Private nuisance Flashcards
What type of liability is private nuisance?
Strict liability.
When does strict liability arise?
Strict liability arises automatically from a certain activity irrespective of the defendant’s conduct.
This means that the Ds conduct is generally irrelevant as to whether or not they are liable.
How is private nuisance generally defined?
Private nuisance is generally defined as an “unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it”
There are three main forms of private nuisance, what are they?
▪Physical injury to land (for example, by flooding or noxious fumes).
▪Substantial interference with the enjoyment of land (for example smells, dust and noise).
▪Encroachment on a neighbour’s land (for example, by spreading roots or overhanging branches)
What do all three forms of private nuisance seek to protect?
All three forms seek to protect the claimant’s use and enjoyment of land from an activity or state of affairs for which the defendant is responsible.
What amounts to a private nuisance? What is the balance the courts aim to maintain?
It is self-evident that not every interference with the claimant’s use and enjoyment of land can amount to a private nuisance.
The tort of nuisance must balance my rights against those of my neighbour.
Whilst it may be easy to say that noxious fumes which destroy every plant in my garden should be actionable, it is far more difficult to weigh up the complaints of a resident in an industrial area that lorries travelling to a factory cause noise and dust which affect his or her property.
The rule is one of give and take.
I do not expect my neighbours to be perfect or to exist in hermit-like silence and isolation, but neither do I expect my neighbours to use their property in such a way as to render my existence unbearable.
Regarding the basis of bringing an action in private nuisance claims, what two eleemnts must be apparent in order to sucesfully bring forward a claim?
- The claimant must have standing.
- There must be an actionable harm.
In regard to determining liability in a private nuisance case, what test do we use?
Reasonable user test/ Unreasonable interference test.
Regarding the scope and consequences of
liability, what is relevant to a private nuisance claim?
- Landlord/owner’s liability for third parties
- Defences
- Remedies
Standing: Who can sue?
Standing: Who can sue?
What is the generic understanding of standing in private nuisance claims?
The aim of private nuisance is to protect the claimant’s use and enjoyment of land.
It is therefore logical that the claimant must have some land which has been unreasonably interfered with, they must have a link to the land.
What is the classic position regarding standing which is routinely cited in the modern day?
‘The claimant in an action for nuisance must show some title to the land’
Where can this statement of the classic poition of standing be found?
Newark, ‘The boundaries of nuisance’ (1949)
Outline the entire statement by Newark regarding private nuisance and standing.
Private nuisance is “a tort to land. Or to be more accurate it [is] a tort directed against the [claimant’s] enjoyment of rights over land. […] In true cases of nuisance the interest of the [claimant] which is invaded is not the interest of [e.g.] bodily security but the interest of liberty to exercise rights over land in the amplest manner. A sulphurous chimney in a residential area is not a nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the [claimant] in an action for nuisance must show some title to [land].”
What does this therefore entail?
A claimant must have a sufficient title to the land:
Sufficient title: ownership, exclusive possession (tenancy), holders of easements/ servitudes etc.
The traditional view was that an interest in land had to be shown is demonstrated in which classic authority?
Malone v Laskey [1907]
Why did the claimant in Malone v Laskey [1907] not have standing?
- In Malone v Laskey, the Court of Appeal refused the plaintiff’s action for damages for personal injury when vibrations emitted from the defendant’s premises caused an iron bracket supporting a cistern to fall upon her.
- She was a mere licensee without any interest in land, and so had no cause of action.
- It was the husband who held title to the land, only he would have been able to make a claim.
What was interesting in this case? What does it tell us?
- She didn’t have any title in her own right, however, her husband had exclusive possession alone in his name.
- Could his wife be entitled to sue under nuisance considering he has a sufficient title?
- The court said no,
- She had no interest in the property so could not maintain an action, does not generate standing.
YOU MUST HAVE A SUFFIECENT FORM OF LEGAL TITLE TO BRING A CLAIM
In the judgement in Malone v Laskey, what was stated?
“[N]o authority was cited, nor in my opinion can any principle of law be formulated, to the effect that a person who has no interest in property, no right of occupation in the proper sense of the term, can maintain an action for a nuisance…”
This position was challenged, however, by Dillon LJ in which case?
Khorasanjian v Bush [1993]
Outline the case facts in Khorasanjian v Bush [1993]
- Claimant lived with her parents.
- The defendant began harassing her, including repeatedly phoning her home phone, leading to a criminal charge and imprisonment.
- Claimant sought an injunction to prevent further harassment, which relied upon the tort of nuisance to prevent the defendant from making further phone calls to her (/her parent’s) house
- Miss Khorasandjian, in common with Mrs Malone, had no proprietary interest in the home.
What was held in Khorasanjian v Bush [1993]?
Dillon LJ held that “the court has at times to reconsider earlier decisions in the light of changed social conditions” and therefore supported her claim in private nuisance.
Khorasandjian was in turn rejected by the majority of the House of Lords in which later case?
Hunter v Canary Wharf Ltd [1997]
What is Hunter v Canary Wharf Ltd [1997]?
The headline authority for standing which i should make reference too in the exam.
Outline the case facts in Hunter v Canary Wharf Ltd [1997]
- In this case, a number of local residents, who included homeowners, their families and other licensees, had complained about the Canary Wharf tower, which forms part of the Docklands development in London.
- The tower is nearly 250 metres in height and over 50 metres square, with a metallic surface, and, when erected, was found to interfere with the television reception of neighbouring homes.
What position was adopted in Hunter v Canary Wharf Ltd [1997] regarding standing?
Their Lordships reasserted the traditional view stated in Malone v Laskey and held that only claimants with an interest in land or exclusive possession could bring an action for nuisance.
In the words of Lord Goff, what was held?
“[A]n action in nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as [an owner] or a tenant in possession, or even a licensee with exclusive possession.”
“. . . On the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land”.
What did this decision mean?
It also meant that it would be easier for anyone creating a nuisance to ascertain who to deal with if trying to settle any potential claim. In so doing, the majority of the House of Lords (Lord Cooke dissenting) rejected the opportunity given in Khorasandjian to develop the tort to protect the personal interests of anyone occupying the land.
Following this, when will an individual not be able to claim?
You will not be able to claim, however, if you are simply a member of the landowner’s family, a guest, lodger or employee.
Exclusive possession or a sufficient form of a legal title is required.
The importance of exclusive possession may be seen in the Court of Appeal decision in which case?
Pemberton v Southwark LBC
Actionable harms
Actionable harms
Actionable harms, there are three main forms of potential actionable harms, what are they?
- Loss of amenity (Use value)
- Property damage
- Encroachment (i.e., a tree overgrowing)
What did Lord Goff state in Hunter v Canary Wharf regarding actionable harms?
[F]or an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms – noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance, as in Thompson-Schwab v. Costaki […], where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare.”
How, thriugh these flashcards will I deal with these type of harms?
In these flashcards, treating loss of amenity separately,
Splitting property damage into 2, material damage by actions and material damage by omissions.
Going to treat encroachment as an example as property damage caused by omissions/ inaction.
Which authority demonstrates how we differentiate between different forms of nuisance?
St Helens Smelting Co v Tipping [1865]
What did St Helens Smelting Co v Tipping [1865] concern?
Claim involved physical damage to C’s estate and interference with amenity arising due to noxious fumes.
What did Lord Westbury state in St Helens Smelting Co v Tipping [1865]?
“It is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that thealleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter […] anything that discomposes or injuriously affects the senses or the nerves […] must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs.”
What does this case essentially tell us in regard to differentiation between the three types of actionable harm in nuisance?
We have 2 main forms of damage; these are subject to different rules.
- If were dealing with material damage, it does not matter where it takes place, it is going to be actionable
- When dealing with amenity and loss of use value, it does matter where it takes place, we must quantify if the interference is substantial in relation to the area.
In more simplistic terms, what does this tell me?
Property damage - no relevance to the area/ contextual element, it is actionable regardless
Loss of amenity or use value - the area/ contextual element really matters in consideration of if a harm is actionable.
When dealing with amenity and loss of use value, it does matter where it takes place, we must quantify if the interference is substantial in relation to the area.
Loss of amenity
Loss of amenity
What will a loss of amenity include?
Something which does not cause material harm but nonetheless interferes with the claimant’s enjoyment of their rights in land, e.g., smells, noise, vibrations.
For loss of amenity, what will private nuisance protect?
Quote by - Knight Bruce V-C in Walter v Selfe (1851).
Loss of amenity is judged “not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people.”
What does this mean?
Protects things which are essential and necessary, not necessarily the finer things in life.
In consideration of loss of amenity, what balance must we strike?
Involves striking a balance “between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with.”
Who stated the above statement?
As Lord Wright stated in the leading case of Sedleigh-Denfield v O’Callaghan
What are the classic ‘emanations’ / established actionable harms?
- Noise
- Vibrations
- Smells
What authority established noise as an actionable harm?
Lawrence v Fen Tigers
What authority established vibrations as an actionable harm?
Sturges v Bridgman
What authority established smells as an actionable harm?
Barr v Biffa Waste Services
Outline the fact specific circumstances and cases of harms which have been deemed actionable which are extremely rare.
Sight of sex-workers + clients.
What authority established this as an actionable harm?
Thompson-Schwab v Costaki
Outline another fact specific circumstances and cases of harms which have been deemed actionable which are extremely rare.
A really shiny building.
What authority established this as an actionable harm?
Bank of New Zealand Case.
What are examples of ‘finer things’ (Hunter v Canary Wharf) which have been dismissed by the courts?
- Light
- Views
- Free flow of air
- ‘Mere’ overlooking
- Television signal
What authority established that mere overlooking is NOT an actionable harm?
Tapling v Jones (1965) 20 CNBS 166
What authority established that blockage to a television signal is NOT an actionable harm?
Hunter v Canary Warf
What has been stated regarding the categories of nuisance?
“The categories of nuisance are not closed”
Who outlined this and in what case?
Lord Leggatt Fearn v Tate
Unreasonable interference test
Unreasonable interference test
To give rise to liability an interference must be what?
unreasonable/ unlawful as not every actionable nuisance will result in liability.
In what manner is unreasonableness determined?
Unreasonableness (/unlawfulness) is to be determined ‘objectively’
What must an interference be to be regarded as a nuisance?
If an interference is
I) substantial and
ii) incompatible with the ordinary uses of land in the locality, it is likely to be regarded as a nuisance.
What is the main concern regarding the interference?
Concerned with the interference being sufficiently substantial in relation to the use of the land its locality.
Which authority tells us the above?
Fearn v Tata
When will an interference be considered substantial?
This encompasses a qualitative dimension if we are encountering a novel interference: e.g., the tort ought never cover interferences with ‘elegant or dainty modes of living’.
- Is this really annoying, they want us to give an argument as to if their actions/ behaviours are annoying.
- If they are sufficiently annoying the law should interfere.
What else will impact an interference to be considered substantial?
Also, a quantative dimension: i.e., frequency, duration, timing.
These dimensions can help us quantify if something will be classable as substantial.
Outline an authority which demonstrates noise to be substantial as a result of its duration.
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914)
What occured and what was held in De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914)?
The court was willing to grant an injunction for a temporary interference when it consisted of pile-driving in the middle of the night, but confined the injunction to forbidding work between 10.00pm and 6.30am.
An action for physical damage to property (as opposed to loss of amenity) is likely to be considered substantial even where the nuisance is temporary, but in such a case the court will only award damages rather than an injunction, which authority demonstrates this?
Crown River Cruises Ltd v Kimbolton Fireworks Ltd
What occured and what was held in Crown River Cruises Ltd v Kimbolton Fireworks Ltd?
- In Crown River Cruises Ltd v Kimbolton Fireworks Ltd, the plaintiffs’ vessels had suffered substantial fire damage caused by falling debris from a fireworks display to celebrate the fiftieth anniversary of the Battle of Britain.
- The display had only lasted about 20 minutes, but it was found to be inevitable that debris, some of it hot and burning, would fall on nearby property of a potentially flammable nature.
- The plaintiffs were therefore awarded damages.
The second element, ii) incompatible with the ordinary uses of land in the locality, it is likely to be regarded as a nuisance
ii) incompatible with the ordinary uses of
land in the locality, it is likely to be regarded as a nuisance
For a nuisance to result in liability, it must be substatial and incompatible with the ordinary use of the land, the classic position of this is laid out by who and in what case?
Judge Bramwell in Bamford v Turnley (1862)
What does Judge Bramwell state in Bamford v Turnley (1862)?
“Those acts necessary for the common and ordinary use and occupation of land and house may be done, if conveniently done, without subjecting those who do them to an action”.
The classic quotation in outlining this principle comes from which case?
The classic quotation is that of Thesiger LJ in Sturges v Bridgman:
“What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”
What does this second element mean?
- Second element more complex
- Meaning: if your behaviour is normal according to the standards of the area, there is no action in nuisance.
- Blacksmiths in an industrial area – difficult to say a smell is a nuisance because it is within the ordinary patterns of use in that area.
- Blacksmiths in a residential area – much easier to bring a claim, incompatible with the ordinary patterns of use and land use within this area.
- This is what the case above essentially tells us.
- If typical to the area, unlikely to be successful.
In regard to this second element, what is the view of the supreme court?
In the view of the Supreme Court, it is not acceptable to place a burden on claimants to mitigate the impact of a special use of the defendant’s property that goes beyond a common and ordinary use of land:
“To do so is inconsistent with the principle of reciprocity that underpins the law of nuisance.”
There is no set formula for determining what results are unreasonable or go beyond a common and ordinary use of land. It is possible, however, to list a number of factors which are clearly relevant to the courts’ decisions in particular cases
Ordinary use is not an actionable nuisance, which authority demonstrates this?
Southwark LBC v. Tanner [2001] 1 AC
What occured in Southwark LBC v Tanner [2001]?
Tennant sued landlord over noise arising from poor construction of housing.
Claimant could hear “not only the neighbour’s television and their babies crying but their coming and going, theircooking and cleaning, their quarrels and their love - making.” Hoffman LJ.
what was held in Southwark LBC v Tanner [2001]?
“Nuisance involves doing something on adjoining or nearby land which constitutes an unreasonable interference […] I do not understand how the fact that the appellants neighbours are living in their flats can itself be unreasonable.”
- Everything being done, is an ordinary and common use of land and therefore could not be deemed unreasonable.
- No action in nuisance because the nuisance may be substantion, but not unreasonable.
- Ordinary behaviour in the area.
What does this case reiterate?
It is the nature of the locality which matters.
The nature of the locality may change over time from industrial to residential, and vice versa, usually due to planning permission, and therefore the courts must have regard to the locality as it is today, which case demonstrates this?
Gillingham BC v Medway (Chatham) Dock Co Ltd [1993]
What occured and what was held in Gillingham BC v Medway (Chatham) Dock Co Ltd [1993]?
- Planning permission had been granted to develop a disused naval base into a 24-hour commercial port.
- Residents complained of noise, vibration, dust and fumes arising from lorries using the port.
- Court ruled that this planning permission had fundamentally transformed the nature of the location (residential to mixed use).
However in this judgement, what was stated regarding planning permission?
“[P]lanning permission is not a license to commit nuisance [but] a planning authority can, through its development plans and decisions alter the character of a neighbourhood.”
However, planning permission is not a defence to nuisance, there may still be incompatability with the locality, which authority demonstrates this?
Lawrence v Fen Tigers Ltd [2014]
What occured and what was held in Lawrence v Fen Tigers Ltd [2014]
- Defendants had long-standing planning permission to run a motorsports racing track.
- Claimants claimed that the noise emanating from the track constituted a nuisance.
- Supreme Court rejected the Court of Appeal conclusion that the fact that planning permission had been granted meant that the interference was not a nuisance.
In this judgement, what was stated regarding the injustice that would be produced if planning permission were to be used as a defence to unreasonableness in regard to locality?
“[I]t seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance.”
A further core principle of private nuisance is that the claimant cannot complain if the use interfered with is not an ordinary use.
What if the claimant is sensitive? Which case demonstrtaes what will occur in sensitive circumstances?
Robinson v Kilvert (1889)
What occured and what was held in Robinson v Kilvert (1889)?
- Defendant operated a business in the lower part of a building, which required hot and dry air.
- As a result, the temperature of the floor of the plaintiff’s premises above rose to 80°F (27°C), which diminished the value of the brown paper stored there. The heat was not such as to affect ordinary paper or to cause discomfort to the plaintiff’s workforce.
- The Court of Appeal refused the plaintiff damages. He had undertaken an exceptionally delicate trade and had not shown an actionable nuisance.
- This must be correct. This goes back again to the idea of reciprocity - it cannot be just for the claimant to impose a burden on the defendant in such circumstances.
What do we learn from this case?
A claimant cannot increased the extent of the neighbours liabilty by carrying out abnormally sensitive activities and expect them to be considered ordinary to the locality.
Because temperatures were not unreasonably hot for your average paper, no claim.
What occured and what was held in Christie v Davey [1893]?
- Claimant was a piano teacher.
- Neighbour (defendant) complained regularly about the volume (and quality) of their students’ practise.
- D sang loudly and tunelessly, banged walls, etc.
Court held that the defendant’s actions were motivated by malice and were therefore unreasonable and not ordinary to the land.
What else has the potential to be taken into consideration to determine unreasonableness and liability following an action being substantial?
Malicious intent
In assessing whether the defendant’s use of his or her land is reasonable/ ordinary, regard will be had to his or her frame of mind, which authority demonstrates this?
Christie v Davey [1893]
Christie was followed in which case?
Hollywood Silver Fox Farm Ltd v Emmett
What occured and what was held in Hollywood Silver Fox Farm Ltd v Emmett?
- Macnaghten J granted an injunction against a defendant who had deliberately fired guns on his own land near its boundary with the plaintiffs’ land.
- The plaintiffs carried on the business of breeding silver foxes on their land, and evidence was given that the discharge of guns during breeding time would frighten the vixens leading them to refuse to breed, miscarry, or kill their young.
- Although the use of land for breeding foxes was obviously sensitive, the presence of malice was sufficient to overcome this objection.
What else has the potential to be taken into consideration to determine unreasonableness?
It is accepted that utility is a factor that should influence the court in exercising its equitable jurisdiction whether to grant an injunction but it is not as important.
Which care reinstates the importance of the unreasonable interference test showing that priority is given to the ordinary use of the land and not public unterest/ utility?
Fearn v Board of Trustees of the Tate Gallery
Is visual intrusion understood as sufficient interference? if so, which authority demonstrates this?
Fearn v Board of Trustees of the Tate Gallery [2023]
What occured in Fearn v Board of Trustees of the Tate Gallery [2023]?
- Claimants lived opposite a viewing platform at the Tate Gallery.
- Numerous visitors looked into their flats, a number took photos (& uploaded the photos onto social media).
- Claimants sued in nuisance, seeking an injunction preventing the nearest part of the platform being used to view theirproperty.
- Buildings were constructed more or less simultaneously.
- Fundamentally mixed area involving a wide range of usages.
What was held in Fearn v Board of Trustees of the Tate Gallery [2023]?
Lord Leggatt (majority)
- Visual intrusion capable of being a nuisance
- What is crucial is the magnitude of the interference in relation to the ordinary usage of the locale.
What did Lord Leggatt state in Fearn v Board of Trustees of the Tate Gallery [2023]?
“[W]here the living areas […] can be seen from the […] building, the normal use of that building would not give rise to a claim [… however] the nature and extent of the viewings goes far beyond anything that could reasonably be regarded as anecessary or natural consequence of the common and ordinary use of [the building].”
If just mere passing, that would be a common and ordinary use, the photos the waving the binoculars was not a common and ordinary use of the building and therefore it was an actionable nuisance.
How is this case a restatement of unreasonable user test?
Reasonable user is to be judged by reference to the magnitude of the interference in relation to the ordinary usage of land in the locale.
Damage to land caused by the defendant’s activity
Damage to land caused by the defendant’s activity
Harm is generally going to be caused by what?
Harm is generally going to be caused by an emanation of something ontoclaimant’s property as a consequence of defendant’s activity
Is the nature of the location is relevant?
Nature of the location is irrelevant
Which case demonstrates this?
St Helens Smelting Co v Tipping
Provided that the interference is sufficiently substantial, is the claimant likely to be sucessful?
- Provided that the interference is sufficiently substantial, the claimant is in a very strong position.
- Causing physical damage is generally evidence that the interference was substantial.
Outline a little summary regarding damage to land caused by the defendant’s activity -
- Almost certain you will have committed a nuisance if you cause material physical damage to someone else’s property.
- It is almost automatic.
- Would take a very low degree of harm for it to be regarded as unreasonable.
What does Castle v St Augstine Links Ltd (1922) tell us regarding intensity in physical interference?
- Case concerned the alleged nuisance of golf balls being struck off a golf course.
- The first ball would not constitute a nuisance.
- The continuance of a state of affairs could, however, constitute a nuisance.
A single instance may cause a nuisance if it is of sufficient intensity regarding intensity in physical interference, which authority demonstrates this?
Crown River Cruises Ltd v. Kimbolton Fireworks Ltd [1996] (Outlined above already).
Physical damage caused by the defendant’s inactivity - Omissions - including encroachment.
Physical damage caused by the defendant’s inactivity - Omissions - including encroachment.
What circumstances does this cover?
Covers situations where either a natural sequence of events or the act of a third party is the direct cause of the harm (encompasses both encroachment and direct physical harm).
Which case demonstrates an ‘adoption of a nuisance’?
Sedleigh Denfield v O’Callaghan [1940]
Ultimately, the decisive consideration in such cases is what?
Ultimately, the decisive consideration in such cases is whether the defendant’s conduct was reasonable.
What occured and what was held in Sedleigh- Denfield v O’Callaghan [1940]?
- A trespasser (the local council) constructed a faulty drain on D’s land.
- Eventually, the drain overflowed, flooding C’s land.
- The claimant was aware of tis and did not act they had adopted the nuisance by the Council.
What was stated in Sedleigh- Denfield v O’Callaghan [1940]?
“the Respondents both continued and adopted the
nuisance […] they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour’s land. They adopted the nuisance for they continued during all that time to use the artificial contrivance of the conduit for the purpose of getting rid of water from their property without taking the proper means for rendering it safe.” Lord Maugham
What does this mean?
The D continued and adopted the nuisance, they became responsible for it.
- They neglected to take the steps such as having a grater on top etc.
- Did not take proper measures.
- Nothing to do with strict liability, this is blameworthy due to negligence due to failure to take precautions against a foreseeable risk.
Can an individual be liable for damage caused by a natural hazard? If so, which case demonstrates this?
Goldman v Hargreave [1967]
What occured and what was held in Goldman v Hargreave [1967]?
- A tree caught fire on defendant’s land: D cleared surrounding land, cut down the tree and left it to burn out.
- Fire spread to C’s land.
What was his duty premised on?
Duty was premised on “knowledge of the hazard, ability to foresee the consequences of not checking or removing it, andthe ability to abate it … the standard ought to be to require of the occupier what it is reasonable to expect of him in hisindividual circumstances.
Which case later confirmed that this
also reflected the position of English law?
National Trust v Leakey [1980]
Encroachment
Encroachment
Regarding encroachment, what is the crucial issue?
Crucial issue is “what a reasonable person in the shoes of the defendant would have done.
The label nuisance or negligence is treated as of no real significance.”
What is our leading authority regarding encroachment?
Delaware Mansions v Westminster City Council [2001] UKHL 55
What occured in Delaware Mansions v Westminster City Council [2001] UKHL 55?
Case concerned damage caused by the roots of a tree
growing onto the defendant’s land to buildings owned by claimant
C was forced to pay for repairs
What will be relevent regarding the standard of reasonableness expected in encroachment cases?
Standard of reasonableness encompasses an appraisal of the resources of the defendant
How do the courts treat encroachment?
Courts treat encroachment the same as inaction.
Can there be such thing as a continuing nuisance? Which authority answers this question?
Jalla v Shell International Trading and Shipping Co Ltd [2023]
What occured in Jalla v Shell International Trading and Shipping Co Ltd [2023]?
Oil spill at sea at D’s facility resulted in damage years later of C’s property.
What did the claimant argue in Jalla v Shell International and what was held?
- C argued that harm arose from a continuing nuisance.
- Court rejected claim: for there to be a continuing nuisance, D must be in control of the source of the nuisance.
- Oil spill was an isolated escape and it had long since ceased.
What was the problem in Jalla v Shell International?
Timeline meant case fell outside statute of limitations.
Consequential loss
Consequential loss
Can a claimant claim for consequential loss following damage to land?
Provided that additional harms were consequential upon the injury to land, they will be recoverable in damages.
Which authority demonstrates that provided that additional harms were consequential upon the injury to land, they will be recoverable in damages.
Graham v Rechem [1996]
What occured in Graham v Rechem [1996]?
- Two farmers claimed that their herd of dairy cattle had suffered ill health as a result of exposure to toxins emitted from a high‐temperature waste incinerator operated by Rechem International Limited.
- Authorities for extending the range of recoverable damages to chattel property.
Chattel and movable property
– No difficulty in recovery.
Who can be sued?
The most obvious defendant is the person who created the nuisance.
This is not contentious, but it is important to recognise that the liability of the creator of the nuisance is not dependent on occupation of the land.
Is there a requirement that the creator of the nuisance has rights in property?
There is no requirement that the creator of the nuisance has rights in property.
Which case demonstrates that there is no requirement that the creator of the nuisance has rights in property?
Jalla v Shell
However, can landowners be liable for acts of nature and third parties for physical damage?
Yes, landowners can be liable for acts of nature and third parties for physical damage provided that they have ‘adopted and continued’ the nuisance and fail to take reasonable steps to prevent harm to their neighbour (see, e.g. Sedleigh-Denfield v O’Calloghan).
In certain (restrictive) circumstances, who may be sued?
In certain (restrictive) circumstances, landlords may be liable for nuisances created by
their tenants.
What does Southwark LBC v Tanner [2001] tell us regarding landlord liability?
Landlord’s have been held liable for nuisances committed by their tenants [on the basis that they authorised the nuisance]
What is not enough for landlord liability? What must they do?
It is not enough for them to be aware of the nuisance and take no steps to prevent it.
They must either directly participate in the commission of the nuisance or they must be taken to have authorised it by letting the property.
When can a land lord not be liable?
They cannot be held liable in tort for having authorised the commission of an actionable nuisance unless what they have authorised is an actionable nuisance.
Outline how the land lord was liable in Lawrence v Fen Tigers Ltd (2) [2014] UKSC 46 -
Claimants had been awarded damages against both
landlord and operator on the basis that the land-lord both ‘directly participated’ and ‘authorised’ the nuisance by letting the property when in was inevitable that a nuisance would be created
Which authority is an application of landlord liability?
Lawrence v Fen Tigers Ltd (2) [2014] UKSC 46
In what circumstances may the occupier of the land be liable even when they are not the cause of the nuisance?
(I)THE OCCUPIER EXERCISES CONTROL OVER THE CREATOR
(II)THE OCCUPIER HAS ADOPTED OR CONTINUED A NUISANCE CREATED BY A TRESPASSER
(III)THE OCCUPIER HAS ADOPTED OR CONTINUED A NUISANCE CREATED BY AN ACT OF NATURE
(as above)
Defences
Defences
What are the three potential defences to a private nuisance claim?
- Statutory authority
- 20 years’ prescription
- Act of stranger (see Sedleigh-Denfield v O’Calloghan)
How is statutory authority a defence to private nuisance?
statutory authority is a defence; parliament can override the property rights of landowners.
Pretty straight forward, acts of parliaments prevailing private law rights of property owners.
In what circumstances would this defence arise?
This defence will arise in (e.g.) cases where parliament has legislated for the construction of major infrastructure projects.
What is the classic authority for statutory authorisation?
Allen v Gulf Oil Refining Ltd [1981] A.C. 1001
What occured in Allen v. Gulf Oil Refining Ltd [1981] A.C. 1001?
- Defendant sought and received an act of parliament
granting authority for compulsory purchase of land and the construction and operation of an oil refinery. - Claimant’s complaint of noise, smells and vibrations.
What was stated by Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] A.C. 1001?
“To the extent that the environment has been changed
from that of a peaceful unpolluted countryside to an
industrial complex […] Parliament must be taken to
have authorised it… But in my opinion extends
beyond [this]. It confers immunity against proceedings for any nuisance which can be shown […] to be the
inevitable result of erecting a refinery upon the site… To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its
operation exceeds that for which immunity is conferred, the [claimant] has a remedy.”
What does this mean?
- The court says statutory authority confers immunity against proceedings for any nuisance….
- But, only to the extent that the nuisance is necessary for the operation of the refinery, the extent that it exceeds the necessary nuisance for running the refinery, then that may constitute an unlawful nuisance.
- Statutory authority confers an immunity for any nuisance which are an inevitable result and necessary for the action.
What does 20 years prescription allow for?
Prescription provides a means by which the defendant obtains a legal right to act in a certain way, which would ordinarily be contrary to the law, due to the passage of time.
It creates a form of proprietary right to continue.
A user of land can get a proprietal right to do something that would otherwise by actionable under nuisance provided they have done so for 20 years, which case demonstrates this?
Sturges v Bridgman (1879) 11 Ch D 852
What occured in Sturges v Bridgman (1879) 11 Ch D 852?
- Claimant operated a medical practice from their house,
their neighbours made sweets. - Claimant built an extension that brought their practice into close proximity with heavy machinery used to prepare sweets on neightbouring land.
- The large pestles and mortars had been in use for over 20 years.
What was eld however in Sturges v Bridgman (1879) 11 Ch D 852?
However, 20 years’ prescription only starts once the activity becomes a nuisance.
The sweet maker has been operating for more than 20 years here, upon extension when the doctors practise is brought closer to the machinery, the sweet operation become a nuisance, it is only at this point the vibrations become a problem and interfere with the doctors practise.
In hindsight, as a defence is 20 years prescription easily assessable?
Shows 20 years prescription is rather difficult to establish.
This case is significant for a number of reasons, what are these reasons?
- Firstly it tells us that the defence of coming to the nuisance is not effective, the sweet manufacturer could not rely on this, the fact he was there first carrying out the same activity prior to the expansion is irrelevant and does not provide priority over the doctor.
- The second is that the ‘clock’ for a 20-year prescription defence being accessible only starts ticking once an activity becomes a nuisance, i.e., once.
However, what have we been informed to keep in mind regarding Sturges v Bridgman (1879) 11 Ch D 852?
Taking into consideration however this case arose in a posh part of London, reading between the lines the court probably considered the fancy area and believed it wasn’t the type of area where you would find industry like manufacturing confectionery, it was a residential area for smaller services which support the area.
This probably informed their choice in finding that the nuisance had only just become a nuisance regarding the proximity, as opposed to identifying how long the manufacturer had actually been in the area for over 20 years to not provide a successful defence.
What occurs in circumstances were the defendant’s conduct changes?
If the claimant has transformed the use of the land (and by doing so, rendered their neighbours activity a nuisance) only additional nuisances will be
actionable.
Which case informs us on cases regarding a change in circumstances?
Kennaway v Thompson [1981] 1 Q.B. 88
What occured in Kennaway v Thompson [1981] 1 Q.B. 8?
- Dispute between (the representatives) of a water sports club and a neighbour.
- Water sports predated the construction of the claimant’s house, but the intensity (frequency of events, size of boats) increased significantly
What was stated and held in Kennaway v Thompson [1981]?
“When she decided to build a house alongside
Mallam Water she knew that some motor-boat racing and water skiing was done on the club’s water and she thought that the noise which such activities created was tolerable. She cannot now complain about that kind of noise provided it does not increase in volume by reason of any increase in activities. The intolerable noise is mostly caused by the [new] large boats…” Lawton LJ, 94.
The new nuisance was actionable.
What are the remedies available for private nuisance?
Injunction – A court order preventing the D from certain activities either totally or partially under terms.
Damages (to compensate losses)
Abatement (essentially self-help to remove encroachment) – simply self-help, acting on your own, I.E., cutting down branched from a tree which fall over your fence.
Coming to the nuisance is NOT a defence, which cases confirm this?
Sturges v Bridgman.
Bliss v Hall.
In what case are these circumstances addressed?
Shelfer v City of London Electric Co [1895] 1 Ch. 287.
What is an injunction?
- A court order preventing the D from certain activities either totally or partially under terms.
- It is an equitable (therefore discretionary) remedy which prohibits further nuisance.
- Courts have broad and unfettered discretion.
- Can be total or partial.
- The preferred avenue because it preserves the claimants rights in land - hesitancy to interfere with private rights.
The courts are generally willing to grant an injunction, unless there are exceptional circumstances which mean that damages are seen as the most appropriate remedy. In such circumstances, damages are said to be given “in lieu of” (instead of) an injunction.
In what circumstances will damages be given in lieu?
(1) If the injury to the [claimant’s] legal rights is small,
(2) And is one which is capable of being estimated in money,
(3) And is one which can be adequately compensated by a small money payment,
(4) And the case is one in which it would be oppressive to the defendant to grant an injunction: - then damages in substitution for an injunction may be given.
What was stated by LJ Smith in Shelfer v City of London Electric Co [1895] 1 Ch. 287?
“[A] person by committing a wrongful act […] is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance.
“There are however cases in which this rule may be relaxed, and in which damages may be awarded in substitution”.
What can be taken from this case?
Here, the courts start by stating the general rule, reiteration that an injunction Is the preferred form of remedy.
In this case, we see how this rule can be relaxed.
This will occur when a case meets the four requirements set out within the case.
In other words – that it would have a disproportionately negative impact on the defendants otherwise legitimate activity if the court were to grant an injunction.
What is the current approach regarding injunctions?
Current approach (Lawrence v Fen Tigers [2014] UKSC 13)
Courts should adopt a more flexible approach which is better able to take public interest into account.
What do we know now?
The Shelfer criteria isn’t overturned but it is added that social benefit should also be considered.
If there is a clear social benefit, and the injunction would be oppressive on that benefit, then this creates a strong case for damages as opposed to injunctive relief.
Damages, what do they do?
Damages compensates injuries already caused by the nuisance, including harm to property, diminution of amenity value, costs of abatement.
When will damages me paid?
Damages will only be paid out if they are a foreseeable type of harm (i.e. as we would say in negligence, that they are not to remote).
What is crucial is that damages will only be paid out where there is a foreseeable type of harm,
The consequences must be of a foreseeable type which are not too remote.
Wagon mound no 2 applies to nuisance as well as negligence.
Which case demonstrates how foreseeability of harm as a pre-requisite for damages?
Cambridge Water v Eastern Counties Leather [1994] 2 A.C. 264
What is stated in Cambridge Water v Eastern Counties Leather [1994] 2 A.C. 264?
“But it by no means follows that the defendant should be held liable for damage of a type which he could not reasonably foresee”.
What occured in Cambridge Water v Eastern Counties Leather [1994] 2 A.C. 264?
- Leak of a chemical not known to be dangerous
- Travelled a mile into a water supply.
- Environmental regulation set a precautionary limit in the amount of chemical which could be found in water and still deem it safe to drink.
- Council sought to recover losses, no one knew how it could escape, no one knew it would be carried by the groundwater into a drinking supply, no one knew the chemical had potential to cause harm.
- The damage caused the council was not a foreseeable type and there was no liability.
Remoteness outlined -
- Damages under private nuisance, public nuisance and the rule in Rylands v Fletcher are all subject to the test set out in The Wagon Mound (No.1), namely that the defendant is only liable for damages of a type which can be reasonably foreseen.
- Reference should be made here to Ch.6. Lord Reid, in The Wagon Mound (No.2), held foreseeability to be an essential element in determining liability in both public and private nuisance: “It would not be right to discriminate between different cases of nuisance”.
- In Cambridge Water, Lord Goff clarified that the Wagon Mound test would apply to the rule in Rylands v Fletcher.
- The reader should therefore ignore Blackburn J’s statement, in the case itself, that the defendant will be liable for all the natural consequences of the escape.
