October 09

Michael Lawrence and Geraldine Swanton briefly examine colleges’ liability to local residents, if any, for nuisance created by their students both on and off campus.

Colleges can often appear to be self-sufficient environments where students can work and play. However, colleges are also situated in larger urban environments in which tensions can develop between colleges and local residents usually because of the behaviour of students on and off campus.

What is nuisance?
Nuisance occurs when there is an interference with the use or enjoyment of land or rights over land, usually over a period of time. It may include any physical damage to property and unreasonable and material interference with comfort or convenience (for example as a result of excessive noise) of a local resident, which causes material or substantial damage.
Determining whether nuisance has occurred may depend on a number of factors, such as:
the character of the locality - a college situated by a busy, noisy factory may be less vulnerable to a successful claim for noise-related nuisance than if it is situated in a quiet, residential road;
in the case of noise-related nuisance, the volume of that noise;
the time of day the nuisance occurs;
whether the nuisance existed prior to the construction of the local residential development.

Who is responsible for nuisance?
Liability for nuisance generally lies with whomever has possession or control of the land from which the nuisance is emanating. A college will have possession and control of its own campus and any leasehold property occupied by it. Without such possession and control, a college cannot be made liable for the nuisance created by its students.

What remedies are available to a victim of nuisance?
Neighbours claiming to be victims of nuisance may commence formal court proceedings as a result of which they may be awarded damages, provided that they can demonstrate that they have suffered some form of material and substantial damage. That damage need not be limited to physical or financial damage and could include “loss of amenity”, for example, loss of sleep over a protracted period.

Are colleges likely to be liable in nuisance for noisy and disruptive student behaviour on campus?
Colleges will have possession and control of their campuses and their halls of residence and, in principle, will be legally responsible for nuisance created by their students. However, colleges may be able to avoid liability if they can show that they have taken reasonable measures to stop the behaviour which is causing the nuisance.
In cases of serious nuisance, an injunction could be granted by the court with a view to putting a stop to the nuisance activity.
Whether or not damages are likely to be recoverable, colleges will want to maintain a good relationship with local residents. Regulating student behaviour on campus to take into account the reasonable sensibilities of neighbours should be relatively unproblematic. The college’s code of conduct should impose reasonable standards of conduct throughout the campus, including college-owned halls of residence, and make specific reference to conduct which causes unreasonable inconvenience for local residents. Appropriate disciplinary action can then be taken where breaches are determined.

Are colleges likely to be liable in nuisance for noisy and disruptive student behaviour off-campus?
Colleges are not liable for nuisance that occurs on property that they neither own nor control. Consequently, local residents cannot commence proceedings against colleges for the disruptive conduct of students en route to and from colleges or in private residential accommodation. In addition, colleges are not vicariously liable for the conduct of their students in relation to local residents.
Notwithstanding the legal position, local communities exert significant pressure on colleges to tackle students’ anti-social behaviour which occurs beyond the confines of colleges’ property, particularly where students occupy privately-rented accommodation. Tackling such behaviour by means of imposing disciplinary sanctions may be problematic as a result of the following legal constraints:
• Human Rights Act 1998
Colleges cannot act in a manner incompatible with the rights guaranteed to individuals under the European Convention of Human Rights. Consequently, the student’s right to private life (which includes his/her home) is a factor to be considered in any action colleges take. This consideration is all the more relevant in the context of extending the colleges’ authority to activities conducted in the student’s own home, which is neither owned nor managed by the institution.
The right to privacy is not absolute and it can be interfered with by colleges if it is necessary in the interests of preventing disorder or crime, or the protection of the rights of others. The interference must be no more than is necessary to achieve any of these purposes.
Colleges may be vulnerable to challenge on the grounds that their interference is not necessary to achieve those valid purposes. The police are responsible for law enforcement and can be called upon by local residents in the event that a criminal offence is being (or likely to be) committed. In rented accommodation, the landlord will have a contractual right to enforce the nuisance provisions of the lease and complaints of misconduct can be addressed to him/her. The local residents may in very limited circumstances have a civil legal remedy against any landlord who fails to tackle nuisance-type behaviour emanating from his/her properties. In addition, the local residents may have a remedy to abate nuisance via local authority procedures. In view of the statutory and civil mechanisms already available to the local residents, colleges’ intervention may therefore be regarded as disproportionate.
Colleges may be able to resist a challenge on this basis by limiting its intervention to circumstances where the statutory or civil enforcement mechanisms are not effective or reasonably accessible or available to local residents. Clear provision should be made in the student handbook and in the disciplinary procedures for these measures to ensure that it is accessible to the students. In addition, it should be drawn specifically to the attention of students on enrolment, if possible.
• Consumer protection legislation
Students have the benefit of protection of consumer protection legislation in relation to their contractual relationship with colleges. Such legislation seeks to prevent colleges from exploiting their superior bargaining position to the detriment of the student. In essence, this legislation renders unenforceable any term which gives powers to colleges, to the students’ detriment, where colleges would not have such a power under the general law (i.e. in the absence of the specific provision in the student handbook/disciplinary procedures).
The student may therefore challenge colleges’ procedures enabling them to take disciplinary action for misconduct in private accommodation or in public places unrelated to college activities as unenforceable on the ground that they contain an unfair contractual term.
• Improper exercise of powers
It is arguable that the rights and powers conferred on colleges to discipline students are primarily for the purpose of regulating colleges’ own communities and not the local community. Although most disciplinary procedures include a provision about “bringing the institution into disrepute” or similar provision, such charges are notoriously difficult to prove and should not be seen as carte-blanche for taking action in circumstances where colleges’ ability to maintain order in its own community is not seriously threatened. Therefore, in seeking to take disciplinary action against students for conduct which does not affect other members of the colleges’ community, and which falls short of a criminal offence that has been duly prosecuted and proved through the courts (another common charge which encompasses off-campus incidents), colleges could be accused of abusing its power to take disciplinary action. Alternatively, colleges could be said to be using their powers for an improper purpose (i.e. to maintain its reputation in the locality, or to be seen to be responding to pressure from local residents). A disgruntled student might seek judicial review of the disciplinary action, which, if successful, could prohibit colleges from proceeding.
Whether these risks materialise will depend on whether any student is sufficiently aggrieved to bring a challenge on the above or any other grounds. Colleges will not wish to ignore complaints from neighbours, for obvious public relations reasons, but any action taken should concentrate on low-level and informal intervention, designed almost to conciliate the “warring parties” rather than relying too heavily on formal disciplinary action, which should be reserved for the most serious or persistent cases of misconduct.