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
remoteness
is the harm reasonably foreseeable
D not resp for damage that flows from C’s extra vulnerability - no egg shell skull principle
who can sue
The claimant must have a right in or over the affected land: Hunter v Canary Wharf
freehold owners, tenants in occupation, leaseholder
who can be sued
The person who creates the nuisance.
* The occupier of the land – typically the defendant in private nuisance.
* The occupier’s landlord. - some circumstances
(a) authorise the nuisance
(b) have an obligation to repair,(normally the case)
(c) the nuisance existed prior to the letting
Coventry v Lawrence (Supreme Court): landlords will be held liable for a private nuisance created by their tenants where they have authorised the interference or directly participated in it.
Smith v Scott: nuisance caused by tenants (anti-social/’problem’ family). Landlord (local authority) not held liable. This was because of covenant (not to create a nuisance). - when set up tenancy agreement specified tenants not create nuisance
privacy
Fearn v Board of Trustees of the Tate Gallery
gallery opened public viewing platform on top floor - looked into views of london and claimants flats - intrusion - claim succeeded
rylands v fletcher
water escapes from a reservoir being built for D by contractors. - vast accumulation of water - C’s nearby mine workings = flooded - water flowed through disused shafts connecting D’s property to C’s
Trespass to land not applicable: interference was not direct. - water had left land of D and travelled through shafts and only then impacted Cs property
- Private nuisance not applicable: at this time, the interference had to be continuous or recurring. - not case here
rule in rylands v fletcher
dangerous thing
Accumulation. - something is built up which generates a high level of risk so classify it as non natural
- non-natural use. - unusual or extraordinary use of land
Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd : D engaged in manufacture of explosives
BUT CONTEXT: WWII - Read v Lyons - shells were important so natural use - Escape. - the risk escapes
- Damage. - does damage
- Remoteness. - liable for reasonably foreseeable types of harm
- Defences. - D may get out of liability through defences
Rylands - accumulation
The thing that (later) escapes must be brought onto D’s land or land where D has control - it is an active process - must be voluntary
Where D is instrumental in causing things naturally on the land to escape, Rylands applies: e.g., Miles v Forest Rock Granite Co Ltd (blasting). - D setting explosive charges, causing rock to go onto adjoining land - no accumulation but an escape due to voluntary conduct on D’s part
no liability under Rylands v Fletcher for escape of things naturally on the land. e.g. an outcrop of rock that falls due to weathering: Pontardawe Rural District Council v Moore-Gwyn.
Transco case
leak developed in D’s water pipe (which supplied a block of flats); the escaping water saturated the embankment where C’s gas pipe was located; the embankment collapsed and left the gas pipe unsupported (which gave rise to a grave risk); C had to undertake costly remedial work.
* Held: D was not liable; D’s use was natural.
Rule in Rylands v Fletcher Natural Uses: Some Examples -
Domestic water supplies (transco)
* Household fires
* Electric wiring in houses and shops
* The ordinary working of mines
* Keeping trees and shrubs – unless, perhaps, poisonous - Crowhurst
Jones v Festiniog Railway Co - Sparks from a train set fire to a haystack. - rylands applicable
- 2 Batchellor v Tunbridge Wells Gas Co : gas escapes likely to pollute water supplies.
- 3 Miles v Forest Rock Granite: explosions on D property (rocks blasted in quarrying operations).
- 4 National Telephone Co v Baker: electricity.
- 5 Smith v Great Western Railway: oil.
- 6 West v Bristol Tramways: noxious fumes.
Non-Natural Use and Abnormal Risk
Mason v Levy Auto Parts: D stored large amount of combustible material on its premises. - fire breaks out and damages claimants property - judge concluded use non natural
requirement of control
important where D is no owner of land from which escape takes place
D need not have a proprietary interest in the land from which the escape - Rigby v Chief Constable of Northamptonshire
D taken occupation in a gun shop, someone psychopathic wielding and using weapons - firing so police outside fire into gun shop in CS gas cannister - shop = badly damaged and police took step when fire bregade on strike - rylands could have applications
If someone at least has control for a while of a bit of land something escapes and it does damage even if they don’t own it - rylands could be applied
The Rule in Rylands v Fletcher- Remoteness
Claimant can use rule to recover compensation for reasonably foreseeable types of harm
Insurance and its relevance in Rylands -
Transco
claimant might be able to buy loss insurance - if think you are at risk posed by ppl around you - could buy insurance - if can self protect that risk then basis to conclude if it is insurable then it is not that risky - should call it a natural use
Only those risks that are uninsurable should be classified as non-natural.
fire
Stannard - if fear fire then have insurance to cover it
Suggesting need to accumulate fire and if fire escapes then rylands
