private nuisance - property law Flashcards
definition
any activity causing or state of affairs causing a substantial and unreasonable interference with
(i) C’s land or
(ii) C’s use or enjoyment of that land. (an amenity such as noise, dust and smells)
where something impacts their health e.g. lack of sleep or nausea due to smells - only to do with land so these would be negligence claims
physical damage to land
wring v cohen -D’s building was in a state of disrepair and collapsed onto C’s property. - unreasonable interference so actionable in private nuisance
Sedleigh-Denfield v O’Callaghan:
a drain became blocked. As a result, C’s land was flooded.
- physical damage to C’s land may ground a private nuisance action
Where damage is material/physical, courts are likely to grant C a remedy. - could be damages for harm or an injunction to prevent future interferences
Remedies attempt to strike a balance between competing land uses
amenity
intangible damage e.g. noise, smells, dust
Thompson-Schwab v Costaki: a brothel in ‘a good-class residential street’. - amenity and comfort impacted
Laws v Florinplace: a ‘sex centre and cinema club’ in ‘a residential enclave’ - don’t expect this to occur in a residential area
Dealing with collisions bet competing land uses - idea of balancing competing interests
private nuisance and harassment
Khorasandjian (NO LONGER AUTHORATIVE) (Court of Appeal majority): C was subjected to unwanted telephone calls from ex- partner post break up - turned into unwanted itnerference with her life - harrassment - concluded she could bring a private nuisance but problematic - did she have standing
C lacked a proprietary interest - a licensee of someone elses property- CoA stretched private nuisance to protect her
interference with comfort and convenience
bamford v turnley - a rule of give and take, let and let live - idea of reciprocity
Exceeding reasonable limits: too much noise etc - most of the activities that discomfort or inconvenience are lawful and only become unlawful if they are carried to exceed reasonable limits. - law tried to accommodate competing land use claims fairly
One of situations such as throwing a party or construction is not private nuisance - part of reciprocity is accepting this - given time principle
sleep - Andrea v selfridges case - even one night of sleep = unreasonable use of land - since we go home to sleep etc - lin to remedy - place restrictions on time
Interference with Comfort and Convenience and Objectivism
Walter v Selfe - interferences with amenity are assessed by reference to ‘plain and simple notions among English people’. - shared standard of reasonableness - ordinary notions of ordinary ppl
* Judges do not take account of ‘dainty or elegant modes and habits of living
Robinson v Kilvert: C’s premises was above D’s.
* Heat generated by manufacturing process that occurred in D’s property rose into C’s premises and damaged sensitive paper.
* Court of Appeal: D was not liable. - this was abnormally sensitive paper
abnormal sensitivity
Robinson v Kilvert: C’s premises was above D’s.
* Heat generated by manufacturing process that occurred in D’s property rose into C’s premises and damaged sensitive paper.
* Court of Appeal: D was not liable. - this was abnormally sensitive paper
Heath v Mayor of Brighton . C were congregants worshipping at a church, the D was operating an electricity generator and it was making a modest amount of noise, C complaints was abnormally sensitive as it was a trivial interference not sound
abnormal sensitivity and television
Bridlington Relay Ltd v Yorkshire Electricity Board: reception of television is not an ordinary use of property.
- Nor-Video Services (Ontario High Court): watching television is a form of ordinary enjoyment.
- Hunter v Canary Wharf: House of Lords – interference with television reception caused by tall building (canary wharf tower) was not identified as actionable nuisance.
locality
Sturges v Bridgman - ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ - you pay your money and you take your choice - invest in top end prop then high lvl of amenity
nature of locality may change - Gillingham Borough Council v Medway (Chatham) Dock Ltd: planning authority granted planning permission for redevelopment of former royal naval dockyard in kent commercial use. - local auth trying to breathe life into an economy which was not good - concerned with public concern - C concerned with level of amenity which historically been quite high but as result of development was reduced
Locality and Planning and Regulatory Approval
Barr v Biffa Waste Management Services: D operated a landfill into which it tipped odorous waste.
* The Environment Agency had granted D a waste management permit.
* Cs lived in a nearby houses. [Clash of land uses.] - complained of strong smells that drifted over from D’s landfill.
- At trial, Coulson J decided in favour of D. (based on permit)
Claimants not able to show D breached permit so no unreasonable use of land - permit changed the character of the locality
C’s appealed successfully - correct test
would a normal person have found it reasonable to put up with the effects of D’s activities?
PROBLEM Q FORMULA CONSIDERATIONS
Abnormal sensitivity. - are they being abnormally sensitive?
ordinary use of land? - fearn v board of trustees of the tate gallery
- Level of interference. (The duration and intensity of the interference are relevant here.) - consider give and take principle if it is a one off then not private nuisance
- Public benefit (associated with D’s activity).
- Malice (spite or ill will).
ALSO NEED TO CONSIDER: give and take principle, locality and application of objective standards
one off circumstances
may constitute actionable nuisance even if one off - e.g. extreme noise
Matania v National Provincial Bank Ltd.
public benefit
not a defence
Miller v Jackson: Durham, cricket had been played for generations (prominent feature of local life and valued) new house built next to cricket ground and claimant was no lover of cricket - cricket balls would strike property and do damage - C felt unsafe in her home and wanted an injunction - threatened to bring publicly beneficial thing to a halt - clash of private and public concerns
-CoA rejected an injunction but rec this was actionable private nuisance, damages could be given but cricket not stopped - effort to use remedies to accommodate a fair balance of competing land uses
malice
intentional annoyance
Christie v Davey:
the parties lived in adjoining semi-detached houses in Brixton.
D was annoyed - (in retaliation) banged on party-wall, beat trays, and shouted.
Noises made by D ‘were not of a legitimate kind’
D held liable - permanent injunction imposed
C had behaved unreasonably so music hours were imposed - qualified injunction
Hollywood Silver Fox Farm Ltd v Emmett:
D fired gun with the aim of upsetting C’s (sensitive) silver foxes.
* This caused the animals to abort and devour their young.
* D held liable (having acted maliciously).
measured duty of care cases
concerned with the operation of nature for example
Goldman v Hargrave (Privy Council): due to a lightning strike on D’s land, a tree caught fire and became a source of danger to the property of the plaintiff.
* D took inadequate steps (cuts tree but does not extinguish fire) to alleviate the risk. The fire spread and damaged the plaintiff’s property. - D = liable
fault based standard - negligence
Leakey v National Trust: because of its geological structure, D’s land (Burrow Mump) was prone to subsidence. (ground beneath building sinks)
* In cases of this sort, occupiers are under a duty to do that which is reasonable in the circumstances to prevent or minimise a known risk to a neighbour’s property (or to the neighbour).
Holbeck Hall Hotel Ltd v Scarborough Borough Council: facts - due to coastal erosion, a cliff on land belonging to D collapsed into the sea.
* C’s hotel (situated on adjoining land) was destroyed.
at trial - C succeeded - D should have followed advice - CoA - appealed - accepted D owed c duty of care but not
Davies v Bridgend County Borough Council
prior to C’s purchase of land (in 2004), Japanese knotweed spread from land owned by Bridgend County Borough Council onto the land now owned by C.
* In 2004, encroachment of Japanese knotweed was not an actionable private nuisance.
* An actionable private nuisance arose in 2013: this is because D ought (at this time) to have been aware of the risk of damage and loss of amenity to the claimant’s land as a result of publicly available information about Japanese knotweed. - publicly available info could be easily accessed by reasonable ppl
* D only implemented a reasonable and effective treatment programme in 2018. - 5 years later
- The defendant’s tortious failure did not cause the diminution in value of the claimant’s land
- No damages awarded.
- C has to establish that D’s breach of duty caused the relevant loss - No causal link could be established between C’s breach of duty and the diminution of value that D’s claim concerned
- The diminution in value had occurred long before D breached the duty that arose in 2013. - since the knotweed crossed over into the land prior 2004 - detrimental impact occurred prior to purchase at time where it was not reasonable ppl know risk
