Coming to the Nuisance: Defence of the Polluter or Protection of the Viable Status Quo?

Jan Vévoda

1. Introduction

One of the main purposes of the law is to protect the peaceful, sustainable, and effective coexistence of people as members of society. However, in the current situation, it is not an easy task to identify a solution that would correspond with these ideals since practical life presents a lot of dilemmas. The objective of this article is to discuss one of them, which is encrypted in English legal terminology as “coming to the nuisance”.

The issue of “coming to the nuisance” is related to the protection of ownership against unlawful interference and occurs in relation to a dispute between a polluter (e.g. a factory or another activity producing an excessive amount of noise, odour, or other disturbing phenomena affecting its surroundings) and somebody from the affected locality who complains about it. Therefore, the question arises – “First come, first pollute?” Should the court decide in favour of the defendant because it started its business first and the plaintiff is a newcomer who made its decision to move there based on the information about the local conditions?

If the court decides in favour of the defendant, we may conclude that an effective status quo was protected, and the investment of the defendant was secured as well. On the other hand, we can consider this approach as an inappropriate conservation of old times, with the polluter dictating the nature of the locality despite future changes.

Although “coming to the nuisance” is a common law term and there is no adequate Czech equivalent, the problem is identical in both legal systems. In this article, I will compare how common law and Czech law resolve these disputes and under which circumstances liability is imposed on the polluter.

2. Basis of the legal regulation

In common law, the issue of disturbance between neighbours is regulated in a branch called tort law; this particular tort is a private nuisance. It is defined as “unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.”[1]

Most of the sources (textbooks, articles) concur that the defence of “coming to the nuisance” should be considered as ineffective or that it is not a defence at all. One of the arguments was that “it is not a defence to say that the defendant had carried on his activity before the claimant arrived and that the claimant therefore knew and consented to the nuisance by choosing to move into the area. […] For justification for the rule is that it would be unreasonable to expect someone not to purchase land because a neighbour was abusing his rights.[2]

Contrary to English law, Czech law belongs to the family of continental law systems, and is thus based on written sources. The basis of neighbour law (the rules related to the protection of ownership against interference) can be found in Section 1013 of the Civil Code,[3] which requires an owner to refrain from anything that would cause imissions to infiltrate his neighbour’s land in an extent that is disproportionate to local circumstances and that would substantially restrict normal use of the land. The Civil Code describes imissions, such as waste, water, smoke, dust, gas, odours, noise, vibrations, and other similar effects. We should add that this rule deals with indirect imissions since the law prohibits directly conducted imissions to another owner’s land without specific legal justification.[4]

This section of the Civil Code is very general and uses rather vague terminology, which results in a key role of courts, especially the Supreme Court of the Czech Republic. In its judgment, the court even reasons with its own previous decisions. Also, lower levels of court hierarchy use this case law as a decisive argument.[5]

3. Examples of application

In any relevant text on this topic, an old English precedent is commonly mentioned. It is the case Sturges v Bridgman[6] decided by the Court of Appeal of England and Wales in 1879. Defendant was a confectioner, whose business and relative machinery caused a lot of noise and vibrations. The parties lived peacefully next door to each other for 20 years. It was not until plaintiff (a physician) built a consultancy room in the garden next to defendant’s workshop that plaintiff noticed the disturbance and brought an action for nuisance. Although we may consider it as an example of a situation where the status quo should be respected and the defence of “coming to the nuisance” should be accepted, the court was not so convinced. The court held that “whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances: what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.[7]

The court even refused the argument of prescription as it held that the necessary 20‑year period had not commenced until the nuisance was known by the plaintiff to exist, i.e. he came to the nuisance and realised it but did not complain.

In comparison to the English approach, Czech law resolves the problem of prescription differently: If imisssions persist, it is inappropriate to speak about the statute of limitations. On the other hand, if the imission has the form of a right that could constitute a servitude[8], it could be acquired through prescription in a period of 10 years, or 20 years in the case of extraordinary prescription.[9] Nevertheless, it is difficult to imagine that one could prescribe servitudes against a quantity of tracts of land (and their owners) within a radius where, for example, the noise from a factory is disproportionately loud.

We can find some cases where the defence of “coming to the nuisance” was successfully applied or at least taken into consideration. Murray Rothbard, in his article which strongly emphasises the rationality of this defence, mentions the American case Bove v Donner-Hanna Coke Corp., in which the plaintiff moved into an industrial region, more precisely in the neighbourhood of a coke oven. The court dismissed the case stating that the “plaintiff can hardly be heard to complain at this late date that her peace and comfort have been disturbed by a situation which existed, to some extent at least, at the very time she bought her property.[10]

A frequently cited, more recent English case, Miller v Jackson,[11] decided by the Queen’s Bench Division of the High Court of Justice of England and Wales, was about a dispute between a cricket club and its new neighbour who felt terrorised by balls that sometimes landed on her house and garden. The outcome of this case is ambiguous because the defendant was held liable, but no injunction was granted, partly on the grounds that the plaintiff had come to the nuisance.[12]

In one of the most recent cases, Coventry v Lawrence, plaintiff bought a house close to a sport stadium also used for motorsports, and complained about the noise. The Supreme Court of the United Kingdom made another step and de facto “qualified the status of ‘coming to the nuisance’, though only where the claimant’s actions have changed the use of his or her land.[13]

Similarly to the above-mentioned development in the United Kingdom, some important pieces of case law can be found in the Czech Republic. One of the most important Czech cases where neighbour law was used to a large extent is connected with the Magistrate’s Highway in Prague. The noise caused by traffic was so intense that it forced a lot of inhabitants living in vicinity of this road to bring an action against the City of Prague, the owner of the road. The dispute was finally decided by the Constitutional Court on the grounds that the City of Prague was the owner of the road, but had no competence to regulate the amount of traffic. Nevertheless, the Constitutional Court noted within the obiter dictum that the situation of this particular highway “is a result of a longstanding process, which could have been known to many of the claimants already at the time when they acquired their ownership [to their houses or flats].[14] The Constitutional Court even noted that the plaintiffs not only suffered from the noise caused by the traffic on the highway but they even used it along with other drivers, so they contributed to the level of the noise.

The Constitutional Court applied, in this regard, an argument based on the history of the area and the ownership relations within it, i.e. an argument similar to those discussed in the “coming to the nuisance” debate in another case of nuisance from road traffic. The court stated that it “does not consider as irrelevant […] the fact that the road in question secures transportation opportunities historically (from 19th century) […], i.e. long before the secondary participant [the plaintiff in the original dispute] acquired ownership of this particular real estate.[15]

This implies that comparable trends can be found in both legal systems and that the courts are in the lead in an effort to find effective solutions that reflect the circumstances of the current cases.

4. Locality rule

Following Sturges v Bridgman, another important aspect should be taken into account in nuisance cases. It is the locality rule, which “does, to some extent, ameliorate the absence of a defence of coming to the nuisance.[16] This means that the nature of the locality has a determining influence on the decision whether the defendant causes nuisance or whether its activity does not exceed existing local standards, so there is no reason to impose liability on the defendant.

For example, in Halsey v Esso Petroleum, an English case of nuisance caused by a refinery and related road traffic, the court reasoned: “In an urban area everyone must put up with a certain amount of discomfort and annoyance from activities of neighbours, and the law must strike a fair and reasonable balance between the right of the plaintiff on the one hand to the undisturbed enjoyment of his property and the right of the defendant on the other hand for his own lawful enjoyment.[17]

But we cannot forget that the nature of a locality is relevant only in the case of nuisances which do not cause physical damage but rather interfere with comfort and amenity, because it is not justifiable to inflict material harm on anybody else’s possessions.[18]

The Czech approach is similar in many respects. The Civil Code has a locality rule incorporated in the text of Section 1013 where disproportionality to local circumstances is mentioned and thus must be reflected in the judge’s reasoning.

The Supreme Court of the Czech Republic held that the court cannot decide only according to the usual local circumstances, but it must always take into consideration the extent of disturbance proportionate to the situation, as it should be.[19] This wider view ought to be applied if the intensity of the disturbance (e.g. noise) is obviously excessive in comparison with other similar localities.[20]

Another significant Czech case was a dispute between Arcelor Mittal, the metallurgical complex in Ostrava, and one of its neighbours, who complained about the noise coming from the factory. The question of “who was there first” was also raised. The defendant argued for the industrial nature of the locality. Nevertheless, the district court considered that the real property in question was in possession of the plaintiff’s family since the 1940s, and the plaintiff himself had no real possibility to influence the local circumstances, apart from renouncing his ownership. The court acknowledged defendant started his business in this locality by buying the factory, which had, at that time, problems with generating noise over actual legal limits, and therefore voluntarily entered in the situation where it was inevitably committing a nuisance. However, the Supreme Court ruled in favour of the defendant emphasising the nature of the locality – a place where industrial production has been traditionally conducted.[21]

In another Czech judgment dealing with nuisance from sports activities, the Czech Supreme Court ruled in favour of the defendant (a football club in Olomouc) and noted that “the fact that the plaintiff could take imissions into consideration when he was obtaining his property, should be reflected only if there are imissions important for the characteristics of the surroundings, e.g. imissions from a sports facility already in existence.[22] In this case, the plaintiff could have realised where his house was located.

It is apparent that both common law and Czech courts take into consideration the industrial or similar nuisance-prone nature of some areas. On the other hand, they do not refuse to grant protection if the nuisance in these localities is so excessive that the rights of other people are gravely affected.

5. Conclusion

In spite of the fundamental differences between the common law and continental law systems, we can identify very interesting similarities between solutions that developed within the framework of these systems to resolve nuisance disputes. Czech neighbour law retains its written basis, but only in a single section of the Civil Code, which is very general in nature. It leads to a situation where case law is of significant importance even in the Czech Republic.

In common law, we can see that attitudes towards the defence of “coming to the nuisance” oscillate, but the main stance may be described as “no, but …”, because the courts try to find a solution that would fit into a particular situation. There is officially no comparable doctrine or legal institute in Czech law, but in some cases, Czech courts used arguments reflecting the history preceding the legal suit.

Another thing both systems have in common is an attempt to make judicial decisions reflect the specific aspects of particular disputes, especially the characteristics of the locality in question. The Czech Civil Code explicitly prohibits behaviour disproportionate to the nature of local circumstances, but this only means that it depends on how the court evaluates the real nature of the place of the dispute and how it decides what is (dis)proportionate there. In addition, common law courts tend to take into consideration whether the alleged nuisance takes place, for example, in a residential area or in a locality devoted to business and industry.

In my opinion, the above-mentioned similarity between the legal systems can be accounted to the fact that real life in modern society brings people (and their often contradicting activities) together in similar ways regardless of whether they live in the United Kingdom or the Czech Republic. They have to find a way to live together, and law as well as the courts should assist them. I am convinced that the absence of one preferred doctrine or one prescribed solution is desirable, because life offers a wide variety of situations and stories, and an efficient law should respect this.

 

Jan Vévoda graduated from the Law Faculty of Charles University in 2008 and the University of Economics in Prague in 2012. Currently he works in the Legislative department of the Czech Ministry of the Interior. As a Ph.D student at the Law Faculty of Charles University he focuses on the environmental law, especially on a role of private law in the protection of environment.

[1] Giliker, P. (2014). Tort. 3rd Ed. London: Sweet & Maxwell, p. 353.

[2] Bliss v Hall (1838) 4 Bing NC 183. Quoted from: Jones, M. A. (2002). Textbook on torts. 8th Ed. Oxford: Oxford University Press, p. 372.

[3] Zákon č. 89/2012 Sb., občanský zákoník (the “Civil Code”).

[4] Terminology (including spelling of the word “imission”) from the translation of the Civil Code which is published on web site of the Ministry of Justice of the Czech Republic. [online] Available at: http://obcanskyzakonik.justice.cz/index.php/home/zakony-a-stanoviska/preklady/english [Accessed 12 Dec. 2016].

[5] Courts and even parties to the lawsuits often mention the judgment of the Supreme Court, Ref. No. 22 Cdo 223/2005 or the decision of the Constitutional Court, Ref. No. I. ÚS 451/11.

[6] Sturges v Bridgman (1879) 11 Ch D 852. This judgment is well-known also because it is intensively discussed in Ronald Coase’s famous article The Problem of Social Cost [Coase, R. H. The Problem of Social Cost. [online] Journal of Law and Economics, Vol. 3 (Oct., 1960), str. 1–44].

[7] Ibid. In the 19th century, Belgrave Square was a residential quarter of nobility, while Bermondsey was an industrial area.

[8] Lavický, P., & Handrlica, J. (2013). Občanský zákoník: komentář. Díl III Věcná práva (§ 976–1474). Praha: C.H. Beck, p. 150.

[9] Section 1091 par. 2 and Section 1095 of the Civil Code.

[10] Bove v Donner-Hanna Coke Corp., 236 App. Div.37, 258 N. Y.S. 229 (1932) – quoted from Rothbard, M. (1982). Law, Property Rights, and Air Pollution [online]. Available at: https://mises.org/library/law-property-rights-and-air-pollution [Accessed 13 September 2016].

[11] Miller v Jackson [1977] QB 966.

[12] Jones, M. A. (2002). Textbook on torts. 8th Ed. Oxford: Oxford University Press, p. 345.

[13] Coventry v Lawrence [2014] UKSC 13. Quotation from: Steele, J. (2014) Tort Law Text, Cases, and Materials. 3rd Ed. Oxford: Oxford University Press, p. 577.

[14] Czech Constitutional Court, dated 11 January 2012, Ref. No. I. ÚS 451/11.

[15] Czech Constitutional Court, dated 2 February 2016, Ref. No. II. ÚS 2144/14.

[16] Jones, M. A. (2002). Textbook on torts. 8th Ed. Oxford: Oxford University Press, p. 373.

[17] Halsey v Esso Petroleum [1961] 1 WLR 683.

[18] Dugdale, A. M., & Alexander, D. (2000). Clerk & Lindsell on torts. 18th Ed. London: Sweet and Maxwell, p. 1010.

[19] Czech Supreme Court, dated 26 April 2006, Ref. No. 22 Cdo 223/2005.

[20] Czech Supreme Court, dated 24 November 2011, Ref. No. 22 Cdo 1578/2010.

[21] Czech Supreme Court, dated 28 January 2015, Ref. No. 22 Cdo 636/2014.

[22] Czech Supreme Court, dated 25 March 2015, Ref. No. 22 Cdo 2270/2012.