Friday Law Report: Landowner liable for nuisance of licensee

30 April 1999

Lippiatt and another v South Gloucestershire Council (as successor authority to Avon County Council)

Court of Appeal (Lord Justice Evans, Lord Justice Mummery and Sir Christopher Staughton) 31 March 1999

THERE WAS no rule of law which prevented the owner occupier of land from being held liable for the tort of nuisance by reason of the activities of his licensees which took place off his land.

The Court of Appeal allowed the appellants' appeal against the decision that their claim in nuisance against the defendant council should be struck out as disclosing no reasonable cause of action.

From about October 1991 travellers occupied a strip of land owned by the defendant council, which had originally been acquired by the Ministry of Transport for the purpose of road-widening which had never been carried out. In June 1994 the council successfully applied for the travellers to be evicted.

The plaintiffs were tenant farmers with land on either side of the road. They commenced proceedings against the council in August 1993 claiming an injunction and damages, alleging that the travellers had caused a considerable nuisance on their land.

When the action came on for trial in June 1998 the council, relying on the decision in Hussain v Lancashire County Council (1999) 77 P&CR 89, submitted that the claim should be struck out as disclosing no cause of action. The judge upheld that submission on the basis that the plaintiffs could only complain in nuisance of acts which had occurred on the council's land and caused damage on the plaintiffs' land.

The plaintiffs appealed, contending that there was no rule of law to the effect that there could not be an actionable nuisance when the plaintiff had been injured in his use or enjoyment of his own land by the activities of third persons which had taken place on that land and off the defendant's land.

Barry Payton and Philip Norman (Moger & Sparrow, Bath) for the plaintiffs; W.D.R. Spens (South Gloucestershire Council) for the council.

Lord Justice Evans said that the sole issue raised by the appeal was whether the facts as alleged in the statement of claim could amount to a nuisance as a matter of law.

There was no rule of law which prevented the owner occupier of land from being held liable for the tort of nuisance by reason of the activities of his licensees which took place off his land. The principle, as stated by Lord Goff in Hunter v Canary Wharf [1997] AC 655, was that as a general rule some form of "emanation" from the defendant's land was required.

On analysis, what had "emanated" in the present case was the travellers themselves. That form of emanation was not difficult to accept. If it were somehow excluded from the definition of a nuisance, then any number of examples would come to mind where the distinction would be artificial in the extreme. Keeping fierce dogs and allowing them to roam would be a nuisance; taking them on to a neighbour's land and releasing them would not.

In Hussain the defendant was held not liable in its capacity as local housing authority for an alleged nuisance created by its tenants on a local housing estate. The court held that the acts complained of "did not involve the tenant's use of [his] land and therefore fell outside the scope of the tort".

The facts alleged in Hussain were materially different from those in the present case. The disturbance complained of in Hussain was a public nuisance for which the individual perpetrators could be held liable, and they were identified as individuals who lived in council property. Their conduct was not, however, in any sense linked to, nor did it emanate from, their homes.

In the present case the allegation was that the travellers had been allowed to congregate on the council's land and that they had used it as a base for the unlawful activities of which the plaintiffs, as neighbours, complained. It was at least arguable that that could give rise to liability in nuisance, and, accordingly, the claim should not have been struck out.