Nuisance

Question 1

What is private nuisance

Answer 1

it aims to protect the claimant’s ability to use and enjoy their land without unreasonable interference by the defendant.

An unlawful interference is an unreasonable one.  Actionable only on proof of some damage.

Question 2

Types of damages C can claim for under private nuisance

Answer 2

• Physical damage to land (e.g. flooding, noxious fumes, vibrations)
  • Interference with ‘amenity’ interests – i.e. use and enjoyment of land (e.g. smells, dust, noise)
  • Encroachment (e.g. tree roots, overhanging branches).

Damage to chattels has to be consequential to damage to land. The chattel that breaks affects the use and enjoyment of your land.

tort must affect the land physically or the use of the land, even the value of land

Question 3

Who can sue

Answer 3

Only those with an interest in land can sue.
Malone v Laskey [1907]

This view was challenged in Khorasandjian v Bush [1993] – the daughter of a title holder granted an injunction against disturbing phone calls.

Question 4

the test for unreasonable interference is objective

Answer 4

Whether the interference is unreasonable is judged objectively (the sensitivity of the claimant is not relevant; see Fearn and others v The Boa

NOTE: Private nuisance is a consequence-based tort: liability here does not depend on whether D acted reasonably or could prevent the nuisance from occurring.

Question 5

Hunter v Canary Wharf Ltd [1997]

Answer 5

case, local residents complained about the erection of Canary Wharf Tower in London Docklands. The Tower interfered with the TV signal.
□ Lease holder
□ Exclusive possession
□ Owner of the land

Question 6

Article 8 ECHR – Right to Private and Family Life.
McKenna v British Aluminium Ltd [2002]

Answer 6

suggestion that Art 8 may require courts to relax Hunter’s restrictive approach (person who has lived in the house for some time and has their enjoyment of the home interfered with)

Question 7

who can be sued

Answer 7

Creators of the nuisance are always liable – Fennel v Robson Excavations Pty Ltd [1977]

Occupier of the land from which nuisance emanates – Leakey v National Trust [1980] – D liable for natural land movements they were aware of and did not address.

An occupier who adopts or continues nuisance created by a trespasser – Sedleigh-Denfield v O’Callaghan [1940]: a trespasser laid a pipe in a ditch on D’s land that caused C’s land to flood. Court held that D knew or ought to have known, and they had the means to abate the nuisance.

Question 8

The duration, frequency and timing of the interference (factors always considered)

Answer 8

What time of day/for how long/how often

In Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] – a 15-20-minute firework display caused fire damage to C’s boat and was held to be a nuisance (note: substantial damage to property as per St Helen’s Smelting)

Question 9

he nature of the locality (factor sometimes considered, depending on the type of claim)

Answer 9

Something may be nuisance in location X but not Y

Rushmer v Polsue & Alfieri [1906] – printing presses interfered with sleep at night but were used in a trading district. C was a milkman who had to wake up early, and the presses went on all night. The Court held that it was a nuisance.

Question 10

The sensitivity of the claimant; the bad intention of the defendant (factors sometimes considered, if they are relevant to the facts)

Answer 10

If C’s activities are too sensitive. there will be no claim

McKinnon Industries v Walker [1951] – C’s sensitive orchids were damaged by poisonous fumes and smut depositing on his shrubs. The Court held that he could recover.

Question 11

Malice of D - Considered where relevant

Answer 11

If D acts with malice or bad intention towards C, then an ordinarily reasonable use may be considered an unreasonable use of land.

Question 12

defences
Prescription

Answer 12

Can be used if D proves he has been using the land for 20 years in a certain manner for which time C has never complained

Question 13

Defences
Statutory Authority

Answer 13

Statutory authority must now be considered alongside the HRA 1998 (the courts must be careful in their interpretation of the statutes giving a defence to a claim of nuisance).

Hatton v UK [2003] – nuisance (night-time flying) authorised by statute but subject to Art 8 – right to privacy. The Court held that even though a derogation applies [and exceptions are permitted under Article 8(2)], an effective remedy must be provided as per Art 13 of the HRA.

Question 14

Defences
easement

Answer 14

Gardner v Davis [1999] – D had the right to discharge sewage on a septic tank on C’s land, which was exceeded when the tank overflowed onto the neighbour’s land. D did not stay within the limits of what was agreed in the easement.

Question 14

Consent

Answer 14

Lyttelton Times Co Ltd v Warners Ltd – C rented the upper floor of printing press premises from D. The Court held that there was no nuisance because C agreed that D could operate his presses. Condition: must establish that the activity consented to cannot be conducted without interference with C’s rights or enjoyment of land.

Question 15

Defence
Contributory negligence

Answer 15

Trevett v Lee [1955] – a milkwoman tripped over a hose on a public road. There was no liability because the use was not unreasonable – CN could be relevant to adopting/continuing the nuisance negligently but not otherwise.

Question 16

Remedies
injunction

Answer 16

It can be partial both to the activity and/or the period of cessation. E.g. a time of day/or temporary (Kennaway v Thompson – partial injunction to adhere to a timetable of events).

Shelfer v City of London Electric Co. [1894] – injunction granted to a pub landlord complaining of noise and vibration in terms of provision of power to residents.

Question 17

Remedies
Abatement and damages

Answer 17

This is to be assessed to reflect a diminution in land or utility value. It covers the costs of abatement (when the claimant takes it upon themselves to do something to stop the nuisance from continuing).

Question 18

Remedies
Damage

Answer 18

Andreae v Selfridge Co Ltd [1938] – C recovered from the loss of profits for not having occupants in her hotel while D carried on construction work on his land.

Halsey v Esso Petroleum [1961] – C could recover for damage to their clothes on a washing line.

Question 19

Rylands v Fletcher [1868] LR 3 HL 330

Answer 19

C was the lessee of a mine. D owned a mill standing on land adjoining C’s mine. D employed independent contractors to build a water reservoir. The reservoir was over some old shafts filled with earth, which communicated with C’s mine. The shafts were not blocked, and water from the reservoir burst through the disused shafts, flooding C’s mine.
Held: D was liable

This rule protects an occupier against interference due to an isolated escape from (as opposed to an ongoing interference with) neighbouring land.

It is a case of strict liability.

Question 20

Elements of R v F
The Defendant brings on his land for his own purposes something likely to cause mischief…

Answer 20

‘Something’ can be fire, gas, blasting and munitions, electricity, oil and petrol, noxious fumes, flagpoles, water, etc.

Transco plc v Stockport Metropolitan Borough Council [2003]: C must show that D ought to have reasonably recognised the exceptionally high risk of danger or mischief if the thing escapes.

Question 21

Elements of R v F
Escape

Answer 21

Escape from a place where the defendant has occupation or control over land to a place which is outside his occupation or control.” (Read v Lyons [1946], confirmed in Stannard (t/a Wyvern Tyres) v Gore [2012]).

Question 22

Elements of R v F
Non-Natural use of the Land

Answer 22

Lord Cairns (HoL) qualified the rule by adding that the accumulation must be a non-natural land use.

Lord Moulton (in Rickards v Lothian [1913]): “It must be some special use bringing with it increased danger to others and must not merely be the ordinary use of the land or such a use as is proper for the general benefit of the community” [facts: tap left running caused a flood].

Question 23

Elements of R v F
…and which causes foreseeable damage of the relevant type (added by Cambridge Water).

Question 24

Actionable damage

Answer 24

The damage must be proved (not actionable per se).
Blackburn J. in R v F: D “is prima facie answerable for all the damage which is the natural consequence of its escape”.
The damage must be foreseeable (see Cambridge Water Co Ltd v Eastern Counties Leather plc [1994]).
D must have known or ought reasonably to have foreseen that thing, if escaped, may cause damage.
No recovery for death or personal injury (tort to land).

Question 25

Defences
(In regards to R V F cases)

Answer 25

Fault of the claimant or express or implied consent – Ponting v Noakes [1894].
Escape caused by an unforeseeable act of a stranger (Box v Jubb [1879] – a reservoir overflowed into C’s land but result of another neighbouring reservoir owner’s actions; Perry v Kendricks Transport Ltd [1956]- children setting fire to disused motor-coach;
Escape caused by an act of God (Nichols v Marsland [1876] – extraordinarily high level of rainwater.

Question 26

Public nuisance elements

Answer 26

Class of HM Subjects.
C belongs to the class.
C suffered special damage.
The damage suffered by C is reasonably foreseeable.
Defences – as before, except prescription.
Remedies.