10. Nuisance; Rule in Rylands v Fletcher

Question 1

What are the three forms of nuisance?

Answer 1

1. Private
2. Public
3. Statutory

Question 2

What is a public nuisance?

Answer 2

Public nuisance is a crime committed by doing some unlawful actof unreasonable interference which endangers the lives, safety or comfort of the wider public (or cross-section of).

E.g.:
* digging a trench in a public highway;
* erecting a protruding lamp overhanging the highway;
* allowing horses and vans to obstruct the highway;
* dust and vibration emanating from a quarry.

Question 3

Can an isolated incident give rise to a public nuisance?

Answer 3

Yes

Question 4

Does public nuisance cover personal injury and damage to property?

Answer 4

Yes. C.f. private nuisance.

Question 5

Who are the two parties who can sue for public nuisance?

Answer 5

1. An individual in the class if they have suffered damage over and above the damage suffered by the class in general
2. The Attorney General on behalf of the class to stop the nuisance

Question 6

What is a private nuisance?

Answer 6

Unlawful interference with the claimant’s use and enjoyment of land.

Unlawful means unreasonable and substantial.

Compare to trespass to land which is the unlawful and direct interference with a claimant’s possession of land.

Question 7

For the purposes of private nuisance, when is an interference unlawful?

Answer 7

When it is unreasonable and substantial

Question 8

Can an isolated event give rise to a private nuisance?

Answer 8

No, it requires a continuing state of affairs

Question 9

What is the most essential element of nuisance?

Answer 9

indirect interference causing recognised damage

Question 10

What are the two types of damage that can give rise to private nuisance?

Answer 10

(a) Physical damage to property (eg overhanging branches causing physical damage);
(b) Sensible personal discomfort (SPD): the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land eg unpleasant odours or noise. It can be defined as amenity damage, ie something which damages the amenity (enjoyment) value of the property, as opposed to its physical value.

Question 11

Regarding intangible damage like noise and smells, what is the key difference between nuisance and negligence?

Answer 11

Intangible damage is not actionable in negligence

Question 12

Regarding damages, what is the key difference between private nuisance and negligence?

Answer 12

The types of damages available for personal injury in negligence are not available in private nuisance, as nuisance deals with interference with land.

Note public nuisance allows for recovery personal injury.

Question 13

What is the difference between trespass to land and nuisance?

Answer 13

Trespass to land concerns intentional and direct interference with claimant’s possession of land.

Nuisance concerns damage which is indirect and which goes to enjoyment of the land.

Question 14

What two parties can be sued for private nuisance?

Answer 14

1. Creator of the nuisance even if they are no longer in occupation
2. Occupier of the land where the nuisance exists

Question 15

The occupier is also liable for nuisance created on their land by whom?

Answer 15

1. Employees
2. People under occupier’s control
3. Independent contractors, if the conduct carries a special danger of causing a nuisance

Question 16

In what situation is an occupier liable for a nuisance created on their land by a trespasser or natural event?

Answer 16

If they adopt (make use of) or continue (fail
to deal with after they know or ought to of) the nuisance

Question 17

When will an occupier be deemed to adopt a nuisance?

Answer 17

If they make use of the thing that constitutes the nuisance for their own purposes

Question 18

When will an occupier be deemed to continue a nuisance?

Answer 18

If they fail to take reasonable steps to deal with the nuisance when they know or ought to have known about it

Question 19

What must a claimant have to be able to bring a claim for private nuisance?

Answer 19

A proprietary interest in the land affected

Question 20

Who will be deemed to have a proprietary interest in the land?

Answer 20

1. Freehold owners
2. Leasehold owners
3. Tenants
4. Persons in exclusive possession

Question 21

Can claims be brought by people merely present on the land, e.g. family members, lodgers, or employees?

Answer 21

No

Question 22

In determining whether an interference is unreasonable for the purposes of assessing whether it is unlawful and therefore a nuisance, what six factors will the court take into account?

Answer 22

(a) Time and duration
(b) Locality (character of neighbourhood)
(c) Abnormal sensitivity
(d) Malice
(e) defendant’s lack of care
(f) Excessive behaviour

Question 23

What is also considered under intensity and duration?

Answer 23

The time of day or night the nuisance occurs

Question 24

When will the court consider the character of the neighbourhood?

Answer 24

When the damage is amenity damage such as noise or smells

Question 25

Is the character of the neighbourhood taken into account where the damage is physical or encroachment onto the land?

Answer 25

No

Question 26

What is the general rule as regards abnormal sensitivity to nuisance?

Answer 26

If the interference only exists because the claimant has an abnormal sensitivity, this will not give rise to a nuisance

Question 27

How does malice affect how behaviour is assessed by the courts?

Answer 27

Reasonable and lawful behaviour can become actionable in nuisance if motivated by malice

Question 28

Is the court concerned with the reasonableness of the defendant’s conduct in private nuisance?

Answer 28

No, just the reasonableness of the interference

Question 29

What is the effect of the court being concerned with the unreasonableness of the intereference, and not taking into account the reasonableness of the defendant’s conduct?

Answer 29

Defendant can still be responsible for a nuisance even if they took reasonable care

Question 30

What is required of the damage to be actionable?

Answer 30

It must be reasonably foreseeable

Question 31

What are the two defences to private nuisance?

Answer 31

1. Prescription
2. Statutory authority

Question 32

When will a defendant be deemed to have obtained a prescriptive right to carry on a nuisance?

Answer 32

1. Activity amounting to a nuisance carried on for 20 years
2. Someone in occupation on the land
3. No action was taken to stop the nuisance within the 20 years

Question 33

Is the grant of planning permission a defence to nuisance?

Answer 33

No

Question 34

What are the two remedies available for nuisance?

Answer 34

1. Injunction
2. Damages

Question 35

What is the remedy of abatement?

Answer 35

A self-help remedy in which the claimant takes steps to stop the nuisance

Question 36

What is the limit on the steps the claimant can take to secure abatement of nuisance?

Answer 36

No more than is necessary to stop the nuisance

Question 37

Where it is necessary for the claimant to enter the land of another to stop a nuisance, via abatement, what must the claimant do before?

Answer 37

Give notice and allow time for necessary remedial action to be taken

Question 38

When proper notice is given in an abatement situation, what is this a defence to?

Answer 38

An action in trespass to land brought by the person whose land you entered

Question 39

What is the rule in Rylands v Fletcher?

Answer 39

Strict liability is imposed when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land

Question 40

Therefore, what are the three elements for liability to arise under Rylands v Fletcher?

Answer 40

1. Defendant brings something onto their land likely to cause harm if it escapes
2. Defendant was engaged in a non-natural use of the land
3. The thing does escape and cause damage

Question 41

Does the thing brought onto the land have to be inherently dangerous?

Answer 41

No, just dangerous if it escapes

Question 42

What is required of the use of land in Rylands v Fletcher for it to be non-natural?

Answer 42

Defendant must be engaged in a special use of the land which carries an increased risk of danger to others

Question 43

Regarding damages, and the exact same as with nuisance, what is the key difference between Rylands v Fletcher and negligence?

Answer 43

Recovery for personal injury damage in negligence are not available in R v F, as it deals with interference with land

Question 44

What is required of the damage to be recoverable under Rylands v Fletcher?

Answer 44

It must be reasonably foreseeable as a consequence of escape

Question 45

What are the five defences available to liability under Rylands v Fletcher?

Answer 45

1. Escape caused by unforeseeable act of stranger
2. Act of God against which it is impossible to take precautions
3. Consent, express or implied
4. Contributory negligence
5. Statutory authority

Question 46

What status is given to planning permission in defeating a nuisance claim?

Answer 46

relevant factor, but not on its own sufficient to justify nuisance.

Question 47

Will ‘moving to the nuisance’ constitute a valid defence against a nuisance claim?

Answer 47

NO!

Question 48

What must a claimant show to succeed in a nuisance claim, and what factors will the court take into account?

Answer 48

Key test is - whether use of land is unreasonable
- Consider time and duration; when the nuisance takes place, how long it continues and how frequently it is repeated.

Question 49

Can an individual bring a claim in public nuisance, and if not, what alternative recourse might be available?

Answer 49

Only provided claimant can show they have suffered special damages over and above the class affect by the public nuisance.

Question 50

What remedies are available under public nuisance, and who has standing to enforce a claim?

Answer 50

Attorney General, who can seek an injunction.

Question 51

For a claim under Rylands v Fletcher to succeed, does the thing stored on land need to be immediately and obviously dangerous?

Answer 51

No - can become dangerous overtime
(ie. Crownhurst v Amersham - yew tree overgrew, and leaves spilled unto claimant’s land and killed its horses)
- important to remember that escape and damage must be reasonably forseeable.