Defences, Remedies, HRs and Private Nuisance Flashcards
who bears burden of proof for defences in PN?
D - they must establish, on balance of probabilities, that the relevant requirements can be satisfied
what are the possible defences available in PN claims?
- prescription
- statutory authority
- consent
- contributory negligence
- act of a trespasser
what are not defences to PN claims which have been discussed? (incl. 4 cases)
- coming to the nuisance (Miller v Jackson)
- public benefit - not a defence but relevant to the balancing exercise in amenity cases (Adams v Ursell)
- multiple responsibility, meaning cannot argue that a PN arose from the combined acts of different persons (Thorpe v Brumfitt)
- planning permission - relevant only to remedies (Coventry v Lawrence)
planning permission cases in defences to PN (x3)
- Gillingham BC v Medway Dock - essentially turned planning permission into a defence
- Wheeler v Saunders - grants of planning permission may preclude a claim where public interest is being served; cases should, however, be brought before the courts regardless
- Coventry v Lawrence - rejected Buckley J’s approach in Gillingham; relevance to remedies
prescription (incl. case)
- where a PN continued for 20 years, D may be entitled to claim prescriptive right to engage in the relevant interference
- to establish a prescriptive right, D must show that:
1. the interference amounted to a PN throughout the 20yr period; and
2. the interference must have been engaged in as of right: (a) not secretly, (b) forcibly, or (c) without permission - Sturges v Bridgman - prescription failed as a defence as the nuisance at hand only began when C’s new building was erected <20yrs ago
statutory authority (incl. 3 cases)
- D must show that interference with C’s rights is permitted either by (a) express wording in the statute or by (b) necessary implication
- private rights should be invaded only where it is necessary/unavoidable (Metropolitan Asylum District Managers v Hill)
- D will not be liable in PN for the inevitable results of the authorised activity (burden of proof on D) (Corporation of Manchester v Farnsworth, affirmed in Allen v Gulf Oil)
2 cases which argue the statutory authority defence (incl. commentary)
- Allen v Gulf Oil - act of parliament allowed D to build an oil refinery which caused offensive noise, smell and vibrations to C’s property
- affirmation of Corporation of Mancester v Farnsworth approach as Lord Wilberforce states that in cases of statutory authority, the courts perform the exercise of weighing up public and private interests and make their decisions on that basis
- Lord Keith’s dissent was based around the contra preferentem rule, arguing that one could acquire the land but the Act did not authorise them to operate the land; Markesinis and Deakin viewed this analysis as ‘absurd’
- Tate & Lyle v Greater London Council - a proper design of the ferry terminal would have caused 25% of the interference suffered by C
- the statute did not absolve D from the need to have ‘reasonable regard and care for the interests of other persons’ (Lord Templeman)
consent (incl. case)
- consent is available to be pleaded where C, knowing of the danger to his or her property, has (by word or deed) shown willingness to accept the relevant risk(s) (Leakey v National Trust - Megaw LJ (obiter))
contributory negligence (incl. case, commentary and statute)
- contributory negligence could possibly yield a partial defence in PN (*Trevett v Lee (dicta))
- common law authority within this area is ‘scant’ (Markesinis and Deakins)
- however, they find that there is no reason to draw the conclusion that contributory negligence is precluded in PN, under the Law Reform (Contributory Negligence) Act 1945
act of a trespasser (incl. 2 cases and commentary)
- act of a trespasser does not yield a defence where D knowingly or negligently continues the nuisance (Sedleigh-Denfield v O’Callaghan)
- in Sedleigh-Denfield Ds were said to have ‘adopted’ the nuisance by doing nothing to identify or prevent the risk at hand (Weir)
- ‘The obligation postulated in… Sedleigh-Denfield… was an obligation of reasonable care’ (Megaw LJ in Leakey v National Trust)
what are the types of relief one can receive from a successful PN claim?
- common law damages
future/anticipated harm - injunctive relief
- quantum damages
- injunction (4 types)
common law damages in PN (incl. case)
- C may recover damages for past harm (material damage), inconvenience (unreasonable interference with amenity) AND future (anticipated) harm
- C may return to court in respect of further interferences (Redland Bricks v Morris)
injunctive relief (incl. case)
where D breaches an injunction by continuing a nuisance, C may recover damages for harm suffered after the injunction was granted (Hole v Chard)
quantum damages (incl. 4 cases)
- nuisance causing physical damage - diminution in market value (Bunclark v Hertfordshire CC)
- interference with amenity - C may recover for excessive (unreasonable) interference (Andreae v Selfridge)
- examples of amenity interference: excessive noie and smells (Halsey v Esso Petroleum); persistent and unpleasant smells from a pig farm (Bone v Seale)
what are injunctions?
- equitable remedy
- granted at the discretion of the court
- may be granted subject to conditions
- the sanction for breach of an injunction is contempt of court (D may be fined or imprisoned)
- C must monitor compliance
what are the grounds for granting an injunction in PN? (incl. case)
- C must prove that their proprietary rights are being interfered with by D
- C will be denied injunctive relief if damages are an adequate remedy
- Feasibility - the court will not impose on D an obligation that is impossible, cannot be enforced or is unlawful (Pride of Derby and Derbyshire Angling Association v British Celanese)
what are the types of injunction in PN?
- prohibitory
- mandatory
- qualified
- quia timet
what is a prohibitory injunction?
- prohibits D from unreasonably interfering with C’s interests
- injunction is final or perpetual
- focuses on harm done to C
- D is left to decide how to act
what is a mandatory injunction? (incl. case + quote)
- required D to take positive action to rectify their wrong
- C must show a ‘very strong probability’ of ‘grave damage’ and that damages would be inadequate
- this remedy should be refused where cost to D is out of all proportion to advantage to C (Redland Bricks v Morris)
- Lord Upjohn: it must be possible for D to know exactly what he or she has to do
what is a qualified injuction? (incl case)
- a restrictive injunction which poses to deal with competing land uses
- Kennaway v Thompson - power-boat races took place on a lake and a qualified injunction was granted to restrict the number of boat races, the duration of races, and specified noise levels
- they are often granted with ‘liberty to apply’
what is a quia timet injunction? (incl. case)
- an injunction to prevent an apprehended legal wrong
- C must establish justifiable fear of irreparable harm to property or self (Redland Bricks v Morris)
what is the rationale of suspending injunctions?
to give D time to adjust their behaviour so as to comply with the order
what must D do during the period where the injunction is suspended? (incl. case)
Stollmeyer v Trinidad Lake Petroleum - compensate C for unreasonable interferences
what are damages in lieu of an injunction? (incl. statute)
Supreme Court Act 1981 s.50 - the power to award damages for future interference in lieu of an injunction
criteria for damages in lieu of an injunction (incl. case)
- Shelfer v City of London Electric Co
- injury to C must be small
- injury to C can be expressed in monetary terms
- monetary compensation would be an adequate remedy
what is the leading authority for remedies in PN?
- Coventry v Lawrence - planning permission can influence the remedy C is able to obtain
- Lord Carnwath: ‘a more flexible approach’ must be taken in regards to awarding damages in lieu of injunction e.g. the court may consider whether an injunction would mean lost jobs
- the Shelfer considerations are relevant, but not decisive
damages in lieu of injunction and public interest (2 cases)
- Pennington v Brinksop Hall Coal Co - raised the question of when public interest should override private rights (such as exclusion)
- Watson v Croft Promo-Sport Ltd (Richards J): only in ‘marginal’ cases will judges ‘let in consideration of the public interest’
an american approach to damages in lieu of injunction (incl. case + quotes)
- Boomer v Atlantic City Cement Co (New York) - proposes two remedial options: (i) suspended injunction, or (ii) ‘permanent damages’ (i.e. damages in lieu of injunction)
- Bergan J: ‘public issues’ loom large in cases of damages in lieu of injunction as ‘decision[s] of private controversies may sometimes greatly affect public issues.’
- Bergan J: ‘‘the risk of being required to pay permanent dmaages [may be an] effective spur to research for improved techniques to minimise nuisance’
academic commentary: remedies and the public interest
Steele: ‘more flexibility as to remedy might enhance the ability of courts to bring about socially productive outcomes to actions in nuisance.’
academic commentary on Coventry v Lawrence
- Howarth argues that Coventry is a ‘highly significant development of the law’
- it ‘extends a line of thought’ familiar from cases such as Dennis v Ministry of Defence (HRs case) - ‘although the public interest can rarely if ever determines actionability, it can influence remedy’
- judges are no longer to be ‘constrained’ by the ‘Shelfer rule’ and ‘in effect [through the Coventry decision] Boomer v Atlantic Cement Co has arrived in England’ and judges are now able to go about their business in a more flexible way, more attuned to matters of broad public concern
what are the HRs principles at stake in PN claims?
- qualified right to privacy (Art 8 ECHR)
- doctrine of wide indirect horizontality - judges develop private law in conformity with HR law
- proportionality - ‘interference’ (in pursuit of some socially beneficial goal) must be ‘necessary in a democratic society’
- fair balance doctrine - competing interests of parties should be taken account of
- margin of appreciation - ECtHR judges should defer in some cases to UK judges to develop law
what are 3 HRs cases concerning PN?
- Marcic v Thames Water Utilities
- Hatton v UK
- Dennis v Ministry of Defence
Marcic v Thames Water Utilities and the fair balance doctrine?
Lord Phillips MR’s judgment considers how the courts must strike a balance between a fair allocation of benefits (in the case, sewerage services) and burdens (the costs of providng such a service) in order to obtain distributive justice
what happened in Hatton v UK?
- noise generated by night flights were held not to be in breach of ECHR Art. 8
- the authorities must strike a ‘fair balance’ between those who are affected and the public interest
- national authorities enjoy a wide margin of appreciation as they have more knowledge of local circumstances and ‘direct democratic legitimation’
academic commentary on Hatton v UK
‘[The Grand Chamber] did not confine itself to the procedural question of whether appropriate machinery exists for determining what the appropriate balance might be’ and still discussed the substantive question of whether a fair balance had been achieved
what happened in Dennis v Ministry of Defence?
- held sustained and extreme noise from Harrier jet fighters constituted an actionable PN
- Buckley J: the public interest did not constitute a defence but was relevant to remedies; an injunction would be contrary to the public interest and would not strike a fair balance
academic commentary on Dennis v Ministry of Defence
Elvin: the public interest element of this case was of ‘unique importance’ as a clear nuisance was established, but there was a clear public demand that the defence base continue to train pilots (proportionality and necessity).
