Lawbite: Are you sure that is a continuing nuisance…?

It is well established that a continuing nuisance gives rise to a continuing cause of action which accrues afresh each day, thereby effectively extending the limitation period. A classic example is where tree roots encroach on neighbouring property, causing damage over time, or where a building is erected in breach of rights of light.

This case considered whether the damage caused to a garden wall was suffered more than six years before the Claimant issued proceedings, which would mean that the claim was statute barred (the limitation period for a claim in tort being six years).

The decision will be of interest to owners and occupiers of land and property in England and Wales.

The nuisance

This High Court of England and Wales decision concerned an appeal from a County Court judgment involving a dispute between the owners of two adjoining properties in Barrow-in-Furness, 1 Gleaston Lane, owned by Mr Cooper; and 2 Gleaston Lane, owned by Mr Martin. Mr Martin claimed that his property was suffering a nuisance comprising damage to his garden wall as a result of Mr Cooper building up soil on his land and by building a garage against the garden wall.

County Court’s findings

The County Court upheld the claim and ordered Mr Cooper to pay Mr Martin £16,560, being the cost of building a retaining wall between the two properties.

Mr Cooper appealed, arguing that the judge was wrong not to have found that the damages claim was statute barred under the Limitation Act 1980 s.2 on the grounds that the damage to the garden wall had occurred more than six years prior to the commencement of proceedings.

A one off event or a continuing state of affairs?

The key question before the High Court was whether Mr Cooper’s actions were a continuing nuisance.

The court considered the Supreme Court’s decision in Jalla [2023] UKSC 16 which assessed whether an oil spill in December 2011, where the leak was stopped after about six hours, constituted a continuing nuisance. The Supreme Court held that the leak was a one off or isolated event, with no “repeated activity” by the defendant or “continuing state of affairs” for which they were responsible - meaning that there was no continuing nuisance and the limitation period began to run from the date of escape in December 2011.

In these proceedings the trial judge found that:

1. The damage to the garden wall was not caused by a one-off additional loading, but rather by the loading in place since the level of the ground on Mr Cooper’s land was raised and the garage had been built, which continued
2. The remedy sought was the construction of a retaining wall to shore up Mr Martin’s land, which was necessary to prevent future instability caused by the build-up of soil and the construction of the garage, not the replacement of a lost or collapsed wall (which might have arguably constituted a one off event)

As a result the trial judge concluded that there was a “continuing state of affairs” or continuing nuisance (the raised ground level and continued presence of the garage) for which Mr Cooper was responsible and which necessitated the construction of a retaining wall to remedy future damage. Therefore Mr Cooper’s limitation argument failed, as a cause of action accrued afresh each day.

Key points

1. This decision reiterates that a continuing nuisance involves a “repeated activity” or “continuing state of affairs” for which a defendant is responsible, which gives rise to a fresh cause of action whilst such activity or state of affairs continues
2. It is important when initially considering nuisance claims to assess properly whether the circumstances give rise to a continuing nuisance and a fresh cause of action each and every day it continues or a one-off event which starts the limitation clock running. This is not always straightforward