Private Nuisance Flashcards
What is private nuisance?
Non-trespassory unlawful damage to or interference with the enjoyment of land
Test for private nuisance from Fearn?
Has D, judged objectively, caused a substantial interference with the ordinary use of C’s land? If yes, D is liable.
If D wishes to avoid liability, must show a defence.
What does nuisance protect?
Nuisance is a tort against land.
Hunter v Canary Wharf: Interference with one’s television reception through neighbouring construction is not actionable nuisance. We can’t block individuals this heavily from building on their land.
Coventry v Lawrence - right to commit noise nuisance may be acquired by prescription for 20 years.
Motor-racing events made too much noise (but had planning permission)
However, here didn’t apply, and argument that the claimants ‘came to the nuisance’ didn’t apply. Presence of planning permission does not mean interference isn’t unreasonable, but planning couldbe useful to understand nature of locality/area.
Williams: Presence of Japanese Knotweed on someone’s land is a classic example of interference with the amenity value of the land, as it imposes a burden on owner with increased difficulty in developing land and selling it. However encroachment itself without some kind of damage would not be actionable.
Fearn v Tate: Overlooking can be a significant intrusion giving rise to nuisance where it is visual intrusion. Here, Ds had invited the public to an area where they can peer into and take photographs of Cs in their apartment, which was an interference with quiet enjoyment of their land.
Tate not using land in ordinary and common way, and it was unreasonable to require Cs to take remedial steps to limit the nuisance (ie using curtains). This obstructs them and it is not the claimant’s job to protect themselves.
3 kinds of nuisance from Hunter?
- Nuisance by encroachment
- Nuisance by injury to a neighbour’s land
- Nuisance by interference with the neighbour’s quiet enjoyment of their land
Impact of sensitive use of land by claimants?
Robinson v Klivert:
Temperature raised in C’s flat, damaging C’s special paper stored there.
Held no action as D’s activity would not have damaged normal paper - no liability just because C carries on a very delicate trade.
The relevance of the locality to common and ordinary use
St Helen’s: C suffered interference from factory, but area was devoted to manufacturing.
Held: Taking into account the characteristic of the locality was correct was correct when dealing with claims concerning interference.
Coventry v Lawrence: Defendant coming to the nuisance is not a defence, planning permission is not a license to commit nuisance.
However, a planning auth can alter the character of locality through permissions, rendering nuisances into innocent activities.
Here though, the activities were carried on in a way which constituted nuisance having regard to character of locality.
Magnitude of interference
Barr v Biffa: Cs sue for odours coming from nearby waste disposal site by D, when it started to accept more organic waste than usual.
Held: Actionable nuisance, as it created an amount of discomfort in excess of that which ‘an ordinary person could be reasonably expected to put up with’.
Fearn: More than de minimis, tested objectively. Here, visual intrusion with thousands of people overlooking was certainly significant.
Relevance of malice
Christie v Davey: Man banged on the walls out of malice - held to constitute a nuisance due to this malice.
Bradford v Pickles: Motive irrelevant for private nuisance if the claimant otherwise acting legally
Hollywood Silver Fox Farm: Although C had a sensitive use of land, there was a private nuisance as D intentionally tried to disrupt it.
Causation and remoteness
Davies: But for causation is necessary - here, diminution of value happened before breach so there could be no factual causation.
Cambridge Water: Type of harm must be foreseeable where the remedy sought is damages - whilst fault not required for nuisance or Rylands, D could not be liable for creating an unforeseeable type of harm.
Who can be sued under private nuisance?
C must have an interest in land, defendant doesn’t need to.
Sedleigh-Denfield: One can take over and continue a nuisance begun by an original trespasser or stranger - here, a pipe was laid which caused a flooding risk by a trespasser, which D knew about and did nothing about.
Goldman v Hargrave
Fire, D summoned firefighter to fell tree but didn’t extinguish it.
D liable for breach of general duty to remove or reduce hazards on his land, whether man-made or naturally arising, tailored to D’s subjective means and resources.
Cocking v Eacott
Mother gave daughter license to live at property, daughter made noise.
Mother argued landlords could not be liable for nuisance created by tenant.
Held: Possible for landlord to be liable, if they participate in the nuisance or authorise the nuisance by letting the property. Here, lady in possession and control so liable.
Jalla v Shell
Oil spill happened, but claimant argued every time the oil washed up on the shore, the clock reset itself and 6 years later there was still a new nuisance every time.
Rejected - it was a one off event, no repeated activity and no continuing cause of action.
Whilst continuing control almost always present, you can sue a person who started a nuisance, years later even if they are no longer in control.
Leakey v National Trust
Hill owned by D suffers landslide and damages D’s land
Held: Applying Sedleigh-Denfield and Goldman, occupier can be liable for natural hazards on land, if they know about it and don’t take reasonable steps to stop it.
Defence: coming to the nuisance
Coventry: Coming to the nuisance is not a defence WHERE the claimant is using the property in the same way as their predecessors.
However, defence possible where ‘…(i) it can only be said to be a nuisance because it affects the senses of those on the claimant’s land, (ii) it was not a nuisance before the building or change of use of the claimant’s land, (iii) it is and has been, a reasonable and otherwise lawful use of the defendant’s land, (iv) it is carried out in a reasonable way, and (v) it causes no greater nuisance than when the claimant first carried out the building or changed the use.’
Defence: Prescription
Prescription of right to commit nuisance possible if C puts up with it for 20 years (Coventry).
Defence: Necessity
Southport v Esso:
Available where reasonably necessary to prevent loss of life, unless defendant’s own carelessness had brought about the danger of that loss.
Defence: Statutory authorisation
Where D’s conduct authorised by statute, no action for nuisance - however must be carried out without negligence.
Peires: Civil Aviation Act provides statutory immunity for operation of aircraft for flight. C complains about D’s helicopter training school, in which they just take off and land.
Held helicopters taking off and turning around was still flight for purposes of statute, you wouldn’t be able to train pilots to fly if it meant they couldn’t take off and land again at the same location.
Remedies
Where nuisance is past, only remedy is damages.
Where nuisance ongoing, injunction/damages available.
Damages may be awarded in lieu, but beware of danger of ‘buying’ nuisance.
Shelfer - When should one award damages in lieu?
(1) If the injury to the plaintiff’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.’
Kennaway - Applied Shelfer rigidly, said that ordinary remedy is injunctions, damages awarded in exceptional circumstances
Coventry v Lawrence’s take on Shelfer
Discretion should not be fettered, just because all 4 satisfied does not mean that damages need to be given and vice versa.
Rylands v Fletcher
Defendants built reservoir near coal mine with mine shafts.
Water added, burst through the mineshafts and flooded claimant’s coal mines.
Held: If a person collects something dangerous, and allows it to escape, they are answerable for damage which is consequential, unless it escapes due to the plaintiff’s default or some act of god. Strict liability.
Cambridge Water’s development of Ryland
Cambridge: Knowledge or at least foreseeability of the risk is required for Rylands to operate, but once that is established it doesn’t matter if D exercised due care or precautions.
Read v Lyons
Rylands does not activate where the escape and injury occur on D’s land. It is land-based, and requires escape from a place where the defendant has occupation/control to a place which is outside of his occupation/control.
Transco
Pipes burst and caused damage.
This was not an extraordinary and unusual use of land - it was a routine function.
They weren’t accumulating water, they were just supplying it to meet residents’ needs which is neither unnatural nor dangerous.
Stannard v Gore
Electrical fault caused fire, which spread to tyres which were being stored on D’s land.
This fed the fire, which spread to Cs land and caused damage.
Held that storing the tyres was not a dangerous activity nor was it unnatural.
There was also no relevant escape, so Rylands did not apply.
Rylands only applies where the dangerous object or substance is the thing that escapes, not where fire latches onto the thing which was collected then escapes.
Greenock v Caledonian - Defences to Rylands? Act of god?
Heavy rainfall not an act of God, ‘the appellants in constructing the culvert ought to have foreseen the possibility of such an occurrence and to have provided against it’.
Perry v Kendricks Transport
If harm done was due to the act of a stranger, Rylands may be avoided, since that is not anticipatable.
