Archive for the ‘nuisance’ Category

Property owner in breach of a covenant not to ‘permit or suffer’ a nuisance to be caused

September 16, 2015

In MTR Corp Ltd v Cheung Ching Kin ([2015] HKEC 1535, LT) MTR Corp (the applicant) was appointed Manager of an estate in Tseung Kwan O. The respondent was the owner of a flat on the estate occupied by his daughter (he had moved out). There were persistent and well-documented complaints of frequent loud hammering noises in the flat in the late night or early hours of the morning. The Tribunal had no hesitation in finding that these noises amounted to a nuisance. The applicant sought an injunction to restrain the nuisance. The relevant provision prohibited owners from doing anything which might be a nuisance or cause damage or annoyance to other owners and occupiers or to the public. There was also a prohibition on producing music or noise that might cause a nuisance to other users of the development. These covenants were extended; owners could not ‘permit or suffer’ a breach of the covenant. Here the noise was produced by the owner’s daughter, not the owner himself, so the question was whether he had permitted or suffered his daughter to cause the noise.

In Realty Harvest Limited & Others v Gold Margin Development Limited ([2001] 1 HKC 234, CA) the Court of Appeal endorsed the proposition that ‘permit’ and ‘suffer’ are synonyms. ‘Permit’:

‘ means one of two things, either to give leave for an act which without that leave could not be legally done, or to abstain from taking reasonable steps to prevent the act where it is within a man’s power to prevent it. Acts which fall short of that, though they be acts of sympathy or assistance, do not amount to permission at any rate in the covenants with which we are dealing.’

(Berton & Others v Alliance Economic Investment Company Limited [1922] 1 KB 742 at 759 per Atkins LJ).

The owner needs to know of the breach before he can be said to have permitted it ([38]). The owner knew of the breach and had taken no steps to prevent the noise problem from continuing. The injunction was granted.

Michael Lower


Closure of basement parking area during renovation works

January 12, 2015

In Tung Lo Court (IO) v Leung May Chun Alison Aliance ([2014] HKEC 2104, CA) the basement of the building (which included the car parking spaces) had become dilapidated and the incorporated owners decided to have repair and renovation works carried out. Once the work had begun there was an unanticipated problem when the basement was flooded with underground water. The contractors took advice and they were told that safety demanded that the basement be completely closed for four months. The incorporated owners followed this advice. L contended that this closure amounted to a breach of the DMC and also constituted a nuisance. The Court of Appeal rejected this. Given the strong advice that they had received about the risk to safety, it was reasonable for them to have closed down the basement ([31.1]). It was also legitimate to bear in mind the complicated legal issues that might have arisen if someone had been harmed or suffered damage to their property had the basement remained open; it would not have been clear whether the liability was that of the contractor or of the incorporated owners ([31.2]). It was also legitimate to base the decision on financial considerations; closing down the basement meant that the work could be done more quickly and at a lower cost that would otherwise have been the case ([38.4]).

Michael Lower

Landlord’s liability for his tenant’s nuisance

October 6, 2014

In Coventry v Lawrence (No 2) ([2014] UKSC 46) one question was whether a landlord was liable for its tenant’s nuisance (see Coventry v Lawrence). Lord Neuberger (with whom Lord Clarke and Lord Sumption agreed) took as his starting point the statement of Lord Millett in Southwark LBC v Mills that:

‘The person or persons directly responsible for the activities in question are liable; but so too is anyone who authorised them. Landlords have been held liable for nuisances committed by their tenants on this basis. It is not enough for them to be aware of the nuisance and take no steps to prevent it. They must either participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property: see Malzy v Eichholz [1916] 2 KB 308 .’ ([2001] 1 AC 1 at 22).

Did the letting amount to an authorisation of the nuisance?

The letting itself did not amount to an authorisation since the nuisance was not an inevitable result of the letting ([15]).

Had the landlord actively or directly participated in the nuisance?

This is largely a question of fact ([19]). Did the landlord’s leading role in trying to prevent the local authority from taking action in respect of the noise and in defending the nuisance claim amount to participation? This was not the case since this was a justified measure taken by the landlord to protect the value of his reversion ([24]).

Dissenting on this issue, Lord Carnwath and Lord Mance thought that the landlord’s role did amount to participation in the nuisance:

‘What is required in my view is a broad, common-sense judgment, based on the facts as a whole, as to whether there was such active involvement by the landlord in the offending activities as to make him jointly responsible in law for their consequences.’ ([59]).

He was of the view that the landlord’s actions amounted to ‘active encouragement of the tenants’ use and direct participation in the measures and negotiations to enable it to be continued. ‘ ([64]).

Michael Lower



Easement by prescription to create a noise that would otherwise be a nuisance. Private nuisance and the public interest

September 29, 2014

In Lawrence v Fen Tigers Ltd ([2014] AC 822, SC) (Coventry v Lawrence) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. A succession of temporary consents began in 1992 ending when permanent planning permission was granted in 2002. L was a resident in the village having moved there in 2006. L brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The Supreme Court decided that the judge at first instance had been right to find that the noise was a nuisance and that C had not acquired an easement by prescription entitling it to make the noise that was complained of (although the acquisition of such an easement was legally possible). The fact that the defendants had planning permission to carry on the noisy activity did not settle the question as to whether or not there was a private nuisance.

This note relies principally on the judgment of Lord Neuberger. Although the other judges agreed with him in general there were differences of approach on some issues.

Can an easement to commit what would otherwise be a nuisance by noise be acquired by prescription?

Lord Neuberger held that it is possible to acquire an easement to carry on an activity which results in noise ([33]) and it can be acquired by prescription ([37]). But it is not enough to show that the noise has been created for 20 years. It must also have constituted a nuisance during that time ([42]). Otherwise, the servient owner would not know that a claim was being made against his land ([43]).

Coming to the nuisance

It was no defence to say that the claimant came to the nuisance where the claimant continues to use the property in the way that it had previously been used by her predecessors ([51]). It may be different where the claimant built on the land or changed the use to which it was put after the alleged noise nuisance had started ([56]).

Reliance on the defendant’s own activities in defending a nuisance claim

The character of the locality is an important consideration in nuisance cases ([59]). The court has to have regard to ‘the established pattern of uses’ ([60]). On this basis, the defendant’s own activities clearly should be taken into account ([63]) to the extent that they have become part of the character / established pattern of uses but not to the extent that there has been some change / intensification that might constitute a nuisance ([65]). Even where it was originally a nuisance, the right to make the noise might have been acquired by prescription or sanctioned by a previous decision to award damages rather than an injunction for the breach ([69]). See also Lord Carnwath (at [187]).

The effect of planning permission on an allegation of nuisance

Lord Sumption explained the importance of this issue and the next (remedies):

‘It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space?’ ([155]).

It is normally not a defence ([94]) but neither is it irrelevant; it may have evidential value ([96]).

The award of damages instead of an injunction

The role of this issue in the general scheme or design of the law in this area is explained thus:

‘What saves, or could save the law from anomaly and incoherence is the court’s discretion as to remedies. An injunction is a remedy with significant side-effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right.’ (Lord Sumption at [157]).

An injunction had been granted at first instance. C now contended that damages should be awarded instead. This issue and the question as to how damages should be assessed was an issue in all but one of the judgments. The Supreme Court clearly saw this as an important issue and an area that needed to be settled. Lord Neuberger envisaged that it would be argued and considered more fully in later proceedings ([152]).

Michael Lower

No liability to tenant in nuisance where landlord lacks possession or control of neighbouring property

November 26, 2013

In Habinteg Housing Association v James ((1995) 27 HLR 299, CA (Eng)) HHA owned an estate. J was HHA’s tenant in a flat on the estate. The flat had its own separate entrance and there were no common parts. HHA covenanted to keep the structure and exterior in repair. J covenanted to give HHA access if necessary for the purposes of complying with the repairing covenant. J’s property suffered from an infestation of cockroaches for around six years until HHA took remedial action. J suffered damage valued at GBP 10,0000.

It was held, however, that there was no basis on which HHA was liable to J.

J sought to rely on the principle in Wringe v Cohen ([1940] KB 229). Waite LJ accepted that it was possible that the principle could be extended to read:

‘If a person suffers injury to their person or property as a result of a nuisance of any kind emanating from premises in the ownership of another person, that owner will be liable, notwithstanding that his premises may be let to, and occupied by, a tenant, if the owner has retained sufficient control under the terms of the tenancy to give him the power to step in and abate the nuisance.’ (at 305).

Even then, however, it would not apply to the facts of the case since (a) it had not been shown that the cockroach infestation had started in any property of the landlord’s and (b) the landlord did not have a sufficient degree of control over the rest of the estate for the principle to operate.

Michael Lower


Injunction to restrain threatened nuisance and trespass

August 13, 2013

In Billion Star Development Ltd v Wong Tak Chuen ([2013] 2 HKLRD 714, CA) P owned property within the Mei Foo estate. P had the benefit of a right of way over the estate roads for the purpose of access to and egress from the property. P intended to build a block of flats on the property. Some residents of Mei Foo objected. They organised a protest group. Some of the protest group would block the estate road leading to the property whenever vehicles associated with the construction project attempted to gain access to the property. Some protesters also trespassed on the property. P sought an injunction to restrain future infringements of its rights. The court at first instance found that P had the benefit of a right of way that entitled construction vehicles to use the estate roads to get to the property and that the acts engaged in amounted to nuisance and trespass.

The Court of Appeal had to consider whether it had been appropriate to grant an injunction against one named defendant (D8) who had identified himself as a member of the group belonging to D7:

‘Persons entering or remaining without the consent of the plaintiff at [the Property] and other persons interfering with the plaintiff’s right of way over the private roads in Mei Foo Sun Chuen in connection with the protests against the plaintiff’s proposed development of the said properties.’

D8 argued that there was no basis for the grant of a quia timet injunction to restrain any future breach by him. It was accepted that he personally had not committed any wrongful act in the past. D8 argued that there was no basis for saying that he had threatened a breach in the future. The Court of Appeal disagreed. D8’s participation in these proceedings showed that he had associated himself with D7. P had shown that what was threatened and intended would cause imminent and substantial damage to him. The burden was therefore on D8 to show that he did not intended to participate in future acts that would interfere with P’s rights. D8 had not given any undertaking or made any statement renouncing any such intention and this was relevant ([48] per Fok JA). Identifying himself with D7, by contrast, suggested an intention to be party to future breaches ([51]).

D8’s other defence was that his actions were an exercise of his right of freedom of speech and assembly. Such rights, however, could not justify an infringement of P’s property rights ([62]).

Lam JA commented on whether it was appropriate to address an injunction to a defendant who is defined (as D7 was defined) rather than named. He said that this practice could validly be adopted subject to safeguards:

‘(a) The proper description of the unnamed defendants to satisfy the above test of certainty [the description used must be sufficiently certain as to identify both those who are included and those who are not];

(b) The Court must be satisfied that the nomenclature of defendants in such a manner would not prejudice the rights of those potentially affected by whatever orders the Court may make from being notified about the court proceedings and from appearing in court to defend their rights if they so wish;

(c) Proper directions must be given for proper service of the proceedings and notification to those who may be affected of the time frame for joining in as named parties and to put forward their defences;
(d) If no-one comes forward to resist the application of the plaintiff against a group of unnamed defendants, the Court should consider whether caveats similar to those in O.15 r.12(3) to
(6) should be built into any relief it may grant (including order of costs) other than orders for injunctive relief.’ ([74])

Michael Lower

Yearly tenancy: notice to quit expiring on anniversary of commencement

April 18, 2013

Sidebotham v Holland ([1895] 1 Q.B. 378, CA (Eng)) concerned a yearly tenancy that began on 19th May 1890. On 17th November 1893, L served notice to quit on 19th May 1894. There was a question as to whether the notice was invalid since it expired on the anniversary date of the term rather than on the expiry date of a period (18th May). It was held that the notice was valid.

A.L. Smith L.J. made the following suggestion:

‘I would point out that the plaintiff has only himself to blame for the difficulties he is in in this case. Had he added the words which are very ordinarily inserted in a notice to quit, “or at the expiration of the year of your tenancy, which shall expire next after the end of one half-year from the service of this notice,” and which are inserted to avoid such a point as that now taken, all would have been in order; but the words are not there.’ (389)

In the absence of express agreement (and leaving aside feast day tenancies)  a yearly tenancy can be ended by a six months’ notice to quit.

Nuisance: the grant of planning consent can change the character of an area

February 21, 2013

In Lawrence v Coventry (t/a RDC Promotions) ([2012] 1 EGLR 165, CA (Eng)) (later overturned by the Supreme Court) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. L was a resident in the village who brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The claim failed in the English Court of Appeal. The planning consents had altered the character of the neighbourhood and this changed character had to be borne in mind when considering a claim in nuisance.

Jackson LJ said the following about the relevance of the planning consent:

‘i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.

ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality.

iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.

iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:

a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;

b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.’ ([65])

Lewison LJ suggested, obiter, that it may be possible to have an easement to transmit sound waves and to acquire such an easement by prescription. ([91])

Quiet enjoyment: landlord’s liability for the actions of other tenants

September 27, 2012

In Hilton v James Smith & Sons (Norwood) Ltd ([1979] 2 EGLR 44, CA (Eng)) L owned a row of shops with a private road (a cul de sac) giving access to the rear of the shops. T was the tenant of the end of the cul de sac. It had an easement to use the road for access and delivery but could never use it because other tenants and people making deliveries to them parked in such a way as to obstruct the road. The leases of all of the shops contained a prohibition on parking cars, obstructing the road or causing a nuisance or annoyance to the landlord or other tenants and to use the road only for delivery purposes. L was liable to T (even though the actions were not lawful under the terms of the other tenants’ leases) in nuisance and for breach of the covenants for quiet enjoyment and non-derogation from grant (Ormrod L.J. thought the label didn’t matter). L was liable because it had the means of bringing the problem to an end (an action for nuisance or breach of the express covenant just mentioned) but had done nothing.

Landlord’s use of adjoining land making demised property less fit for contemplated purpose

September 25, 2012

In Aldin v Latimer Clark, Muirhead & Co ([1894] 2 Ch 437) a landlord granted a lease of property to be used for the purpose of carrying on the business of a timber merchant. The tenant covenanted not to use the property for any other purpose. The landlord later erected buildings on the neighbouring land retained by him which interfered with the flow of air to the sheds and made them less useful for the tenant’s business. The court held that the right to the flow of air could be an easement but no such easement had been acquired here.

The tenant claimed that this amounted to nuisance, derogation from grant and breach of the covenant for quiet enjoyment. The landlord was liable in damages.

‘[W]here a landlord demises part of his property for carrying on a particular business, he is bound to abstain from doing anything on the remaining portion which would  render the demised premises unfit for carrying on such business in the way in which it is ordinarily carried on, but that this obligation does not extend to special branches of the business which call for extraordinary protection.’ (444 per Stirling J).