2023: Year of the Nuisance?
24 March 2023
Introduction
2023 has already been a landmark year for nuisance, with the Supreme Court handing down its controversial decision in Fearn v Tate Gallery (as discussed on this blog).
The good news for those with a particular interest in the bothersome behaviour of neighbours is that Fearn is only the start.
This month, the Supreme Court will hear not one, but two more nuisance cases, including Jalla v Shell (the other being The Manchester Ship Canal Company v United Utilities No 2). And the Court of Appeal has been getting in on the act too – giving judgment last month in Davies v Bridgend County Borough Council [2023] EWCA Civ 80.
This post focuses on one of the many fascinating points raised by these cases – namely, the slippery concept at the heart of both Davies and Jalla: continuing nuisance.
What is continuing nuisance?
A continuing nuisance is, as one might expect, a nuisance which continues over a period of time[1] – as distinct from a so-called “one-off” nuisance. Examples could include the persistent emission of a noise, or the encroachment of tree roots from one property into another. Until the nuisance created by those activities is abated, it is ongoing and therefore a continuing one.
A finding that a nuisance is continuing can be relevant for a number of reasons. Most importantly for our purposes, it could open the limitation door to claimants seeking to bring an action in respect of a longstanding nuisance. If a nuisance took place, say, seven years ago and was a one-off event, a claim in relation to it would be statute-barred by section 2 of the Limitation Act 1980. If, however, that nuisance continued through the following seven years, a claimant could expect to recover damages in respect of the carrying on of that nuisance during the previous six years (i.e., its duration within the limitation period).
One might think that a dispute on this point is unlikely to materialise. After all, in the noise and tree-root examples given above, the case for continuing nuisance is likely to be clearcut: either the noise or encroachment is ongoing, in which case the nuisance is continuing, or it is not.
However, Jalla and Davies show that continuing nuisance is not always so straightforward.
Davies v Bridgend
Davies concerns that perennial fear of gardeners and homeowners: Japanese Knotweed (“JKW”).
A helpful summary of the problems JKW presents can be found at paragraphs 2-12 of Williams v Network Rail [2018] EWCA Civ 1514. In short – it is a rapid-growing perennial which wreaks havoc by, amongst other things, blocking drainpipes, undermining walls, and growing through concrete. Once its roots (“rhizomes”) have taken hold, it becomes extremely difficult to eradicate, and doing so can take many years.
In Davies, the Claimant sought damages for the encroachment onto its land of JKW from the Defendant’s land. The JKW was thought to have been on the Defendant’s land since around 1973. The Claimant bought their property in 2004, by which point the Defendant’s JKW had already spread onto it. It was held that the Defendant’s date of knowledge – i.e., the point at which it knew, or ought to have known, that the spread of its JKW constituted a nuisance – was 2013. The Claimant issued proceedings in around 2020.
The court found there to have been a continuing nuisance between 2013 (the date of knowledge) and 2018 (when the Defendant started abating the nuisance by way of a reasonable treatment plan). The Defendant was therefore liable for the diminution in value to the Claimant’s property that was caused by that breach.
Of particular interest is the Defendant’s argument on causation, which despite being described as “attractive” was rejected by the Court of Appeal.
The Defendant’s case was that because (i) the JKW encroached onto the Claimant’s land long before the Defendant was in breach (having only acquired the necessary knowledge in 2013), and (ii) the diminution in the value of the Claimant’s property was caused by the mere presence of the JKW on its land, there was no causation flowing from the Defendant’s continuing failure to abate the nuisance ([44]-[50]). Put simply, the damage to the Claimant’s land was already done, and the ongoing failure of the Defendant to stop the encroachment made no difference to that fact. There was therefore no causation and no actionable nuisance.
The court rejected this argument by flipping the causation argument on its head. Because the encroachment was ongoing until 2018, it held, causation could be established on the basis that any attempt by the Claimant to clear the JKW on its own land would have been futile. In other words, as soon as the Claimant cleared its own JKW, it would have been replaced by fresh JKW from the Defendant’s land, unless and until the Defendant abated their own JKW (which they did not do sufficiently until 2018).
I respectfully propose that there are two difficulties with the Court’s reasoning on this issue.
First, the court was content to find that causation was made out without requiring the Claimant to prove that they would have in fact cleared the JKW on their own land at some point between 2013-2018. It may indeed be correct that any attempt to do so by the Claimant would have been futile. But it is nevertheless surprising that the Claimant did not even have to establish on the balance of probabilities, firstly that they would have actually attempted to clear the JKW, and secondly that those attempts would have been successful.
Second, the court, deliberately or otherwise, overlooked the temporal gap that must exist between the Claimant clearing their own JKW, and the Defendant’s JKW re-encroaching. Again, the Court may be right that re-encroachment would inevitably have taken place had the Claimant cleared their own JKW. But there would necessarily have been a gap – however brief – before that re-encroachment happened. Though this is a technical point, it goes right to the heart of what this aspect of nuisance is all about: the physical encroachment of something onto another’s land. If there is no encroachment, there is no nuisance. Logically, therefore, it is arguable that if re-encroachment did in fact happen, it would be the commencement of a brand-new nuisance, rather than the continuation of the previous one. Viewed like this, in the hypothetical scenario created by the court in which the Claimant had cleared the JKW on their own land, the court is making a finding of a future nuisance which has not yet materialised.
Jalla v Shell
The Supreme Court in Jalla will reconsider a Court of Appeal decision which held there to be no continuing nuisance following an oil spill off the coast of Nigeria.
The period during which oil was leaking from the Defendant’s pipe lasted for six hours. However, the oil remained on the Claimants’ land at the issuing of the claim, many years later. For reasons that remain unclear, their claim was brought more than six years after the oil first landed (and was therefore outside the limitation period).
The Claimants sought to get around this problem by arguing that the continued presence of the oil on their land meant that the nuisance was a continuing one. They would therefore be within the limitation period and could seek damages and/or other such remedies.
The Court of Appeal rejected this argument by drawing a clear distinction between the creation of a state of affairs which could cause a nuisance, on the one hand, and the damage caused by that nuisance, on the other. On the facts, that state of affairs was only in place for the period of six hours when the Defendant allowed the oil to spill from one of its pipes. As soon as they remedied that leak by closing off the pipe, they stopped creating a nuisance. A complete cause of action therefore accrued, in the form of a “one-off” nuisance, as soon as the oil arrived on the Claimants’ land: it was at that moment that the necessary ingredients crystallised into a complete claim in nuisance, and the limitation period started to run.
Frustratingly for the Claimants, nuisance as a cause of action appears unable to assist them in this instance. “Continuing nuisance”, the Court of Appeal decided, is precluded where the nuisance-maker has stopped actually creating the nuisance, even if the damage caused by it lasts for much longer (we wait to see whether the Supreme Court agrees with this position).
Next Steps
We do not yet know if the decision in Davies will be appealed (though it seems inevitable that a JKW case will end up in the Supreme Court sooner or later). However, the justices have the chance to settle the law on continuing nuisance once and for all in Jalla, which they will hear on 29th-30th March.
Here is a suggestion for how they could reframe continuing nuisance for the better: get rid of it altogether.
The conceptual shortcoming of continuing nuisance is that all nuisances are, by definition, continuing nuisances. Each one must continue for at least some period of time, even if merely seconds, minutes, or hours. Thus, the emission of a noise capable of amounting to a nuisance continues for however long that noise is produced.
The same is true of the encroachment of trees. Indeed, the Court of Appeal in Jalla described such cases as follows ([54]):
Until such time as the landowner cuts down or severely prunes back the tree in question, he is responsible for the continuing encroachment of the roots. The tree roots therefore comprise a continuing nuisance. The landowner’s failure to abate the nuisance by dealing with the tree is a continuing one
This, however, applies to any such nuisance, regardless of whether the encroachment continues for five seconds or five years: during either of those periods, the nuisance is continuing.
The use of the word “continuing” is, seen in this light, a tautology.
What the Court of Appeal’s decision in Jalla really tells us, in a return to basics, is that a nuisance is a nuisance if:
(i) At the moment at which a claimant’s land suffers damage (e.g., by the arrival of oil or the encroachment of a tree root)…
(ii)…that damage was caused by a defendant’s breach (in that the defendant created a state of affairs capable of leading to a nuisance through, e.g., the leaking of a pipe or the growing of a tree).
Limitation should run from the moment (i) happens. If (i) keeps on happening in conjunction with (ii), then limitation will keep “resetting” until the (i)-(ii) link breaks down.
It is for this reason that the nuisance allegation in Jalla was precluded at the moment the claim was brought: whilst the damage remained in that there was still oil on the Claimants’ land, the moment the land suffered that damage was long since passed and, crucially, breach had dropped out of the equation because the Defendant had turned off the pipe. The Claimants therefore had six years from that moment in which to bring their claim.
Had the pipe still been leaking, and/or had more oil arrived on the Claimants’ land, then the conditions in (i) and (ii) above would have been satisfied and there would therefore have been a nuisance.
The flipside of this must also be the case: where there is breach, but no damage, an action in nuisance will also be precluded. It might be said that this was in fact the case in Davies: the Defendant’s breach continued in that the encroachment was still happening, but there was no longer any damage being caused since the Claimant’s land had long been infected with JKW (as described in Williams and elsewhere, the problems caused by JKW arise because of its mere presence). The Court of Appeal saw this off, however, with its causation solution as described above.
The Supreme Court should take this opportunity to clarify the law of nuisance. It should do so by restating that a nuisance is actionable wherever the conditions in (i) and (ii) apply, and that limitation starts to run at the moment (i) occurs. This would move the law on from the often confusing and unhelpful use of “continuing nuisance”, which is a superfluous term.
This would, in theory at least, make it easier for claimants and defendants to identify where, and crucially when, liability exists. Limitation disputes would become less likely, and fewer such cases would end up proceeding all the way to the appellate courts (it is worth noting that the damages in Davies amounted to the relatively paltry sum of £4,900).
Whatever the Supreme Court holds in Jalla, the justices will surely be hoping that their decision settles these issues and brings certainty to what has become a highly litigious area.
After all, they must by now be finding these cases to be somewhat of a nuisance…
Nicholas Jones is a pupil barrister at 1 Crown Office Row
[1] “Continuing nuisance” is also used to described a second, related situation: cases in which a nuisance is initially caused by A to their neighbour B, but is then continued when C purchases A’s property. The focus of these cases is the effect of the transfer of the property right from A to C.
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