Torts relating to land

Question 1

What is the basis of a private nuisance claim?

Answer 1

The basis of a private nuisance claim is the use of one’s land that causes interference with the use or enjoyment of another’s land.

Question 2

What is the definition of private nuisance?

Answer 2

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

Question 3

Who can sue in private nuisance?

Answer 3

The claimant must have a legal interest in the land, namely a possessionary or proprietary interest (e.g. freehold or leasehold)

Mere permission to use or occupy land is insufficient.

Question 4

Who can be sued in private nuisance?

Answer 4

1. The creator of the nuisance
2. Occupier of the land from which the nuisance originates
3. Owner (landlord)

Question 5

Who is the creator of nuisance?

Answer 5

Someone who might not be in a position to end the nuisance and may not be the occupier of the land.

Question 6

When can an occupier of land be liable?

Answer 6

If an occupier asks an independent contractor onto their land to perform certain tasks and those tasks cause inevitable nuisance, there will be liability.

The occupier will be liable if they continued or adopted the nuisance. Occupiers continue a nuisance if they knew or ought to know of its existence but fail to take reasonable steps to end it. Occupiers adopt a nuisance if they make use of the thing causing the nuisance.

An occupier may be liable for naturally occurring nuisances if they knew or ought to have known of a danger and failed to take reasonable steps to abate nuisance. However, the occupier will not be expected to bankrupt themselves in averting the nuisance.

Question 7

Will a owner be liable for private nuisance?

Answer 7

A landlord will not usually be liable for private nuisance UNLESS:

A landlord authorised it, by actively and directly participating in it, or by leading the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created.

Question 8

What elements must be proved for a private nuisance claim?

Answer 8

1. Indirect interference
2. Recognised damage
3. Continuous Act
4. Unlawful interference

Question 9

What is indirect interference in relation to private nuisance?

Answer 9

Sounds, smells, fumes and vibrations. Not direct interference as that would be classed as trespass to land.

Question 10

What are the two types of recognised damage in private nuisance claims?

Answer 10

1. Physical damage
2. Sensible personal discomfort (SPD)

Question 11

What is SPD?

Answer 11

This is where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land.

It must be more than impractical and materially interfere with ordinary human comfort

Question 12

For physical damage to be recoverable in private nuisance what must it be?

Answer 12

More than de minimus

Question 13

What are the exceptions to the general rule that nuisance must be continous?

Answer 13

a. A single incident caused by an underlying state of affairs; and

b. an act which causes a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material.

Question 14

What is unlawful interference?

Answer 14

Unlawfulness in the context of private nuisance means unreasonable use of land.

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

Question 15

what are the relevant factors considered when establishing unlawful interference?

Answer 15

Time and duration

Locality

Abnormal sensitivity

Malice

Defendant has shown a lack of care

Excessive behaviour

Question 16

What are the defences in relation to private nuisance?

Answer 16

20 years prescription

statutory authority

consent

contributory negligence

acts of third party

act of god

necessity

Question 17

What is 20 years of prescription?

Answer 17

If the defendant’s activity has been an actionable nuisance for 20 years or more but no such action has been taken, the defendant will have earned the right to commit the nuisance.

It is the length of time that the claimant could have claimed which is crucial, not the length of time the activity has been going on for.

Question 18

What is the statutory authority defence?

Answer 18

Where the defendants 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 is an inevitable consequence of the activity.

Question 19

When will the defence of consent be available?

Answer 19

If the claimant specifically agrees 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.

Question 20

When will contributory negligence be available?

Answer 20

When the usual rules apply

Question 21

When will the acts of third party’s be available as a defence?

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

When will act of god be an available defence?

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

When will the defence of necessity be available?

Answer 23

When the usual principles apply.

Question 24

Is moving to the nuisance an effective defence?

Answer 24

No, defendant may try to argue that the claimant should not be able to complain about the nuisance which was present when the claimant moved to their property. However, this does not justify nuisance.

Question 25

What are the remedies available for private nuisance claims?

Answer 25

Injunction

Damages

Abatement

Question 26

What types of injunctions may be granted?

Answer 26

Partial injunctions - limiting the time and frequency of the nuisance. May be awarded where the defendant’s activities are of public benefit.

Question 27

When will damages be awarded?

Answer 27

• Where nuisance causes actual or physical damage, the cost of repair or renewal can be claimed.
• Damages can also be awarded for consequential economic loss

Question 28

When will damages be awarded in lieu of an injunction?

Answer 28

Damages can be awarded instead of an injunction where the loss is SPD.

However, where a claimant establishes nuisance, the remedy awarded should be an injunction

The defendant needs to put forward the arguments as to why an injunction should not be granted.

The court will consider any public interest and planning permission might support an argument that the activity is for the public benefit.

Such damages are normally based on the reduction in the value of the claimant’s property

Question 29

What is abatement?

Answer 29

A claimant may, in certain circumstances, enter onto the land of another and take reasonable steps to prevent the nuisance continuing. Anything belonging to the defendant must be left on the property.

Notice must usually be given by the claimant of their intention but need not be given if it is an emergency.

Question 30

Who can sue in public nuisance?

Answer 30

1. an individual
2. a local authority
3. Attorney General

Question 31

What are the requirements if an individual sues in public nuisance?

Answer 31

The claimant need not have an interest in the land affected.

They must be able to show they have suffered `special damage’.

This means the claimant has suffered over and above the rest of the class or in a way that is different in kind from that suffered by the rest of the class.

Question 32

What are the requirements if a local authority sue in public nuisance?

Answer 32

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 33

What are the requirements if a Attorney General sues in public nuisance?

Answer 33

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 34

Who can be sued in public nuisance?

Answer 34

Case law indicates that the creator of the nuisance or any person who is `responsible’ for the nuisance (e.g. owner/occupier) may be sued.

Question 35

What is public nuisance?

Answer 35

Public nuisance is “acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.

Question 36

Does public nuisance have to be a continuous event?

Answer 36

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

Question 37

What does `class of his Majesty’s subjects’ mean?

Answer 37

The effect of the nuisance must be sufficiently widespread.

It is not necessary that every member of the class has been affected, just that a representative cross-section has been.

Question 38

What can the loss in public nuisance be?

Answer 38

Damage that is recoverable includes property damage and consequential economic loss

Damages for PI can also be recovered as can damages for pure economic loss

The claimant can claim for inconvenience but this must be more than trivial.

No need for there to be actual damage

Annoyance or irritation will be sufficient as long as it is more than trivial.

The type of loss must be reasonably foreseeable

Question 39

What defences are available in public nuisance?

Answer 39

The same defences apply as for private nuisance except for prescription. Main defence is statutory authority.

Question 40

What are the remedies available in public nuisance?

Answer 40

Injunctions and/or damages are available. If the claim is brought by the local authority or Attorney General, the only remedy available is an injunction.

Question 41

What is the rule in Rylands v Fletcher?

Answer 41

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

Question 42

Who can sue in Rylands v Fletcher?

Answer 42

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

Question 43

What loss must be suffered under Rylands v Fletcher?

Answer 43

The claimant must suffer some damage.

The only type of loss recoverable under Rylands v Fletcher are property damage and consequential economic loss.

Question 44

What are the elements of Rylands v Fletcher?

Answer 44

1. The defendant brings onto land and accumulates there;
2. For their own purposes, anything likely to do mischief if it escapes;
3. Escape;
4. Escape caused by foreseeable harm; and
5. Non-natural use of land.

Question 45

What defences are available under Rylands v Fletcher?

Answer 45

Common benefit

Act or default of the claimant

Statutory authority

Act of third party

Act of God

Contributory negligence

Consent

Question 46

What remedies are available under Rylands v Fletcher?

Answer 46

The same remedies apply as for private nuisance, namely damages and injunctions.

Damages are the most common remedy.