Nuisance and Trespass to land

Question 1

Nuisance

Answer 1

Nuisance consists of an act or omission which amounts to an unreasonable
interference with, or disturbance or annoyance of, another person in the exercise of his rights as defined in Connolly v South of Ireland Asphalt co

Like all torts, to constitute a nuisance the Plaintiff must be able to demonstrate a causal connection between the conduct of the defendant and the damage or interference they suffered.

Question 2

Ommisions

Answer 2

generally revolves around a failure to alleviate the effects of natural hazards,

or risks created by third parties, or deteriorating property.

Question 3

Public nuisance

Answer 3

A public nuisance is a criminal offence and includes conduct such as creating an obstruction on a roadway.

The tort / crime occurs when a persons acts or omissions ‘injure the reasonable comfort and convenience of the public or a section of the public’.

AG brings the action

Question 4

what are the facts of Mullan v Forrester? - Public nuisance

Answer 4

In Mullan v Forrester the plaintiff sustained personal injury when a wall fell onto a public roadway and injured him. The Court awarded special damages pertaining to the public nuisance because while most other road users had suffered an inconvenience, the plaintiff had sustained distinct personal injury.

Question 5

what are some types of public nuisance

Answer 5

exposing a person suffering from an infectious disease onto a public street or holding a concert that generates an excessive degree of noise or traffic congestion.

A more recent example is found in respect of outdoor music concerts when the noise levels exceeds that which is permitted in environmental law

Question 6

obstructions and Cunningham v McGrath Brothers

Answer 6

the defendants left a ladder in the street leaning
against the wall of their property when it fell injuring a passer by. The Court found that in interpreting public nuisance, any obstruction of a public roadway is a public nuisance.

This thinking has been modified somewhat by subsequent decisions and the general rule today is that a wide range of everyday activities on public roadways do not amount to public nuisances, for example parking vehicles at the doors of shops and warehouses for the purpose of loading
and unloading are acceptable practices so long as they are not unreasonably interfering with public access to premises.

The Courts have tended to decide that obstructions that are unreasonable are actionable as public nuisances.

Question 7

Obstructions and Cunningham v McGrath Brothers

Answer 7

the defendants left a ladder in the street leaning
against the wall of their property when it fell injuring a passer by. The Court found that in interpreting public nuisance, any obstruction of a public roadway is a public nuisance.

This thinking has been modified somewhat by subsequent decisions and the general rule today is that a wide range of everyday activities on public roadways do not amount to public nuisances, for example parking vehicles at the doors of shops and warehouses for the purpose of loading
and unloading are acceptable practices so long as they are not unreasonably interfering with public access to premises.

The Courts have tended to decide that obstructions that are unreasonable are actionable as
public nuisances.

Question 8

Dangers

Answer 8

A public nuisance also arises where the Defendant commits an act or omission that makes a roadway unsafe or dangerous to the public.

Examples would include leaving an unauthorised no parking notice on a footpath, placing dangerous materials on or near a roadway
(eg rubble outside a skip) or digging an unauthorised trench and leaving it exposed to passers by.

Question 9

Private nuisance

Answer 9

The law of private nuisance protects persons from unreasonable invasion of rights
related to the ownership or occupation of land. Therefore any person in lawful possession or
occupation may sue for private nuisance, and any person who creates the nuisance may be sued

Question 10

private nuisance definition

Answer 10

[Private nuisance] at least in the vast majority of cases, are interferences for a substantial length
of time by owners or occupiers of property with the use or enjoyment of neighbouring property.

Question 11

what makes private nuisance difference to other areas of tort?

Answer 11

Unlike other areas of tort such as trespass to land, private nuisance is not actionable per se.
As such, proof of actual damaged must be demonstrated by a plaintiff in order to succeed in
their action. The damage can be a physical injury to the land or a substantial interference with the enjoyment of that land, or an interference with servitudes.

Question 12

what are the facts of St.Helens Smelting Co. v Tipping?

Answer 12

In St. Helens Smelting Co. v Tipping damage to trees and shrubs, caused by fumes from the defendants copper smelting plant was held to be sufficient material damage to constitute private nuisance because they were part of the plaintiff’s property and the plaintiff was entitled to enjoy her garden including the flowers and shrubs therein.

Question 13

what are the facts of Halpin v Tara Mines Ltd?

Answer 13

In Halpin v Tara Mines Ltd the court held that cracks in the plaintiff’s property which were shown to be caused due to vibrations created by the defendant’s blasting activity would suffice to be actionable as a private nuisance provided a plaintiff could prove the causal link to the defendant’s mining activities.

Question 14

what are the facts of Halsey v Esso?

Answer 14

In Halsey v Esso Petroleum Co. Ltd. the court held that damage to the plaintiff’s laundry while it was hanging out to dry which was caused by fumes from the defendant’s plant amounted to sufficient harm even though it could easily be remedied (by washing it again). The court was of the opinion that it is not the significance of the harm that makes the act a nuisance but rather the fact that the defendant’s actions interfere with a right enjoyed by the plaintiff.

Question 15

substantial interference with the Use & enjoyment of Land

Answer 15

In determining what is reasonable the courts take account of both the utility of the defendant’s conduct and the gravity of the harm resulting or likely to result from it.

Essentially this is a balancing process where competing rights are weighed and considered for their relative social value.

Question 16

what are the facts of O’kane v Campbell?

Answer 16

The court granted an injunction restraining a corner shop from trading throughout the night on a residential street where a number of elderly people were living. In prohibiting the activity as nuisance, the Court felt that ‘elderly people sleep more lightly than young people and they are entitled to their nights sleep and as such the shop would cause them to be disturbed in the right to quiet peaceful use and enjoyment of their property.

Question 17

in determining reasonableness, what factors are taken into account

Answer 17

A. Nature of locality 
B. purpose of the defendants conduct 
C. The duration of the interference
D. The sensitivity of the parties
E. social utility of the conduct in question

Question 18

Nature of locality - nusaince

Answer 18

Local conditions are often taken into consideration in determining whether the intrusion in question was reasonable. For example, the level of noise or the quality of air that can reasonably be expected in the City centre will differ between that expected in the quiet suburbs.

Question 19

what are the facts of christie v Davey? - purpose of the defendants conduct

Answer 19

The plaintiff was a music teacher, with a musical family, and the sound generated in her house could be heard in the defendant’s adjoining house. The defendant took
offence to the sound and wrote a letter of complaint to the plaintiff. When this brought no respite he resorted to making noise himself by banging on a variety of implements about his
house, in order to annoy the plaintiff. The Court held that the intent of the defendant to annoy the plaintiff was a crucial factor and awarded an injunction preventing him from making further noise. The Court conceded that if the defendant had generated the noise innocently then no
action for nuisance would exist, but as he had generated it maliciously it was actionable.

Question 20

The duration of the interference and Leeman v Montagu

Answer 20

As a general rule, the longer the interference the more likely it will be found to be considered unreasonable.

In Leeman v Montagu the defendants owned chickens and cockerels who were in the habit of crowing loudly for hours, usually starting at 2am.

The plaintiffs lived in a residential area adjacent to the defendant’s property and sued in nuisance. The court held
that as the animals created the noise for up to five hours a day and that it was at such an
unreasonable hour they granted an injunction against the defendant.

Question 21

What are the facts of Bolten v Stone? The duration of the interference

Answer 21

the plaintiffs lived in a property opposite a cricket pitch. During a game a cricket ball was hit outside the boundary and flew Into their property causing damage. The evidence was that this had happened six times in the preceding thirty years.

However the court held that it was not so regular as to be a nuisance and the social utility of having a sporting club
in a community outweighed any potential nuisance that the balls could cause.

Question 22

The sensitivity of the parties

Answer 22

It would appear that if the plaintiff is a person who is overly concerned or hyper-sensitive about activities that would constitute a nuisance or disturbance to them, the courts will view such persons/ cases with caution.

Question 23

what are the facts of Robinson v Kilvert

Answer 23

In Robinson v
Kilvert, the plaintiff rented a commercial unit above the defendants to store paper. When the defendant heated his unit, the heat rising through the floors caused the plaintiff’s paper to become discolored.

The evidence showed that the paper in question was particularly sensitive
to heat of any kind but that the defendants had only used low level heat in their premises. In
dismissing the claim for nuisance the court held that the defendant had not acted unreasonable and the damage or interference with the plaintiff’s rights had been caused by the particular
nature and sensitivity of the paper in question.

Question 24

The social utility of the conduct in question

Answer 24

Where the defendant’s actions were done in furtherance of some greater public good,
the courts have been reluctant to hold that the actions constitute nuisance.

Question 25

what are the facts of Clifford v The Drug Treatment Centre Board - The social utility of the conduct in question

Answer 25

the defendants ran a drug treatment clinic near the plaintiff’s property and sought to expand the centre to treat more patients.
In objecting to the plans, the plaintiffs claimed that the service would cause created numbers of persons to frequent the area and it caused a nuisance for local businesses.

The High Court
granted the application to restrict the expansion of the centre but refused the application to restrict the numbers attending it on the basis that the work done by the clinic was of incredible
social importance.

Question 26

Interference with Servitudes

Answer 26

This aspect of the tort arises from an interference with a right of way or access to a water source I public service outlet etc.

A servitude cannot be physically damaged as it is the use of the service that is being interfered with but the property over which a servitude exists can be physically interfered with in a manner that disrupts the exercise of the right in question and in those circumstances an action in nuisance arises.

Question 27

what position was taken in the case of Hanmhan v Merck Sharpe and Dohme

Answer 27

In Hanmhan v Merck Sharpe and Dohme the
Supreme Court were satisfied that the occupation of a premises was sufficient to bring a claim for private nuisance in this jurisdiction

Question 28

what are the two defences in nuisance?

Answer 28

1. Legislative authority - The main legislation covering nuisance is in relation to the powers and duties of Local Authorities
2. Prescription - After 20 years it becomes an easement.

Question 29

Nuisance remedies

Answer 29

• Injunction

- damages

Question 30

Omissions and Vernon Knight Associates v. Cornwall - Nuisance

Answer 30

i. Landowner has a duty both in negligence and nuisance to take reasonable steps to prevent natural occurrences on the land from causing damage to neighbours property.
ii. In determining the duty’s content – consider what is fair just and reasonable as between neighbour landowners. It must have regard to all circumstances, including extent to foreseeability of risk,
available preventative measures, cost of the measures and resources of both parties.
iii. Where the def. is a public authority, need to consider whether it is fair to force them to spend resources on the pl – especially as it would only benefit a small few.

Question 31

Tresspass to land

Answer 31

Trespass to land is committed where the defendant, without lawful justification (intentionally or negligently) enters or remains on, or directly causes anything to come into
contact with the land in the possession of another.

The tort is actionable without proof of damage and the focus is on the protection of rights . In particular the property rights of the citizen

Question 32

what was held in the case of Wilcox v kettel? - nuisance

Answer 32

an intrusion of a concrete foundation by 50 centimeters was held to be a trespass.

Question 33

Trespass to land - Possession

Answer 33

It is important to note that a plaintiff seeking to ground an action based on trespass to land must establish that he was in possession of the land when the interference occurred.

Question 34

Trespass to land - Permission

Answer 34

A person who enters property with permission may nonetheless become a trespasser if they exceed that permission and abuse their right of entry.

Question 35

Doctrine of trespass ab initio

Answer 35

The doctrine of trespass ab initio allows a person who lawfully enters onto land and subsequently abuses that right of entry to be treated as if he had been a trespasser from the moment of entry.

Question 36

What are the facts of Whelan v Madigan? - possession

Answer 36

The defendant rented premises to the plaintiff and sent a letter informing the plaintiff that he would inspect the premises on a particular date. When he arrived on the day, the defendant didn’t have a key to property and forced open the door with a screwdriver.

During his visit he caused damage to one of the plaintiff’s walls and removed chairs from their landing. The plaintiffs brought a successful action in trespass and the court held that although not the legal owners of the property, the tenants were in rightful occupation and as such the defendant had interfered with their rights in respect of the property.

Question 37

What are the facts of Webb v Ireland? - Doctrine of trespass ab initio

Answer 37

The plaintiffs lawfully entered property for the ostensible purpose of viewing a national monument but once there proceeded to dig up the earth in search of treasure.

The plaintiffs were deemed to be trespassers ab initio (ie from the moment they began to dig up the earth) as they had been granted permission to enter the property to view the monument and had exceeded such authority when they commenced their excavation.

Question 38

Land

Answer 38

For the purposes of the tort, land includes everything “upwards to heaven and, by
analogy, downwards to hell” which is part of the land owner’s reasonable enjoyment of the land. An action will, therefore, (subject to legislation) lie where the trespass takes place above
or below the land.

Question 39

remedies for trespass

Answer 39

a. Re-entry
b. Ejectrnent
C. Mesne Profits
d. Damages
e. Injunction

Question 40

defences to Trespass to land

Answer 40

1. Consent - In Hurst v Picture Threatres Ltd, the court acknowldged that in respect to trespass to land, consent is given in the form of a license which can be express or implied
2. Necessity - It is a defence to an action in trespass to prove that there was an emergency (not of the defendant’s making) which rendered entry reasonable in the circumstances;
3. Lawful Authority - Statute also creates a number of instances when Gardai have lawful authority
   to enter a property for the purposes of investigation of a crime. (warrant)