nuisance and its effect on residential valuations nuisance and...and its effect on residential...

Five Counties Conference 2016

24 February 2016 1

Philip Santo FRICSDirector, Philip Santo & Co

NuisanceAnd its Effect on

Residential Valuations

The Five Counties Conference 2016

Introduction

NuisanceAnd its Effects on Residential Valuations


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Nuisance – The Background

Historic progression through case law and statute• Public Nuisance

– Criminal action affecting a significant number of people

• Private Nuisance– Individuals specifically affected take personal action

• Statutory Nuisance– Legislative protection of the environment– Essentially supersedes actions for Public Nuisance

Public or Private Nuisance?

Broadly, a public nuisance is any act which, without specific legal authority for it, results in an unreasonable reduction in amenity or environmental quality in a way common to several people at once; where actions “materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.”• Three types of public nuisance

– Encroachment to land– By direct physical injury to a neighbour’s land– By interference with neighbour’s quiet enjoyment of land


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A private nuisance consists of damage arising from “a substantial and unreasonable interference with the use or enjoyment of land or some right over it.”• Parties in private nuisance actions are generally

neighbours • The courts have to balance their competing rights.

Public or Private Nuisance?

OutlinePart 1: Public and Statutory NuisancePart 2: Private NuisancePart 3: Recent changes to legislationPart 4: Why Coventry v Lawrence is importantPart 5: Assessing diminution in value

Nuisance:Update to changes to law and practice


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Part 1Public and Statutory Nuisance


Public Nuisance

• At common law, a crime for which remedy is criminal proceedings

• Examples: obstructing the highway, dumping sewage in a river

• Historically only covered criminal offences but law developed to allow private individuals to bring actions if they suffered particular nuisance

• Led to overlap with tort law and property law• Cases law and legislation mean the common law

crime of public nuisance has all but disappeared


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Public Nuisance

• Rose v Miller 1815• Noble v Harrison 1926• Castle v St Augustine Links 1922• Attorney General v PYA Quarries 1957• Griffiths v Liverpool Corporation 1974• Tate & Lyle v GLC 1983Nuisance is subject to rules on remoteness of damage, Cambridge Water v Eastern Counties Leather 1994

Effectively replaced by legislation• Control of Pollution Act 1974• Environmental Protection Act 1990• Noise and Statutory Nuisance Act 1993• Criminal Justice and Public Order Act 1994• Noise Act 1996• Protection from Harassment Act 1997• Clean Neighbourhoods and Environment Act 2005

Public Nuisance


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Statutory Nuisance

To be a statutory nuisance an issue must either:1. Unreasonably and substantially interfere with the

use or enjoyment of a home or other premises2. Injure health or be likely to injure health

• Councils must investigate complaints about issues which could be a “statutory nuisance” (a nuisance covered by the Environmental Protection Act 1990)

• If they agree that a statutory nuisance is happening, has happened or will happen in the future, councils must serve an abatement notice (usually on the person responsible)

Statutory Nuisance


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Issues which may be a statutory nuisance include:• Smells from industry, trade or business premises (e.g.

sewage treatment works, factories or restaurants)• Insect infestation from industrial, trade or business

premises

Statutory Nuisance

Abatement notices• Served on person responsible – or the premises

owner or occupier if that isn’t possible• Will require nuisance to stop, or be limited to certain

times or require specific actions to avoid causing a nuisance or reduce the problem

• For noise nuisance from premises the notice can be delayed for up to seven days while council tries to get person responsible to stop or restrict the noise.

Statutory Nuisance


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Part 2Private Nuisance


Examples of Actionable Nuisance

• Flooding – Sedleigh-Denfield v O’Callaghan 1940• Smells – Bliss v Hall 1838 and Wheeler v JJ Saunders

1996• Encroachment by tree branches or roots – Lemmon v

Webb 1894• Noise – Kennaway v Thompson 1981• Cricket balls – Miller v Jackson 1977• Disturbance from a brothel – Thompson-Schwab v

Costaki 1956


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Some Interferences are not Actionable

• Interference with television reception– Hunter v Canary Wharf 1997

• Interference with a view

Private Nuisance is “Land-based”

Claimant must have an interest in the land in question– Malone v Lasky 1907

• Departed from in Khorasandjian v Bush 1993 but reinstated in Hunter v Canary Wharf 1997

• Claimant must have right of enjoyment– Bury v Pope 1587

• No right to depth of water but claim succeeded via Public Nuisance in Tate & Lyle v GLC 1983


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• No requirement that defendant has interest in land– Thomas v National Union of Miners 1985– Jones v Portsmouth City Council 2002

• However, they must have used land– Southport Corporation v Esso Petroleum 1953


• Owner may be liable if they authorised the nuisance even if not the creator– Tetley v Chitty 1986

• But authorisation must relate to the nuisance, not simple occupation– Smith v Scott 1973– Hussain v Lancaster City Council 1999



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• Landlord not liable where tenant’s noise isn’t nuisance– London Borough of Southwark v Mills 1999

• Owner or occupier may be liable for acts of creator where they have adopted or continued the nuisance– Sedleigh-Denfield v O’Callaghan 1940– Page Motors v Epsom Borough Council 1982


• Owner or occupier may be liable for natural hazards– Goldman v Hargrave 1967– Leakey v National Trust 1980

• Owner or occupier only expected to do what is reasonable, taking into account their resources– Holbeck Hall Hotel Ltd v Scarborough Borough Council

2000



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Unlawful Interference

Private nuisance requires unreasonable use of land by defendant which leads to unreasonable interference of claimant’s use or enjoyment. Unreasonable interference alone is insufficient• London Borough of Southwark v Mills 1999.

In assessing reasonableness of use and reasonableness of interference, the courts take all circumstances into account. In particular they will consider:1. The nature of the locality/neighbourhood2. Duration3. Sensitivity4. Malice

Unlawful Interference


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(1) The nature of the locality/neighbourhood

• “What would be considered a nuisance in Belgrave Square would not necessarily be so in Bermondsey.” Thesiger LJ in Sturges v Bridgman 1879

• Running of a brothel in a respectable residential area held to constitute a nuisance – Thompson-Schwab v Costaki 1956

• Higher levels of disturbance in an industrial area considered more reasonable than in a residential area– Hirose Electrical v Peak Ingredients 2011

Planning Permission• Planning permission may change nature of the locality

– Gillingham Borough Council v Medway Docks 1993

• But does not confer immunity from action in nuisance, and may not change nature of locality– Wheeler v JJ Saunders 1996– Watson v Croft Promo-Sport 2009



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Planning Permission• Where physical damage results, as opposed to

amenity damage, locality is irrelevant– St Helen’s Smelting Co v Tipping 1865

• Position in relation to Article 8 European Convention of Human Rights considered in Dennis v Ministry of Defence 2003


Public benefit• Building work at a reasonable time of day did not

amount to nuisance– Harrison v Southwark Water 1891

• A fried fish shop was a nuisance in a residential part of a street– Adams v Ursell 1913

• Whilst benefit to community is not a defence it may be a factor in determining reasonableness– Miller v Jackson 1977



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(2) Duration

• Most nuisances are continuing states of affairs. In general, the longer lasting the nuisance, the greater the likelihood of a successful claim

• But a temporary activity may constitute a nuisance– De Keyser’s Royal Hotel v Spicer Bros 1914

• A continuing state of affairs may be found to impose a liability– Spicer v Smee 1946

• A single act may (rarely) amount to a nuisance– Crown River Cruises v Kimbolton Fireworks 1996

(3) Sensitivity

• If the claimant, or their use of land, is unusually sensitive there will be no liability unless the activity would have amounted to nuisance to a reasonable person using the land in a normal manner– Robinson v Kilvert 1889– Network Rail v Morris 2004

• But, if defendant has infringed right to ordinary enjoyment, claim can include damages for damage incurred to unusually sensitive property– McKinnon Industries v Walker 1951


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(4) Malice

• Where defendant acts out of malice actions are more likely to be held unreasonable– Christie v Davey 1893– Bradford Corporation v Pickles 1895– Hollywood Silver Fox Farm v Emmett 1936

• Influential in Raymond v Young 2015

• Abatement• Damages

– Diminution in value– Reduction in amenity value– Cost of repairs or remedial work may be recoverable

• Injunctions, only at the discretion of the court– Shelfer v City of London Electric Lighting Co 1895– Kennaway v Thompson 1981– Regan v Paul 2007– Watson v Croft Promo-Sport 2009– Miller v Jackson 1977

Remedies


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Defences

• Prescription, if nuisance has continued for 20 years without interruption, Sturges v Bridgman 1879

• Statutory Authority can provide a successful defence– Manchester Corporation v Farnworth 1930– Allen v Gulf Oil Refining 1981

• But planning permission does not authorise a nuisance and is therefore no defence

• Coming to a nuisance is no defence– Miller v Jackson 1977– Kennaway v Thompson 1981

In assessing reasonableness of use and reasonableness of interference, the courts take all circumstances into account, in particular:

1. The nature of the locality/neighbourhood2. Duration3. Sensitivity4. Malice

Remedies are:1. Abatement2. Damages3. Injunction

Private Nuisance – Key Points


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Part 3Recent changes to legislation


Until recently two main pieces of legislation covered Japanese Knotweed and other invasive non-native species (INNS): 1. Wildlife and Countryside Act 1981 (WCA)2. Environmental Protection Act 1990 (EPA)

Legislation and Japanese Knotweed


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• Under Schedule 9, Section 14 of the WCA, it is an offence to plant or otherwise cause the species to grow in the wild

• An offence under the WCA can result in a criminal prosecution

• Under the EPA, Japanese Knotweed is classed as ‘controlled waste’

• Section 34 of the EPA imposes a duty of care on persons who produce, import, dispose of, or treat controlled wastes


Three recent developments relevant to the problems caused by Japanese Knotweed:1. The Infrastructure Act 2015, provides for creation of:

a) Species Control Agreements (SCAs)b) Species Control Orders (SCOs)

2. Anti-social Behaviour, Crime and Policing Act (ABCPA) 2014 provides for Community Protection Notices

a) Raises the prospect of “Plant ASBOs”3. Amendment to Form TA6, Property Information Form

a) Completed by vendors of residential property



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Infrastructure Act 2015

• Agencies will try to negotiate Species Control Agreements (SCA) where possible to control certain Invasive Non-Native Species (INNS)

• Japanese knotweed is included as an INNS• Where unsuccessful can revert to Species Control

Orders (SCO) • A SCO requires a landowner (or the tenant under a

lease) to control INNS on their land – Failure to comply with a SCO is a criminal offence.

• Still relatively recently enacted legislation• Not yet known how environmental authorities will use

SCOs• Principle aims are to protect biodiversity and other

environmental interests – So unlikely to be of much use as between neighbours

• According to Defra: NOT anticipated that SCAs and SCOs will be used to tackle INNS that are already widely established in England & Wales (including Japanese Knotweed)

Infrastructure Act 2015


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Anti-Social Behaviour, Crime and Policing Act 2014

Local authority (or police) have the power to serve a community protection notice on an individual or body if satisfied on reasonable grounds both that the conduct of an individual or body:• Is having a detrimental effect, of a persistent or

continuing nature, on the quality of life of those in the locality; and

• Is unreasonable

The Home Office's information note acknowledges: • The ABCPA 2014 does not explicitly refer to Japanese

Knotweed or other plant INNS• But comments that new anti-social behaviour powers

are intended to be flexible • So could be used against an occupier failing to clear

Japanese Knotweed



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• There are no reported cases of this yet being used in relation to Japanese Knotweed or other INNS

• One going through the courts in relation to giant hogweed should provide some guidance

• Not yet known whether local authorities or police will choose to use these powers in relation to Japanese Knotweed

• Approach is likely to vary from Council to Council


• Too early to say how environmental agencies, local authorities and the police will use these new powers

• Seems likely that they will only be used for the most serious cases

• Even then they will only compel an individual or corporate body to remove or control the INNS

• There is power to require the individual or corporate body to compensate those adversely affected

• Most property owners will continue to rely on the laws of contract and tort in Japanese Knotweed cases



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Three main causes of action under the laws of contract and tort:1. Misrepresentation by a seller of a property2. Negligence by a solicitor or surveyor3. Nuisance from a neighbouring landowner


1. Misrepresentation by a seller of a property

• Amendment to form TA6 or ‘Property Information Form’

• Sellers are required to fill in TA6• The newest version, at Section 7.8, asks the seller if

the property is affected by Japanese Knotweed• If the seller fraudulently or negligently answers ‘No’

or ‘Don’t Know’, a claim can be brought against them for misrepresentation


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1. Misrepresentation by a seller of a property

2. Negligence by a solicitor or surveyor

• Conveyancing solicitors have a duty to ensure that there is a TA6 and check the TA6. – If they fail to carry out this duty, a purchaser may have a

claim against them.

• Surveyors have a duty to check a property for Japanese Knotweed– If they do not do or do not do so properly, a purchaser

who relied on the survey may have a claim against them


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3. Nuisance from a neighbouring landowner

• “A private nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land.”

• If Japanese Knotweed is present on adjoining land and is not dealt with by the landowner so it encroaches or threatens to encroach neighbouring land, this can constitute a private nuisance and neighbours may have a course of action against the landowner of the affected land

Recent legislation, such as so-called “Plant ASBOs”, seem unlikely to be of much relevance for day-to-day dealing with Japanese Knotweed

For most people the main causes of action will continue to be under the laws of contract and tort :• Misrepresentation by a seller of a property• Negligence by a solicitor or surveyor• Nuisance from a neighbouring landowner

Legislation and Japanese Knotweed – Key Points


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Part 4Why Coventry v Lawrence is

important


Supreme Court decision in Coventry v Lawrence 2015 is highly significant•Few rulings on private nuisance at this level•Confusion from conflicting Court of Appeal judgments•Particular issue regarding statutory authority•Implications for commercial users•Matters remain to be resolved by later cases

Coventry v Lawrence


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Background to the case:• Planning permission for speedway stadium in 1975• Permanently renewed in 1985• Certificate of Lawfulness of Existing Use or Development

(CLEUD) granted in 1994• In 2006 appellants moved to nearby residential property• Issued proceedings for injunction in 2008• Initial success; nuisance by noise; injunction granted• Reversed at Appeal; planning permission had changed

character of locality; no nuisance committed

Coventry v Lawrence

Coventry v Lawrence

Questions at issue:

Whether a defendant can claim to have established a prescriptive right to commit what would otherwise be a noise nuisance


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Questions at issue:

Whether the actual use of the defendant’s premises can be considered when assessing the character of the locality

Coventry v Lawrence

Questions at issue:

The extent to which a grant of planning permission for the use alleged to give rise to the nuisance is relevant in determining if the nuisance exists

Coventry v Lawrence


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Questions at issue:

The approach to be adopted by a court when deciding whether to grant an injunction or to award damages instead

Coventry v Lawrence

Practical implications:• Ambiguity about statutory permissions removed

– Little weight attaches to permissions– Easier for claimants to make a case

• Courts more likely to award damages as a remedy– No definitive ruling but useful commentary– Likely to benefit defendants who would have their

activities curtailed or ended by an injunction

• Defendants can claim prescriptive rights– But need clear documentary evidence to succeed

Coventry v Lawrence


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Raymond v Young 2015• Award of damages for loss of amenity and full

measure of capital loss amounted to double recovery• Damages for distress are not recoverable separately

from an award for loss of value• Award for loss of value is intended to compensate for

distress and loss of amenity as a result of the nuisance in terms of the consequent loss in the use value of the property

Also Important

Part 5Assessing diminution in value



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Assessment of Diminution

The challenge: To design an objective process with application across all cases• Can separate elements of loss be assessed

objectively?• Can variations within the different elements be

ranked?• Can rankings indicate impact on value?• Can the objective process be applied in all cases?

Five separate objective assessments:1. Impact in market prior to remediation2. Post-remediation impact on future saleability3. Impact on “enjoyment”4. Inconvenience5. Impact of infestation on adjoining land

How do you rank each of these objectively?What is the financial outcome of a ranking?



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(1) Impact in market prior to remediation Type 1 An exceptional propertyType 2 A very desirable property with limited alternativesType 3 An averagely saleable property with suitable

alternatives in normal market conditionsType 4 A less than averagely saleable property for reasons

other than Japanese KnotweedType 5 Unsuitable for mortgage finance


(2) Post-remediation impact on future saleability Nil No impact on future saleabilityLow Limited effect on future saleability Medium Significant impact on future saleabilityHigh Very serious impact on future saleabilityVery High Exceptional impact on future saleability



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(3) Impact on "enjoyment" (During course of treatment) Category (a) Very limited or small impact on useCategory (b) Moderate impact on useCategory (c) Significant impact on useCategory (d) Grounds or gardens unusable


(4) InconvenienceFor chemical treatment: allow average of ten visits per contract

For physical removal: assess impact of works (likely to be especially significant for mid-terrace properties)



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(5) Impact of infestation on adjoining land Extent of adjoining infestation

Severe / Moderate / Limited

Likelihood of recurrence if not properly/regularly treated High / Medium / Low

Prospect of adjoining owner taking effective actionPoor / Medium / Good


Element Level Effect Monetary impact

Impact prior to work

Post-remediation impact

Impact on “Enjoyment”

Inconvenience

Adjoining infestation

Total

Cost of work

Total impact

Assessment of DiminutionValue without infestation £ PPPCost of remediation works £ WW

Value, less impact = £ YYY Diminution: £ PPP - £ YYY??BUT: Diminution is effect in market, not mathematical


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ReviewPart 1: Public and Statutory NuisancePart 2: Private NuisancePart 3: Recent changes to legislationPart 4: Why Coventry v Lawrence is importantPart 5: Workshop: Assessing diminution in value


Questions?

Philip Santo [email protected]


mailto:[email protected]


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Philip Santo FRICSDirector, Philip Santo & Co

The Five Counties Conference 2016

NuisanceAnd its Effect on

Residential Valuations

nuisance and its effect on residential valuations nuisance and...and its effect on residential...

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