Nuisance (private and public)

Question 1

What is public nuisance?

Answer 1

“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”

Question 2

Common examples of public nuisance at common law

Answer 2

-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

Question 3

Key points on characterisation of public nuisance in R v Rimmington

Answer 3

• 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

Question 4

How is a public nuisance restrained?

Answer 4

-attorney general has the power to bring proceedings for an injunction to restrain or prevent a public nuisance

Question 5

Does a local authority have the power to restrain a public nuisance?

Answer 5

• YES
• according to s222 of local government act 1972
• local authority can take legal proceedings in the interest of inhabitants of its area

Question 6

Wandsworh London BC v Railtrack plc (2002)

Answer 6

• 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

Question 7

Can public nuisance give rise to liability in tort?

Answer 7

• 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)

Question 8

Rose v Miles (1815)

Answer 8

• 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

Question 9

Scope of D’s duty for public nuisance and test for remoteness of damage

Answer 9

• 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

Question 10

What is private nuisance?

Answer 10

“unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”

Question 11

Three widely known kinds of private nuisance?

Answer 11

• encroachment on a neighbour’s land
• direct physical injuries to neighbour’s land
• interference with a neighbour’s quiet enjoyment of his land

Question 12

key test of whether an interference with the use/enjoyment of C’s land is unlawful

Answer 12

• does D’s act/omission cause an unreasonable interference with the use/enjoyment of C’s land?

Question 13

Fay v Prentice, 1845

Answer 13

• 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

Question 14

St Helens Smelting Co V Tipping, 1865

Answer 14

• nuisance by direct physical injury to neighbour’s land

- escape of chemical fumes that damage vegetation on C’s land

Question 15

The requirement for damage in private nuisance

Answer 15

• 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

Question 16

Who can sue in private nuisance?

Answer 16

-only the owner of the land can sue with an interference of that land

Question 17

Hunter v Canary Wharf

Answer 17

• 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

Question 18

Who generally has standing to sue in private nuisance?

Answer 18

-owner, tenant, person in actual exclusive possession

Question 19

Can a tolerated trespasser sue in private nuisance? (southwark london bc v pemberton)

Answer 19

• 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

Question 20

Test for interference with comfort/convenience ( Walter v Selfe, 1851)

Answer 20

“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”

Question 21

Adams v Ursell (1913)

Answer 21

• 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

Question 22

Relevant facorts that may influence decision as to whether or not interference is unreasonable

Answer 22

• 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

Question 23

What effect does the nature of the locality have on private nuisance claims? (St Helens Smelting v Tipping)

Answer 23

“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”

Question 24

Where can there be no liabilty for the defendant in private nuisance?

Answer 24

-where D has a specific legal right to act as they did

Question 25

Mayor of bradford v Pickles (1895)

Answer 25

• 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

Question 26

Hollywood silver fax farms v emmet (1936)

Answer 26

• 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

Question 27

Hussain v Lancaster city council (2000)

Answer 27

• 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

Question 28

Lippiat v South Gloucestershire (2000)

Answer 28

• 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

Question 29

Three possible defendants in private nuisance

Answer 29

• person who creates the nuisance
• the occupier of the land from which nuisance emanates
• landlord where tenant is responsible for nuisance

Question 30

Can the creator of the nuisance be sued even though their no longer an occupier or have never been one?

Answer 30

• 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

Question 31

Is it necessary to prove that the person who created the nuisance was at fault?

Answer 31

-whether D was at fault in creating a nuisance is legally irrelvant, they don’t have to be deliberate or careless

Question 32

LJ Lindley in Rapier v London Tramways (1893)

Answer 32

“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”

Question 33

Forseeability in private nuisance

Answer 33

• 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

Question 34

Cambridge water ltd v Eastern counties leather plc (1994)

Answer 34

• 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

Question 35

What happens where the occupier is responsible for the creator of the nuisance?

Answer 35

-they are a joint tortfeasor according to Ellis v Sheffield gas consumers (1853)

Question 36

What if the nuisance is created by an independent contractor on D’s land?

Answer 36

-generally the occupier isn’t liable for harms caused by independent contractors

Question 37

What happens where the occupier adopts/continues a nuisance?

Answer 37

-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

Question 38

Sedleigh Denfield v O’Callaghan (1940)

Answer 38

• 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

Question 39

Goldman v Hargrave (1967)

Answer 39

• 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

Question 40

Leaky v National trust (1980)

Answer 40

• 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

Question 41

Where the premises has been let on a tenancy…

Answer 41

the tenant will be the occupier and the landowner and the landlord usually cannot be held liable

Question 42

exception to the lanlord tenacy nuisance rule

Answer 42

• 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

Question 43

Recognised defences

Answer 43

• 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

Question 44

Defences not recognised

Answer 44

• 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

Question 45

Private nuisance remedies

Answer 45

-damages for the past and an injunction for the future

Question 46

Can the social/economic benefit of an activity have an effect on remedies for private nuisance?

Answer 46

• 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

Question 47

What article of ECHR can come into play in private nuisance?

Answer 47

• Article 8, right to respect for private and family life

- actions that interfere with use/enjoyment of life might also infringe this article