Nuisance Flashcards
What is private nuisance
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.
Types of damages C can claim for under private nuisance
- 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
Who can sue
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.
the test for unreasonable interference is objective
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.
Hunter v Canary Wharf Ltd [1997]
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
Article 8 ECHR – Right to Private and Family Life.
McKenna v British Aluminium Ltd [2002]
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)
who can be sued
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.
The duration, frequency and timing of the interference (factors always considered)
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)
he nature of the locality (factor sometimes considered, depending on the type of claim)
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.
The sensitivity of the claimant; the bad intention of the defendant (factors sometimes considered, if they are relevant to the facts)
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.
Malice of D - Considered where relevant
If D acts with malice or bad intention towards C, then an ordinarily reasonable use may be considered an unreasonable use of land.
defences
Prescription
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
Defences
Statutory Authority
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.
Defences
easement
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.
Consent
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.
Defence
Contributory negligence
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.
Remedies
injunction
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.
Remedies
Abatement and damages
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).
Remedies
Damage
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.
Rylands v Fletcher [1868] LR 3 HL 330
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.
Elements of R v F
The Defendant brings on his land for his own purposes something likely to cause mischief…
‘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.
Elements of R v F
Escape
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]).
Elements of R v F
Non-Natural use of the Land
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].
Elements of R v F
…and which causes foreseeable damage of the relevant type (added by Cambridge Water).
Actionable damage
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).
Defences
(In regards to R V F cases)
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.
Public nuisance elements
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.
