Watson)
LORD NEUBERGER
The issues raised by this appeal
This appeal raises a number of points in connection with the law of private nuisance, a common law tort While the law also recognises public nuisance, a common law offence, this appeal is only concerned with private nuisance, so all references hereafter to nuisance are to private nuisance It should also be mentioned at the outset that the type of nuisance alleged in this case is nuisance in the sense of personal discomfort, in particular nuisance by noise, as opposed to actual injury to the claimant's property (such as discharge of noxious material or removal of support)
As Lord Goff of Chieveley explained in Hunter v Canary Wharf Ltd [1997] AC 655, 688, "[t]he term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land", quoting from Newark, The Boundaries of Nuisance (1949) 65 LQR 480 See also per Lord Hoffmann at pp 705-707, where he explained that this principle may serve to limit the extent to which a nuisance claim could be based on activities which offended the senses of occupiers of property as opposed to physically detrimental to the property
A nuisance can be defined, albeit in general terms, as an action (or sometimes a failure to act) on the part of a defendant, which is not otherwise authorised, and which causes an interference with the claimant's reasonable enjoyment of his land, or to use a slightly different formulation, which unduly interferes with the claimant's enjoyment of his land As Lord Wright said in Sedleigh-Denfield v O'Callaghan [1940] AC 880, 903, "a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society"
In Sturges v Bridgman (1879) 11 Ch D 852, 865, Thesiger LJ, giving the judgment of the Court of Appeal, famously observed that whether something is a nuisance "is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances", and "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey" Accordingly, whether a particular activity causes a nuisance often depends on an assessment of the locality in which the activity concerned is carried out
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.