1 Robert Frost, “Mending Wall” (1914).

2 A recent survey found that three quarters of English local authority and Registered Social landlords considered they had a “medium” or “big” problem with neighbour nuisance: Nixon, J., Hunter, C. and Shayer, S., The Use of Legal Remedies by Social Landlords to Deal With Neighbour Nuisance (Sheffield 1999)Google Scholar.

3 Hussain v. Lancaster City Council [2000] Q.B. 1; Lippiatt v. South Gloucestershire Council [2000] Q.B. 51, noted by Janet O’Sullivan, [2000] C.L.J. 11. See also M. Davey [2001] Conv. 31, 48-60.

4 Hunter v. Canary Wharf [1997] A.C. 655.

5 [1973] Ch. 314.

6 As claimants used to be known, prior to their rebranding by Lord Woolf.

7 (1866) L.R. 1 Ex. 265; (1868) L.R. 3 H.L. 330.

8 [1933] Ch. 89.

9 With respect to Bennett J. a finding which looks nearly as odd as suggesting that the woollen underpants in Grant v. Australian Knitting Mills [1936] A.C. 85 were a Rylands v. Fletcher “dangerous thing” which “escaped” from D's factory. Both seem remote from the typical Rylands situation, in that the “escape” would be the conscious decision of the caravandwellers or the factory-owner respectively.

10 Such reasoning would certainly surprise Mason C.J. and the majority of the High Court of Australia in Burnie Port Authority v. General Jones (1994) 120 A.L.R. 42, holding that Rylands v. Fletcher is within ordinary Donoghue v. Stevenson [1932] A.C. 562 principles.

11 [1977] Q.B. 966 (cricket balls hit over fence; liability in both nuisance and negligence). But cf. O’Leary v. Islington L.B.C. (1983) 9 H.L.R. 81, where Smith v. Scott was approved by the Court of Appeal on this point (no duty carefully to enforce [nuisance] clause in tenancy agreement for benefit of a fellow tenant).

12 See e.g. Cambridge Water Co. v. Eastern Counties Leather pic [1994] 2 A.C. 264.

13 (1876) 35 L.T. 240. See also Malzy v. Eichholz [1916] 2 K.B. 308.

14 See Rich v. Basterfield (1847) 4 C.B. 783; Pwllbach Colliery v. Woodman [1915] A.C. 634.

15 Cf. Tetley v. Chitty [1986] 1 All E.R. 663, where the emphasis was firmly upon the foreseeability of future nuisance, when the land was let for the purposes of a go-carting track.

16 [1940] A.C. 880.

17 [1973] Ch. 314.

18 (1982) 80 L.G.R. 337.

19 [1940] A.C. 880, 904.

20 Ante.

21 [2001] A.C. 1,15 (Lord Hoffmann). See, similarly, Lord Millett's express approval at p. 22 of Malzy v. Eichholz [1916] 2 K.B. 308.

22 [2001] A.C. 1, 16, per Lord Hoffmann.

23 [2000] Q.B. 1.

24 [2000] Q.B. 51.

25 [1940] A.C. 880.

26 Ibid, at p. 919.

27 See e.g. Goldman v. Hargrave [1967] 1 A.C. 645 (failure to extinguish fire started by lightning). Lord Wilberforce commented that “The basis of the occupier's liability lies not in the use of his land; in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour.”: ibid, at p. 661.

28 [2000] Q.B. 51.

29 (1876) 35 L.T. 240.

30 [1933] Ch. 89.

31 [1985] A.C. 809.

32 Although the minimum notice is four weeks for residential premises: Protection From Eviction Act 1977.

33 See Housing Act 1996 ss. 144 and 148; also Rent Act 1977, Schedule 15, Part I, Case 2.

34 E.g. Verrail v. Great Yarmouth B.C. [1981] Q.B. 202 (party conference; performance of licence not yet commenced).

35 [1951] 1 K.B. 517. See now Defective Premises Act 1972, s. 4.

36 Ibid, at p. 527.

37 Now governed by the provisions of the Occupiers’ Liability Acts 1957 and 1984.

38 Wheat v. Lacon [1966] A.C. 552 (brewery remained in occupation of quarters above pub, despite manager living there).

39 [1951] 1 K.B. 517, 524.

40 [1940] A.C. 880.

41 In Smith v. Littlewoods [1987] A.C. 241.

42 E.g. Carmarthenshire C.C. v. Lewis [1955] A.C. 549, child and school; Dorset Yacht Co. v. Home Office [1970] A.C. 1004, Borstal boys and prison officers.

43 (1876) 35 L.T. 240.

44 15th edn., p. 521, n. 30.

45 Unless “occupier” has the meaning given to it in Wheat v. Lacon [1966] A.C. 552, in which case occupation and control are equated, which is consistent with the Sedleigh-Denfield approach.

46 [1996] A.C. 923.

47 Ibid, at pp. 943-944: “In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the ‘why pick on me?’ argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another?”

48 “The ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours”: ibid. at p. 944 per Lord Hoffmann, on the authority of Goldman v. Hargrave [1967] 1 A.C. 645.

49 [1985] A.C. 809.

50 [1973] Ch. 314.

51 In Mowan v. Wandsworth L.B.C. (21 December 2000) the Court of Appeal again applied Smith v. Scott. The claimant argued that the common law should be developed so as to protect her right to private and family life (Article 8, European Convention on Human Rights, given domestic effect by the Human Rights Act 1998). Sir Christopher Staughton held that the Smith v. Scott principle was too well established to permit of such development (describing this as a “lamentable result”). He relied in particular upon the House of Lords’ decision in Southwark L.B.C. v. Mills [2001] A.C. 1, although, as suggested above, on this point their Lordships’ dicta were quite unnecessary for the decision of the case, and the matter had not been canvassed in argument. Peter Gibson L.J. (the other member of the court) rejected the argument that the claimant would be bereft of a remedy, and thus that the Convention required the court to fashion one. He pointed to the possibility of an injunction against the neighbour (at least doubtful, given her mental disorder: see Wookey v. Wookey [1991] Lam. 121), and also the possibility of judicial review (sed quaere).

52 (1876) 35 L.T. 240.

53 [1940] A.C. 880.

54 [1967] 1 A.C. 645 (P.C.).

55 [1980] Q.B. 485 (C.A.).

56 See e.g. Nettleship v. Weston [1971] 2 Q.B. 691, especially Lord Denning M.R.

57 (1982) 80 L.G.R. 337.

58 Per Fox L.J. at p. 354.

59 Ibid, at p. 351.

60 Ibid, at p. 356.

61 For the delicacy of the task see, e.g. Hughes, D., Karn, V. and Lickiss, R. (1994) 16 J.S.W.F.L. 201, and Nixon, J., Hunter, C. and Shayer, S., Neighbour Nuisance, Social Landlords and the Law (Sheffield 2000)Google Scholar.

62 Although, for the preference of Manchester C.C. for using injunctions instead of eviction, see: B. Pitt [2000] J.H.L. 90. For some advantages of using injunctions to enforce “no nuisance” covenants, see Hughes, Karn and Lickiss, op. cit. at pp. 218-221.

63 Housing Act 1996, Part VII (especially s. 193).

64 Ibid.

65 [1981] A.C. 1001.

66 Ibid, at p. 1011 (Lord Wilberforce).

67 Metropolitan Asylum District v. Hill (1881) 6 App. Cas. 193 (liable for choosing to build a pox hospital where it would constitute a nuisance).

68 Per Viscount Dunedin in Manchester Corporation v. Farnworth [1930] A.C. 171, 183.

69 This might be deemed intentional under the Housing Act 1996: see ss. 190, 191.

70 See, generally, S. Tromans [1982] C.L.J. 87 on the question of injunctions as against damages in nuisance, criticising the English courts’ fixation with the injunction.

71 [1981] Q.B. 88, reasserting orthodoxy after Miller v. Jackson [1977] Q.B. 966.

72 Shelfer v. City of London Electric Lighting Co. [1895] 1 Ch. 287, 316 per Lindley L.J.

73 The injustice of authorising, by statutory implication, uncompensated infringement of P's property rights weighed heavily with Lord Keith, dissenting, in Allen v. Gulf Oil [1981] A.C. 1001.

74 See Harlow, C., Compensation and Government Torts (London 1982)Google Scholar.

75 Contrast the implication of a duty to compensate for (lawful) destruction of property under the war prerogative in Burmah Oil v. Lord Advocate [1965] A.C. 75 (reversed by War Damage Act 1965!).

76 Section 1(1).

77 Ibid. s. 1 (2) “noise, vibration, smell, fumes, smoke … discharge onto land of any solid or liquid substance”.

78 Ibid. s. 1(3).

79 See Harlow, op. cit. pp. 102-106.

80 Arrowsmith, S., Civil Liability and Public Authorities (Hull 1993), p. 246Google Scholar.

81 Associated Provincial Picture Houses v. Wednesbury Corpn. [1948] 1 K.B. 223.

82 (1982) 80 L.G.R. 337—see P.F. Cane P.L. 202.

83 [1978] 1 W.L.R. 1.

84 [1978] A.C. 728.

85 (1982) 80 L.G.R. 337, 347, similarly per Fox L.J. at p. 353.

86 [1985] A.C. 374. But see Wade, H.W.R., Constitutional Fundamentals (London 1980), pp. 46–53Google Scholar, criticising invocation of the term “Prerogative” in such contexts.

87 Shelfer's Case [1895] 1 Ch. 287, see further ante.

88 [1940] A.C. 880.

89 Quaere whether negligence in this sense would preclude any reliance on defence of statutory authority: cf. text to n. 65 above, et seq.

90 [1995] 2 A.C. 633.

91 [2000] Q.B. 1.

92 [2000] Q.B. 51.

93 See e.g. S.H. Bailey and M.J. Bowman, Public Authorities Liability Revisited [2000] C.L.J. 85, and the references therein.

94 See Osman v. United Kingdom (1998) 29 E.H.R.R. 245; Z v. UK, 10 May 2001.

95 X (Minors) v. Bedfordshire C.C. [1995] 2 A.C. 633, Stovin v. Wise [1996] A.C. 923, Barrett v. Enfield L.B.C. [1999] 3 W.L.R. 79, Phelps v. Hillingdon L.B.C. [2000] 3 W.L.R. 776.

96 [1995] 2 A.C. 633

97 See the speeches of Lord Slynn and Lord Hutton in Barrell v. Enfield L.B.C. [1999] 3 W.L.R. 79.

98 [2000] 3 W.L.R. 776, 810.

99 The term used by Bailey and Bowman, loc. cit.

100 Caparo Industries v. Dickman [1990] 2 A.C. 605.

101 E.g. Lord Slynn giving the leading judgment of their Lordships in Phelps.

102 Ante.

103 To the evident displeasure of Lord Browne-Wilkinson in Barrett, ante. See also the acidic comments of Lord Hoffmann (who gave the leading judgment in Stovin) in 62 M.L.R. 162— 164.

104 Osman v. Ferguson [1993] 4 All E.R. 344, applying Hill v. Chief Constable of the West Yorkshire Police [1989] A.C. 53.

105 [1999] 3 W.L.R. 79, 115. See also per Lord Slynn ibid, at pp. 97-98.

106 Housing Act 1996, Part VII.

107 See in particular Stovin v. Wise [1996] A.C. 923, Barrett v. Enfield L.B.C. [1999] 3 W.L.R. 79.

108 Lord Hutton in Barrett, n. 105 above.

109 (1982) 80 L.G.R. 337.

110 There remains the possibility of challenging the authority's inactivity by way of judicial review. All the reasons suggested in this passage for caution in negligence claims would apply equally to a Wednesbury unreasonableness challenge. It seems most unlikely that the court would effectively take over the running of the authority's housing stock by issuing specific mandatory orders (formerly “mandamus”), as opposed to requiring it to think again, were Wednesbury unreasonableness made out. And, of course, a tort must still be shown if damages are sought.

111 [1940] A.C. 880.

112 [2000] Q.B. 1.

113 Cf. A.-G. v. Corke [1933] Ch. 89, Thompson-Schwab v. Costaki [1956] 1 W.L.R. 335.

114 [1940] A.C. 880, 903-904.

115 [1997] A.C. 655.

116 F.H. Newark (1949) 65 L.Q.R. 480.

117 Ibid. at p. 489 (emphasis added).

118 The heretical decision of the Court of Appeal in Khorasandjian v. Bush [1993] Q.B. 727 being overruled on this point.

119 [1997] A.C. 655, at pp. 696, 706 and 724, respectively.

120 Ibid. at p. 706.

121 See Ibbetson, D.J., A Historical Introduction to the Law of Obligations (Oxford 1999), pp. 98–106Google Scholar and Newark, loc. cit.

122 (1725) 1 Strange 634, 635.

123 Ante.

124 Bracton f. 234, apparently following Justinian, Institutes, 2.3.3.

125 Cantrell v. Church Cro. Eliz. 845.

126 Indeed, it was commonly argued that D's not being a freeholder was a reason why Case would lie rather than the Assize, e.g. Y.B. M.11 Hen. IV f.25 pl.48; Y.B. T.33 Hen. VI f.26 pl.10.

127 Cf. Lord Atkin in United Australia v. Barclay's Bank [1941] A.C. 1, 29.

128 And by contrast, Devlin J., Denning L.J. and Lord Radcliffe all assumed that a stricken tanker at sea could give rise to liability in private nuisance in Southport Corpn. v. Esso Petroleum [1953] 3 W.L.R. 773, [1954] 2 Q.B. 182 and [1956] A.C. 218 (sub nom. Esso Petroleum v. Southport Corpn.).

129 [2000] Q.B. 1, 27.

130 [2000] Q.B. 51, 61 per Evans L.J.

131 A.-G. v. P.Y.A. Quarries [1957] 2 Q.B. 169. Quaere whether a group of aliens might also suffice.

132 [2000] Q.B. 51, 64-65.

133 See, e.g. M. Hunt [1998] P.L. 423; Buxton L.J. (2000) 116 L.Q.R. 48; Sir H.W.R. Wade (2000) 116 L.Q.R. 217; N. Bamforth (2001) 117 L.Q.R. 34.

134 Hansard, HL Deb. Vol. 583 Col. 785 (24 November 1997), Lord Irvine of Lairg.

135 [1978] Q.B. 479.

136 N.b. even if the victim were within the seclusion of his house or garden.

137 (1982) 80 L.G.R. 337.

138 [2000] Q.B. 51.

139 Section 152.

140 See B. Pitt [2000] J.H.L. 90.

141 Section 1.

142 [1973] Ch. 314; (1982) 80 L.G.R. 337; [2000] Q.B. 1; [2000] Q.B. 51.

143 Section 1(2).

144 Hunter, C. and Mullen, T. (with S. Scott), Legal Remedies for Neighbour Nuisance (Joseph Rowntree Foundation, 1998), p. 47Google Scholar.

145 Section 152(6).

146 Section 1(10).

147 Section 2.

148 Section 3.

149 Section 1.

150 Section 7(2).

151 Le. at least two occasions, s. 7(3).

152 PACE 1984 s. 24(2)(n), as inserted.

153 Section 2(2).

154 Section 4(3).

155 Section 1 (3)(c).

156 I am grateful to Professor Ibbetson for this point.

157 Section 79(1).

158 Sections 80(5) and 82(8).

159 Section 79(1): “… the following matters constitute ‘statutory nuisances’ for the purposes of this Part, that is to say—(a) any premises in such a state as to be prejudicial to health or a nuisance; (b) smoke … (c) fumes or gases … (d) any dust, steam, smell or other effluvia … (e) any accumulation or deposit which is a danger to health or a nuisance; (f) any animal … (g) noise emitted from premises so as to be prejudicial to health or a nuisance … (h) any other matter declared by any enactment to be a statutory nuisance …”

160 Although cf A.-G. v. Corke [1933] Ch. 89.

161 Issa v. Hackney L.B.C. [1997] 1 W.L.R. 956. Described by Brooke L.J. as an “apparent lacuna in the law”: ibid, at p. 964. His Lordship refused to close the lacuna, however, commenting that “resolution of this injustice lies in decisions being taken about the allocation and distribution of public sector finance … which are for Ministers and Parliament to take and not for judges …”ibid, at p. 965.

162 Section 35.

163 [1997] 1 W.L.R. 700.

164 Ibid. at p. 706, per Leggatt L.J.

165 Including injunctions: see above.