Torts relating to land Flashcards
torts relating to land
(1) Private Nuisance;
(2) Public Nuisance;
(3) The Rule in Rylands v Fletcher; and
(4) Trespass to land
what is private nuisance
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.
Who can sue in private nuisance?
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.
Who can be sued in private nuisance?
(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.
The elements of private nuisance
(1) Indirect interference;
(2) Recognised damage;
(3) Continuous act; and
(4) Unlawful interference.
(1) Indirect interference
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.
(2) Recognised damage (Loss)
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).
(3) Continuous act
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.
(4) Unlawful interference
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.
Private nuisance: defences
(1) 20 years’ prescription;
(2) Statutory authority;
(3) Consent;
(4) Contributory negligence;
(5) Act of third party;
(6) Act of God; and
(7) Necessity.
20 Years’ Prescription
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.
Statutory authority
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.
Consent
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.
Contributory negligence
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.
Act of third party
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).
Act of God
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.
Necessity
The usual principles apply which are considered in the Adapt element ‘Necessity’.
Ineffective defence: moving to the nuisance - this is obvs not a defence but people have tried to argue it
‘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.
Remedies
(1) Injunction;
(2) Damages; and
(3) Abatement.
Injunction
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.
Damages
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.
Abatement
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.
structure for private nuisance
- 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
