Torts relating to land

Question 1

torts relating to land

Answer 1

(1) Private Nuisance;
(2) Public Nuisance;
(3) The Rule in Rylands v Fletcher; and
(4) Trespass to land

Question 2

what is private nuisance

Answer 2

Private nuisance: 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 3

Who can sue in private nuisance?

Answer 3

In order to bring an action in private nuisance, 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. The logical basis for this requirement is that a claim in nuisance arises from interference with one’s land.
In Hunter and Others v Canary Wharf Ltd [1997] AC 655, around 700 claimants’ TV reception had been interfered with as a result of a tower constructed in Canary Wharf. Several of the claimants’ claims in private nuisance failed as they had no legal interest in the land affected; for example, they were family members living with the homeowner. An action in private nuisance could only be brought by those with a legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession. The claims of those who did have a legal interest in the land affected failed on the grounds that there was nothing emanating from the defendant’s land.

Question 4

Who can be sued in private nuisance?

Answer 4

(1) Creator of the nuisance;

(2) Occupier of the land from which the nuisance originates
- where the nuisance is created by Independent Contractors and the tasks cause inevitable nuisance, there will be liability.
- where the nuisance is created by trespassers / visitors / predecessors in title and they continued or adopted the nuisance they will be liable.
- where there is naturally occurring nuisances the occupier will be liable they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance ie continued the nuisance

(3) Owner of the land

A landlord could only be liable for their tenant’s nuisance if they authorised it, by actively and directly participating in it, orby 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.

Question 5

The elements of private nuisance

Answer 5

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

Question 6

(1) Indirect interference

Answer 6

Private nuisance concerns indirect interference with the use or enjoyment of the claimant’s land in contrast with direct interference which would be classified as trespass to land. Examples of indirect interference include sounds, smells, fumes and vibrations (ie intangible interference).
An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land. Indirect interference can include a failure to act which results in loss.

Question 7

(2) Recognised damage (Loss)

Answer 7

The claimant must establish that they have suffered some damage. The types of damage recoverable in private nuisance are (St Helen’s Smelting Co v William Tipping (1865) 11 HL Cas 642):
(1) Physical damage to property (eg overhanging branches causing physical damage);
(2) Sensible personal discomfort (SPD). This is where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land eg unpleasant odours or noise. It can be defined as amenity damage, ie something which damages the amenity (enjoyment) value of the property, as opposed to its physical value.
In St Helen’s, smoke and fumes from the defendant’s copper smelting plant caused damage to the claimant’s property (vegetation) and prevented the use and enjoyment of their property.

The type of damage must have been reasonably foreseeable (Cambridge Water Company v Eastern Counties Leather [1994] 1 All ER 53) and the claimant can recover for any consequential losses flowing from recoverable damage, for example, loss of profits caused by the claimant’s inability to use their land to make those profits.

A claimant cannot claim for personal injury given that private nuisance is a tort against land not the person (Hunter).

Any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery [1886]

Any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851) 64 ER 849).

Question 8

(3) Continuous act

Answer 8

The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. In such instances claims may be brought in negligence or, if it is possible, by means of an action in public nuisance or under the rule in Rylands v Fletcher.

However, there are some exceptions to this general rule. The exceptions are:
(1) A single incident caused by an underlying state of affairs; 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 9

(4) Unlawful interference

Answer 9

There are various factors that the courts will consider when deciding whether the defendant’s interference with the claimant’s land is unreasonable/unlawful.

The first factor to consider is time and duration. Everyone has to put up with some interference from their neighbours at some time. However, if the interference is frequent or for long periods of time, this may be deemed unreasonable. The longer the interference lasts, the more likely it will be deemed unreasonable.

The second factor that the courts can consider is locality or character of the neighbourhood. However, this factor is only relevant where the loss is SPD, not where the loss is property damage. Whether use of land is reasonable will depend, in part, on the character of the area.

A third factor the court will consider if relevant is abnormal sensitivity. A claimant who is unusually sensitive (or has unusually sensitive property) cannot claim that activities that would not interfere with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.

A fourth factor the court will consider if relevant is malice. Private nuisance is concerned with balancing the defendant’s right to do as they wish with their land against the claimant’s right to enjoy their land free from interference. A certain amount of conflict is inevitable and if the defendant can show a legitimate reason for what they have been doing, the court will be less inclined to interfere with their activities. However, if the defendant can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance. This is sometimes referred to as the issue of malice.

A fifth factor the courts will consider if relevant is where the defendant has shown lack of care; this is likely to count in the claimant’s favour.

The sixth and final factor to consider if relevant is excessive behaviour (how far removed is the behaviour from ‘normal’). If the defendant has behaved in an excessive manner, this may indicate that they are being unreasonable and creating a nuisance.

Question 10

Private nuisance: defences

Answer 10

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

Question 11

20 Years’ Prescription

Answer 11

If the defendant’s activity has been an actionable nuisance for 20 years or more (ie a claimant would have had grounds for bringing a claim against the defendant for that period) but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance. Note it is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing.

Question 12

Statutory authority

Answer 12

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 is an inevitable consequence of the activity.
In Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, a private Act of Parliament provided for the expansion of an oil refinery in part of Wales. Residents complained of the noise and vibrations caused by the operation of the refinery. A majority in the House of Lords held that the refinery’s operations were authorised by statute and the nuisance was inevitable. This acted as a full defence.

Question 13

Consent

Answer 13

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.
In Pwllbach Colliery v Woodman_[1915] AC 63 the claimant consented to colliery activity but not to the specific disruption caused by the coal dust. The claimant must have specifically consented to the activity causing the nuisance.

Question 14

Contributory negligence

Answer 14

The usual rules of contributory negligence apply.
In Trevett v Lee [1955] I WLR 113 the defendant’s house was not connected with a water main and in times of drought, the defendant would lay a garden hosepipe across the road to enable water to be brought by a water supply on the other side of the road to their premises. The claimant saw the pipe, but failed to step over it, caught her heel in it, fell and injured her back. The court held that there was no nuisance. However, if the court had found a nuisance, they confirmed that the defendant would have been able to argue the defence of contributory negligence. Note that this case concerned public nuisance, but the same principle applies to private nuisance.

Question 15

Act of third party

Answer 15

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

Question 16

Act of God

Answer 16

Where the nuisance results from an act of God, the defendant will not be liable unless they adopt or continue the nuisance. In Nichols v Marsland (1876) 77 LR 2 ExD 1the defendant’s artificial pools flooded and damaged the claimant’s property. The flooding was caused by a very unusual amount of rainfall which was wholly unexpected, so the defendant had a complete defence.

Question 17

Necessity

Answer 17

The usual principles apply which are considered in the Adapt element ‘Necessity’.

Question 18

Ineffective defence: moving to the nuisance - this is obvs not a defence but people have tried to argue it

Answer 18

‘Moving to the nuisance’ is a factor which defendants have sought to argue, but without success.
The 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.
In Miller and Another v Jackson and Others [1977] QB 966the defendant cricket club had been playing on its ground for more than 70 years when adjacent land was sold to developers to build a housing estate. Cricket balls were hit into the claimants’ garden. This amounted to a nuisance. The fact that the claimants moved to the nuisance was not a defence.
This principle was confirmed in Coventry; where the claimant uses the property for the same purpose as their predecessors, the argument of coming to the nuisance fails. In Coventry, the claimant’s property had been used for residential purposes even before the stadium opened. However, the Supreme Court considered obiter that in some circumstances, a defendant might be able to argue that the claimant’s claim should fail if the defendant’s activity only became a nuisance because of the claimant’s change of use or building.

Question 19

Remedies

Answer 19

(1) Injunction;
(2) Damages; and
(3) Abatement.

Question 20

Injunction

Answer 20

The primary remedy for a continuing nuisance is an injunction. Injunctions can be full (ie banning the activity altogether) or partial (ie regulating the activity on certain conditions).
A partial injunction can be seen as a compromise, striking a balance between the two parties by limiting the time and frequency of the activity rather than preventing it completely.
The court may award a partial injunction where the defendant’s activities are of public benefit. For example, in Kennaway, the defendant’s activity (power-boat racing) was very popular with the public and there were few places such activities could take place. An expansive stretch of straight water was required for water-skiing. The court therefore awarded a partial injunction, requiring the defendant to stick to a planned timetable.

Question 21

Damages

Answer 21

Where a nuisance causes actual physical damage, the cost of repair or renewal can be claimed, whichever is the lower. Damages can also be awarded for any consequential economic loss.
Damages can be awarded in lieu of (instead of) an injunction where the loss is SPD. However, where a claimant establishes nuisance, prima facie, the remedy awarded should be an injunction, restraining the defendant from committing the nuisance in the future. The defendant needs to put forward the arguments as to why an injunction should not be granted. The court will then weigh up all the competing factors in the exercise of its unfettered discretion. For example, the court might consider how public interest might be affected by an injunction eg if the public enjoyed the defendant’s activity or if the defendant’s business had to be shut down as a result of an injunction. Planning permission may support an argument that the activity is of public benefit. This would be especially so where it was clear that the planning authority had been reasonably influenced by the public benefit of the activity and the activity could not be carried out without causing the nuisance (Coventry).
Such damages are normally based on the reduction in the value of the claimant’s property. See below for cases where damages were awarded in lieu of an injunction and make sure you understand why the courts awarded damages.

Question 22

Abatement

Answer 22

Abatement represents a ‘self-help’ remedy where the claimant acts to stop the nuisance.
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. It is this principle that allows a person to cut down branches overhanging their land, although they must be returned to the defendant and the claimant must do no more than is necessary to abate the nuisance!
Notice must usually be given by the claimant of their intention but need not be given if it is an emergency. Validly exercising a right to abate a nuisance will be a defence to any proceedings for trespass to land.

Question 24

structure for private nuisance

Answer 24

• Identify the parties (claimant name v defendant name) and tort (define).
• Preliminaries: Who can sue? Who can be sued?
• Elements:
  (1) Indirect interference.
  (2) Recognised loss.
  (3) Continuous act (do any exceptions apply?).
  (4) Unlawful interference (balancing exercise considering, where relevant, time and duration, locality, abnormal sensitivity, malice, lack of care and excessive behaviour).
• Defences
• Remedies

Question 25

Public nuisance

Answer 25

‘…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 26

Who can sue in public nuisance?

Answer 26

(1) An individual.
(2) A Local Authority: 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.
(3) The Attorney General: 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 27

When can an individual sue in public nuisance?

Answer 27

Unlike in private nuisance and the rule in Rylands v Fletcher, the claimant need not have an interest in the land affected.
However, an individual can only sue in public nuisance in very limited circumstances. They must be able to show that they have suffered ‘special damage’ (Ricket v Metropolitan Railway (1867) LR 2 HL 175). Special damage means that the claimant has sufferedover and above the rest of the class (and that there is, therefore, a class in the first place) or in a way that is different in kind from that suffered by the rest of the class. In Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, the court stated that ‘special damage’ must be direct and substantial.

Question 28

Who can be sued in public nuisance?

Answer 28

An action in public nuisance is sufficiently rare for there to have been little judicial debate over the issue of who may be sued. The tortfeasor is usually easily identifiable. Case law indicates that the creator of the nuisance or any person who is ‘responsible’ for the nuisance (e.g. an owner/occupier) may be sued.

Question 29

Elements of public nuisance

Answer 29

(1) Act or omission: liability can exist for omissions as well as acts, which may mean that it is advantageous to sue in public nuisance rather than negligence where omissions are generally not actionable.
(2) One-off event or continuous: unlike private nuisance, a public nuisance can be a one-off or isolated event.
(3) Class of His Majesty’s subjects: the effect of the nuisance must be sufficiently widespread. There is no exact number of people who have to be affected to constitute a ‘class’. It will depend upon the facts of the case (PYA Quarries). It is not necessary that every member of the class has been affected, just that a representative cross-section has been (PYA Quarries).
In R v Rimmington [2005] UKHL 63,the court held that a ‘class’ referred to a ‘section of the public’ or ‘the community’ or ‘a significant section of the community’. A class had to suffer a ‘common injury’, ie be affected at more or less the same time and in the same location. Rimmington sent racially offensive items to people across the country. These people were not a ‘class’ in the way required by public nuisance.
(4) Materially affects comfort and convenience: Damage that is recoverable in public nuisance includes property damage and consequential economic loss as in private nuisance and Rylands v Fletcher.
As opposed to private nuisance and Rylands though, damages for personal injury can also be recovered as can damages for pure economic loss.
The claimant can also claim for inconvenience, but this must be ‘material’ ie more than trivial (Jan de Nul (UK) Ltd v Royale Belge SA [2002] EWCA Civ 209). The exact meaning of this is impossible to ascertain since it will vary with the circumstances of each case. There is no need for there to be actual damage. Annoyance or irritation will be sufficient, as long as this is ‘material’. In Benjamin v Storr (1873-74) LR 9 CP 400the claimant ran a coffee house in Covent Garden. The defendant auctioneers next door created a lot of obstruction and inconvenience to the claimant (constantly loading and unloading vans which restricted access to the coffee house and made the coffee house uncomfortable). This interference was direct and substantial.

The type of loss must also be reasonably foreseeable (Wagon Mound (No. 2)[1967] 1 AC 617.

Question 30

Defences

Answer 30

The same defences apply as for private nuisance except for prescription. The main defence in public nuisance is that of statutory authority.

Question 31

Remedies

Answer 31

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

Question 32

Structure for public nuisance

Answer 32

• Identify the parties (claimant name v defendant name) and tort (define).
• Preliminaries: Who can sue? Who can be sued?
• Elements:
  (1) What is the act or omission?
  (2) One-off event or continuous?
  (3) Has a ‘class’ been affected?
  (4) Has the loss materially affected the reasonable comfort and convenience of the claimant/s?
• Defences
• Remedies

Question 33

The rule in Rylands v Fletcher

Answer 33

The rule in Rylands v Fletcher (which comes from the case of the same name) protects against interference due to an isolated escape from the defendant’s land.

Having discussed the preliminaries, the elements that make up this tort must now be considered. The elements are:

(1) The defendant brings onto land and accumulates there
The defendant must have voluntarily brought something onto the land.

(2) For their own purposes, anything likely to do mischief if it escapes
The ‘thing’ brought onto the land must be capable of causing damage (and therefore be dangerous) if it escapes (it need not be dangerous in itself). Examples include water, acid and explosives.

(3) Escape
The ‘thing’ brought onto the land must escape from land over which the defendant has control to land where they do not have control. The escape can be slow and over a period of time

(4) Escape caused foreseeable harm
The 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

(5) Non-natural use of land
The use of the land must be non-natural. It is perhaps more helpful to define this as ‘non-ordinary use’ of the land and what is ordinary depends upon the time, place and context of the use of land. All the circumstances must be taken into account

Question 34

Defences

Answer 34

The same defences apply as for public nuisance, with the addition of common benefit (a type of consent) and default of the claimant.

Common benefit = If the claimant has 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. In Peters v Prince of Wales Theatre [1943] 1 AC 521, the claimant leased a shop from the defendant, the owner of the theatre next door. The claimant’s shop flooded when pipes from the theatre’s sprinkler system burst. The defendant was not liable. The sprinkler system was equally for the benefit of the claimant and the claimant was deemed to have consented to the use of the sprinkler system since it had been installed prior to him obtaining the lease.

Question 35

Remedies

Answer 35

The same remedies are available as for private nuisance, namely damages and injunctions. Damages are the most common remedy given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss and Rylands v Fletcher covers isolated events.

Question 36

Structure for the rule in Rylands v Fletcher

Answer 36

• Identify the parties (claimant name v defendant name) and tort (define).
• Preliminaries: Who can sue? Who can be sued? Loss?
• Elements:
  (1) The defendant brings onto land and accumulates there.
  (2) Anything likely to do mischief (damage) if it escapes.
  (3) It escapes.
  (4) The escape caused foreseeable harm.
  (5) Non-natural use of land.
• Defences
• Remedies