Jersey & Guernsey Law Review – October 2009
Voisinage and Nuisance
Rebecca MacLeod
What is the law applicable when a person interferes with the land of a neighbour? In Jersey, two competing doctrines have been invoked in this area: the law of nuisance and the doctrine of voisinage. Recently, the existence of each has been called into question. After establishing the legal context, by reference to both Jerseysources and some other relevant jurisdictions, this article seeks to explore the nature and content of these doctrines and their place in Jersey law.
Paras
1. Introduction 1–25
1.1 English law and nuisance 4
1.2 Some mixed jurisdictions 9
1.3 French law: troubles anormaux ou excessifs de voisinage 12
1.4 Similarities and differences 21
2. Voisinage and nuisance in Jersey 26–57
2.1 Early cases and materials 26
2.2 Key v Regal and Searley v Dawson 33
2.3 After Searley 41
2.4 Rockhampton litigation 48
2.5 After Rockhampton 51
3. How many doctrines? 58–66
Hypothesis 1: Nuisance only 60
Hypothesis 2: Voisinage only 61
Hypothesis 3: Two doctrines with identical spheres of application 62
Hypothesis 4: Two doctrines with overlapping spheres of application 64
Hypothesis 5: Two doctrines with distinct spheres of application 65
4. Doctrinal bases 67–75
4.1 Nuisance 68
4.2 Voisinage 70
5. Prerequisites for liability 76–90
5.1 Nuisance 77
5.2 Voisinage 86
5.3 Conclusion 90
6. Limits of liability 91–104
6.1 Personal injury 91
6.2 Identity of parties 93
6.2.1 Who can be sued? 93
6.2.2 Who can sue? 96
6.3 Defences 98
6.4 Remedies 102
7. Law of the neighbourhood 104–105
8. Conclusion 106
1 This article is concerned with an aspect of the relationship between the law of property and the law of tort. What is the law applicable when one neighbour, through use of his or her land, interferes with the land of another neighbour? Interference may take the form of physical damage to, or interference with enjoyment of, immovable property. “Interference with property” is used to refer to these collectively.
2 In Jersey case law, the court has granted remedies in respect of interferences with property often with reference to either “nuisance” or the doctrine of “voisinage”. Recent litigation has raised questions concerning the place and nature of these legal concepts in Jersey law. Are they functional equivalents? Under what circumstances does each apply? Is it even the case that they are both part of Jerseylaw? Gale v Rockhampton Apartments[1] concerned damage to a building resulting from activity on neighbouring land. It was held in the Royal Courtthat the appropriate basis for the action was the law of voisinage.[2] The Court of Appeal, upholding these findings, further suggested that voisinage might be restricted to cases where there was damage to buildings.[3] In the subsequent case of Yates v Reg’s Skips,[4] noise generated on one property adversely affected the enjoyment of another.[5] In the Royal Court, both parties agreed that the doctrine of voisinage was applicable.[6] The Royal Court granted the injunction sought by the plaintiffs.[7] The decision was upheld on appeal, but the court was unsure about the basis of the action.[8] The law now appears uncertain.
3 In Roman law, a Digest text records that discharging smoke into the building above was impermissible.[9] However, Roman sources also present the apparently conflicting rule that the inevitable escape of smoke into neighbouring premises, concomitant to lighting a fire in a hearth, was permissible.[10] Thus, causing inconvenience to one’s neighbour was on some occasions lawful, but on others it was not. The reconciliation of these rules is an enduring legal problem. Though the factual and legal contexts vary, the underlying issue is the same, namely, balancing the competing rights of the parties. This is true of both Common Law and Civilian jurisdictions, but also in the mixed jurisdictions, of which Jerseyis one. The present issue has been stated in terms of whether a Common Law or Civilian approach prevails in this area of the law.[11] For Jersey, this could be stated more specifically: does the influence of English law or the influence of French law prevail? For this reason, the approaches of these two jurisdictions will be reviewed briefly. Some of the mixed jurisdictions are considered also—including Guernsey—in order to locate Jersey law within that class. These mixed jurisdictions exhibit variations on the English and French themes. Following this, the Jersey materials are examined.
4 In England, physical damage to, or interference with enjoyment of, the property of a neighbour can constitute a private nuisance.[12] This is a tort, for which the victim may obtain an injunction or damages. The activity need not be unlawful in itself;[13] it is the resulting effect which generates the wrong.
5 Balancing the parties’ rights against one another is the principal exercise involved in establishing whether there is liability.[14] This is expressed by the principle of unreasonable user (or the maxim sic utere tuo ut alienum non laedas), which applies to all (private) nuisances.[15] A distinction is made between instances of physical damage to property and instances of interference with enjoyment of it,[16] but this division should not be overstated.[17] Whether user was unreasonable is determined by reference to the level of harm where damage is physical. A number of other factors, including the character of the neighbourhood[18] and duration of the nuisance,[19] are considered where interference with enjoyment is the subject of the complaint.
6 The role of fault in establishing liability for nuisance is a troubled question.[20] In the leading case of Cambridge Water v Eastern Counties Leather,[21] Lord Goff stated that although the principle of reasonable user lies at the heart of the tort of nuisance (which taken alone could constitute strict liability), this does not mean that the “defendant should be held liable for damage of a type which he could not reasonably foresee.”[22] This illustrates the general position of the law, which is that liability is not now strict.[23]
7 In addition to the law of nuisance, the rule in Rylands v Fletcher[24] also provides redress in some circumstances. Originally, the rule imposed strict liability where the harm complained of was the consequence of a non-natural use of land. Non-natural use is constituted by bringing something “not naturally there” onto the land,[25] although that action must bring with it “increased danger to others”.[26] The potentially wide ambit of the rule has been restricted by subsequent case law,[27] and the strict liability of the rule has also been eroded by the introduction of a requirement of foreseeability as a component of Rylands liability.[28]
8 English law in this area has influenced some mixed jurisdictions, including Guernsey, Scotland and South Africa.
9 Several Guernsey cases apply a law of nuisance, but the context in which that law sits is not clear. For example, does Guernsey have a law of tort, or a law of torts? The extent of the presence or influence of English law is also unclear. Case law suggests that there are at least similarities between the law of nuisance in Guernsey and that of English law.[29]
10 The Scots law of nuisance was subject to a number of early influences, but, some time after 1750,[30] English law became dominant among these.[31] Although, there are similarities between Scots and English law in this area,[32] there are also differences. For example, the Scots law of nuisance is narrower in scope and the rule in Rylands v Fletcher[33] does not apply.[34] Additionally, the doctrine of aemulatio vicini, a limited form of liability for abuse of right, is present in Scots law.[35]
11 South African law has undergone a partial reception of English law in this area.[36] However, private nuisance is restricted to interference with enjoyment of property, as the actio legis Aquiliae covers physical damage.[37] Also, the South African law of nuisance is generally thought to be a strict liability doctrine, although it has been argued (in the context of a comparison with Scots law) that this divergence is largely one of “form rather than substance”.[38]
12 The French law of civil liability (responsabilité civile) is based on articles 1382–1386 of the Civil Code, supplemented by special regimes, or rules created post-codification dealing with specific factual situations, such as road traffic accidents. Both of these sources contribute to form the law applicable when one neighbour, through the use of his or her land, causes physical damage to, or interference with enjoyment of, the land of another neighbour.
13 Where the damage complained of has been caused by the fault, negligence, or recklessness of the wrongdoer, liability attaches by virtue of articles 1382[39] and 1383[40] of the Civil Code. Article 1384–1[41] of the French Civil Code makes a person strictly liable for the damage caused by things under his guardianship. As “things” include immovable property, liability under article 1384–1 may be invoked in some circumstances where there is interference with property. Similarly, article 1386, (liability for damage caused by a ruined building which is strict in effect),[42] will be applicable in some instances.
14 The judge-made doctrine of troubles de voisinage[43] (or “neighbourhood disturbances”) protects “the peace of private individuals” where the “normal inconveniences of life in a neighbourhood” have been exceeded.[44] Elements of this type of liability are found in the work of pre-codification jurists, but the origin of the modern doctrine is a case from 1844, in which the noise from a factory was declared to have exceeded the level a neighbour is obliged to tolerate.[45] Thereafter, the rule developed that the problem must be in some way “abnormal” and the damage “excessive” before liability arises.[46] Anything below this threshold must be tolerated, but the wrongdoer is strictly liable[47] for anything above the threshold. A variety of activities have been held to constitute troubles, for example: noise from a flat,[48] dust,[49] smoke,[50] deprivation of view,[51] and construction works resulting in cracks and fissures in neighbouring property.[52] Additionally, trouble may also be constituted by the risk of damage occurring, for instance, through of proximity to a golf course.[53]
15 In respect of troubles de voisinage, it is possible to obtain an injunction, damages or both. What is awarded is the sole province of the judge. As with responsabilité civile under articles 1382–1386, there must be a fait générateur (juridical fact[54] triggering legal consequences), damage, and a causal link between the two.[55] The abnormal use of property constitutes the fait générateur.[56] Much juristic ink has been expended in seeking the basis for the doctrine.[57] The search ended with a definitive statement by the Cour de cassation that it was a form of no-fault liability,[58] distinguishing the doctrine from responsabilité civile generally, and from the doctrine of abuse of rights (abus des droits).[59] Where the juges du fonds[60] determine that a particular damage falls under liability for troubles de voisinage, liability under articles 1384–1, and 1386 can no longer be applied.[61]
16 The French are currently undergoing a process of codal revision and the property law reforms suggested by the Association Hénri Capitant in its Avant-projet de réforme du droit des biens include codification of the French doctrine.[62] The comparable Quebec and Louisiana laws are codified and are similar to the French law, having been influenced by it.
17 Article 976 of the Quebec Civil Code provides that “[n]eighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.” The concept expressed by this article carries the same name as its French law counterpart: troubles de voisinage. As with French law, Quebec law makes a distinction between normal and abnormal inconveniences.[63] Damages, injunction or both are available as remedies.[64] Fault is not a necessary component of liability.[65] Liability can also arise under the general delictual provisions in the Code.[66] In contrast to article 1384–1, of the French Civil Code, article 1465 of the Quebec Civil Code does not create strict liability in respect of damage caused by things under the wrongdoer’s control,[67]but only a presumption of fault. Article 1467 of the Quebec Civil Code (relating to ruinous buildings or those with a defect of construction, and equivalent to article 1386 of the French Civil Code) imposes strict liability.[68] Under article 1457, fault-based liability can arise for negligence and carelessness.[69]
18 In the Louisiana Civil Code, articles 667–669 relate specifically to relations between neighbours. These articles are located in the property law section of the code. They are said to create legal servitudes[70] (which may be described as limitations on ownership arising ex lege),[71] but this classification has been criticised, particularly in relation to article 669, because of the lack of distinct dominant and servient estates.[72] Articles 667 and 669 impose restrictions on the right of ownership (or on the positive side of ownership: the capacity to act).[73] The former states that a proprietor shall not do anything on his or her own land “which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him”. Liability for damages under this article is not strict, except where the activity complained of is pile driving or blasting with explosives.[74] Under article 669 neighbours can incur liability for “different inconveniences” that they cause to one another.[75] Yiannopoulos argues that the threshold for liability under article 669 is determined by reference to use which is “abnormal” or “exceptional” and “causes damage or excessive inconvenience to neighbors” (which is similar to the French law terminology of abnormal or excessive neighbourhood disturbances and the English law principle of unreasonable user).[76] In the application of article 669, the courts have sometimes had regard to elements of Common Law “nuisance”, but this has been criticised as incompatible with Louisiana law.[77]
19 Under article 668, some inconvenience must be tolerated.[78] Accordingly, the negative side of ownership is restricted,[79] that is, the capacity to prevent others from acting in a way which infringes one’s ownership. Breach of the obligations under these articles can give rise to damages, an injunctive remedy or both.[80] Liability under articles 668 and 669 is strict.
20 Liability may also arise under the general delictual provisions[81] of the Code, which include liability without reference to negligence for “ultrahazardous activities” (other than those covered by article 667).[82] Liability can attach to a person for abuse of right, either under article 2315 or article 667.[83]
21 Each jurisdiction so far considered employs either a distinction between normal and abnormal inconveniences or a test of what is objectively reasonable[84] in order to locate the threshold for liability. It is submitted that there is no significant difference between these and that, therefore, there is no difference on this point between the Civilian approach, as adopted in France, Quebec, and Louisiana, and the Common Law approach of England, Scotland, and South Africa. This is perhaps unsurprising: it is a common-sense approach to a thoroughly practical problem. Gordley’s view is that the Common Law maxim sic utere tuo ut neminem laedas,[85] first found in Blackstone’s Commentaries,[86] is a restatement of Odofredus’s commentary on Digest 8.5.8.5: unusquisque debet facere in suo quod non officiat alieno.[87] If that is correct, the law in this area finds its origins in the Digest for both the Common Law and the Civilian systems. The primary principle in all of the systems considered, therefore, is that the respective rights of the parties should be balanced against one another, however that may be expressed.
22 A second similarity is that, in each system, more than one set of rules is potentially applicable. Thus, while there are specific rules concerning, for example, nuisance or troubles de voisinage, the general law of negligence may also be applicable.
23 Although there is some convergence between the laws of the jurisdictions considered, they also diverge, for example, in relation to whether liability is strict, fault based, or a mixture of both.[88] Thus, the precise circumstances in which a remedy will be granted also differ. This means that the types of inconvenience deemed to be unacceptable are also not identical, and that the systems considered show variation in where the balance between the parties’ rights is deemed to lie. The structure of the law is not uniform. In South Africa, an important distinction is made between interference with enjoyment (which is covered by nuisance) and physical damage (which is covered by the general law of negligence). Another divergence of potential significance is that the relevant rules are not always found in the law of tort, but are sometimes located in the law of property, such as in the case of Louisiana.
24 It may be helpful to measure these different systems against the English law of nuisance. Scots law (and probably also Guernsey law) has a law of nuisance which is substantially similar to that of English law. In South Africa, this is partially true (the law of nuisance only applying where there is interference with enjoyment). The equivalent Louisianan law, found in articles 667–669 of the Civil Code, is directly comparable to the English law of nuisance. Arguably, the equivalent law in France and Quebec is more fragmented, being spread across the doctrine of troubles de voisinage, articles on acts of things under one’s guardianship, and articles on liability for ruinous buildings or those suffering from a defect of construction. Of these, the primary functional comparator is the doctrine of troubles de voisinage, the other articles providing for specific instances of liability. Troubles de voisinage creates liability for excessive inconvenience within the framework of a neighbourhood, giving it the necessary generality and geographical dimension to make it most analogous to nuisance.
25 Jersey law in this area is uncertain. The foregoing comparative survey presents some specific questions which can be asked of Jersey law in order to achieve clarification. For example: is the applicable Jersey law property law, tort law, or both? How many doctrines make up the law functionally comparable to the English law of nuisance? Is liability strict or not? What is the threshold for liability? What are the available remedies? With these in mind, the Jersey sources are now considered.
26 What may be the earliest mention of this area of the law in the Jerseysources appears in Hemery and Dumaresq’s Statement of the Mode of Proceeding and of Going to Trial in the Royal Court of Jersey of 1789.[89] A more definitive statement cannot be made without further research, which is beyond the scope of this treatment.[90] Regarding the jurisdiction of the Saturday’s Court, Hemery and Dumaresq write that this concerns “principally actions of waste, nuisance, trespass, disturbance, and such like injuries, committed to the prejudice of houses, woods, or lands.”[91] The context suggests that “nuisance” already had a specific technical meaning in Jersey. Nonetheless, it cannot be assumed that this passage refers to the English law of tort. Although Hemery and Dumaresq wrote in English (for an English audience), French was the legal language of the jurisdiction. It is, therefore, possible that the English legal term was used only because it most closely fitted the existing Jersey legal concept.[92]
27 Neither Le Geyt nor Le Gros considers “nuisance”, or an equivalent. Poingdestre uses the word “voisinage” in his commentary on servitudes in the Reformed Custom of Normandy,[93] but it seems unlikely that it is used as a term of art, for it appears as part of a list of otherwise loosely synonymous words, and therefore the best translation is probably “neighbourliness” or similar.[94]
28 A number of unreported Jersey cases would be analysed as instances of private nuisance, troubles de voisinage or an equivalent in modern law. Nine such cases are here considered, dating from 1889 to 1962. In Curry v Horman (1889),[95] manure piled on one property resulted in a nauseating stench on neighbouring land. The defendant, having worked the offending matter into the ground and so eliminated the problem, was condemned only to pay the costs of the action. Damages were awarded in Arm v De La Mare (1899)[96] because of smoke and cinders coming from a chimney on the defendant’s property, connected to his printing business. Dutton v Constable of St Helier (1901)[97] concerned noise, smell and fine dust connected with the operation of a parish incinerator, which affected enjoyment of the plaintiff’s property and resulted in some damage to his vegetation. Both damages and an injunction were granted. Noise, smell and soot gave rise to an injunctive remedy in Chisholm v Glendewar (1924).[98] Noise and vibrations from the defendant’s industrial saws and damp from his defective plumbing were the cause of complaint in Keough v Farley (1937).[99] As the defendant had taken steps to remedy the problem neither damages nor an injunction was granted. In Herivel v Harman (1947),[100] the plaintiff complained of numerous types of noise emanating from an adjacent house, which was used as a school. He was granted injunctive relief in respect of some of his complaints.[101] No decision is recorded in Penseney v Philip Le Sueur & Sons Ltd (1951),[102] where the problems complained of were dust, noise and strain on a party wall as a result of movement and storage of coal on the defendant company’s land. In Coutanche v Lefebvre (1955),[103] property damage was caused by dust, which resulted in the death of some trees, and damages were awarded. Finally, in Lysaght v Channel Islands Property Holdings (1961 and 1962),[104] damages were awarded for inconvenience caused by building work.
29 “Voisinage” is mentioned in Arm v De La Mare[105] and in Chisholm v Glendewar.[106] In both cases the context suggests that “neighbourhood” is the most appropriate translation. The word “trouble” is used in Lysaght v Channel Islands Property Holdings,[107] but not in conjunction with “voisinage”. Therefore, the records considered bear no express reference to Pothier’s obligation in voisinage or to the French law doctrine of troubles de voisinage, and it may be concluded that no legal significance was attached to the words in these instances.
30 The word “nuisance” appears in a number of the unreported cases.[108] “Tort” also appears frequently.[109] However, “nuisance” and “tort” are never found in combination, such as “tort de nuisance”, or similar. The frequency with which “tort” is used and the context in which it is found at least bear the argument that the word had some legal significance. (“Tort” has the natural meaning of “wrong” in the French language.) The same could also be said of “nuisance”, but, looking at the records alone, the argument that nuisance carried no technical meaning is tenable. It is interesting to note, however, that the noun “nuisance” had fallen into desuetude in France by the seventeenth century,[110] and did not reappear (via the English language) until just after the middle of the twentieth century.[111] Thus, of the court records considered, the first seven cases (from 1889 to 1951) were decided when the word “nuisance” was all but unknown in the continental French language.[112] Nevertheless, there are differences between French as used in France and French as used in Jersey and the disappearance of “nuisance” alone from the French language cannot lead to a certain conclusion that the word had a legal meaning where it appears in the court records. It may, however, render such a conclusion more likely.
31 While reference to “nuisance” is made consistently from Curry v Horman (1889) to Keough v Farley (1937), the word is not used in the next three case records.[113] This inconsistency could be seen to support the argument that the court had no clear concept of nuisance in mind. It is of potential significance, therefore, that in the English language reasons for the court’s decision in Lysaght v Channel Islands Property Holdings (1962), the defendant’s actions are described as amounting to a “legal nuisance”.[114] This phrase seems clearly to indicate application of a specific legal concept called “nuisance”. Of course, this does not mean that this Jersey nuisance and English nuisance were identical, but that there was some likeness between the two seems to have been the view of the Bailiff in Lysaght, who made an unqualified reference to an English case in relation to damages.[115] In summary, it is quite possible that a Jersey concept of nuisance was in the mind of the court in cases of interference with enjoyment of, or physical damage to, property, from Curry (1889)to Lysaght (1962).
32 Regarding the provenance of, and influences on, this Jersey concept, two speculations may be made. The English tort of nuisance developed from the assize of novel disseisin[116] (itself influenced by the Canonical actio spoilii),[117] which “provided for the trial of the question whether A has disseised or dispossessed B of his freehold”.[118] Therefore, a similar connection between the Jersey bref de nouvelle dessaisine, and this area of law, is possible.[119] Alternatively, it may be that, rather than English law and Jersey law developing in parallel, the legal development in Englandwas subsequently followed in Jersey, giving rise to or modifying the Jersey concept. Without further study, nothing can be concluded about the exact historical development of this area of the law, but, on the basis of Hemery and Dumaresq’s Report, some form of the concept seems certain to pre-date 1789.
33 The first Jersey Judgments case is Key v Regal in 1962,[120] which preceded the decision in Lysaght by a few months.[121] This case is important: the court’s analysis of the law has been founded upon in subsequent decisions.[122] Physical damage and interference with enjoyment[123] were argued to be consequences of construction work on the defendant’s land. The action failed in respect of the alleged physical damage because causation was not proved,[124] and on the other matters because the court held that the “limit which any normal person could be expected to have to bear” had not been exceeded.[125] Neither nuisance nor voisinage was mentioned in the judgment, but the following principles were expressed:
“(1) The occupier of land is entitled to the quiet and unimpeded enjoyment of that land.
(2) The owner of land is entitled to do as he pleases with that land.”[126]
34 These principles encapsulate the issue.[127] People living close to one another may cause each other harm as a result of their proximity, because one party doing as he pleases may infringe the right to quiet and unimpeded enjoyment of land of the other. The rights of each must always be balanced.
35 Nine years later, the same judge (Le Masurier, now Bailiff) decided the next case: Searley v Dawson.[128] This decision marks the beginning of a divergence between cases concerning damage to property (where Searley is applied)[129] and cases concerning interference with enjoyment (where Searley is not applied),[130] and is the origin of the doctrine of voisinage in Jersey law. The plaintiff’s house suffered structural damage due to excavation on the defendant’s land, held to have been carried out negligently.[131] The court held the defendant liable on the basis of a passage in Pothier, which identified an obligation on neighbours to use their property in such a way as not to occasion harm to that of others:
“Chacun des voisins peut faire ce que bon lui semble sur son héritage, de manière néanmoins qu’il n’endommage pas l’héritage voisin.”[132]
[Each neighbour is entitled to do what he wishes on his land, as long as that does not cause damage to neighbouring land.]
36 This strongly resembles the court’s analysis in Key. Indeed the underlying principle is the same:[133] the rights of owners must be balanced against one another. However, Pothier goes further than Key, asserting what in his view is the basis of the law. Of neighbourhood obligations in general, he states:
“Le voisinage est un quasi-contrat qui forme des obligations réciproques entre les voisins, c’est-à-dire, entre les propriétaires ou possesseurs d’héritages contigus les uns aux autres.”[134]
[Neighbourhood (law) is a quasi-contract which forms reciprocal obligations between neighbours. That is, between the owners or occupiers of contiguous land.]
37 Later, in the same appendix, he restates the principle operating in this area of the law:
“Le voisinage oblige les voisins à user chacun de son héritage, de manière qu’il ne nuise pas à son voisin.”[135]
[Neighbourhood (law) obliges neighbours each to use their land in a manner which does not harm that of their neighbour.]
38 Thus, Pothier identifies what he asserts to be the basis of the law: quasi-contract. It is neighbourhood law that obliges neighbours to behave in this manner, and neighbourhood law is a quasi-contract. The court had also cited a passage from Domat’s Loix civiles,[136] expressing the general principle that an owner cannot make use of his land in a way which either causes damage to, or interferes with enjoyment of, a neighbour’s land. The passage in Domat is located in a title on the law of servitudes and does not describe the relationship between neighbours as quasi-contractual. Pothier’s analysis was adopted by the court in Searley: “Each [neighbour] is under an obligation to the other arising quasi ex-contractu not so to use his property as to cause damage to the property of the other …”[137]
39 Two apparent oddities of the Searley decision can be observed. Firstly, the plaintiff claimed that the defendant was liable for negligence.[138] Having determined that “there was negligence in this case”,[139] the court turned to consider “whether Mr. Dawson, as the owner of “Oldholme” owed a duty of care to Mr. Searley”.[140] Nonetheless, references to “negligence” and “duty of care” are absent in the court’s own summary of its decision.[141] It appears that the earlier consideration of negligence may have affected the court’s choice of word, but not its decision. Liability in negligence was rejected by the court for want of a duty of care.[142] The typical approach of English law was considered: had an easement of support between the buildings been acquired by prescription?[143] However, this was not possible in Jersey law because of the prohibition on acquisitive prescription of servitudes.[144] The court also questioned whether the maxim sic utere tuo ut alienum non laedas could be applied. Translating this as “So use your own property as not to injure the rights of another”,[145] the court held that this approach was not open to Jersey law because the right at issue was the right of support building to building, which did not exist.[146] The possibility that the right infringed might be ownership itself was not considered. Nor, it seems, was the possibility of liability in negligence investigated further.
40 In 1962, the judge in Searley[147] had delivered the judgment of the court in Key (where two guiding principles were enunciated) and in Lysaght (where reference was made to the law of nuisance). Therefore, the second oddity is that, while seeking a basis for liability in Searley, he did not seek to employ the principles set out in either of the earlier cases.[148] Perhaps this is because the primary problem in the previous cases was interference with enjoyment and Searley concerned physical damage, however, an allegation of physical damage formed part of the complaint in Key. Alternatively, the reason may be that Searley did not carry out the operations that were the cause of the damage himself; they were the work of a contractor.
41 Du Feu v Granite Products[149] (dust) is the first decision in which unambiguous reference is made to a “tort of nuisance”.[150] In addition to a number of English law materials,[151] the court considered the principles in Key.[152]
42 In Browne v Premier Builders (Jersey) Ltd[153] (physical damage), Searley was used as authority for the decision that the defendant owed the plaintiff a “duty of care”.[154] Concluding that the obligation in Searley was “akin to the duty imposed in tort”,[155] the court then made reference to English decisions on negligence.[156] This decision is apt to mislead. The court in Searley does not refer to a duty of care in its own summary of its judgment, nor does it draw any comparison between Pothier’s obligation (on which the decision was founded) and the law of tort. Recent case law has not adopted the terminology used in Browne.[157]
43 The court in Magyar v Jersey Strawberry Nurseries Ltd[158](noise) relies on du Feu and Key: the former as a case in which Jersey nuisance had been “thoroughly canvassed”,[159] the latter as authority for an objective standard to be applied in assessing the gravity of the problem complained of.[160]
44 Jersey sources are less in evidence in Mitchell v Dido Investments Ltd[161] (damp), where the court was “satisfied that, in respect of nuisance, the law of Jersey follows the law of England …”.[162] Searley is referred to, but it is described as “founded in negligence”.[163] This goes one step further than Browne, where the court analysed Searley as having established a duty “akin to the duty imposed in tort”,[164] rather than a tortious duty tout court. The judgment in Mitchell appears to be confused.[165]
45 Between Mitchell and the next case, Matthews and Nicolle’s The Jersey Law of Property was published,[166] in which voisinage is described as imposing “on the owners of adjoining properties certain reciprocal rights and duties, which do not constitute servitudes, nor indeed do they require any titre to establish their existence”.[167] The authors note that, unlike the English law of nuisance, which is part of the law of torts, the Jersey law of voisinage is part of the law of property.[168]
46 Du Feu was again cited in Cornick v Le Gac (noise),[169] in support of applying an objective test in order to assess the gravity of the problem. Again on the basis of du Feu, it was held that anyone who causes unreasonable inconvenience to his neighbour will “be guilty of nuisance”.[170]
47 These cases illustrate that, following Searley, the law appears to have bifurcated. Where physical damage is at issue, Searley has been followed. Key is applied where there is interference with enjoyment.
48 The third case of particular importance in this area is Gale v Rockhampton Apartments.[171] The first defendant owned a block of flats. The second defendant was the developer of those flats, and the third defendant was the main contractor in respect of their construction. The construction work was alleged to have caused subsidence and significant damage to the plaintiff’s property.[172] The factual similarity between this case and Searley is immediately apparent.[173] The plaintiffs initially argued that the defendants were liable for negligence. They also argued for the defendants’ liability on the basis of the obligation arising from neighbourhood law, which informed the decision in Searley.[174] The negligence action having been found to be prescribed, the Royal Court had to determine the appropriate period of extinctive prescription for the alternative claim.[175] The plaintiffs argued that this was ten years. The defendants argued that the doctrine of voisinage was not part of Jersey law at all.[176] The court disagreed, holding that the tort of nuisance was not part of Jersey law, and that an action in voisinage (a quasi-contract) was appropriate.[177] Further, that action was subject to a ten-year prescriptive period.[178] The defendants appealed.
49 On appeal it was again argued that the doctrine of voisinage was not part of Jersey law.[179] Nuisance was the appropriate action,[180] and the three-year prescriptive period should apply.[181] Further, the concept of quasi-contract was “out-moded”, and anything which was said to be based on it should now more properly be considered to be based in tort.[182] In reply, the respondents argued that voisinage and nuisance were both present in Jersey law, but that they were “entirely separate concepts”.[183] The choice between them depended on whether the properties were contiguous, which they were in this case.[184] A number of additional authorities were put before the Court of Appeal. Having thoroughly reviewed this material, the Court decided in favour of the respondents: voisinage is part of Jersey law and applicable here,[185] it is based on quasi-contract,[186] and ten-year extinctive prescription applies.[187]
50 Although the facts in Rockhampton resembled those in Searley, the broader legal context had changed. Several cases in the intervening period had expressly applied a tort of nuisance, with reference to English law. Although these cases concerned interference with enjoyment, reference to English law (where nuisance covers all types of interference with property) probably contributed to the defendant’s assumption that this tort applied to physical damage. In the event, the applicability of the tort to physical damage was rejected by the Royal Court and the Court of Appeal alike. The Court of Appeal took the view that the sources supported two doctrines:[188] the obligation arising in voisinage, which applies to physical damage where properties are contiguous, and a tort of nuisance. This view does not conflict with the Royal Court decision if that is taken to mean “that Jersey had not adopted the English law tort of nuisance”,[189] a reading supported by comments of the same Bailiff in Jersey Financial Services Commission v AP Black (Jersey) Ltd.[190]
51 In Yates v Reg’s Skips,[191] the defendant was a tenant on farmland which shared a boundary with the plaintiffs’ land.[192] The plaintiffs sought an injunction and damages in respect of the noise generated by the defendant’s skip business.[193] Both parties agreed that this was an action in voisinage.[194] The Royal Court held that the “duty of voisinage … owed to the plaintiffs” had been breached,[195] and granted the injunction sought.[196] The defendant appealed.
52 The appellants argued that voisinage was inapplicable here because this case did not concern damage to property, but interference with enjoyment of it.[197] Surprisingly, the court considered it unnecessary to decide this point because it was not contested that a right of action existed, whatever its jurisprudential basis:
“… we do not think it necessary to decide whether or not this case falls within the law of voisinage, it may do so and, accordingly, we determine that ground upon the hypothesis that it does.”[198]
53 Furthermore, “the essential facts which the respondents had to establish in order to succeed were the same” whether the action was one in voisinage or not.[199]
54 A second argument for the appellants was that only a landowner, and not a tenant, can be liable in voisinage.[200] This was rejected. Making reference to Pothier, the court held that the “duty of voisinage is an obligation incumbent on neighbours”,[201] and considered this to include both occupiers and owners.[202]
55 Thirdly, it was argued that the Royal Court had erred in not applying an objective test to the level of noise to be tolerated.[203] This failed. The Court of Appeal held that an objective “average person” test had been applied by the Royal Court.[204]
56 A final argument was that the Royal Court had erred in finding against the defendant because the noise generated by the skip business was “lawful” on account of the planning permission granted for that use of the land.[205] This also failed: the planning permission did not legalise the problem.[206] Although planning permission may alter the character of a neighbourhood (meaning that a previously unacceptable use of land is now no longer so) this had not happened in this case.[207]
57 The court’s express refusal to determine the basis of the action[208]—and thus to follow its decision in Rockhampton—both illustrates and contributes to the uncertainty of the law. Are there two doctrines operating in this area? If so, what are they, and how do they differ? If there is only one, what is it?
58 Arguably, the case law has divided into two strands. One is based on Key, and Key’s application in du Feu, (nuisance); the other, starting with Searley, is ultimately based on Pothier (voisinage).
| Nuisance strand | Voisinage strand |
1962 | Key (unclear) |
1962 | (Lysaght) | |
1971 | | Searley |
1973 | Du Feu | |
1980 | | Browne |
1982 | Magyar | |
1987 | Mitchell | |
2003 | Cornick | |
2007 | | Rockhampton |
2007 | Yates (unclear)[209] |
59 From this, five hypotheses are outlined:
1. Only nuisance exists, covering all interference with property.
2. Only voisinage exists, covering all interference with property.
Nuisance and voisinage both exist and—
3. The spheres of application are identical.
4. The spheres of application overlap.
5. The spheres of application are entirely different.
60 Arguably nuisance has a long history in Jersey law: from before 1789 to the present day. If this is the only doctrine in this area of the law, the decision in Searley must either be wrong, or form part of the law of nuisance. The courts have rejected the suggestion that Searley was wrongly decided,[210] voisinage features in the Jersey bar exam syllabus,[211] and Matthews and Nicolle consider Searley to be good law.[212] In the face of this, it cannot be said that only nuisance exists. Does voisinage form part of nuisance? The Court of Appeal in Yates held that the essential facts to be established in a claim in voisinage and a claim under nuisance are the same. If this is true, it may be that there is only one doctrine, covering the whole of this area. However, it seems unlikely that this single doctrine could be nuisance: the obligation in Searley is stated to be quasi-contractual in nature; there has never been any such statement in relation to nuisance, and cases since Key indicate that tort is the basis of the action. Therefore, this hypothesis is unsatisfactory.
61 As the sources are clear that there are two doctrines this hypothesis also falls to be rejected.
62 Is this the same as saying that there is only one doctrine? This would be true if there were two doctrines, with the same doctrinal basis, which produced the same result when applied to the same set of facts. Otherwise, there is simply concurrency of liability.
63 On the basis of Key and of Yates in the Royal Court, this hypothesis is tenable. In Key, physical damage to property appears to have been considered without demur. Therefore, it is possible that the nuisance strand covers both types of interference. However, the subsequent application of Key, and the decision in Searley and its application to cases of physical damage, suggest that this is no longer the case. Yates concerned interference with enjoyment. In the Royal Court, both parties agreed that voisinage was the appropriate basis for the claim.[213] However, when this agreement was retracted at appeal,[214] the Court of Appeal was sufficiently uncertain that a claim in voisinage could be made in respect of interference with enjoyment that it declined to make a definitive statement on the point.[215] Firmly holding that a claim in voisinage could be made in respect of interference with enjoyment would have contradicted the division in the case law since Searley.[216] This division was impliedly affirmed by the same court in Rockhampton, which held that claims in voisinage are applicable where “there is substantial damage to land or buildings”.[217] That the scope of voisinage is restricted to claims in respect of physical damage is supported by a narrow reading of the decision in Searley that there is an obligation “not so to use [one’s] property as to cause damage to the property of the other”.[218] Therefore, the sources suggest that voisinage does not apply to interference with enjoyment, nuisance does not apply to physical damage, and consequently that the third hypothesis does not reflect the law.
64 Nuisance seems indubitably to cover interference with enjoyment; voisinage seems indubitably to cover physical damage. If they have overlapping spheres of application (not identical: that has been considered above), one doctrine must cover its own ground as well as that of the other, or each (or either) doctrine must cover its own ground as well as part of the ground of the other. The discussion of the third hypothesis can also be applied to this one, which is, therefore, improbable.
65 As already stated, the case law since Key has divided into two strands: nuisance and voisinage. Thus the sources bear the reading that these doctrines do not overlap.
66 Although a trend may be noted in the cases from Searley to Rockhampton, the sources as a whole are not clear and none of the above hypotheses is fully compatible with them. Nonetheless, it is asserted that, in the modern law, there are two doctrines operating in Jersey law. These are not functional equivalents because voisinage applies to cases of physical damage, whereas nuisance applies to cases of interference with enjoyment. Consequently, the influences of English and French law[219] appear to be balanced. Perhaps fortunately, as was seen earlier, both these laws have much in common, and the underlying principle in both is the same: the respective rights of the parties must be balanced. This principle is also seen in both voisinage and nuisance in Jersey law. Reassuringly, Jersey is not the only jurisdiction to apply different doctrines to interference with enjoyment and physical damage: in South Africa, the law is structurally comparable to this exposition of Jersey law. Thus, although the division in the Jersey law (voisinage and nuisance) may be viewed as undesirable, the South African experience demonstrates that such a solution can work.
67 Nuisance has been stated to be tortious,[220] voisinage to be quasi-contractual.[221] An examination of these attributes follows.
68 In the materials from 1789 to 1962, the conceptual basis of this area of law is unclear.[222] The court in Key states that the defendant is not “liable in law”.[223] This could suggest that the action followed the alleged breach of an obligation arising ex lege, or this may simply indicate that the basis of liability was not considered at all.
69 Whatever the nature of the Jersey concept had been, it came to be regarded as a tort in the case law on interference with enjoyment (nuisance). The first of these cases was du Feu, which applies Key, but also refers to English materials on the tort of nuisance. Express reference is made to tort as the basis of liability.[224] Subsequent cases in this line also refer to tort.[225] Judicial opinion is that, despite reference to English law, the English tort of nuisance has not been received into Jersey law.[226] One view, therefore, is that this is a Jersey tort of nuisance.[227] It is submitted that the sources bear such a reading. Consequently, it seems that the basis of Jerseynuisance is tortious.
70 Based on Pothier,[228] the court in Searley attributed the doctrine of voisinage to quasi-contract.[229] This was restated in Browne,[230] Rockhampton,[231] and Yates (in the Royal Court).[232] Pothier’s approach is understandable, at least in the context of the eighteenth century. Certain obligations exist between neighbours that do not arise by agreement between the parties. Therefore, they are not contractual. To classify these obligations in the law of tort would not reflect the pre-existing relationship between the parties. (Quasi-delict may also be rejected on this ground.) In quasi-contract, two features of neighbourhood law obligations are brought out: adoption of the obligations is involuntary; and the nexus of rights and obligations resembles a contract.
71 Pothier defines quasi-contract as:
“… le fait d’une personne permis par la loi, qui l’oblige envers une autre, ou oblige une autre personne envers elle, sans qu’il intervienne aucune convention entre elles.”[233]
[… the act of a person, which is permitted by the law, and creates an obligation between that person and another, without any agreement having taken place between them.]
72 According to this definition, there is one active element in the creation of a quasi-contract: “le fait d’une personne”. If the “fait” is a juridical act (a “lawful volitional act intended to have legal consequences”)[234] it is hard to see how this definition applies to voisinage:[235] the obligations of voisinage are not voluntarily assumed. Interpreting “fait” as a juridical fact (an event to which the law attaches certain consequences without the intervention of the will of the obligee), does not advance the matter: there is still no change of circumstances to which the law could attach consequences because one is always in the state of being a neighbour. This is not true of other quasi-contracts. Unjust(ified) enrichment and negotiorum gestio are two of the examples of quasi-contracts which follow Pothier’s definition.[236] For each of these, there is a clear juridical fact.
73 If voisinage does not fit easily into quasi-contract, the category itself can also be criticised. It may be observed that Pothier’s definition of quasi-contract is wide enough to include tort law,[237] and so does not explain the difference between the two. A similar observation may be made about the definition of quasi-contract in the French Civil Code.[238] This definitional problem and the lack of coherence between the nature of the different quasi-contracts tends to support the criticism that the category is insufficiently precise to be meaningful. Peter Birks has referred to the quasi categories as “hopeless”, and observes that they are little more than an ineffective attempt to respond to “the challenge of the residual miscellany” left behind by acceptance of “Gaius’s two main causative events, contract and wrong”.[239] This acceptance, he notes, “all too easily metamorphoses into the rather different affirmation that they [other obligations] arise either from a quasi-contract or a quasi-wrong”.[240] This “is only a variation upon the theme that all birds be either pigeons or sparrows. It merely says that all those which are neither pigeons nor sparrows must be counted either as though they were pigeons or as though they were sparrows.”[241] Classification as a quasi-contract also overlooks the fact that voisinage (like nuisance) is always found in the context of particular relationships to land.
74 Louisiana law presents an alternative explanation for what it calls “vicinage”:[242] a legal servitude. Legal servitudes, however, stand in the same relationship to conventional servitudes as quasi-contracts do to contracts. In other words, the legal servitude itself is something of a “quasi” category, and does not improve on a quasi-contractual analysis.
75 Whatever may have been the view of at the time of Pothier, modern legal analysis tends to discard quasi-contract, often by re-classifying obligations as tortious, or simply as obligations arising ex lege. With the exception of Louisiana, in the jurisdictions considered, this area of the law is regarded as entirely tort-based. Of particular significance for Jersey is the fact that French law has rejected Pothier’s classification in respect of troubles de voisinage in favour of tort.[243] Given the analytical difficulties attendant to voisinage as a quasi-contract, it may be that Jersey law will choose to develop in this direction in the future. As matters stand, quasi-contract suffices as a simple label, as long as no legal consequences are attributed to voisinage merely on the basis of that appellation.
76 For both nuisance and voisinage, two fundamental questions must be answered: where is the threshold above which liability attaches; and, is the presence of fault necessary? The method by which the threshold for liability is determined differs according to whether it is a matter of nuisance (interference with enjoyment) or a matter of voisinage (physical damage) because, although each involves balancing the respective rights of the neighbours, the considerations taken into account in order to strike that balance are not the same.[244]
77 The threshold in an action for nuisance is determined by reference to a number of circumstantial elements (considered below). In all cases, some abnormality about the circumstance must be present.[245] A person is expected to tolerate reasonable interference[246] and what is reasonable is calculated in relation to “the needs of the average person in the particular neighbourhood”.[247] Was the inconvenience “so great as to exceed in degree that which the average person should have to accept”?[248] In essence, the rights of one party must be balanced against those of the other.
78 The threshold determined, must the victim prove the wrongdoer’s fault before the court will award damages for non-physical harm? In English law and in Scots law, this fault requirement exists. In English law, fault in nuisance is not identical to that required for liability in negligence, but “some degree of personal responsibility is required”.[249] The presence of fault is determined by reference to the degree of foreseeability of the harm occasioned;[250] where the degree of foreseeability is sufficient, fault will be imputed. The Scottish position is similar. In RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council,[251] the court held that, damage and causation being proved, the onus was on the defender to show lack of fault.[252] In English law and in Scots law, an injunction to prevent the action complained of may be obtained by demonstrating that there is a nuisance, but damages will not be awarded unless fault can also be shown.
79 A fault requirement is not discussed in the Jerseycases on interference with enjoyment. However, if fault may be inferred from the facts, the presence or absence of a fault requirement may yet be discerned from the cases. The question is this: if the alleged wrongdoer’s use of land breaches the threshold of acceptability, can immunity from damages be obtained by proving absence of fault? In practice the wrongdoer would be required to show that he or she was ignorant of the nuisance. Three cases are of particular interest.
80 In du Feu (dust), the plaintiff was awarded damages in respect of the interference with enjoyment of his land.[253] The defendant’s argument that the quantity of dust had never been unreasonable or excessive was rejected by the court. Further, the court noted that it was “only recently that the defendants [had] taken really effective steps to reduce the emanation of dust”,[254] steps which “could, and should, have been taken much earlier.”[255] This last statement may be indicative of fault on the defendant’s part. These comments appear in the court’s own presentation of its conclusions, where, presumably, the court presents only the points directly affecting its decision. Nonetheless, when the court sets out the “relevant rules”[256] to be applied, “striking a just balance”[257] is considered and fault is not. If fault is important, it is odd that it is not mentioned.
81 In Magyar, an injunction was granted,[258] with the court leaving over “the question of damages for past nuisance.”[259] The “beneficial owner” of the defendant company (Mr Racz) described the noise complained of as “horrifying”,[260] both parties “expected [that the glass-blowing activity] could be carried out without causing inconvenience by noise”,[261] and Mr Racz “took immediate steps to try to change matters.”[262] However, it seems that the steps taken did not include turning the machinery off (doing so would have caused irreparable damage to the furnace.)[263] Arguably, there was fault in the continuance of the activity, because the defendant was apprised of the noise nuisance.
82 Damages were also sought in respect of noise nuisance in Cornick. According to the note of the decision:
“… in order to claim damages, the nuisance must be substantial to the person occupying the property irrespective of his position in life, age or state of health … when considered as a whole the defendant’s actions were unreasonable and the plaintiff was entitled to damages for nuisance.”[264]
83 Thus put, the determinative factor for an award of damages appears to be whether the nuisance was “substantial”, and whether the defendant’s actions were “unreasonable”. Is unreasonableness a synonym for fault in this context? Perhaps it is not. The note of the judgment makes reference to unreasonable inconvenience. “Unreasonable” action in the quotation above seems to refer to that. Arguably, therefore, what is required for an award of damages according to Cornick is a substantial nuisance, which is also an unreasonable (or abnormal?) inconvenience. Both conditions are calculated objectively.
84 Fault is not considered expressly in these cases. Coupled with the conclusions of the court in Cornick, this tends to support the conclusion that showing fault is not a necessary prerequisite for an award of damages. On this point, therefore, the Jersey position appears to be closer to one of no-fault liability. Nonetheless, although its presence is not necessary, it may be that fault is one of the facts and circumstances that can contribute to a finding of liability.[265] A number of other factors are also taken into account.
(1) Time: An activity which could not give rise to complaint at one time may do so if it is carried out at another. For example, in Cornick one neighbour’s nocturnal external improvements were held to be unacceptable.[266]
(2) Location: The character of the neighbourhood is taken into account.[267] However, this “does not mean that a person who lives in … a noisy neighbourhood can never complain of any additional noise”.[268] Rather, the effect is that the total level of noise required to cross the threshold of unreasonableness is higher. What is considered to be a nuisance differs according to the context in which it is set.[269] That the plaintiff came to the nuisance is no defence.[270]
(3) Manner: In Magyar, there is a suggestion that the manner in which the activity is carried out is relevant to liability.[271] It is not clear what this means. It may refer to whether the defendant has taken steps to limit the problem, which the defendant in that case had done.[272]
Intensity, continuity and duration have also been given by the court as issues for consideration.[273] Continuity and duration may be inseparable in some cases. The precise quantative requirement will depend wholly on the circumstances, but it is likely that one occurrence will be insufficient. In du Feu (dust), three alleged occasions sufficed.[274]
85 Finally, what is unreasonably excessive is calculated objectively.[275] The hypersensitivity of the plaintiff will not increase liability, nor give rise to it where it would not otherwise be present.[276]
86 Physical damage was at issue in Searley, in Browne and in Rockhampton. In each of these cases, the damage was “serious”,[277] or more than trivial,[278] or “substantial”.[279] This indicates that, as with an action for nuisance, the problem must be above a certain level before there is liability, but it provides no guidance for determination of the minimum. In Key, physical damage was alleged, but the plaintiff was unsuccessful on this point[280] because causation was not proved. Further, the cracks in the plaintiff’s property were described by the court as “insignificant”.[281] If it is possible to prove causation in a case of insignificant damage, would liability exist? It seems likely that it would not. Arguably, the guiding principle should be de minimis non curat lex. The law should not concern itself with trivialities. To do so could encourage frivolous or vexatious litigation.
87 According to the Court of Appeal in Yates, the essential facts which must be proved for both nuisance and voisinage are the same: that the damage exceeded the limit any ordinary person was supposed to bear.[282] If that is correct there is no fault requirement. From the facts in some of the cases,[283] it could be argued that fault was present in each case, but this does not make fault a necessary prerequisite to an award of damages. Nonetheless, its presence may be one factor leading a court to hold a party liable.
88 Unlike the Court of Appeal in Yates, the judgment of the court in Key seems to separate the two types of interference, and bears the reading that exceeding the degree the average person should have to accept[284] applies to interference with enjoyment, whereas for physical damage it need only be shown that (significant) damage occurred as a result of the alleged wrongdoer’s activity.[285] However, the same principle is at work in both instances: when non-trivial physical damage is occasioned, this is an example of interference exceeding the degree the average person should have to accept.
89 Proximity: The courts have stated that, in cases of physical damage, the obligation in voisinage only arises between neighbours whose properties are contiguous.[286] The result of this rule may be criticised as drawing an arbitrary division between damage caused to immediate neighbours, and damage caused to those who do not share a boundary with the wrongdoer but who are, nevertheless, closely proximate. For example: A’s land and C’s land are separated by that of B. A’s activities damage C’s land. C may have an alternative basis for an action against A, such as an action for negligence, but if there is none and contiguity of properties is requisite, C has no redress, simply because C and A have no common boundary. This rule is not applied in any of the other systems examined. It is submitted that it should be removed.
90 In Yates, the Court of Appeal said that the essential facts to be proved were the same, whether the action was one of nuisance or of voisinage: the court had to be satisfied that the “activities were productive of noise which, on an objective view, exceeded that which the “average” or “ordinary” or “normal” person could be expected to tolerate.”[287] That much may be accepted. Where, however, the Court of Appeal appears to err, is in suggesting that voisinage applies to interference with enjoyment.[288] Further, there is a difference between voisinage and nuisance regarding the way in which the threshold for liability is determined. For voisinage the physical damage must be substantial. For nuisance, the threshold is determined in reference to certain circumstantial elements. The contiguity requirement for an action in voisinage would be another difference in the essential facts to be proven, but it is argued that this rule should be rejected.[289] In either case, it is not clear whether liability is fault based. It is suggested that it is not, but, in the case of an action in nuisance, the presence of fault may be one of the elements considered in ascertaining whether the threshold for liability has been breached.
91 Some of the earlier cases deal with both interference with property and personal injury and do not distinguish them as separate claims.[290] Later cases are unclear over whether personal injury caused by the activities of a neighbour is part of the doctrine covering interference with property. In both Key and du Feu, personal injury to the plaintiff was alleged.[291] In the latter case the question was not decided. In Key, it was said that, although the plaintiff’s illness was the result of the defendant’s action, this “does not necessarily make him liable in law”.[292] “Necessarily” suggests that the defendant may be liable in some instances. In a later case it was said that “it is not necessary in an action for nuisance … to show that there had been injury to health”.[293] Conversely, the Court of Appeal in Rockhampton opined that voisinage does not include personal injury claims.[294]
92 Personal injury may be distinguished from interference with property because there is no necessary connection between the victim and the land.[295] This is not so, however, where personal injury is a consequence of either physical damage to land or interference with enjoyment of it. Thus it is suggested that, in cases of voisinage, provided the physical damage to the land is sufficiently serious as to give rise to liability, damages may also be awarded for some instances of personal injury which were direct consequences of the damage to the land. Similarly, in an action for nuisance, recovery for personal injury consequent on the interference with enjoyment ought to be possible in some cases. As with voisinage, however, damages should only be awarded where there is a successful claim for some harm to the land (in this case, interference with enjoyment) because, without that, there would be an insufficient (or no) causal link between the alleged wrongful act and the damage for which compensation is sought. Even where a claim for personal injury under nuisance or voisinage can be made out, there is no reason why there should not be concurrent liability in negligence.
6.2.1 Who can be sued?
93 The party who has caused the loss can be sued. The cases indicate that liability may be ascribed to an owner or a lessee.[296] By analogy this should also be true of an usufruitier.[297] It is submitted that these conclusions apply to both nuisance and voisinage.
94 In Searley the court said that the obligation arising in voisinage on an owner could not be divested “by transferring it to another”.[298] In Yates, where the defendant was a tenant, it was held that the plaintiff could also have pursued the owner.[299] Therefore, it seems that the owner remains liable, even when not in occupation. However, where land is subject to an usufruit or a lease, where someone other than the owner has exclusive possession, seeking to enjoin the owner (or nu-propriétaire) in a bid to prevent further interference with property would be ineffective. Where damages are sought, if fault is not a necessary condition, both the occupier and the owner may be sued.
95 For voisinage, Pothier’s notion of the parties appears to be based on their relationship as neighbours.[300] A question, therefore, arises over the precise nature of a neighbour. If voisinage is based on quasi-contract, is the unlawful occupier part of this nexus? This question may also be raised in relation to who can sue.
6.2.2 Who can sue?
96 The owner can sue,[301] but it may be that the victim property is lawfully occupied by someone other than the owner. The lawful occupier may sue, whether it is a case of voisinage or of nuisance. Can a non-occupying owner also raise an action? This should be possible in voisinage, whatever the remedy sought, because the owner has the right to stop or vindicate physical damage to the immovable. For nuisance, whether an award of damages can be made will depend upon whether the non-occupying owner has suffered loss (although an injunction is the primary remedy). Where the property is subject to a lease, it may be that failure of a tenant to renew could be construed as loss for this purpose. Where the land is subject to a usufruit, it is hard to imagine a situation where a nu-propriétaire will suffer loss as a result of interference with enjoyment. Therefore, it seems likely that nus-propriétaires will only be able to sue in respect of physical damage.
97 Showing that causation is lacking, or that the damage suffered is trivial, will prevent liability attaching to the defendant. These cannot truly be described as defences: the plaintiff’s case has simply not been made out.
98 Arguing that the plaintiff came to the nuisance is not a defence.[302] If a plaintiff has moved into a house, which was previously occupied by someone who was deaf, the fact that a neighbour has been playing the tuba from 2am to 3am five days a week for the past five years does not prevent the plaintiff from getting an injunction against this activity. If, however, there is no change of ownership and the victim tolerates the tuba for three years, is there a right of action? The answer is probably no. Each new week of tuba playing could be argued to constitute a fresh nuisance, thus avoiding the extinction by prescription of the right of action, but it seems likely that the taciturn plaintiff’s action might be vulnerable to a defence of estoppel.[303]
99 An action for compensation for physical damage occasioned during a previous owner’s tenure cannot be raised by a successor owner because the latter is not the person to whom loss has been caused. Of course, the right of action could be assigned to the successor owner.
100 If the plaintiff has contributed to the problem, the defendant is liable only to the extent of the latter’s contribution. For example, if construction work on the defendant’s land caused subsidence and damage to buildings on the plaintiff’s land, but the plaintiff’s own activities have worsened the problem, the defendant is not liable for all the damage. However, again, this is not strictly a defence, but a statement of the obvious: wrongdoers are liable only for the wrong that they themselves have committed.
101 In cases of nuisance, if the problem has already ceased this may be sufficient to avoid the imposition of an injunction on, or an award of damages against, the defendant,[304] unless it is likely that the problem will recur.
102 Where there has been, or is, interference with property the court can grant damages,[305] an injunctive remedy[306] or both.[307] As well as prohibiting a particular activity, the court may also compel the wrongdoer to carry out certain action as a condition of being allowed to continue an activity. This occurred in Magyar, where the defendant was ordered to take specified steps to reduce the amount of noise conveyed to the plaintiff’s property as a result of his glass-blowing works.[308] It seems probable that awards of damages will be made only when the problem complained of has ceased, or will cease because another order to this effect has also been made, for damages will not be granted in order to legalise wrongful action[309] (which would be the effect if they are granted where there is no certain prospect of the problem ceasing).
103 Could the clameur de Haro[310] apply here? The clameur is used to prevent mischief being done to the property of the party who raises it. This is a self-help injunction, which, if correctly raised, is followed by judicial ratification. The clameur is applicable in Guernsey law,[311] and nothing suggests that the law in Jersey is any different on this point.
104 Voisinage is used in at least two different ways in the modern law. Voisinage as a specific legal doctrine has been considered above. Voisinage can also be translated more broadly, as “neighbourhood law”.[312] In this sense, it is an organising concept, akin to family law, gathering parts of the law together on the basis of where they apply in the physical world, but not altering the legal nature of those parts.[313]
105 The courts have observed that the law on éboulements, natural drainage of water from higher to lower ground, water in general, enclosures of land and branchage all form part of this general area.[314] (It has been suggested that these could be classified as natural servitudes,[315] although some appear to be legal servitudes.) According to Pothier, a number of rules and regimes constitute the law of the neighbourhood. The obligation not to harm one’s neighbour by the use of one’s property is part of this.[316] His account also includes: bornage,[317] the action to ward off rainwater,[318] the natural servitude of drainage from higher to lower ground,[319] and the tour d’échelle.[320] Le Gros covers some of the same points,[321] and, from his work, the following apposite additions may be made:[322] clôture, or the right to enclose one’s land;[323] enclave, or the way of necessity;[324] the rules concerning fruits hanging over neighbouring land;[325] further aspects of the law of water;[326] branchage, or the obligation to cut off branches which protrude over a neighbour’s land;[327] the law relating to tree roots;[328] and the regime relating to constructions on a boundary.[329] It is interesting to note that the French Avant-projet de réforme du droit des biens[330] employs a similar structure, where the title on voisinage includes troubles de voisinage, arbres et plantations, clôtures, mitoyenneté, les jours et vues, l’égout des toits, le bornage, and les servitudes légales.[331] An idea of this structure, as it is found in Jersey law, may be obtained from the table below. The law of the neighbourhood is the genus, under which there are a number of species (rights). The actions which arise in respect of interference with property appear in grey in order to emphasise that they are secondary rights.
106 What is the law applicable when one neighbour, through use of his or her land, interferes with the land of another neighbour? The doctrine of voisinage provides redress where there is physical damage and the law of nuisance applies where there is interference with enjoyment. In both cases, an injunctive remedy or damages are available, but the doctrines also differ. Nuisance is tortious, whereas voisinage is said to be quasi-contractual. To an action in nuisance, the three-year extinctive prescription applies.[332] To an action in voisinage, the period is ten years.[333] The way in which the thresholds for liability are ascertained also differs.
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107 How should the law develop? Three possible improvements are suggested. The contiguity requirement for an action in voisinage should be rejected. Also, the quasi-contractual basis of the doctrine of voisinage could be replaced, possibly by assimilating voisinage into the law of tort. Finally, the existence of two doctrines is not ideal as in some cases it will be difficult to separate physical damage from interference with enjoyment. This problem would be ameliorated by rendering uniform the periods for extinctive prescription for each action.
Rebecca MacLeod LLB (Hons) is researching a PhD on the law of property in Jersey at the University of Edinburgh.