Nuisance Flashcards
Statutory nuisance
S.79(1) of Environmental Protection Act 1990
Public v Private Nuisance
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
Definition of public nuisance
A nuisance which materially affects the reasonable comfort and convenience of life as a class of the public (AG v PYA Quarries)
Meaning of “public”
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)
Standing to sue for public nuisance
No standing, unless there is special damage (Tate & Lyle Industries v Greater London Council)
Definition of private nuisance
Interference with the claimant’s reasonable enjoyment of his land (Coventry v Lawrence)
Types of private nuisance
St Helen’s Smelting Co v Tipping
a) Material injury to property
b) Loss of amenity/’sensible personal discomfort’
Standing to sue (personal or property tort?)
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
Determining “unreasonable use” of land - factors
a) Public benefit
b) Locality
c) Sensitive claimant
d) Malice
Public benefit factor
Rejection of argument that where conduct is for public benefit, cannot amount to nuisance - slow to extinguish private rights (Coventry v Lawrence)
How to measure public benefit
Social benefit > social cost (compensation) (Bamford v Turnley)
Why not a defence?
If private rights are to be extinguished, Parliament must do it (obiter) (Shelfer v City of London Electric Lightning Co (No.1) )
Locality factor
St Helen’s Smelting v Tipping
a) Material injury to property - locality irrelevant
b) Loss of amenity - locality relevant
Hunter v Canary Wharf
Challenge to the need for a distinction, since both are to do with property interests - should use the same factors
Definition of locality
Pattern of use rather than singular character of an area (Coventry v Lawrence)
Role of defendant’s own activities in determining locality
Relevant (Coventry v Lawrence)
but unlikely to be final word
Application of locality factor
“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)
Planning permission case law
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)
Sensitivity of claimant factor
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)
Sensitivity of claimant factor - status
High threshold, move towards foreseeability test instead (Network Rail v Morris)
Malice factor
If malicious, more likely unreasonable
Christie v Davey (musical family
Unlawful act w ill motives)
Exception to malice factor
Lawful act with ill motives may be unreasonable
Bradford Corp v Pickles, Hollywood Silver Fox Farm v Emmett
Role of negligence in nuisance
a) Foreseeability of damage from use of land
b) Liability for acts done by third parties
c) Liability for Acts of God
Foreseeability of damage from use of land
Usually not an issue because nuisance cases would occur when the unreasonable use is ongoing, but applies to cases of past harm
Test for foreseeability
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)
How to determine what was reasonable for D to have done to control hazard
“Measured duty of care” (Anthony v Coal Authority)
a) Reasonable foreseeability of risk AND actual damage
b) Knowledge
c) Ability to abate hazard
Liability for acts done by third parties
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)
What type of steps to take to avoid liability for third party acts?
Reasonable steps (Lambert v Barratt Homes)
Application of liability by occupier of land for third party acts
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
Liability for acts of nature
“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)
Defences
a) Coming to the nuisance
b) Prescription
c) Statutory authority and regulatory compliance
Coming to the nuisance defence
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)
Prescription defence
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)
Statutory authority and regulatory compliance defence
Defence if statutory authority has been granted (Geddis v Proprietors of Bann Reservoir, Allen v Gulf Oil Refining)
Limitations to statutory authority and regulatory compliance defence
a) Human rights law
b) Planning permission under delegated powers
Human rights exception to statutory authority and regulatory compliance defence
Art 8 of ECHR
- but provision for compensation may be enough
- use s.3 HRA 1998 to read down statute
Planning permission exception to statutory authority and regulatory compliance defence
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)
Caveats to the planning permission exception
“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
Overview of remedies available
a) Injunction
b) Damages
c) Both
Availability of damages
Limited discretion to grant damages, injunction as de facto remedy
Increased discretion in damages
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
Application of damages vis-a-vis injunctions
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)
New approach to damages/injunction
More flexible approach to injunction, defendant has to persuade the court not to give injunction (Coventry v Lawrence)
Rylands v Fletcher rule
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)
Non-natural use
Use that is out of the ordinary (Transco v Stockport MBC)
- If insurable, then not non-natural
Dangerous things
Some special use brigning with it increased danger to others (Rickards v Lothian)
Exceptionally high risk of danger or mischief (Transco)
Escape
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)
Defences to Rylands v Fletcher
a) Acts of God (Tennent v Earl of Glasgow)
b) Deliberate act of 3rd party (Rickards v Lothian)
c) Statutory duty
d) Consent
Application of Rylands to fire
No application, unless the fire is deliberately or negligently started on the premises (Stannard v Gore)
