Nuisance Flashcards
(Nuisance) = What is private nuisance?
- Private nuisance is claims of people living close to oner another where the enjoyment of their property is affected by the unreasonable behaviour of a neighbour
(Nuisance) = What is the definition of private nuisance?
- An unlawful indirect interference with a person’s use or enjoyment of the land which comes from a neighbouring land
(Nuisance) = What are the two main types of nuisance?
- Loss of amenity nuisance which is caused by noise, smell or smoke
- Material Damage nuisance which is when a dangerous state of affiars on the D’s land causes significant physical damage to the C’s land. This can be vibrations, oil, fire, cricket balls etc
(Nuisance) = What are other types of nuisance and can you claim for them?
- You cannot claim for the loss of view, loss of light or loss of television signal
- The court will protect feelings of emotional distress
(Nuisance) = What are the elements of private nuisance?
- Parties to an action/Interest in the land
- Unlawful
- Type of nuisance (Loss of Amenity and Material Damage)
- Factors of reasonableness
(Nuisance) = What are the parties to an action?
- The claimant must have an interest in the land meaning they are an owner or tenant
(Nuisance) = Who can be responsible for the nuisance?
- The person causing or allowing the nuisance can be sued
- The occupier may not be responsible for creating the nuisance but may be allowing the nuisance to occur by not dealing with it
- The defendant can still be liable for natural causes
(Nuisance) = Who has an interest in the land?
- The defendant causing the nuisance does not have to have an interest in the land where the nuisance is coming from
- The complaining neighbour must have an interest in the land affected
- The neighbour who recieves the complaint does not have to have an interest in the land but may have allowed it to continue
(Nuisance) = What is the unlawful element of private nuisance?
- The claimant must prove the defendant’s activity amounts to an unlawful use of the land which does not have to be illegal but unreasonable
(Nuisance) = What is the fault of nuisance?
- Fault does not have to be proved but there will be fault in the defendant not having regard for their neighbours
(Nuisance) = What are the five factors of reasonableness?
- Locality = The character of the land must be considered
- Duration of the interference = Was it continuous and carried out at an unreasonable hour
- Sensitivity of the claimant = If the claimant is particularly sensitive
- Malice = A deliberatly harmful act
- Social Benefit = If the defendant is providing a benefit to the community, their actions may be reasonable
(Nuisance) = What are the three defences of nuisance?
- Prescription = If the action has been carried out for at least 20 years and there has been no complaint before now, the defendant may have a prescriptive right to continue
- Moving to the nuisance = The claimant is only suffering the nuisance as rhey have moved closer to the alleged problem or moved to the area where there was no issue previously. This is not a proper argument and cannot be used by the defendant
- Statutory Authority = Activities that amount to nuisance can be regulated or license
(Nuisance) = What are remedies for nuisance?
- An injuction
- The defendant can choose an aware of damages if it is a more sutable alternative
- Abatement which allows someone to enter the defendant’s property to prevent the nuisance
(Rylands v Fletcher) = What is the rule of Rylands v Fletcher?
- ## This covers damages to the claimants property caused by something coming from the defendants land
(Rylands v Fletcher) = What did Mr Justice Blackburn state?
- A person who brings onto his land and keeps there anything likely to do mischief and it escapes, they must keep it in their peril and if he does not, he is prima facie answering for all the damage which is the natural consequence of its escape?
(Rylands v Fletcher) = What is Prima Facie?
- At first sight or on the face of it
- Supports a case at first glance
(Rylands v Fletcher) = What must the thing of the land be?
- The thing brought onto the land must amount to a non-natural use of the land
(Rylands v Fletcher) = What type of offence is Rylands v Fletcher?
- It is a strict liability offence even when the defendant has taking care to avoid the escape
(Rylands v Fletcher) = What are the elements of Rylands v Fletcher?
- Bringing onto the land or storing on the land
- A thing that would likely cause mischief if it escapes
- Amounts to a non-natural use of the land
- Which does escape and causes reasonably foreseeable damage
(Rylands v Fletcher) = Who are the parties to an action in Rylands v Fletcher?
- Traditionally it has been the owner or renter who have an interest in the land
- A defendant in Rylands v Fletcher will be either the owner or occupier of the land to be liable. It will be assumed they had some control over the land where the material is stored
(Rylands v Fletcher) = What does bringing onto the land mean?
- Bringing onto the land a substance which is not naturally present on the land
(Rylands v Fletcher) = What does it mean if it is likely to do mischief if it escapes?
- This is based on a test of foreseeability
- The damage must be foreseeable
(Rylands v Fletcher) = What is a non-natural use of the land?
- Lord Cairns argued that if it had been desired to use it for any purposes which are deemed non-natural use of the land and then in consequence of doing so it escapes, the defendants were doing it at their own peril
- Lord Moulton argued = It must be some special use bringing it with increased danger to other rather than ordinary use or for the general benefit of the community
- Case law suggests that non natural refers to extraordinary or unusual use of the land
(Rylands v Fletcher) = What does must escape and cause foreseeable damage mean?
- The substance must move from one property to one another
- However there can also be liability if it is on the same land
(Rylands v Fletcher) = What are the circumstances where fire does fall under Rylands v Fletcher?
- It is rare that fire can be claimed but there are three circumstances when it does
1. If it is the thing that has escaped rather than the fire
2. A dangerous fire was deliberately or negligently started
3. Starting a fire may be an ordinary use of the land
(Rylands v Fletcher) = What are the defences of Rylands v Fletcher?
- Act of a stranger
- Act of a god
- Volenti non fit injuria
- Statutory Authority
- Contributory Negligence
What is the development of Rylands v Fletcher?
- Rylands v Fletcher should be easier to claim however there is a number of defences. There are additional factors that make it difficult to claim
