Nuisance (rev notes)

Question 1

Private nuisance (def)

Answer 1

= an act or omission, generally connected w/ use of land, which causes damage to another person by unreasonably interfering w/ their enjoyment of their own land

Question 2

Private nuisance - 3 key elements

Answer 2

• interference w/ use or enjoyment of land
• which is unreasonable (relevant factors = continuity / duration / time of day / location…)
• and causes some damage to the land (physical or loss of amenity)

Question 3

Who can sue in pv nuisance ?

Answer 3

HL in Hunter v Canary Wharf (1996): Only someone w/ a possessory or proprietary interest in land can sue (bcs nuisance = tort to land)
Authority = HL i

Question 4

Who can be sued in pv nuisance ?

Answer 4

(1) the creator of the nuisance

(2) the occupier of the land which is the source of the nuisance = Sedleigh Denfield v O’Callaghan (1939)

(3) in some cases, landlord / O of land source of the nuisance (see later card for cases)

Question 5

Can landlord be sued in pv nuisance ?

Answer 5

Contrast :
· Tetley v Chitty (1986) : land let for purpose of go-cart racing, landlord lb for the noise bcs natural csq of the letting

· Lippiatt v South Gloucestershire County Council (1999) : council lb for anti-social activity of travelers they had allowed to occupy a site and not evicted

· ≠ Hussain v Lancaster City Council (1999): claim against landlord for racist activities of tenant failed

Question 6

6 elements that can be relevant in pv nuisance

Answer 6

• Location
• Planning permission
• C’s sensitivity
• Utility of D’s conduct
• D’s motive
• Duties arising from acts of nature

Question 7

Location (in pv N)

Answer 7

• Sturges v Bridgman (1879) : “what would be a nuisance in Belgravia would not necessarily be so in Bermondsey” (fashionable residential district v s smelly leather industry area)
• St Helen’s Smelting Co : location taken into acc when damage = loss of amenity but not so much where there is material damage to property

Question 8

Planning permission (in pv N)

Answer 8

might ‘change the nature of the locality’
- yes in Gillingham BC v Medway Dock Co (1993), but no in Wheeler v Saunders (1996)

• Sc in Coventry v Lawrence (2014): disapproved of Gillingham
  -> Lord Neuberger confirmed that planning permission cannot by itself legalise a nuisance, although it is a relevant factor in the overall picture

Question 9

C’s sensitivity (in pv N)

Answer 9

Not supposed to be taken into account
- Eg. Robinson v Kilvert (1889): P’s storage of delicate paper = special sensitivity

• Contrast w/ McKinnon industries v Walker (1953): damage done to orchids still actionable bcs ordinary plants would’ve been affected by D’s activities

Question 10

Utility of D’s conduct (in pv N)

Answer 10

• usefulness doesn’t prevent D’s activities from being a nuisance (eg Adams v Ursell (1913): popular local fish & chips shop considered a nuisance bcs smell ; Bellew v Cement Co (1948): D owned only cement factory in Ireland = v useful and needed but still a nuisance)
• BUT can affect the remedy : damages rather than injunction to stop (eg Miller v Jackson)

Question 11

D’s motive (in pv nuisance)

Answer 11

Malice / deliberate intent to harm can make smth otherwise lawful into a nuisance: Silver Fox Farm v Emmett (1936)

Question 12

Positive duties arising from acts of nature (pv nuisance)

Answer 12

D may be lb for nuisance arising from natural causes on his land if fails to do smth about it -> Goldman v Hargrave (1967), Leakey v National Trust

Question 13

Positive duties arising from acts of nature (pv nuisance) - relevance of knowledge of pb

Answer 13

Contrast :
· Holbeck Hall Hotel v Scarborough Borough Council (2000) : C’s hotel destroyed bcs of landslide, D aware of general danger of landslips but the one which occurred could only have been predictable following an extensive geological survey - court held that not reasonable to expect D to undertake such a survey (expensive) so not lb for the damage bcs unforeseeable

· Delaware Mansions v Westminster City Council (2001): D lb for damage by encroaching tree roots bcs ‘knew or ought to have known’ they were a pb

Question 14

‘coming to the nuisance is not a defence’ (pv nuisance)

Answer 14

= not open to D to say that C can’t complain bcs should’ve been aware / nuisance was there before C (eg Miller v Jackson, Sturges v Brightman)

Question 15

Defences to pv nuisance (2)

Answer 15

· Prescription = if D’s activity has been causing nuisance for 20y or more, then he has acquired a legal right which provides him w/ a defence to a claim in pv nuisance - however court apply this df restrictively, see Sturges v Bridgeman (1879)

· Statutory authority : D = pbc body acting under statutory powers, df if nuisance = unavoidable outcome of the authorised activity -> Allen v Gulf Oil (1981)
/!\ ≠ planning permission

Question 16

Remedies in pv nuisance

Answer 16

• generally an injunction bcs nuisance = continuing pb (eg De Keyser’s Royal Hotel v Spucer Brothers)
• Alternatively, damages in lieu of an injunction, eg Miller v Jackson (no longer restricted following Coventry v Lawrence)
• abatement (only in rare
  cases) = C taking appropriate steps to put an end to it eg cut encroaching roots (eg Delaware Mansions v Westminster CC)

Question 17

Rylands v Fletcher liability (Blackburn J quote)

Answer 17

“A person who for his own purposes bring on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” (Rylands v. Fletcher (1866) per Blackburn J)

Question 18

Rylands v Fletcher (elements of liability) (5)

Answer 18

(a) In the course of non-natural use of the land
(b) D brings onto his land / collects and keeps there
(c) Something which is likely to do mischief if it escapes
(d) It does escape
(e) And causes damage of a foreseeable kind

Question 19

RFV - (a) non natural use

Answer 19

def in Transco plc v Stockport MBC (2003) : non natural use must involve “an exceptionally dangerous or mischievous thing in extraordinary or unusual circumstances”

Question 20

RVF - (b) accumulation / collection

Answer 20

Must be artificial, not smth naturally present (eg Giles v Water (1890) : failure to cut thistles growing naturally on D’s land not an accumulation)

Question 21

RVF - (c) things likely to do mischief if they escape

Answer 21

Don’t have to be intrinsically dangerous (RVF itself abt water) but mustn’t be completely harmless either, or at least in sufficient quantity to be capable of causing harm

Question 22

RVF - (d) Escape

Answer 22

thing must get off D’s land and on to P’s (eg RVF: water getting into C’s mines - contrast Read v Lyons (1947) : explosion in munition factory not an escape bcs stayed within D’s factory)

/!\ if intentional (eg spraying tear gas as in Rigby v Chief Constable of Northamptonshire (1985)) claim in trespass rather than RVF

Question 23

RVF - (e) Damage of a foreseeable type

Answer 23

• same as pv nuisance : damage to land
• PI not recoverable (Cambridge water, transco)
• additional requirement: damage must be of a foreseeable type (Cambridge Water)
  => Q = given that there was an escape (for which there is st lb), would this damage have been reasonably foreseeable ?

Question 24

RVF - Defences (4)

Answer 24

· Consent of C / common benefit : Operates same as volenti
- eg Carstairs v Taylor (1871) : rainwater collected and stored on the roof of a block of flats ; no RVF lb when a rat gnawed through container and caused flooding bcs collection for the benefit of all the inhabitants

· Act of a stranger : D not lb if escape caused by act of unknown 3P over which D had no control
- eg Perry v Kendrick : child trespasser lighted a match into petrol tank and caused explosion

· Act of God: only exceptional events eg earthquake - v heavy rainstorm was enough in Nichols v Marsland (1896) but author suggests might not be accepted today

· Statutory authority : same as nuisance, D has a df where activity in question takes place in exercise of a statutory duty (and D not negligent) - Dunne v North Western Gas Board (1964)

Question 25

Public nuisance (def)

Answer 25

= an activity “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects” (AG v PYA Quarries (1957))

Question 26

Pbc nuisance (key elements)

Answer 26

· An activity / action / omission
· Which “materially affects the reasonable comfort and convenience”
· Of “a class of [His] Majesty’s subjects”

≠ pv N : no need for connection to land

Question 27

Pbc nuisance - who can sue ?

Answer 27

· Generally, action brought by local authority on behalf of the community (bcs a ‘class’ of the pbc is affected = a lot of ppl) or AG
· An individual can only bring an action in pbc nuisance if has suffered special damages (‘direct and substantial’), more than other members of the pbc

Question 28

Pbc nuisance : what kind of damage ?

Answer 28

· Property damage -> Hasley v Esso Petroleum
· Obstruction of or damage to the pbc highway : Rose v Miles (1815), Wandsworth LBC v Network Rail (2001)
· Personal injury -> Claimants in Corby Group Litigation v Corby BC (2008)
· Economic loss -> Benjamin v Storr (1874) : entrance to P’s coffee house blocked -> loss of profits

Question 29

Trespass to land (def)

Answer 29

= unlawful interference w/ land, which is direct, intentional and actionable per se

Question 30

Trespass to land (3 elements)

Answer 30

· Land : includes the surface, anything permanently attached to it, the soil below, and airspace above (the latter two up to a reasonable depth and height Bernstein v Skyviews (1978))

· Intention = to enter or come into contact w/ the land (phys act) - mistakes about legal rights concerning the land are irrelevant, still trespass if you think you have permission

· Actionable per se: no need to prove any damage etc

Question 31

Trespass to land (defences)

Answer 31

• Consent of the person in possession of the land (/!\ can be withdrawn)
• Necessity = action in response to a threat of greater harm find authority

Question 32

Trespass to land (remedies)

Answer 32

damages (nominal or compensatory), injunctions
/!\ damages = mesne profits (define them) -> Inverugie investments case