Nuisance (private and public) Flashcards
What is public nuisance?
“a public nuisance is one which materially affects the comfort and convenience of life of class of the public who come within the sphere or neighbourhood of its operation. The question is whether the number of persons affected is sufficient to constitute a class is one of fact in every case”
Common examples of public nuisance at common law
-keeping a disorderely house, carring on an offensive trade, selling food unfit for human consumption, obstruction of the highway, inciting the use of violence against animal research labs
Key points on characterisation of public nuisance in R v Rimmington
- D’s conduct must affect a community in a way common to them all
- doesn’t apply where D is responsible for a large series of distinct acts that each affect individual people
How is a public nuisance restrained?
-attorney general has the power to bring proceedings for an injunction to restrain or prevent a public nuisance
Does a local authority have the power to restrain a public nuisance?
- YES
- according to s222 of local government act 1972
- local authority can take legal proceedings in the interest of inhabitants of its area
Wandsworh London BC v Railtrack plc (2002)
- railtrack owned by R
- R aware pidgeons dropped droppings on pedestrians
- council brought proceedings for an injunction and declared damages under s222 LGA
- CA held R liable in public nuisance even though R didn’t cause the pidgeon infestation
- R knew the birds were there and failed to take reasonable steps to remove them
- R required to pay damages to council for extra cost of cleaning pavements
Can public nuisance give rise to liability in tort?
- Yes, but only where C can show they suffered a particular/special loss over the ordinary inconvenience suffered by the public at large
- doesn’t have to be a different kind, just a different degree (more severe)
Rose v Miles (1815)
- D obstructed canal over which there was a public right of navigation
- construction on public right of way is a nuisance
- P had to unload cargo already in transit and then transport cargo at additional cost
- court held the extra cost constituted special damage
- difference is that P’s cargo was already in transit when obstructio occured so their damage was different
Scope of D’s duty for public nuisance and test for remoteness of damage
- D is only responsible for a public nuisane which he knew or ought to have known would be the consequence of his act or omission
- test is reasonable forseeability of the relevant kind of damage
What is private nuisance?
“unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”
Three widely known kinds of private nuisance?
- encroachment on a neighbour’s land
- direct physical injuries to neighbour’s land
- interference with a neighbour’s quiet enjoyment of his land
key test of whether an interference with the use/enjoyment of C’s land is unlawful
- does D’s act/omission cause an unreasonable interference with the use/enjoyment of C’s land?
Fay v Prentice, 1845
- nuisance by encroachment on neighbour’s land
- spreading tree roots or overhanging branches over where D’s cornice projected over C’s garden from which rain water flowed into C’s garden
St Helens Smelting Co V Tipping, 1865
- nuisance by direct physical injury to neighbour’s land
- escape of chemical fumes that damage vegetation on C’s land
The requirement for damage in private nuisance
- sufficient to show physical damage or unreasonable interference with amenity
- pure economic loss isnt in itself sufficient
- damage is presumed where nuisance is caused by encroachment of artificial object
Who can sue in private nuisance?
-only the owner of the land can sue with an interference of that land
Hunter v Canary Wharf
- Ps claimed damages for interference of television reception caused by construction of CW tower
- interference went on for 3 yrs
- Ps claimed damages for excessive dust created by construction of new roads in the area
- CA held the occupation of the property as a home was enough for the occupier to sue in private nuisance
- P didn’t have to be the owner to sue
- HL held that only claimants with a legal interest in the property and can sue for private nuisance
- private nuisance wasn’t actionable
Who generally has standing to sue in private nuisance?
-owner, tenant, person in actual exclusive possession
Can a tolerated trespasser sue in private nuisance? (southwark london bc v pemberton)
- C was former secure tenant of council house
- council obtained order for possession from courts but it was suspended
- she continued to occupy the property and pay rent
- she still had exclusive possession of the house so she could sue in nuisance
Test for interference with comfort/convenience ( Walter v Selfe, 1851)
“ought this inconvenience to be considered… as an inconvenience materially interfering with the ordinary comfort, physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to the plain and sober and simple notions among the english people”
Adams v Ursell (1913)
- fish and chip shop on street next to C’s house
- held to be private nuisance
- C gave evidence that the odour caused by frying fish pervaded every room in his house
- vapour from D’s cooking entered P’s house like a fog
- court held it to be unreasonable interference
Relevant facorts that may influence decision as to whether or not interference is unreasonable
- the intensity of the effect on the claimant’s land
- the duration, frequency and timing
- whether the issue can be attributed to C’s abnormal sensitivity
What effect does the nature of the locality have on private nuisance claims? (St Helens Smelting v Tipping)
“If a manlives in a town, it is necessary that he should subject himself to the cnequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, as for the benefit of the inhabitants of the town and of the public at large”
Where can there be no liabilty for the defendant in private nuisance?
-where D has a specific legal right to act as they did
Mayor of bradford v Pickles (1895)
- P owned land adjacent to resevoir owned by bradford corp
- resevoir fed by water from P’s land
- P diverted water to put pressure on corp to buy land from him @ high price
- corp sought injunction to prevent this, claimed it was unlawful to exercise legal right for malicious urpose
- claim failed
- P has legal right to divert water, corp had no right to receive water
- P can exercise his right, no matter his motive
- some judges weren’t convinced getting a good price for and was malicious
Hollywood silver fax farms v emmet (1936)
- C started business of breeding silver foxes
- D owned adjacent land, wanted D to take down notice as it might affect chance of selling his property
- C refused, D got his son to fire shotguns during breeding season
- D knew it would affect foxes, caused some foxes not to mate and one to injure their cub
- judge awarded damages and an injunction, preventing D from firing shotgun during breeding season
- D didn’t have specific legal right to fire guns whenever he pleased
- only entitled to fire guns if it didn’t cause a nuisance
Hussain v Lancaster city council (2000)
- Cs owned a shop in council estate, subjected to harassment by local residents including council house tenants
- harassment took place on highway outside shop
- Cs sued council in nuisance for failing to exercise power over tenants (evicting them)
- CA rejected claim as landlord had limited liabilty for nuisance commited by the tenant
- CA also claimed that tenants weren’t liable in nisance as harasing acts didn’t involve the tenant’s use of tenant’s land
- this has been criticised
- the normal D is the occupier of which a nuisance is caused but there are many cases to show a person who creates nuisance is also liable even where the nuisance is caused by acts on the highway
Lippiat v South Gloucestershire (2000)
- CA held there was an arguable case in private nuisance where the council permitted gypsies to camp on their land from which they trespassed onto P’s neighbouring land and caused damage
- courts held D occupier could be held liable for permitting their land as the base for unlawful nuisance causing activities
- occupier must exercise some control over the nuisance causing activities of people they permit to be on their land
- approach in Lippiat preferred to approach in Hussain
Three possible defendants in private nuisance
- person who creates the nuisance
- the occupier of the land from which nuisance emanates
- landlord where tenant is responsible for nuisance
Can the creator of the nuisance be sued even though their no longer an occupier or have never been one?
- Ds wrongfully erected a building on land owned by another corp
- building created a continuing nuisance by interfering with a market
- held liable even though they had no current right to enter the land to stop the building
- as creators they’re liable for the nuisance
Is it necessary to prove that the person who created the nuisance was at fault?
-whether D was at fault in creating a nuisance is legally irrelvant, they don’t have to be deliberate or careless
LJ Lindley in Rapier v London Tramways (1893)
“at common law, if I am sued for a nuisance and the nuisance is proved, it is no defence on my part to say and to prove that I have taken all reasonable care to prevent it…if the defendants are right in saying that they cannot concentrate their stables to such an extent as is desirable without committing a nuisance to the neighbourhood, then they must not concentrate their horses to such an extent”
Forseeability in private nuisance
- D can only be held liable where the interference with the use/enjoyment is a forseeable result of their conduct
- D is only liable for reasonably foreseeable kinds of damage
Cambridge water ltd v Eastern counties leather plc (1994)
- Ds were long established leather manufacturers
- from 1960s used a chemical solvent to clean pelts
- small amounts regularly spilled onto concrete floor
- judge found it wasn’t reasonably forseeable that such large spillages would lead to environmental damage
- not forseeable solvent would go through floor and enter soil
- it wasn’t forseeable that it would be found in detectable quantities/have effect on water
- only forseeable risk was someone being injured by the fumes by a large spill
- C purchased boorhole and had large amounts of the solvent
- they had to find another source for water, cost over 1 mil
- H didn’t find D liable in nuisance
- damage wasn’t reasonably foreseeable
What happens where the occupier is responsible for the creator of the nuisance?
-they are a joint tortfeasor according to Ellis v Sheffield gas consumers (1853)
What if the nuisance is created by an independent contractor on D’s land?
-generally the occupier isn’t liable for harms caused by independent contractors
What happens where the occupier adopts/continues a nuisance?
-an occupier that knows/ought reasonably to know a nuisance is eminating from their land is liable if they adopt it for their own purposes or they continue it through a failure to take reasonable steps to stop it
Sedleigh Denfield v O’Callaghan (1940)
- D’s own land on which the local authority constructed a pipe
- workmen should’ve put a grate to prevent leaves blocking the pipe but they put it in the wrong place
- technically, they were trespassers as they did it without D’s knowledge
- pipes blocked and C’s land was flooded
- Ds held to have known about unguarded pipe but did nothing to stop it
- Ds were held liable in provate nuisance
- continued the nuisance because they knew and made use of it as the pipe helped them drain their own property
Goldman v Hargrave (1967)
- tree on D’s land hit by lightning
- took inadequate steps to put fire out and it spread
- Ds held liable in negligence and private nuisance
Leaky v National trust (1980)
- Cs owned house at hill owned by national trust
- as a result of natural agencies from time to time there was slides of soil, rocks and tree roots onto C’s land
- national trust held liable in nuisance
Where the premises has been let on a tenancy…
the tenant will be the occupier and the landowner and the landlord usually cannot be held liable
exception to the lanlord tenacy nuisance rule
- if the lanlord has expressly/impliedly authorised the nuisance (Tetley v Chitty, 1986)
- where the landlrod knew/ought to have known of the nuisance before the letting
Recognised defences
- twenty years prescription (prescriptive right to perform an act that would be a private nuisance)
- if the nuisance is specifically authorised by statute
- nuisance covered by planning permisson entitle you to make some noise but not enough to cause a nuisance
- contributory negligence (violenti non fit injuria)
- acts of a stranger
- act of god
Defences not recognised
- no defense that C moved to the place where a nuisance is being committed (Miller v Jackson, 1977)
- usefulness (Adams v Ursell)
- no defense that the nuisance is to many
- no defense that nuisance created by independent ats of different persons even though the acts of 1 wasn’t lawful
Private nuisance remedies
-damages for the past and an injunction for the future
Can the social/economic benefit of an activity have an effect on remedies for private nuisance?
- in coventry v lawrence SC stated obiter that judges should take it more into account
- injunction wasn’t granted in Miller because of the social value of cricket
What article of ECHR can come into play in private nuisance?
- Article 8, right to respect for private and family life
- actions that interfere with use/enjoyment of life might also infringe this article
