Torts relating to Land

Question 1

What is private nuisance?

Answer 1

Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.

Question 2

Who can sue in private nuisance?

Answer 2

In order to bring a claim, the claimant must have a legal interest in the land - possessionary or proprietary interest. Mere permission to use or occupy the land is insufficient.

• legal interest in the land affected
• tenant in possession
• grantees of an easement
• licensee with exclusive possession

Question 3

Who can be sued in private nuisance?

Answer 3

1. Creator of the nuisance - even if not in position to end the nuisance and even if not the occupier of the land
2. Occupier of the land from which the nuisance originates - can be liable for nuisances created by themselves as well as those created by others.
3. Owner of the land - not usually liable for private nuisance unless the exception in Coventry applies

Question 4

When can an occupier of the land from which nuisance originates be liable for nuisances created by others?

Answer 4

1. Independent contractors - If an occupier asks an independent contractor onto their land to perform tasks and those tasks cause an inevitable nuisance (consequences for claimant) there will be liability
2. Trespassers/visitor/predecessors in title - liable if they continue or adopt the nuisance. Continue a nuisance if they knew or ought reasonably to know of its existence and fail to take reasonable steps to end it. Adopt a nuisance if they make use of the thing causing a nuisance.
3. Naturally occurring nuisances - an occupier may be liable for naturally occurring nuisances where they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance.

Question 5

What is the exception in Coventry (for where an owner will be liable for a private nuisance)

Answer 5

A landlord can only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.

Will be a question of fact. Not enough for the landlord to know what the tenants will be doing as premises could be used in a way without creating that nuisance.

Question 6

What are the four elements of private nuisance?

Answer 6

1. Indirect interference;
2. Recognised damage;
3. Continuous act; and
4. Unlawful interference

Question 7

What is indirect interference (private nuisance)?

Answer 7

Private nuisance concerns indirect interference with the use or enjoyment of the claimant’s land - direct interference would be classified as trespass to the land.

Occurs where nuisance starts on defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land. Can include a failure to act which results in loss.

Examples: sounds, smells, fumes and vibrations.

Question 8

What is recognised damage (private nuisance)?

Answer 8

Claimant must establish they have suffered some damage. Types recoverable in private nuisance:

1. Physical damage to property - must be more than de minimus (trivial)
2. Sensible personal discomfort (SPD) - where senses of claimant are affected in such a way that the claimant is unable to enjoy their land (amenity damage) - more than fanciful and materially interfere with ordinary human comfort

Type of damage must be reasonably foreseeable and claimant can recover any consequential losses flowing from recoverable damage.

Claimant cannot claim for personal injury as private nuisance is a tort against the land not the person.

Question 9

Can you claim personal injury for private nuisance and Rylands v Fletcher.

Answer 9

No as these are torts against the land not the person.

Question 10

What is a continuous act (private nuisance)?

Answer 10

General rule is that nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance (better to bring a claim in public nuisance, or Rylands v Fletcher where possible).

Exceptions:
1. A single incident caused by an underlying state of affairs; e.g. poor/dangerous storage techniques

and

2. An activity which creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material.

Question 11

What is unlawful interference (private nuisance)?

Answer 11

Nuisance must constitute an unlawful interference with the claimants’ land or use or enjoyment of the land. ‘Unlawful’ means unreasonableness.

Courts will not look at whether the defendant is at fault but whether the activity causing the nuisance is an unreasonable use of land.

If unreasonable, defendant will be liable even if they exercised reasonable care and skill to avoid it.

Question 12

What are the relevant factors for deciding whether or not the interference is unlawful?

Answer 12

1. Time and duration - the longer/more frequent the more likely it will be deemed to be unreasonable. When/how long/how frequent.
2. Locality - only for SPD. Will depend on character of the area (e.g. factory in residential area). Planning permission may give context for reasonableness - but doesn’t necessarily authorise nuisance.
3. Abnormal sensitivity - claimant who is unusually sensitive cannot claim simply because nuisance to them alone. But if would cause some nuisance to a reasonable occupier claimant can claim full loss (even if full extent is greater due to sensitivity). Courts have recently taken the stance to view this in terms of foreseeability (which tracks as being abnormally sensitive is not normally foreseeable)
4. Malice - where defendant’s aim is solely to annoy claimant, this will normally constitute a nuisance.
5. Defendant’s lack of care: likely to count in the claimant’s favour.
6. Excessive behaviour: may indicate unreasonable use of land.

Question 13

What factors might the court consider when deciding whether the defendant’s use of land was unreasonable where the claimant’s loss is physical damage to property?

Answer 13

Time and duration, abnormal sensitivity, malice, lack of care and excessive behaviour.

Locality is omitted from the list as this is not relevant where the loss is physical damage to property.

Question 14

What losses are recoverable in private nuisance?

Answer 14

1. Physical damage to property
2. SPD
3. Consequential economic loss.

Question 15

How might planning permission bear in relation to the tort of private nuisance?

Answer 15

The planning permission will not authorise the nuisance. However, the terms of the planning permission may have a bearing on whether or not a nuisance exists.

Question 16

What are the seven defences in private nuisance?

Answer 16

1. 20 years’ prescription
2. Statutory authority
3. Consent
4. Contributory negligence
5. Act of third party
6. Act of God
7. Necessity

Question 17

Private nuisance defences: Prescription

Answer 17

If defendant’s activity has been an actionable nuisance for 20 years or more but not action has been taken, defendant will have earned the right to continue to commit the nuisance.

Note: length of time the claimant could have complained not the length of time the activity has been ongoing. 20 years does not have to be continuous.

Question 18

Private nuisance defences: statutory authority

Answer 18

Where the defendant’s activity is being carried out on the basis of statutory authority, they will escape liability if they have exercised all due care and the nuisance in an inevitable consequence of the activity.

Question 19

Private nuisance defences: consent

Answer 19

If claimant specifically agreed to the defendant causing the nuisance, then that consent will be a defence. The defence may be available where the claimant knowing of the danger to their property has by word or deed shown willingness to accept the risks.

Claimant must have specifically consented to the activity causing the nuisance.

Question 20

Private nuisance defences: contributory negligence

Answer 20

Usual rules of contributory negligence apply.

Question 21

Private nuisance defences: Act of third party

Answer 21

Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable unless they adopt or continue the nuisance.

Question 22

Private nuisance defences: Act of God

Answer 22

Where the nuisance results from an act of God, the defendant will not be liable unless they adopt or continue the nuisance.

Question 23

What is ‘moving to the nuisance’?

Answer 23

An ineffective defence. Defendant may try to argue that the claimant should not be able to complain about a nuisance which was present when the claimant moved to their property - however this will not justify the commission of a nuisance.

Question 24

What are the remedies available for private nuisance?

Answer 24

1. injunction
2. damages
3. abatement

Question 25

What is an injunction - private nuisance?

Answer 25

The primary remedy for continuing nuisance. Injunctions can be full or partial.

A partial injunction can be seen as a compromise - striking balance as it will limit the activity rather than preventing it. Awarded where defendant’s activities are of public benefit.

Defendant needs to put forward the arguments as to why an injunction should not be granted. Court will then weigh up factors, such as public benefit.

Question 26

Private nuisance - damages

Answer 26

Where a nuisance causes actual physical damage, cost of repair or renewal can be claimed (whichever is lower). Can also be awarded for any consequential economic loss.

Can also be awarded in lieu of an injunction where the loss is SPD. Prima facie remedy should be an injunction.

Damages will be awarded based on reduction in property value.

Question 27

Private nuisance - abatement

Answer 27

A self-help remedy where claimant acts to stop the nuisance.

In some circumstances, claimant may enter property and take reasonable steps to prevent nuisance continuing. Anything belonging to defendant must be left on their property.

Notice should usually be given unless it is an emergency. Validly exercising a right to abate a nuisance will be a defence to any proceedings for trespass to land.

Question 28

What is a public nuisance?

Answer 28

Acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of His Majesty’s subjects.

Public nuisance is a CRIME. Occasionally it is also a tort where the harm suffered is by a section of the community or the community as a whole.

Lots of areas such as pollution, noise and public health are regulated by statute. Now the tort of public nuisance is a residual method of dealing with certain interferences that cannot be dealt with by other means or where an individual wishes to claim common law damages££££££. slay.

Question 29

Who can sue in public nuisance?

Answer 29

1. An individual
2. A local authority
3. Attorney General

Question 30

When can an individual sue in public nuisance?

Answer 30

Claimant does not need to have an interest in the land affected.

But, they must be able to show that they have suffered ‘special damage’.

Special damage = claimant has suffered over and above the rest of the class or in a way that is in a different kind from the rest of the class. Must be direct and substantial.

Question 31

When can a local authority sue in public nuisance?

Answer 31

If the authority has suffered damage it may sue on its own behalf. It may also sue in its own name to protect the inhabitants of its area.

Question 32

When can the Attorney General sue in public nuisance?

Answer 32

Where a class of people are affected by the public nuisance and no individual action is possible or forthcoming, the Attorney General may bring the claim on the class’s behalf in their name.

Question 33

Who can be sued in public nuisance?

Answer 33

Tortfeasor is usually easily identifiable - creator of the nuisance or any person who is responsible for the nuisance may be sued.

Question 34

What are the elements of public nuisance?

Answer 34

1. Act or omission
2. One-off event or continuous;
3. Class of His Majesty’s subjects; and
4. Materially affects comfort and convenience

Question 35

Public nuisance: Act or omission

Answer 35

Liability can exist for omissions as well as acts which may mean it is advantageous to sue in public nuisance rather than negligence where omissions are generally not actionable.

Question 36

Public nuisance: one-off or continuous

Answer 36

Unlike private nuisance, a public nuisance can be a one-off isolated event

Question 37

Public nuisance: Class of His Majesty’s subjects

Answer 37

Effect of the nuisance must be sufficiently widespread. There is no exact number of people who have to be affected to constitute a class. Only needs to be a representative cross-section of the class - not every member.

Class should have suffered a common injury, meaning they have been affected at more or less the same time and in the same location.

Question 38

Public nuisance: Materially affects comfort and convenience (the loss)

Answer 38

Damage includes personal injury, property damage, consequential economic loss, pure economic loss and inconvenience.

Claimant can also claim for ‘inconveniences’ which are more than material (more than trivial). No need for actual damage, annoyance or irritation will be sufficient as long as material.

Type of loss must be reasonably foreseeable.

Question 39

What defences are available for public nuisance?

Answer 39

Same as for private nuisance except for prescription.

1. Statutory authority - most common
2. Necessity
3. Consent
4. Contributory negligence
5. Act of third party
6. Act of God

Question 40

What remedies are available for public nuisance?

Answer 40

Injunctions and/or damages

If a claim is brought by a local authority or the Attorney General, the only remedy is an injunction.

Question 41

What losses are recoverable in public nuisance?

Answer 41

Property damage, consequential economic loss, personal injury, pure economic loss, and inconvenience.

Question 42

What is the rule in Rylands v Fletcher?

Answer 42

The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for all the damage that is a natural consequence of the escape.

Rule protects against interference due to an isolated escape from the defendant’s land.

Question 43

Who can sue in Rylands v Fletcher?

Answer 43

Claimant must have a proprietary interest in the land affected.

Question 44

Who can be sued in Rylands v Fletcher?

Answer 44

The person who brings, collects and keeps the ‘thing’ onto the land (the creator of the nuisance) and/or any person who has control over the land (owner/occupier).

Question 45

What losses are recoverable under Rylands v Fletcher?

Answer 45

Claimant must suffer some damage. Only types of losses recoverable are property damage and consequential economic loss.

Question 46

What are the elements of Rylands v Fletcher?

Answer 46

1. Defendant brings onto land and accumulates there - must have voluntarily brought something onto the land. e.g. not liable for spread of thistles that grow naturally
2. For their own purposes, anything likely to do mischief if it escapes - capable of causing damage if it escapes (need not be dangerous in itself) eg water, acid and explosives.
3. Escape - from land over which the defendant has control to land where they do not have control (can be slow and over a period of time)
4. Escape causes foreseeable harm - defendant need not have foreseen the escape but must have known or ought reasonably to have foreseen that the ‘dangerous thing’ could, if it escaped, cause damage. Even if the defendant has taken reasonable care to prevent the escape and the damage, the defendant will still be liable if they fulfil the requirements for operation of the rule.
5. Non-natural use of land - non-ordinary use of land and what is ordinary depends upon the tie, place and context of the use of land.

Question 47

What are the defences under Rylands v Fletcher?

Answer 47

1. Common benefit
2. Act or default of the claimant
3. Statutory authority
4. Act of third party
5. Act of God
6. Contributory negligence
7. Consent

Question 48

Rylands v Fletcher Defences: Common benefit

Answer 48

If claimant agreed to the accumulation of the material by the defendant, there will be no liability. Consent can be implied if the substance has been accumulated for the common benefit of the claimant and defendant.

Question 49

Rylands v Fletcher Defences: Act or default of the claimant

Answer 49

If the escape has been caused wholly by the claimant’s actions, there will be no liability.

Question 50

Rylands v Fletcher Defences: Act of third party

Answer 50

Must be an unforeseeable act of a stranger over whom they have no control

Question 51

What remedies are available under Rylands v Fletcher?

Answer 51

Damages and injunctions.

Damages are the most common remedy give the types of losses are property damage and consequential economic loss and covers isolated events.

Question 52

What is trespass to land?

Answer 52

Land based tort that involved the unlawful presence on somebody else’s land. Interference must be intentional and direct and an action in trespass to land is actionable per se (without proof of damage).

Question 53

Who can sue in trespass to land?

Answer 53

Claimant must have a legal interest in the land, so includes tenant or licensee in possession, rather than landowner. Landowner would only have a right to sue in trespass to land where there would be damage to their interest beyond the term of the lease/licence.

Does not need to be any actionable damage, harm that will be compensated is the unjustifiable interference with the claimant’s land by the defendant.

Question 54

Trespass to land: direct and physical interference

Answer 54

Trespass to land is concerned with the direct interference with the claimant’s land. Land includes anything under the land, built on the land and the airspace above it.

Interference must also be physical, there are four categories:

1. Entering the claimant’s land
2. Remaining on the claimant’s land when the permission has been revoked
3. Doing something that is not permitted on the claimant’s land
4. Placing objects on the claimant’s land without permission

Question 54

What are the elements of trespass to land?

Answer 54

1. Direct and physical interference
2. Intention

Question 55

Trespass to land: intention

Answer 55

Defendant must intend action that amounts to trespass but need not intend to trespass. Intention can be implied.

Question 56

What are the defences to trespass?

Answer 56

Three defences:
1. Permission: where defendant has express or implied permission (or licence) to enter or remain on the land. To be a valid defence, defendant must not exceed the boundaries of their permission.

2. Legal authority: eg police have statutory authority to enter premises and carry out arrests - but if commit wrongful act on the premises then original entry becomes a trespass.
3. Necessity: where the trespass was necessary to protect wither a public or private interest.

Question 57

What remedies are available for trespass to land?

Answer 57

1. Damages - cover costs of harm already suffered by direct interference
2. Injunctions - may be awarded where there is continuing trespass or where trespasser threatens to repeat trespass (must be serious in nature)
3. Re-entry - self-help remedy where owner/occupier has been excluded from land. Only reasonable force can be used to re-enter.
4. Recover of land - Owner/occupier can seek a court order for the defendant to be removed (action for recovery of land)
5. Mesne profits - May bring action for mesne of profits to claim money from defendant who wrongfully occupied land and made a profit or saved expenditure in doing so.

Question 58

What is the limitation for a claim in trespass to land?

Answer 58

Must be brought within six years from the date on which the cause of action accrued?

Question 59

What are the three categories of harm (private nuisance)?

Answer 59

• Nuisance by encroachment: encroachment by roots and branches or ingress of Japanese knotweed
• Direct physical damage caused to the claimant’s land, for example physical damage to land and buildings
• Interference with the claimant’s quiet enjoyment of their property, for example emanation of noise, vibration, fumes, dust and smell