Torts Connected to Land: Private Nuisance Flashcards
What is a private nuisance? What sort of action is it?
- An interference with a person’s enjoyment and use of their land
- Civil action
When the courts and law reports refer to a ‘nuisance’, they are usually referring to what type of nuisance?
- Private nuisance
When statute law refers to a ‘nuisance’ it usually means what type of nuisance?
- Both public and private, unless stated otherwise
What are the three kinds of private nuisance? Give an example for each
- Nuisance by encroachment on a neighbour’s land e.g the roots from a tree in a person’s garden grow under the ground and into their neighbours’ garden, damaging the foundations of their house
- Nuisance by direct physical injury to a neighbour’s land e.g driving a car over a neighbour’s garden. damaging it
- Nuisance by interference with a neighbour’s quiet enjoyment of their land e.g playing music all throught the night, preventing the neighbour from sleeping
Name two key cases for private nuisance
- Hunter and Others v London Docklands Corporation (1997)
- Hunter and Others v Canary Wharf Ltd (1997)
What happened in Hunter and Others v London Docklands Corporation (1997)? What did the case arise from? What did the action concern? Who brought it? What were the 2 issues? What was held?
- Arose from the construction of a tower block at Canary Wharf
- Action concerned the effects of the construction work
- Local residents brought the action
- The two issues were whether excessive dust could be sufficient to constitute damage to property for the purposes of negligence and whether an interest in property was needed to bring an action
- HELD - the mere deposit of dust was not in itself sufficient because it was an inevitable incident of urban life. In order to bring an action there had to be damage in the sense of the actual property
- ALSO HELD - only householders with a right to land could bring an action in private nuisance
In holding that only households with a right to land could bring an action in private nuisance (Hunter and Others v London Docklands Corporation (1997)), what decision did the House of Lords reject? What decision did it uphold?
- Rejected the decision in Khorasandjian v Bush (1993)
- Upheld the decision in Malone v Laskey (1907)
What happened in Hunter and Others v Canary Wharf Ltd (1997)? What was the complaint? What was the issue? What was held?
- Claimants complained that the erection of the Canary Wharf tower interfered with their television reception
- ISSUE - whether interference with TV reception was capable of giving rise to an actionable nuisance
- HELD - there is no right of action in nuisance for interference with the television reception. It’s the same as the obstruction of a view
In property law, one can reserve one’s right to something by creating a what? What is it?
- A covenant
- An agreed clause in a contract or lease that stipulates that one will be able to enjoy these when one buys a property and can sue if it is infringed
What is an easement?
- A right of access over land that can be enforced in property law
What are the three elements to proving a private nuisance by interference?
- An indirect interference with the enjoyment of the land
- The interference was unreasonable
- The interference has caused damage
Can the interference in private nuisance be a one off event?
- No, it must be continuous
The key to succeeding in a private nuisance claim for interference is what? What does this include? What makes it more likely that you will establish your claim/injunction?
- Whether the nuisance complained of makes it it physically unpleasant for you to remain in your property
- Includes things like pig smells
- The more physical the interference, the more likely it is that one will be able to establish a claim
In what case was it decided that a person cannot claim for the spoiling of a ‘thing of delight’ such as a view?
- Bland v Mosely (1587)
Name a case for tree root encroachment
- Davey v The Harrow Corporation (1958)
What happened in Sedleigh Denfield v O’Callaghan (1940)
- A grate negligently placed over a drainage pipe led to blockage which in turn caused damage
What happened in Christie v Davey (1893)?
- Defendant’s banging on the wall with a tray to disrupt music lessons was deemed to have been acting maliciously
What was held in Wheeler v JJ Saunders (1995)?
- The granting on planning permission is one way of doing what you want with the land you own/occupy, but if you cause a nuisance it will not protect you from an action in tort
What was held in Thompson Schwab v Costack (1956)?
- Running a brothel in an otherwise respectable street held to be a nuisance as it would have impacted on property valuations, so the nuisance was tangible
The occupier of land can be open to a claim for a nuisance that they what?
- Continue or prolong
If an occupier is aware of the nuisance’s existence and does nothing about it, or fails to take reasonable precautions, then this is the same as what?
- Creating a nuisance
What did the court have to decide in Leakey v National Trust (1980)? What was a factor in deciding this? What did the court decide?
- Court had to decide what was reasonable for the defendant to do about preventing a landslip occurring that was predictable
- A factor in deciding this was the financial means of the defendant to do something to prevent it
- The National Trust had means to act but failed, and their inaction was therefore unreasonable
What happened in Holbeck Hall v Scarborough Borough Council (2000)? What was held? What was held on appeal? Under what principle did the court assess the duty imposed? What case decided this principle? What was decided?
- Defendant owned land between the claimant’s hotel and the sea
- Landslip took place
- Council held liable
- Deemed not liable on appeal
- The court are to take into account the resources of the defendant
- Leakey v National Trust (1980)
- Decided that laying down a rule which requires every defendant to make a physical and economic effort in unsought circumstances would be unjust and unfair
What happened in Bybrook Barn Garden Centre v Kent County Council (2001)? What was held?
- Claimant’s garden centre damaged by flood water that came through a drainage pipe that had to deal with increased drainage due to change in land use to the surrounding area
- HELD - CoA agreed with the test set out in Leakey v National Trust (1980), but held that the council would probably have an obligation by law to resolve the hazard as well as the resources needed
When is someone with an interest in the land actually liable as a defendant? (3)
- Where a nuisance existed before the owners rented the land or permitted occupation of it - and they actually knew or should have known about the nuisance
- Where there is an ongoing obligation on the part of the owner to carry out repairs etc
- Where the owner can be said to have actually authorised the nuisance
What happened in Wringe v Cohen (1940)? What was held?
- Defendant’s house was in structural disrepair and it fell, causing damage to the claimant’s shop
- HELD - the court upheld the claim in nuisance
What was held in Tetley v Chitty (1986)? Why?
- Council who allowed their land to be used for go-kart racing was liable for the noise nuisance
- As they ought to have known of the likely nuisance arising
What happened in Lippiat v South Gloucestershire City Council (1999)?
- The council was deemed responsible for the anti-social activities of a group of travelers that it had permitted to use the council land
What was decided in Lippiat v South Gloucestershire City Council (1999)?
- The nuisance carried out by guests or licensees must actually be carried out from the land to the detriment of the claimant - it is not enough that he guests are simply noisy or disruptive
What happened in Hussain v Lancaster City Council (1999)? What was decided?
- The council tenants were not actually using the land - their behaviour meant that their occupation of the land was incidental, and not part of the nuisance that they were causing
- The nuisance must involve some physical connection with the land
What happened in Cocking v Eacott (2016)? What was the issue? What was held? Why?
- Deals with the issue of whether to sue an occupier or a tenant. The case centered on who was responsible for a dog barking
- Court held that the mum was still the occupier and the daughter merely had permission (license) to stay. The mum controlled the property and could enter at will
Are all annoyances actionable? Explain and give an example
- No
- Just because something is an annoyance does not mean it is actionable in private nuisance
- E.g interference with television signals by a building is an annoyance but is not actionable as a private nuisance
A successful private nuisance must have what three elements?
- The claimant must have an interest in the land
- There must be unreasonable use of the land which is the source of the nuisance
- The claimant must suffer some harm
What does an ‘interest in the land’ mean in terms of private nuisance?
- A person must own or have a right over the land to make a claim in private nuisance
Who is considered to not have an interest in the land? What does this mean?
- Persons such as visitors, family members and lodgers
- They cannot make a claim of private nuisance
Name a case that involves exclusive possession. Explain
- Foster v Warblington UDC (1906)
- Claimant was able to bring a claim of private nuisance because he was in exclusive possession of the land even though he could not prove his title to it
Name a case which involves the lack of an interest in the land
- Malone v Laskey (1907)
What happened in Malone v Laskey (1907)? What was held?
- Company had rented a house for one of their managers to live in
- The wife of the manager was injured when a bracket fell on her head, caused by the vibrations of machinery on the defendant’s property
- HELD - CoA held that the wide could not make a claim because she had no interest in the property
What happened in Khorasandjian v Bush (1993)? What was held? Why? What concerned the court? How has the law changed since?
- The daughter of a property owner brought an action to obtain an injunction against a man who was harassing her with phone calls
- Court held that telephone harassment was covered by the tort of private nuisance
- Because it was an actionable interference with her ordinary and reasonable use and enjoyment of property where she is lawfully present
- The CoA was concerned with the fact that at the time there was no alternative action the woman could take
- Now she would be able to obtain protection under the Protection From Harassment Act 1977
What happened in Dobson v Thames Water (2009)? What was the issue? What was held?
- Claimants complained of odours and mosquitoes affecting their properties from the activities of the defendant in the conduct of their adjoining Sewage Treatment Plant
- ISSUE - the rights of non title holders to damages in nuisance and related causes
- HELD - Damages in nuisance are for injury to property and not to the sensibilities of the occupier(s)
What five factors will the courts consider in deciding whether the use of land is unreasonable?
- The sensitivity of the claimant
- The duration of the nuisance
- The character of the area
- The reasonable foreseeability of the type of damage
- Any malice on the part of the defendant
In terms of the sensitivity of the claimant, what is the standard of tolerance? What does this mean?
- That of the reasonable person and ordinary land use
- Abnormally sensitive claimants or use of the land for an unusual purpose that makes it sensitive to disruption are unlikely to succeed in private nuisance
Give three cases that concern sensitivity in private nuisnace
- Robinson v Kilvert (1888)
- McKinnon v Walker (1951)
- Network Rail v Morris (2004)
What happened in Robinson v Kilvert (1888)? What was held?
- Defendant let a floor of his property to a tenant to be used as a paper warehouse. The claimant brought an action to stop the landlord heating the cellar because the rising heat dried his special brown paper, reducing its value. Ordinary paper would not have been damaged
- HELD - no private nuisance. CoA said that a person who carries out an exceptionally delicate trade cannot complain because it is injured by lawful activity, if the activity is something which would not injure anything but an exceptionally delicate trade
What happened in McKinnon v Walker (1951)? What was held?
- Defendant manufactured iron products 600 ft from claimant’s property
- Claimant brought action in relation to noxious fumes and smuts which had deposited over his foliage
- HELD - the defendant’s actions constituted a nuisance and the claimant was entitled to damages in respect of the orchids, despite the sensitive nature of the flowers
What happened in Network Rail v Morris (2004)? What was held Why?
- Claimant ran a recording studio close to a main railway track
- New track circuits were installed that generated an electro-magnetic field which interfered with the use of electric guitars at the studio, which resulted in the loss of several clients
- Brought an action in nuisance for interference
- HELD - defendant not liable as the use of amplified electric guitars dell into the category of extraordinarily sensitive equipment. Furthermore, the interference was not foreseeable
Can the duration and time of the alleged nuisance determine whether a private nuisance has been created?
- Yes
Name a case where the duration and time of the nuisance came into play
- Halsey v Esso Petroleum Co Ltd (1961)
What happened in Halsey v Esso Petroleum Co Ltd (1961)? What was held?
- Action under private nuisance for the noise caused by filling petrol tankers and damage to car bodywork because of the fumes
- HELD - the noise caused by filling petrol tankers was reasonable, and so not a nuisance at 10AM, but was a nuisance at 10PM. The damage to the car bodywork was obvious damage too and so the claim was successful
Generally speaking the courts require a private nuisance to be a continuing state of affairs, but what is the exception to this requirement? (Case)
- Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996) - a fireworks display that set fire to some moored barges was held to be private nuisance
What happened in Spicer v Smee (1946)? What was held? Why?
- Fire broke out on defendant’s property as a result of faulty wiring. The fire spread to a neighbouring property owned by the claimants
- The faulty wiring was classed as a continuing state of affairs and so the claimant’s action succeeded
What happened in Sturges v Bridgman (1879) What did the courts take into account? What was held?
- Claimant was a doctor who sued a confectioner for the noised caused by his industrial equipment
- The court took into account the fact that the area in which they both worked consisted mainly of doctors’ consulting rooms
- HELD - It was a nuisance. That which would be a nuisance in a busy industrialised area may be one in a quiet residential area
What happened in Miller v Jackson (1977)? What was held?
- Claimant moved into a house beside a cricket club. They attempted to get an injunction to stop play as balls were frequently hit into their garden
- HELD - CoA agreed that it was a nuisance but refused to grant an injunction because of the usefulness of the club to the local community, which outweighed the interests of the claimants
What happened in St Helen’s Smelting Co v Tipping (1865)? What was held? What was the rule?
- Damage caused by vapours from a factory
- HELD - Private nuisance even though many other factories emitted vapours
- Claimants should be prepared to put up with the level of discomfort common to the area in which they are situated. However, claimants are not expected to put up with actual damage to their land resulting from the normal activities of the locality
What was held about planning permission in Wheeler v JJ Saunders (1994)? (2)
- The granting of planning permission does not alter the character of an area and so that which was a nuisance would still be a nuisance
- The granting of planning permission does not authorise the creation of a private nuisance
What happened in Gillingham Borough Council v Medway Docks (1993)? What was held? What was decided?
- Defendant obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day
- Local residents brought an action in PUBLIC nuisance in relation to the noise created by heavy goods vehicles throughout the night
- HELD - not liable
- Decided that where planning permission is given for a development or change of use, the question of nuisance will be decided by reference to a neighbourhood with that development or use and not as it was previously
What happened in Lawrence v Fen Tigers (2014)? What was held?
- Claimant claimed that the noise generated by motor sports at a nearby stadium was a nuisance
- HELD - claim failed. Planning permission had changed the nature of the locality so the noise was not a nuisance
What did the Supreme Court state in Coventry and Others v Lawrence (2014)?
- There will be occasions when the terms of a planning permission may be of some relevance in a nuisance case, but defendants cannot rely on this as a defence
It is a defence in private nuisance to argue that the claimant came to the nuisance and so consented to it?
- No
What effect can an act of malice have on an action in private nuisance?
- An act of malice can lead to a successful action in private nuisance even though the claimant might be abnormally sensitive or if the act would not usually amount to an unreasonable use of land
Give two cases that involve acts of malice
- Hollywood Silver Fox Farm Ltd v Emmett (1936)
- Christie v Davey (1893)
What happened in Hollywood Silver Fox Farm Ltd v Emmett (1936)? What was held? Why?
- Defendant maliciously got his son to discharge a shotgun on his own land as close as possible to his neighbour’s fox pens in order to interfere with the vixens during mating season
- HELD - claimant entitled to injunction and damages as the defendant had acted maliciously. The fact that discharging a gun (as a farmer) was not unreasonable and the fact that fox farming was an unusual use of land was irrelevant
What happened in Christie v Davey (1893)? Held?
- Claimant gave music lessons and parties so the defendant started to make noise back in retaliation
- HELD - Nuisance - the court found in favour of the claimant purely because the defendant had acted maliciously
What needs to be shown in private nuisance cases? What case established this?
- That the type of nuisance was reasonably foreseeable
- Established in Wagon Mound No.1
What did the house of lords emphasise in Cambridge Water Co v Eastern Counties Leather PLC (1994)?
- That nuisance required foreseeability of the type of damaged as established in Wagon Mound No.1
Is private nuisance actionable per se? What does this then mean?
- No
- There must be some damage, harm, injury or inconvenience
What happened in Network Rail Infrastructure v Williams (2018)? What did it concern? What was held?
- Concerned the encroachment of Japanese knotweed from the defendant’s land
- HELD - no actual physical damage occurred but the value of the properties concerned dropped due to the nature of the knotweed (very difficult to remove)
An occupier is liable in private nuisance if they bear some personal responsibility for it. What does this mean? (3)
- If the private nuisance was created by an act of a stranger, the occupier is liable if they knew or ought to have known about it
- If the private nuisance was created by an act of nature, the occupier is liable if they knew or ought to have known about it
- If the private nuisance was created by the previous occupier, the current occupier is liable if they knew or ought to have known about it
When is a landlord liable in private nuisance (3)?
- If the landlord authorises the tenant to commit a private nuisance
- If at the date of letting, the landlord knew or ought to have known of the nuisance
- If a private nuisance is created during the tenancy AND there is no agreement between the landlord and tenant making the tenant responsible for such repairs needed to remove the nuisance
What are the two main defences in private nuisance?
- Statutory authority
- Prescription
Give two cases which involve the use of statutory authority as a defence
- Allen v Gulf Oil Refinery (1981)
- Barr v Biffa Waste Services (2012)
What happened in Allen v Gulf Oil Refining (1981)? What was held? Why?
- Claimant brought an action in nuisance for the smell, noise and vibrations created by an oil refinery which had been constructed on the defendant’s land. The defendant’s construction of the oil refinery was authorised by an Act of Parliament
- HELD - defendant not liable as they had statutory authority
What happened in Barr v Biffa Waste Services (2012)? What was held? Why?
- Defendants were operating a landfill site that required handling a certain kind of rubbish that was even more unpleasant than usual
- Defendant said the permit gave them statutory authority
- HELD - courts agreed up to a point, saying that the terms and conditions of the permit had not envisaged the problem and so the smell had arisen in excess of authority given by statutory authority
State the overlap between private nuisance and negligence (3)
- In many cases claimants bring an action for both private nuisance and negligence
- Both require injury or harm to the claimant
- Both require foreseeability of the type of damage
What are the differences between private nuisance and negligence? (3)
- A private nuisance does not need to involve a negligent act
- The remedies for private nuisance are usually damages and injunctions
- The remedy for negligence is damages
What are the criticisms of private nuisance? (3)
- The Hunter decision about TV reception has been criticised. IT could be argued that rights of wealthy developers are being considered over those of smaller litigants and there is debate over whether or not TV is a luxury
- There is opinion that Hunter might not withstand the application of the HRA 1998
- An activity such as training fighter jet pilots (as seen in Dennis v MOD (2003)) can be seen as essential. Are damages sufficient? Can’t make them stop so sorta have to be
What happened in Watson v Croft Promo-Sport (2009)? What was argued? What was held?
- Excessive noise from motor-racing
- Argued that planning permission had changed the nature and character of the surroundings and that this offered a defence of the same kind as statutory authority
- HELD - CoA held that this was incorrect as the area was still largely rural, but in principle they agreed the point
Define the defence of prescription. What is it sometimes referred to as? What type of law is this defence based in? What is the issue with it?
- Prescription = a claim by the defendant that they can act in a certain way because they have been doing so for 20 years
- Sometimes referred to as an ‘easement by prescription’
- Defence is based in property law
- Can be difficult to use in practice
In Sturges v Bridgman (1879), could prescription have been used as a defence? Why? In other words?
- Prescription couldn’t be used as a defence as although the defendant had used the noisy equipment for more than 20 years, the moment the claimant built his consulting room, the noise became a nuisance
- In other words it is based on how long the act has been a nuisance
In terms of taking reasonable care and skill (in private nuisance), what is a defence? According to what case? However?
- If the nuisance is the inevitable consequence of your activity then you have a defence
- Allen v Gulf Oil Refinery (1981)
- On the other hand, if a consequential nuisance can be avoided by reasonable care and skill, then there will be no defence
What three things are not a defence in private nuisance?
- When an activity is of public benefit
- Care and skill
- Coming to/consenting to a nuisance
An activity being of public benefit is not an offence, but what do the courts weigh up?
- Reasonableness and foreseeability by comparing the public benefit issue with the infringement of the claimant’s rights
Name three cases where a defence of public benefit was attempted
- Adams v Ursell (1913)
- Miller v Jackson
- Dennis v MOD (2003)
What happened in Adams v Ursell (1913)? What was held?
- Defendant was obliged to move his fish shop to another part of the street because the smell bothered the claimant
- the defence of public benefit (source of quick and cheap food in an impoverished area) was deemed not to outweigh the nuisance inflicted on the claimant
What was held in Miller v Jackson?
- Public utility of a cricket club did not offer a defence to nuisance even though the court decided that an injunction completely preventing the activity would be unfair, given its use to the community
What was held in Dennis v MOD (2003)?
- The social utility of training jet pilots meant that the MOD should not be prevented from doing as such, but this did not absolve them of paying compensation as the noise of the jets caused a nuisance
Can you say that a claimant has come to, or consented to a nuisance? How do the courts see this?
- No
- They see it as unfair
What are the two main remedies for private nuisance?
- Damages
- Injunctions
What happened in Kennaway v Thompson (1980)? What did the courts decide? What did the CoA say on appeal?
- Noisy motorboats
- Claimant sued for damages and an injunction
- Court said yes to damages but no to an injunction
- On appeal the CoA said that damages and injunctions are not an either or option. If someone clearly needs both they can have both
