Nuisance

Question 1

Statutory nuisance

Answer 1

S.79(1) of Environmental Protection Act 1990

Question 2

Public v Private Nuisance

Answer 2

a) What constitutes nuisance
Comfort/convenience | Unreasonable use of land

b) Need to prove damage
No | Yes

c) Remedies
Criminal penalty | Civil remedy

d) Standing to sue
Only for special damage | Need proprietary interest

e) Damages recoverable
For all damage | Only damage to land

Question 3

Definition of public nuisance

Answer 3

A nuisance which materially affects the reasonable comfort and convenience of life as a class of the public (AG v PYA Quarries)

Question 4

Meaning of “public”

Answer 4

Widespread in range or so indiscriminate in effect that it would not be reasonable to expect one person to take proceedings to stop it (AG v PYA Quarries)

Affects the community (R v Rimmington)

Question 5

Standing to sue for public nuisance

Answer 5

No standing, unless there is special damage (Tate & Lyle Industries v Greater London Council)

Question 6

Definition of private nuisance

Answer 6

Interference with the claimant’s reasonable enjoyment of his land (Coventry v Lawrence)

Question 7

Types of private nuisance

Answer 7

St Helen’s Smelting Co v Tipping

a) Material injury to property
b) Loss of amenity/’sensible personal discomfort’

Question 8

Standing to sue (personal or property tort?)

Answer 8

Khorasandjian v Bush - personal, since what is being protected is enjoyment of property

Hunter v Canary Wharf - property

Views:
Lord Goff: narrow – to avoid turning it into a tort to the person (between neighbours) (like negligence?)
Lord Cooke: broad – no reason to exclude, also note Art 8 of ECHR

Question 9

Determining “unreasonable use” of land - factors

Answer 9

a) Public benefit
b) Locality
c) Sensitive claimant
d) Malice

Question 10

Public benefit factor

Answer 10

Rejection of argument that where conduct is for public benefit, cannot amount to nuisance - slow to extinguish private rights (Coventry v Lawrence)

Question 11

How to measure public benefit

Answer 11

Social benefit > social cost (compensation) (Bamford v Turnley)

Question 12

Why not a defence?

Answer 12

If private rights are to be extinguished, Parliament must do it (obiter) (Shelfer v City of London Electric Lightning Co (No.1) )

Question 13

Locality factor

Answer 13

St Helen’s Smelting v Tipping

a) Material injury to property - locality irrelevant
b) Loss of amenity - locality relevant

Question 14

Hunter v Canary Wharf

Answer 14

Challenge to the need for a distinction, since both are to do with property interests - should use the same factors

Question 15

Definition of locality

Answer 15

Pattern of use rather than singular character of an area (Coventry v Lawrence)

Question 16

Role of defendant’s own activities in determining locality

Answer 16

Relevant (Coventry v Lawrence)

but unlikely to be final word

Question 17

Application of locality factor

Answer 17

“What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” (Sturges v Bridgman)

Baxter v Camden London Borough (noise in low cost/high density building)

Question 18

Planning permission case law

Answer 18

Reference point to a neighbourhood with the new use (Gillingham DC v Medway (Chatham) Dock Co Ltd)

Not relevant if not a strategic planning permission (Wheeler v JJ Saunders, Watson v Croft Promosport)

REJECTION OF GILLINGHAM; planning permission does not hold much weight (Coventry v Lawrence)

Question 19

Sensitivity of claimant factor

Answer 19

The more sensitive, the more likely reasonable

Reasonable use test same as ordinary use test, comparison to ordinary use rather than the specific use by claimant

Robinson v Kilvert (brown paper)

Question 20

Sensitivity of claimant factor - status

Answer 20

High threshold, move towards foreseeability test instead (Network Rail v Morris)

Question 21

Malice factor

Answer 21

If malicious, more likely unreasonable

Christie v Davey (musical family
Unlawful act w ill motives)

Question 22

Exception to malice factor

Answer 22

Lawful act with ill motives may be unreasonable

Bradford Corp v Pickles, Hollywood Silver Fox Farm v Emmett

Question 23

Role of negligence in nuisance

Answer 23

a) Foreseeability of damage from use of land
b) Liability for acts done by third parties
c) Liability for Acts of God

Question 24

Foreseeability of damage from use of land

Answer 24

Usually not an issue because nuisance cases would occur when the unreasonable use is ongoing, but applies to cases of past harm

Question 25

Test for foreseeability

Answer 25

Whether the kind of damage was reasonably forseeable at time of breach of duty (The Wagon Mound No. 1, Cambridge Water Co v Eastern Counties Leather plc)

Question 26

How to determine what was reasonable for D to have done to control hazard

Answer 26

"Measured duty of care" (Anthony v Coal Authority) a) Reasonable foreseeability of risk AND actual damage b) Knowledge c) Ability to abate hazard

Question 27

Liability for acts done by third parties

Answer 27

``` Liability if the nuisance was a) continued b) adopted c) D had or should have had knowledge and failed to take reasonable steps (Sedleigh-Denfield v O'Callaghan) ```

Question 28

What type of steps to take to avoid liability for third party acts?

Answer 28

Reasonable steps (Lambert v Barratt Homes)

Question 29

Application of liability by occupier of land for third party acts

Answer 29

a) Liability to act positively to prevent harm - yes (Goldman v Hargraves) b) Liability for predecessors in title - yes (Bybrooks Barn Centre v Kent County Council) c) Liability when land is used as a base to engage in activities off defendant's land that interfere with use - yes (Lippiatt v South Gloucestershire Council) d) Isolated escape or ongoing interference which would not have been apparent to the defendant - no (Northumbrian Water v Sir Robert McAlpine) Except for if loss of amenity (Anglian Water Services v Crawshaw Robbins & Co Ltd) e) Landlords' liability for acts of tenant - no (Coventry v Lawrence Except for direct or active participation

Question 30

Liability for acts of nature

Answer 30

"Measured duty of care" (Leakey v National Trust) No liability for damage that was vastly more extensive than what was foreseen or could have been foreseen, even if it is of the type that was foreseen (Holbeck Hall Hotel v Scarborough Borough Council)

Question 31

Defences

Answer 31

a) Coming to the nuisance b) Prescription c) Statutory authority and regulatory compliance

Question 32

Coming to the nuisance defence

Answer 32

Not a defence even if they are aware (Miller v Jackson) Not a defence even if activity only became a nuisance due to change in use by claimant (Sturges v Bridgman)

Question 33

Prescription defence

Answer 33

Show that it has taken place for a long time + was a nuisance the whole time + earlier cause of action could have been taken earlier (Coventry v Lawrence) Knowledge required (Liverpool Corp v Coghill & Son Ltd)

Question 34

Statutory authority and regulatory compliance defence

Answer 34

Defence if statutory authority has been granted (Geddis v Proprietors of Bann Reservoir, Allen v Gulf Oil Refining)

Question 35

Limitations to statutory authority and regulatory compliance defence

Answer 35

a) Human rights law | b) Planning permission under delegated powers

Question 36

Human rights exception to statutory authority and regulatory compliance defence

Answer 36

Art 8 of ECHR - but provision for compensation may be enough - use s.3 HRA 1998 to read down statute

Question 37

Planning permission exception to statutory authority and regulatory compliance defence

Answer 37

Wheeler v JJ Saunders (pig farm) Rationale: - statutory authority as endorsement by P, but obtaining planning permission = make lawful what would be criminal - admin decisions are hard to challenge (JR) Applied: Barr v Biffa Waste Services Ltd (No.3)

Question 38

Caveats to the planning permission exception

Answer 38

"Strategic planning decisions" in S.152 of Planning Act 2008 - 'nationally significant infrastructure projects' But compensation mechanism: S.158 of Planning Act 2008 S.1 of Land Compensation Act 1973

Question 39

Overview of remedies available

Answer 39

a) Injunction b) Damages c) Both

Question 40

Availability of damages

Answer 40

Limited discretion to grant damages, injunction as de facto remedy

Question 41

Increased discretion in damages

Answer 41

Shelfer v City of London Electric Lighting a) Injury to legal rights small b) Capable of beign estimated in money c) Can be adequately compensated by small money payment d) Oppressive to grant injunction

Question 42

Application of damages vis-a-vis injunctions

Answer 42

a) Decreases in value of property (Hunter v Canary Wharf) But should consider 'actual impact', 'actual experiences' (Dobson v Thames Water Utilities Ltd) b) In lieu of injunction, when oppressive (Jaggard v Sawyer)

Question 43

New approach to damages/injunction

Answer 43

More flexible approach to injunction, defendant has to persuade the court not to give injunction (Coventry v Lawrence)

Question 44

Rylands v Fletcher rule

Answer 44

Escape + dangerous thing + non-natural use = liability for damage to another as a result of the escape, regardless of fault Now seen as species of nuisance (Cambridge Water v Eastern Counties Leather)

Question 45

Non-natural use

Answer 45

Use that is out of the ordinary (Transco v Stockport MBC) | - If insurable, then not non-natural

Question 46

Dangerous things

Answer 46

Some special use brigning with it increased danger to others (Rickards v Lothian) Exceptionally high risk of danger or mischief (Transco)

Question 47

Escape

Answer 47

Escape from a place where the defendant had occupation or control over to a place which is outside his occupation or control (Read v J Lyons & Co)

Question 48

Defences to Rylands v Fletcher

Answer 48

a) Acts of God (Tennent v Earl of Glasgow) b) Deliberate act of 3rd party (Rickards v Lothian) c) Statutory duty d) Consent

Question 49

Application of Rylands to fire

Answer 49

No application, unless the fire is deliberately or negligently started on the premises (Stannard v Gore)