[2023] UKSC 4
The judgement of this case was handed down on the 1February, following the hearing in December 2021. The full judgement is lengthy (97 pages) but contains a comprehensive review of the law of private nuisance. I promised some further comments when I had a chance to read and assimilate the full judgement.
Further comments
The majority judgment has reinstated the core principles that flowed from a 19th century judgement*. These are:
- The key question was to consider whether the defendant was making ordinary use of their land and having due regard to their neighbours – the external viewing gallery could not be regarded as ordinary use even in Central London.
- The term “reasonable user” was never more than a restatement of this principle and had caused confusion, some of which was exacerbated by the courts. It was never supposed to imply that the test was whether the defendant’s activities were reasonable, the question is whether the outcome is reasonable on all the facts of the case. (This is particularly relevant to those Councils which have taken the stance of not investigating certain activities such as noise from children).
- There is no obligation on a claimant to mitigate the nuisance – once they have proved that the activities complained of are having a material impact on the use of their property, the onus is on the defendant to take the appropriate steps. It was held that there was no obligation on the claimants to put up blinds or screens to stop people looking into their flats.
- If the defendant’s activities are of public benefit, this may affect the remedy (i.e., the award of damages rather than an injunction), but not their liability.
- As has been long established, the test for nuisance is an objective one – that is the impact on an ordinary person. (However, the High Court has recently** made the point that in any long-running complaint about noise there is bound to be a degree of sensitisation).
- The categories of private nuisance are not closed – new problems will be subject to the same tests.
As stated before, this case is highly important. Firstly, it is a Supreme Court decision which binds all courts throughout the UK. Secondly because of the umbilical link between common law nuisance and the nuisance limb in the statutory nuisance procedure, all actions based on this limb should be adopt this approach to now assessing relevant complaints. Because the nuisance limb is found in most extant categories of statutory nuisance, it follows that this judgment impacts on all of those.
* Bamford and Turnley (1862) 3 B & S 66 (in the Court of Exchequer Chamber – roughly equivalent to the modern Court of Appeal)
** Jones and others v Chapel-en-le-Frith Parish Council [2022] EWHC 1909 (QB) (see previous case notes for this and its two sequels)