land-based torts

Question 1

what is private nuisance?

Answer 1

Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.

Question 2

what is the purpose of private nuisance?

Answer 2

to balance two competing interests: the right of the defendant to do what they like on their land and the right of the claimant to enjoy their land without being disturbed by the defendant’s activities.

Question 3

elements of private nuisance

Answer 3

• who can sue? (claimant with legal interest)
• who can be sued? (sometimes creator, usually occupier, sometimes owner)
• indirect interference
• recognised damage (physical damage or SPD)
• continuous act
• unlawful interference

Question 4

Who can sue in private nuisance?

Answer 4

✅legal interest in land (possessionary or proprietary interest)
❌permission to use or occupy land

Question 5

Key case in private nuisance: Hunter v Canary Wharf

Answer 5

around 700 claimants’ TV reception had
been interfered with as a result of a tower constructed in Canary Wharf.

Several of the claimants’ claims in private nuisance failed as they had no legal interest in the land affected; for example, they were family members living with the homeowner.

An action in private nuisance could only be brought by those with a legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession.

The claims of those who did have a legal interest in the land affected failed on the grounds that there was nothing emanating from the defendant’s land.

Question 6

Who can be sued in private nuisance?

Answer 6

• creator of the nuisance
• occupier of the land from which the nuisance originates; and
• owner of the land

Question 7

who is the usual defendant in private nuisance, out of the following:
- creator
- occupier
- owner

Answer 7

occupier of the land

Question 8

which of these will the occupier be liable for?
- nuisance created by themselves
- nuisance created by others

Answer 8

nuisance created by themselves

Question 9

an occupier is not usually liable for nuisance created by others. however, when might they be liable for nuisance by others?

Answer 9

1. independent contractors
2. trespassers/visitors/predecessors in title
3. naturally occurring nuisances

Question 10

example of occupier being held liable for nuisance by independent contractors

Answer 10

Matania v National Provincial Bank:
An occupier was liable for the foreseeable excessive noise and dust caused by contractors altering his property. Building work does not normally form the basis of a private nuisance claim but in Matania the temporary interference (three months) had serious consequences for the claimant, a music teacher, who could not earn his living whilst the contractors altered the property.

If an occupier asks an independent contractor onto their land to perform certain tasks and those tasks cause an inevitable nuisance, there will be liability.

Question 11

example of occupier being held liable for nuisance by trespassers/visitors/predecessors in title?

Answer 11

The occupier will be liable if they continued or adopted the nuisance.

Sedleigh-Denfield v O’Callaghan:
Defendant was liable for a nuisance created by a trespasser. A water pipe had been unlawfully put under the defendant’s land by the local authority. The pipe got blocked and water flooded the claimant’s land. The defendant had used the poorly maintained pipe and was therefore liable.

Occupiers continue a nuisance if they knew or ought reasonably to know of its existence and fail to take reasonable steps to end it.

Occupiers adopt a nuisance if they make use of the thing causing the nuisance.

Question 12

example of occupier being held liable for naturally occurring nuisances?

Answer 12

An occupier may be liable for naturally occurring nuisances.

In the Australian case of Goldman v Hargrave, the Privy Council held an occupier liable for a naturally occurring nuisance where they knew, or ought to have known, of a danger and failed to take reasonable steps to abate the nuisance ie continued the nuisance.

Lightning struck a tree on the defendant’s land, starting a fire. The defendant extinguished the fire but did not douse the embers. The wind reignited the fire causing damage to the claimant’s land. The defendant was liable; he had the physical and financial ability to spray water over the embers and therefore should have taken these reasonable steps to abate the nuisance. However, a duty to abate a naturally occurring nuisance is subject to the means of the occupier who will not be expected to bankrupt themselves in the process of averting the nuisance.

The court will consider what steps it is fair and reasonable to expect the defendant to take considering the resources available to both the defendant and the claimant and must take into account the competing demands on and public purpose of the funds of public authority defendants.

Question 13

what is the general rule wrt to landlords being liable for private nuisance?

Answer 13

landlords will not usually be liable

Question 14

when might landlords be liable for private nuisance?

Answer 14

if a Coventry exception applies:
A landlord could only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability (inevitable or virtual certainty) that leasing the land would result in that nuisance being created.

Question 15

what type of interference, direct or indirect, is trespass to land?

Answer 15

direct interference

eg X piles their compost heap on their neighbour’s land because they have run
out of space on their land.

Question 16

what type of interference, direct or indirect, is private nuisance?

Answer 16

indirect interference - where the nuisance starts on D’s land, but causes damages to C’s use or enjoyment of their land

eg X piles a large compost heap on their land. It smells badly from neighbouring land. Could be private nuisance if, over a period of time, it caused damage.

Question 17

can indirect interference include a failure to act?

Answer 17

yes, it can include a failure to act, which results in loss

Question 18

what are some examples of indirect interference (intangible)?

Answer 18

• sounds
• smells
• fumes
• vibrations

Question 19

what are the two types of recognised loss/damage in private nuisance?

Answer 19

✅physical damage (eg overhanging branches causing physical damage);
✅physical damage which is more than trivial
✅sensible personal discomfort (SPD) (eg unpleasant odours or noise - damages amenity)
✅SPD which is more than fanciful and materially interferes with ordinary human comfort
✅reasonably foreseeable
✅consequential losses
❌personal injury (private nuisance is a tort against land, not the person)

Question 20

what is the general rule wrt continuous acts in private nuisance?

Answer 20

nuisance must be continuous, rather than a one-off event

Question 21

what are the exceptions to the general rule wrt continuous acts in private nuisance?

Answer 21

• a single incident caused by an underlying state of affairs; and
• an activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material

Question 22

exception to continuous act: underlying state of affairs

Answer 22

British Celanese v AH Hunt Ltd:
Metal foil strips blown from the defendant’s factory came into contact with an electricity sub-station, causing a power failure which stopped
the claimant’s machines. The claimant alleged that the defendant knew or ought to have known of the likely consequences of the escape because a similar occurrence had taken place three years ago and the defendant had received a warning from the electricity board. The court held that this isolated incident could create a nuisance, especially as it was not the first occurrence. The persistent habit of storing the metal strips outside of the factory provided the continuance.

Question 23

exception to continuous act: state of affairs creating a risk of escape of physically dangerous or damaging material

Answer 23

Crown River Cruises Ltd v Kimbolton Fireworks:
The court reached a fact-sensitive decision,
when a firework display (and the resulting fire) was held (obiter) to be a private nuisance (the claim succeeded in negligence). The fire caused extensive property damage. The court suggested that where an activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material, such as water, gas or fire, then private nuisance is available, even if the state of affairs is brief in duration.

Question 24

how should a claim be brought against a one-off event?

Answer 24

• negligence
• possibly public nuisance
• possibly Rylands v Fletcher

Question 25

what constitutes an **unlawful interference** in **private nuisance**?

Answer 25

**unreasonableness**: - if reasonable, D will not be liable - if unreasonable, D will not liable even if they exercise reasonable care and skill to avoid it

Question 26

what factors does the court consider when deciding if something constitutes **unreasonable** interference?

Answer 26

(a) Time and duration (b) Locality (**only for SPD**) (c) Abnormal sensitivity (d) Malice (e) Defendant’s lack of care (f) Excessive behaviour

Question 27

which type of damage is more likely to find **private nuisance**?

Answer 27

property damage, even if caused by a temporary or short-lived activity

Question 28

reasonableness of private nuisance: what do the courts consider wrt **locality/character of the neighbourhood** (only relevant if **loss is SPD**)?

Answer 28

‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ ie what is reasonable in a **residential area** is different to what is reasonable in an **industrial/commercial area**

Question 29

example of **locality** consideration in private nuisance

Answer 29

Adams v Ursell: - fumes caused by a fish and chip shop were held to constitute a nuisance in a residential area. - however, just because a fish and chip shop was a nuisance in one place, does not mean it would be in another place.

Question 30

can **planning permission** authorise a nuisance (*locality*)?

Answer 30

*only* if it **wholly changes the nature of the locality**: ✅a predominantly resi area became a commercial port following planning permission (Gillingham BC) ❌pig sheds (Wheeler) ❌speedway stadium (Coventry v Lawrence)

Question 31

wrt planning permission, what can help the court to determine the **reasonableness** of the nuisance?

Answer 31

the precise terms of the planning permission: If a property owner has planning permission from a planning authority to build a property on a piece of land, it would be impossible to dig foundations without drilling, so planning permission might help establish the reasonableness of the drilling. This is especially so if the planning permission stipulated how, when and what machinery could be used to drill. If the planning permission allowed the property owner to drill between 9:30am and 4:00pm, and the drilling had to be limited to a certain decibel level, and the property owner kept within those stipulations, this could help the court to determine whether a nuisance exists or not (ie whether they were using the land reasonably).

Question 32

reasonableness of private nuisance: what do the courts consider wrt **abnormal sensitivity**?

Answer 32

**only activities that would interfere with an ordinary/reasonable occupier would be a nuisance**. If something or someone is abnormally sensitive, then arguably the loss is not foreseeable to the defendant. An activity on land can only be a nuisance if the defendant could reasonably foresee that it might be a nuisance to someone else. - unusually sensitive claimant; and/or - unusually sensitive property **cannot claim** nuisance

Question 33

however, if the reasonable occupier would be affected, what can the claimant claim for?

Answer 33

the full extent of their loss and irritation, even though these are increased by their sensitivity (**‘thin skull’ rule**) eg damage to ordinarily sensitive orchids could be claimed for! (*McKinnon Industries*)

Question 34

reasonableness of private nuisance: what do the courts consider wrt **the issue of malice**?

Answer 34

If D's aim is solely to annoy the claimant, **this will normally constitute a nuisance**: *Christie v Davey*: Mrs Christie (the claimant) was a music teacher and throughout the day music pervaded the defendant’s house. This **irritated the defendant who responded by making noise himself; beating trays, shouting and hitting the wall when the music was playing**. The court held that D's use of the land was not legitimate. Mrs Christie was granted an **injunction**.

Question 35

reasonableness of private nuisance: what do the courts consider wrt **D's lack of care**?

Answer 35

D's lack of care will likely **support the argument for nuisance**. *Andreae v Selfridge*: D was undertaking extensive building work next to C's hotel, causing C's loss of custom due to noise and dust. D was liable because **D had not exercised reasonable care**; its attitude was to work until someone complained and its own convenience prevailed over the neighbours’ convenience.

Question 36

reasonableness of private nuisance: what do the courts consider wrt **excessive (as opposed to normal) behaviour**?

Answer 36

*Farrer v Nelson*: D owned hundreds of pheasants. The pheasants were able to access to C's farm causing damage to his grain and other crops.

Question 37

what **defences** can D rely on in **private nuisance**?

Answer 37

(a) 20 years’ prescription; (b) Statutory authority; (c) Consent; (d) Contributory negligence; (e) Act of third party; (f) Act of God; and (g) Necessity.

Question 38

defences to private nuisance: when will **20 years' prescription** allow D to escape liability?

Answer 38

if a claimant would have had grounds for bringing a claim against D for *20 years or more**, but did not, **D can continue to commit the nuisance** Note: *it is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing*. Note: *the 20 years does not have to be continuous*.

Question 39

defences to private nuisance: when will **statutory authority** allow D to escape liability?

Answer 39

if they have exercised **all due care** and the **nuisance is an inevitable consequence** of the activity. *Allen v Gulf Oil Refining Ltd*: A private Act of Parliament provided for the expansion of an oil refinery in part of Wales. Residents complained of the noise and vibrations caused by the operation of the refinery. A majority in the House of Lords held that the refinery’s operations were authorised by statute and the nuisance was inevitable. This acted as a **full defence**.

Question 40

what will not constitute statutory authority?

Answer 40

planning permission

Question 41

defences to private nuisance: when will **consent** allow D to escape liability?

Answer 41

If C specifically agrees to D causing the nuisance, then that consent will be a defence (eg where C, knowing of the danger to their property, has (by word or deed) shown willingness to accept the risks.) *Pwllbach Colliery v Woodman*: C consented to colliery activity, but not to the **specific disruption caused by the coal dust**. C must have specifically consented to the activity causing the nuisance in order for D to rely on the defence of consent.

Question 42

defences to private nuisance: when will **contributory negligence** allow D to escape liability?

Answer 42

usual rules of contributory negligence apply: *Trevett v Lee*: D's house was not connected with a water main and in times of drought, D would lay a garden hosepipe across the road to enable water to be brought by a water supply on the other side of the road to their premises. **C saw the pipe, but failed to step over it**, caught her heel in it, fell and injured her back. The court held that there was **no nuisance**. However, if the court had found a nuisance, they confirmed that D would have been able to argue the defence of contributory negligence. (*Note that this case concerned public nuisance, but the same principle applies to private nuisance.*)

Question 43

defences to private nuisance: when will **an act of a third party** allow D to escape liability?

Answer 43

D will not be liable for a nuisance created by a third party for whom D bears no responsibility, unless D *adopts* or *continues* the nuisance.

Question 44

defences to private nuisance: when will **an act of God** allow D to escape liability?

Answer 44

D will not be liable unless they *adopt* or *continue* the nuisance. *Nichols v Marsland*: D's artificial pools flooded and damaged C's property. The flooding was caused by a very **unusual amount** of rainfall which was **wholly unexpected**, so D had a complete defence.

Question 45

defences to private nuisance: when will **necessity** allow D to escape liability?

Answer 45

usual principles applicable to necessity

Question 46

ineffective defence to private nuisance: **moving to the nuisance**?

Question 47

what **remedies** can C be awarded in **private nuisance**?

Answer 47

(a) **Injunction**; (b) **Damages**; and (c) **Abatement**.

Question 48

remedies for private nuisance: what are the **two types** of injunction?

Answer 48

- full (banning altogether) - partial (conditions apply eg to time and frequency)

Question 49

what is the primary remedy for private nuisance?

Answer 49

injunction

Question 50

remedies for private nuisance: when might a partial injunction be awarded?

Answer 50

for **public benefit** eg *Kennaway*: D's activity (power-boat racing) was very popular with the public and there were few places such activities could take place, so the court therefore awarded a **partial injunction, requiring the defendant to stick to a planned timetable**.

Question 51

remedies for private nuisance: when might **damages** be awarded?

Answer 51

- actual physical damage: the cost of repair or renewal (whichever is lower) - consequential economic loss - damages in lieu of an injunction: where the loss is SPD and normally based on reduction in value of C's property (D must put forward arguments as to why an injunction should not be granted + factors eg public interest, planning permission etc will support this)

Question 52

remedies for private nuisance: when might **damages in lieu of an injunction** be awarded? *Dennis v MOD*

Answer 52

The claimants owned a property about two miles from a RAF training base. The court found the activities of the RAF amounted to a nuisance; flying approximately 70 Harrier jump jets per day causing a considerable amount of noise. The claimants were awarded damages in lieu of an injunction. Public benefit (defence of the nation) outweighed the claimants’ rights. The claimants were awarded £950,000, which was the amount by which the value of their home had been depreciated by the aircraft noise.

Question 53

remedies for private nuisance: when might **damages in lieu of an injunction** be awarded? *Miller v Jackson*

Answer 53

A housing estate was built next to the defendant cricket club, which had been playing cricket at the ground for around 70 years. The claimants purchased and lived in a house on the new housing estate. Cricket balls frequently landed in the claimants’ garden meaning the claimants found it impossible to enjoy or use their garden when cricket was being played. The cricket club were liable in nuisance but the claimants were awarded **damages in lieu of an injunction**. A **balance** had to be struck between the right of the claimants to enjoy their property without the threat of damage and on the other hand the right of the public to engage in lawful pastimes. **Public interest outweighed the Millers’ rights**.

Question 54

remedies for private nuisance: when might **abatement** be a suitable remedy?

Answer 54

Abatement is a self-help remedy: C may, in certain circumstances, **enter onto the land of another and take reasonable steps to prevent the nuisance continuing**. Anything belonging to the defendant must be left on the property. It is **this principle that allows a person to cut down branches overhanging their land**, although **they must be returned to D, and C must do **no more than is necessary to abate** the nuisance! Notice must usually be given by C of their intention, but need not be given if it is an **emergency**. Validly exercising a right to abate a nuisance will be a defence to **any proceedings for trespass to land**.

Question 55

what is **public nuisance**?

Answer 55

- if the effect of the nuisance is **sufficiently widespread** - public nuisance is a **crime** (*and sometimes a tort if suffered by a section of the community, or community as a whole*)

Question 56

what is the definition of public nuisance?

Answer 56

- acts or omissions - of the defendant - that materially affect the reasonable comfort and convenience of life - of a class of Her Majesty’s subjects

Question 57

what is the tort of public nuisance used for?

Answer 57

1. dealing with areas of public nuisance outside of statute 2. where an individual wishes to claim common law damages (breach of contract)

Question 58

elements of **public nuisance**

Answer 58

- who can sue in public nuisance? - who can be sued in public nuisance? ✅act or ✅omission ✅one-off event or ✅continuous - class of HM's subjects; and - materially affects comfort and convenience

Question 59

who can sue in **public nuisance**?

Answer 59

1. local authority (on its own behalf OR on behalf of inhabitants) 2. Attorney General (for a class of people AND no individual action is possible or forthcoming) 2. individual (C need not have an interest in the affected land; but can only claim if special (*direct and substantial*) damage suffered, over and above the rest of the class OR in a different way to the rest of the class)

Question 60

why is it sometimes more advantageous to sue in public nuisance rather than negligence?

Answer 60

public nuisance - acts or omissions negligence - omissions generally not actionable

Question 61

what is the meaning of **class of Her Majesty's subjects**?

Answer 61

- **sufficiently widespread** - no specific number of people - It is not necessary that every member of the class has been affected, just that a representative cross-section has been - 'common injury' (ie be affected at more or less the same time and in the same location). In *Rimmington*, D sent racially offensive items to people across the country. These people were **not a ‘class’** in the way required by public nuisance.

Question 62

what is the meaning of the loss: **materially affects comfort and convenience**?

Answer 62

must be **reasonably foreseeable**: - property damage - consequential economic loss - personal injury, via pure economic loss - inconvenience, but must be 'material' ie more than trivial. no actual damage required; annoyance or irritation sufficient.

Question 63

which defence(s) do not apply to **public nuisance**?

Answer 63

prescription

Question 64

what is the main defence(s) in **public nuisance**?

Answer 64

statutory authority

Question 65

what remedies are available in **public nuisance**?

Answer 65

for individuals: - injunctions and/or - damages for local authority or Attorney General: - injunction only

Question 66

what is the **rule in Rylands v Fletcher**?

Answer 66

sub-species of private nuisance it protects against interference due to an isolated escape from D's land a person who, **for his own purposes, brings on his land and collects and keeps there anything likely to do mischief** if it escapes, **must keep it in at his peril**, and, if he does not do so, is prima facie **answerable for all the damage that is the natural consequence** of the escape.

Question 67

elements in **Rylands v Fletcher**

Answer 67

- who can sue? - who can be sued? - loss - D brings onto land and accumulates there - For their own purposes, anything likely to do mischief if it escapes - Escape - Escape caused foreseeable harm; and - Non-natural use of the land.

Question 68

who can sue in **Rylands v Fletcher**?

Answer 68

subspecies of private nuisance, so C must have a **legal interest** in the land

Question 69

who can be sued in **Rylands v Fletcher**?

Answer 69

The person who brings, collects and keeps the ‘thing’ onto the land (the **creator** of the nuisance) and/or any person who has control over the land (**owner** / **occupier**).

Question 70

what losses can be claimed in **Rylands v Fletcher**?

Answer 70

- property damage - consequential economic loss

Question 71

Rylands v Fletcher: what constitutes **D brings onto land and accumulates there**?

Answer 71

D must have **voluntarily brought** something onto the land

Question 72

Rylands v Fletcher: example of when something does not constitutes voluntarily bringing onto land

Answer 72

*Giles v Walker*: no liability for the spread of thistles from D's land, because they grew naturally

Question 73

Rylands v Fletcher: what does **for their own purposes anything likely to do mischief (ie damage) if it escapes** mean?

Answer 73

- must be capable of causing damage - if it escapes eg water, acid, explosives

Question 74

Rylands v Fletcher: when can **anything likely to do mischief** be circumvented?

Answer 74

Transco v Stockport Metroplitan Borough Council: A pipe carrying water to flats owned by D leaked and caused an embankment on D’s land to collapse. This collapse exposed and left unsupported a gas pipe owned by Transco. Transco had to spend £94,000 to stop the pipe fracturing. The House of Lords held that **the thing that escapes has to be reasonably recognised as having an exceptionally high risk of causing a danger if it were to escape**. This sets a very high threshold and was not satisfied in Transco.

Question 75

Rylands v Fletcher: what constitutes **escape**?

Answer 75

The ‘thing’ brought onto the land must escape from **land over which D has control to land where D does not have control**. The escape can be slow and over a period of time. It must be the **substance** that was collected by D that escapes: ❌D stored tyres on his property. The tyres caught fire, and fire spread. However, D was not liable because D had brought the **tyres** onto his property, but **not the fire** (*Stannard v Gore*). ✅If D brought fire onto its land, and the fire spread to C's land. ✅where fuel is the ‘dangerous thing’ brought onto the defendant’s land and the fuel starts the fire/causes an explosion, the fuel could be seen as escaping with the fire (it is a component of the fire/explosion) (*Colour Quest v Total Downstream*)

Question 76

Rylands v Fletcher: what constitutes **escape caused foreseeable harm**?

Answer 76

D need not have foreseen the escape, but **must have known, or ought reasonably to have foreseen** that the ‘dangerous thing’ could, if it escaped, cause damage. Even if D has taken reasonable care to prevent the escape and the damage, **D will still be liable** (**strict liability**).

Question 77

Rylands v Fletcher: practical operation of **escape caused foreseeable harm (strict liability)**?

Answer 77

*Cambridge Water Co. v Eastern Counties Leather plc* D operated a leather manufacturing business. Over the course of many years, a chemical that D used, seeped through the concrete floor, into the soil below, from where it travelled to the claimant’s borehole 1.3 miles away polluting the water. The claimant was forced to relocate its pumping station costing over £1 million. The claim failed: **pollution to water in a borehole 1.3 miles away was not reasonably foreseeable. It was not foreseeable that chemicals spilt on a concrete floor could cause damage to C's water.

Question 78

Rylands v Fletcher: **non-natural / non-ordinary use of the land**

Answer 78

ordinary depends on time, place and context of the use of land examples: - *Transco*: as well as the fact that the thing that escapes has to be reasonably recognised as having an exceptionally high risk of causing a danger if it were to escape (and this was not satisfied in Transco), the use of the land - piping water for domestic use to a block of facts - was not **extraordinary or unusual**❌ - *Colour Quest*: quantity of oil kept on the premises was non-natural✅ - *Cambridge Water*: storage of substantial quantities of chemicals on industrial premises was an **‘almost classic case’ of non-natural use**✅

Question 79

Rylands v Fletcher: what defences apply?

Answer 79

(a) **Common benefit** (b) Act or default of the claimant (c) Statutory authority (d) Act of third party (e) Act of God (f) Contributory negligence (*usual rules apply*) (g) Consent (*usual rules apply*)

Question 80

defences in Rylands v Fletcher: **common benefit**

Question 81

defences in Rylands v Fletcher: **act or default of claimant**

Question 82

defences in Rylands v Fletcher: **statutory authority**

Question 83

defences in Rylands v Fletcher: **act of third party**

Question 84

defences in Rylands v Fletcher: **act of God**

Question 85

remedies in Rylands v Fletcher

Answer 85

**damages** and **injunctions**

Question 86

what is the **most common** remedy in Rylands v Fletcher?

Answer 86

Damages, because the types of loss recoverable in *Rylands v Fletcher* are **property damage** and **consequential economic loss** and *Rylands v Fletcher* covers isolated events.

Question 87

what is **trespass to land**?

Answer 87

- unlawful presence on somebody else’s land - interference must be **intentional** and **direct** - actionable **per se (ie without proof of damage)** - *the harm that will be compensated is the unjustifiable interference with C's land by D*

Question 88

elements in **trespass to land**

Answer 88

- who can sue? - loss or damage? - direct and physical interference - intention

Question 89

who can sue for **trespass to land**?

Answer 89

- claimant with legal interest* - tenant - licensee in possession *if there is a tenant or licensee in occupation, the landowner would only have a right to sue in trespass to land where there would be damage to their interest beyond the term of the lease/licence.

Question 90

trespass to land: direct interference

Answer 90

Trespass to land is concerned with direct interference with the claimant’s land. Land = anything under the land, built on the land and the airspace above.

Question 91

trespass to land: **four categories** of physical interference

Answer 91

1. entering C's land (*walking across someone's private garden without permission*) 2. remaining on C's land when permission has been revoked (*tenant staying in rented property after the lease has expired*) 3. doing something that is not permitted on C's land (*entering an area which says 'staff only' when you are not staff; pulling down or removing anything (ie damaging anything) which is attached to the land without permission*). 4. placing objects on C's land without permission (*fly-tipping; deliberately throwing your tree branches onto someone else's property; parking your care on your neighbour's driveway without consent*)

Question 92

trespass to land: intention

Answer 92

D must **intend the direct action** that results in the trespass, but need not intend to trespass

Question 93

**three defences**: trespass to land

Answer 93

(a) **Permission (consent)**: Where D has express or implied permission (or a licence) to enter or remain on the land. However, to be a valid defence, the defendant must not exceed the boundaries of their permission. (b) **Legal authority**: For example, under statute the police have authority to enter premises and carry out arrests. However, if they commit a wrongful act on the premises, then their original entry becomes a trespass (known as *trespass ab initio*). (c) **Necessity**: Where the trespass was necessary to protect either a public or private interest (eg *this defence was successful where firemen destroyed C's chimney in order to prevent the spread of fire to further properties*).

Question 94

**five remedies**: trespass to land

Answer 94

(a) **Damages*** cover the costs of harm already suffered by the direct interference. (b) **Injunctions** may be awarded where there is a continuing trespass or where a trespasser threatens to repeat the trespass, but for the latter, the trespass must be serious in nature. (c) **Re-entry** is a self-help remedy which might be available where the owner/occupier has been excluded from the land. Only reasonable force can be used to re-enter. (d) **Recovery of land**: As an alternative to re-entry, the owner/occupier can seek a court order for the defendant to be removed (an action for the recovery of land). (e) **Mesne profits**: C might bring an action for mesne profits to claim money from a defendant who wrongfully occupied the land and made a profit or saved expenditure in doing so, eg where a tenant fails to leave at the end of their tenancy and stops paying rent.

Question 95

what are the **primary remedies** for trespass to land?

Answer 95

Damages and injunctions

Question 96

what is the **limitation period** for bringing a claim in trespass to land?

Answer 96

**within 6 years** from the date on which the **cause of action accrued**

Question 97

examples of trespass to land

Answer 97

✅advertisement sign projected into the airspace above C's shop (*Kelsen v Imperial Tobacco*) ✅trespass to airspace of garden by an extractor fan (*Laiqat v Majid*) - *did not matter that this did not intefere with any normal activity conducted on C's garden* ✅D had obtained a licence from the Crown, but not from C, to obtain petrol from C's land. ❌Infrastructure Act 2015 allows oil, gas and geothermal companies an automatic right of access to land 300 m or lower for the purposes of exploiting petroleum or deep geothermal energy, and surface landowners are unable to object. *The companies still have to obtain other permissions, such as planning and environmental permits*. ❌flying an aircraft at a reasonable height above someone’s property does not constitute a trespass