Nuisance

Question 1

if C has a complaint relating to land, what torts could they look to?

Answer 1

o Private nuisance
o Rylands v Fletcher
o Public nuisance

Question 2

re: private nuisance

what is the definition of private nuisance?

Answer 2

‘unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’

this exists at common law

Question 3

re: private nuisance

what must C prove to show there has been a private nuisance?

Answer 3

o That there is an interference with their use and enjoyment of land or some rights they enjoy over it; and
o This interference is unlawful

Question 4

re: private nuisance

what are the types of private nuisance?

Answer 4

• In Hunter v Canary Wharf [1997], the court identified three types of private nuisance:
  o Nuisance by encroachment onto a neighbour’s land;
  o Nuisance by direct physical injury to a neighbour’s land;
  o Nuisance by interference with a neighbour’s quiet enjoyment of his land

Question 5

re: private nuisance

explain ‘nuisance by interference with a neighbour’s quiet enjoyment of his land’

Answer 5

 Also known as interference with personal comfort or loss of amenity
 This has the potential to be very wide and can include smells, dust, vibration and noise
 It includes interferences with rights enjoyed over land (i.e. a right to light acquired by prescription)
 Courts are slower to find an actionable interference on this ground

Question 6

re: private nuisance

what must the interference be to be an ‘actionable interference’?

Answer 6

o To be an actionable interference, the interference must be something that materially interferes with ‘ordinary comfort’ not ‘elegant or dainty modes of living’

Question 7

re: private nuisance

what have the courts previously held as not to be an actionable intereference?

Answer 7

Interferences that have been held not to be actionable:
o Loss of prospect (a view)
o Disruption to TV caused by a new building

Question 8

re: private nuisance

when will the interference be ‘unlawful’?

Answer 8

if it is ‘substantial and unreasonable’. The concept of reasonableness is not looking at whether D’s conduct was ‘reasonable’, but if the interference on C’s use of land is ‘unreasonable’

Question 9

re: private nuisance

what is a common unlawful interference?

Answer 9

o Generally, the courts have considered any encroachment on another’s land to be unlawful. Physical damage is unlawful unless it is trivial.

Question 10

re: private nuisance

what will the courts consider when deciding whether the interference is ‘unlawful’?

Answer 10

o Duration and frequency
o Excessiveness of conduct/extent of harm
o Character of the neighbourhood
o Public benefit
o Malice

Question 11

re: private nuisance

explain duration and frequency

Answer 11

• i.e. the longer and / or more frequent the interference, the more likely to be unlawful
  o i.e. C lives next to a cricket ground. About twice a year a ball is hit into her garden. This is unlikely to amount to nuisance.
• Generally, an isolated incident will not be unlawful

Question 12

re: private nuisance

explain excessiveness of conduct/extent of harm

Answer 12

• The court will look at how far removed is the behaviour from ‘normal’ behaviour. This is viewed objectively.
• The extent the harm has on the claimant is viewed subjectively (i.e. does loud music have a greater impact because they work late?
• An interference which causes physical damage is likely to be excessive (unless the damage is trivial)

Question 13

re: private nuisance

explain ‘character of the neighbourhood’

Answer 13

• This is only relevant to personal discomfort and inconvenience
• This will be judged against interference that can be expected in that locality i.e. traffic in London or farm smells in the countryside.

Question 14

re: private nuisance

what approach does the court take when assessing the locality of an area?

Answer 14

the starting point is that the defendant’s activities are taken into account when assessing the locality. However, if these activities cannot be carried out without creating a nuisance to the claimant, then they are disregarded when assessing the locality’s character.

Also, planning permission does not impliedly authorise nuisance.

Question 15

re: private nuisance

explain public benefit

Answer 15

• D could try to argue that the activity benefits the public.
• However, Courts generally take the view that interest of the public should not deprive an individual of their private rights

Question 16

re: private nuisance

explain malice

give an example

Answer 16

• i.e. if D is doing something to deliberately annoy C, this is likely to tip the balance in C’s favour

o i.e. Hollywood Silverfox Farm v Emmett  D was shooting a gun to annoy C and disturb the foxed in breeding season. This was unreasonable.

Question 17

re: private nuisance

explain abnormal sensitivity

give an example

Answer 17

• When deciding whether interference is unlawful, the courts will look at the impact on the normal user of the neighbouring land, and ignore any abnormal sensitivity of C
• If there are ‘abnormally sensitive circumstances’, if C can prove that a normal user would be affected due to D’s activity, they can recover event if their loss is greater than a normal user

McKinnon Industries v Walker  D’s business emitted fumes which killed C’s orchids. Could prove that the fumes would have killed any flower. They could establish an actionable nuisance and recover for damage to the orchids.

Question 18

re: private nuisance

who can bring this type of claim?

Answer 18

• C must have a right to exclusive possession (this means a right to exclude everyone else) of the land.
• This includes:
  o Owner-occupiers
  o Tenants

Question 19

re: private nuisance

who cannot bring this type of claim?

Answer 19

• The following do not have an exclusive right to possession:
  o Children of the owner-occupier
  o Guests
  o A person who occupies the land

Question 20

re: private nuisance

who is a potential defendant?

Answer 20

• The creator of the nuisance
• The occupier of the land from which the nuisance originates
• The landlord

Question 21

re: private nuisance

explain ‘the creator of the nuisance’

Answer 21

• The original creator of the land is liable, even if the land is now occupied by someone else
• If they can no longer be found or it is not worth financially suing them, they can look to the current owner for a remedy

Question 22

re: private nuisance

explain ‘the occupier of the land from which the nuisance originates’

Answer 22

• the occupier may be liable for positive acts to create the nuisance;
• failing to take steps to prevent the nuisance; or
• liable for nuisance created by other persons (in certain circumstances)

Question 23

re: private nuisance

when will the occupier be liable for another person’s nuisance?

Answer 23

The occupier may also be liable for nuisances created by other persons where the nuisance is created by:
o an employee acting in the course of their employment
o an independent contractor, provided the nature of the work carried a special danger of the nuisance being created (i.e. it was inevitable due to substantial work being carried out by a contractor)
o one of the below and the occupier has adopted (i.e. make use of it) / continued (i.e. once they know / ought to know, they fail to take reasonable steps to end the nuisance) the nuisance:
 A visitor
 Predecessor in title
 Trespasser
 It arises through a natural occurrence

Question 24

re: private nuisance

in relation to the landlord as a defendant, what is the general rule?

Answer 24

• The general rule is that the tenant is liable, not the landlord.

Question 25

re: private nuisance

what are the exceptions to the general rule regarding the landlord as a defendant?

Answer 25

The general rule is that the tenant is liable, not the landlord. There are exceptions to this:
o The landlord expressly or impliedly authorised the nuisance, so it was an inevitable result of the letting
o If the landlord knew or ought to have reasonably known about the nuisance at the start or the letting
o If the landlord has covenanted (promised) to repair the premises (or has the right to enter to do so) and fails to make the repairs, giving rise to the nuisance (NB: this does not exonerate the tenant who may be liable as an occupier)

Question 26

re: private nuisance

explain damage

Answer 26

C must prove they have suffered damage i.e.:
o Physical damage to land (or crops/plants on the land)
o Damage to quiet enjoyment of the land (this wouldn’t be tangible)

Remember, this tort is against the land – not the person.

Question 27

re: private nuisance

what damage can C claim for?

Answer 27

D will be liable for any consequential loss suffered i.e. loss of profits as a result of the nuisance

D cannot claim for any personal injury or property damage

Question 28

re: private nuisance

if C has suffered property damage, what must they do?

Answer 28

• If C suffers personal injury or damage to personal property, they should bring a claim in negligence, not nuisance.

Question 29

re: private nuisance

explain causation

Answer 29

C must prove the unlawful interference caused the damage. Usual rules apply.

Question 30

re: private nuisance

what defences are available?

Answer 30

o Prescription
o Statutory authority
o Contributory negligence
o Consent
o Act of God or nature
o Necessity

Question 31

re: private nuisance

explain prescription

Answer 31

If D can show that they have been continuing with this nuisance against C for at least 20 years, they will have a defence as they have D effectively ‘acquired the right’ to commit the nuisance

It must be against the specific C

Question 32

re: private nuisance

give an example of prescription

Answer 32

Cam has been using a large pestle and mortar for the last 20 years which causes lots of vibrations. This has not bothered her neighbour Khan until he builds a consulting room at the end of the garden. Cam could not rely on prescription because whilst she has been doing the activities for 20 years, it only became an actionable nuisance when Dr Khan built the consulting room.

Question 33

re: private nuisance

explain statutory authority

Answer 33

• i.e. some statutes allow D to commit a tort. D can rely on this if they can show that the nuisance is an inevitable result of doing what the statue authorised
• This can be a defence to any tort but is most common here
• Unlikely to be applicable to private individuals. It is more commonly seen with public authorities acting under statutory duty

Question 34

re: private nuisance

give an example of statutory authority

Answer 34

An oil company is authorised by an Act of Parliament to construct an oil refinery in a particular location. Local residents complain about the noise and vibrations emitted from the refinery. The oil company is likely to be able successfully to plead statutory authority as a defence on the basis that the operation of the refinery is implicitly authorised by the Act of Parliament and the nuisances are, therefore, inevitable. (This example is based on the case of Allen v Gulf Oil Refining Ltd [1981] AC 1001.)

Question 35

re: private nuisance

give an example of consent in this context

Answer 35

Mike and Anne are neighbours. As a favour, Mike agrees to let Anne put her garden rubbish on his bonfire each week. If the smoke from Mike’s bonfires blows across Anne’s garden to such a degree as to constitute a nuisance, she would probably be met with the defence of consent.

Question 36

re: private nuisance

what are the elements to the necessity defence?

Answer 36

There are two key elements:
o There is a situation of necessity because of an imminent danger to life and limb (in very limited circumstances threat to property); and
o D’s actions were reasonable in the circumstances

Question 37

re: private nuisance

when can the necessity defence not be relied upon? Give an example

Answer 37

• This cannot be relied on if the circumstances were of D’s own making

i.e. Southport Corporation v Esso [1956]  there was a risk an oil tanker would crash and kill the crew. The master discharges oil into the river, polluting it. This defence succeeded.

Question 38

re: private nuisance

explain act of god or nature defence

Answer 38

• This isn’t a defence as such
• However, if the interference occurs due to a ‘secret unobservable natural process’ (i.e. subsidence) or from an act of god (i.e. lightening) then D will not be liable for the nuisance unless they adopt or continue the nuisance
• The court’s are likely to consider D’s financial resource and whether they had the means to remedy this

Question 39

re: private nuisance

what have been previous ineffective defence?

Answer 39

• C came to the nuisance
• Public benefit
• Contributory actions of others
• Planning permission

Question 40

re: private nuisance

explain the failed defence ‘C came to the nuisance’

Answer 40

o i.e. C buys a house even though they know it is next to a factory.
o D cannot say they are not liable because C knew about the nuisance.
o Coventry v Lawrence [2014]  so long as C used the property for the same purpose as their predecessors, D cannot rely on the defence that C ‘came to the nuisance’. However, if C changes the land after D commences the act, C’s nuisance claim would fail.
o Whilst this is no defence this might be helpful if considering an injunction

Question 41

re: private nuisance

explain the failed defence of ‘contributory actions of others’

Answer 41

o It is no defence that the nuisance results from the separate actions of separate people
o i.e. there are several stalls playing music, they are all individually liable.

Question 42

re: private nuisance

explain the failed defence of ‘planning permission’

Answer 42

o The grant of planning permission does not legitimise nuisance
o However, the grant of planning permission may affect the character of the neighbourhood

i.e. Gillingham BC v Medway Docs [1992]  the court said you had to look at the character of the neighbourhood after the grant of planning permission (i.e. when it became a busy dock). The residents now lived in a container port. In this context, the noise etc was not unlawful.

Question 43

re: private nuisance

what remedies are available?

Answer 43

There are two main remedies:
o Damages
o Injunction

Both can be sought simultaneously is so required

There is a third remedy of abatement

Question 44

re: private nuisance

for what time period will damages be awarded?

Answer 44

• Damages will be awarded for any loss suffered by the date of the trial
• The court also has a limited power to award future losses

Question 45

re: private nuisance

what type of loss will damages compensate for and how?

Answer 45

• Physical damage  C will be awarded damages to reflect the cost of repair / loss in value of the land
• Personal discomfort  harder to assess. Hunter suggested personal damage should be valued by looking at the loss of amenity value of the land (i.e. the land with the nuisance being worth less than the land without the nuisance)

Question 46

re: private nuisance

what is an injunction?

Answer 46

• This is a court order which prevents / forces someone from doing something

Question 47

re: private nuisance

what are the types of injunctions?

Answer 47

o Prohibitory  this stops someone from doing a certain act
o Mandatory  this orders someone to take a certain action / rectify a consequence of what they have done (less common)

• A prohibitory or mandatory injunction can be granted quia timet

Question 48

re: private nuisance

what does it mean is an injunction is granted ‘quia timet’?

Answer 48

o This means that the injunction can be granted before the tort has been committed.

Question 49

re: private nuisance

what the threshold for an injunction to be granted quia timet?

Answer 49

o C must prove:
 They are almost certain to incur damage without an injunction; and
 Such damage is imminent; and
 D will not stop the course of conduct without a court order

Question 50

re: private nuisance

when will an injunction not be granted?

Answer 50

if damages would be appropriate

Therefore, if C is seeking an injunction to prevent a future breach, damages will usually be insufficient

Question 51

re: private nuisance

if the court exercises discretion and refused to grant an injunction, what might they do instead?

Answer 51

o Grant damages in lieu of an injunction  damages can be granted to cover future breaches, this is compensation for future interference with their rights.

Question 52

re: private nuisance

what must the court consider when deciding whether to grant an injunction or damages?

Answer 52

the court may exercise its discretion to refuse an injunction and grant damages where:
o If the harm suffered by C is;
 Small;
 Capable of being quantified in financial terms; and
 Capable of adequate compensation by damages; and
o It would be oppressive to D to grant an injunction

The court can consider other points i.e.:
o The public interest  i.e. if employees were to lose their jobs in an injunction was granted
o Planning permission  if PP has been authorised then it may decide damages are better.

Question 53

re: private nuisance

what is abatement?

Answer 53

• i.e. when the victim removes the interference.

Question 54

re: private nuisance

explain abatement

Answer 54

• They must usually give prior notice to the wrongdoer.
• If they refuse to do anything, the interference can be remedied so long as it does not involve entering the wrongdoer’s property.
• If abatement involves become in possession of the defendant’s property, this must be returned to the owner (i.e. overhanging branches which have been cut must be returned)
• They also do not need to give notice in an emergency situation.

Question 55

what is the difference between private nuisance and negligence?

Answer 55

• Private nuisance is against the land. Negligence is against the person (so if there has been intangible damage i.e. discomfort and physical injury/damage, C would have a claim in private nuisance and negligence)
• Private nuisance requires continuity. Negligence can arise from a one-off act or omission.
• Private nuisance is about whether the interference is unreasonable, negligence is about whether D’s act fell below a reasonable standard
• In private nuisance, the court considers D’s financial ability to remedy a situation if it has arisen naturally, there is no similar consideration in negligence.
• D is liable in nuisance even if they have exercised reasonable care. In negligence, D is only liable if they fall below the standard of care.

Damage:
o Private nuisance  D can sue for intangible damage.
o Negligence  D cannot sue for intangible damage.

Remedy:
o Private nuisance  injunction available.
o Negligence  injunction not available.

Question 56

re: Rylands v Fletcher

explain this rule

Answer 56

• This is a type of private nuisance
• It is strict liability
• It covers situations where there is an escape of something dangerous in the course of non-natural land use.

Question 57

re: Rylands v Fletcher

what are the key elements to be established?

Answer 57

o D brings something onto their land for their own purposes something likely to do mischief which escapes. This represents a non-natural use of land and it causes foreseeable damage of the relevant type.

Question 58

re: Rylands v Fletcher

explain ‘D bring something onto the land for their own purposes’

Answer 58

• The thing itself need not be dangerous in itself but must be capable of causing damage if it escapes
• Examples:
  o Water
  o Cattle
  o Sewage
  o Fumes
  o Electricity

Question 59

re: Rylands v Fletcher

explain ‘…something likely to do mischief’

give an example

Answer 59

• D must have done something which they recognised or ought to have recognised as giving rise to an exceptionally likely risk of mischief (i.e. danger)

Transco v Stockport [2003]  D owned flats. There was a water leak which caused the collapse of a railway embankment. This left a gas pipe owned by C unsupported and at risk of damage. C sought damages. This case failed applying the test above.

Question 60

re: Rylands v Fletcher

explain ‘…which escapes’

give an example

Answer 60

• This is different from the standard private nuisance because an isolated event (i.e. the escape) can give rise to a claim
• The substance or item causing damage must move from D’s premises to a place outside D’s premises
• Stannard v Gore [2012]  tyres stored on D’s land caught fire and destroyed C and D’s premises. However, the claim failed because the tyres has not escaped.

Question 61

re: Rylands v Fletcher

explain ‘…this represents a non-natural use of land’

Answer 61

• Transco v Stockport [2003]  the test for non-natural use of land must be extraordinary or unusual according to standards or the day
  o i.e. if the normal use of land is for industrial purposes, then this would probably be regarded as normal use of the land

Question 62

re: Rylands v Fletcher

explain ‘the causes foreseeable damage of a relevant type’

Answer 62

usual remoteness principles apply

Question 63

re: Rylands v Fletcher

what defences are available?

Answer 63

• Escape caused by the unforeseeable act of a stranger
• Escape caused by an act of god which could not have reasonably been foreseen
• Statutory authority
• Consent
• Contributory negligence

Question 64

re: public nuisance

what is public nuisance actionable in?

Answer 64

crime and tort

Question 65

re: public nuisance

what are the elements of the tort of public nuisance?

Answer 65

• The elements of the tort of public nuisance are:
  o Conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’; and
  o C has suffered particular harm

Question 66

re: public nuisance

explain ‘…‘class of Her Majesty’s subjects’…’

Answer 66

• This is different to private nuisance which affects an individual
• The number of people to be affected in a locality to constitute a ‘class’ is a question of fact in each case.
• It is not necessary for every member of the class to be affected but there must be a representative cross-section
• If there is not a big enough class of people, the individuals would need to look to private nuisance.

Question 67

re: public nuisance

explain ‘C suffered particular harm’

Answer 67

They must suffer more damage than the public at large
* This can include:
o Property damage
o Loss of profit
o Personal injury (unlike in private nuisance)

Question 68

what is the difference between public nuisance and private nuisance?

Answer 68

• Public nuisance is concerned with the public, it is also not limited to conduct interfering with the enjoyment of land. Therefore, it potentially has a greater scope.
• In public nuisance, C’s do not need to have a proprietary interest in land.