Torts relating to land

Question 1

What is private nuisance?

Answer 1

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

Question 2

Who can sue in private nuisance?

Answer 2

Only those with a legal interest in the land affected e.g. the owner, tenant in possession, grantees of an easement or licensee with exclusive possession.

Question 3

Who can be sued in private nuisance?

Answer 3

-Creator of the nuisance
-Occupier
-Owner (landlord)

Question 4

In what circumstances will an occupier be liable for nuisances caused by others?

Answer 4

-Independent contractors-Matania v National Provincial Bank (1936) where the D was held liable for an inevitable nuisance caused by an independent contractor.

-Trespassers/visitors/predecessors in title-Sedleigh-Denfield v O’Callaghan (1940) where the D was held liable for a nuisance created by a trespasser as they had continued/adopted the nuisance.

-Naturally occurring nuisances-Goldman v Hargrave (1967) where the D knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance.

Question 5

In what circumstances can a landlord be held liable for their tenant’s nuisance?

Answer 5

When the exception in Coventry v Lawrence (2014) applies.

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.

Question 6

What are the four elements of private nuisance?

Answer 6

1. Indirect interference
2. Recognised loss/damage
3. Continuous act
4. Unlawful interference (balancing exercise considering, where relevant, time and duration, locality, abnormal sensitivity, malice, lack of care and excessive behaviour)

Question 7

What are examples of indirect interference?

Answer 7

Sounds, smells, fumes and vibrations. Occurs where the nuisance starts on D’s land but then causes damage to some aspect of the C’s use or enjoyment of their land.

Question 8

What are the types of recognised damage recoverable in private nuisance?

Answer 8

-Physical damage to property, must be more than trivial: Mitchell v Darley Main Colliery (1886)

-Sensible personal discomfort (SPD) e.g. unpleasant odours/noise. SPD must be more than fanciful and materially interfere with ordinary human comfort: Walter v Selfe (1851)

Question 9

What are the exceptions to the general rule that the nuisance must be a continuous act?

Answer 9

-A single incident caused by an underlying state of affairs: British Celanese v AH Hunt Ltd (1969) where metal foil strips from D’s factory came into contact with C’s property causing a power failure due to it being a persistent habit.

-An activity which creates a state of affairs which gives risk to the risk of escape of physically dangerous or damaging material: Crown River Cruises v Kimbolton Fireworks (1996) where the resulting fire from a fireworks display was held to be a private nuisance.

Question 10

What does the term unlawful interference mean and what are the various factors to consider when determining whether an interference is unlawful?

Answer 10

The term unlawful in this context denotes unreasonableness. There are various factors to consider:

-time and duration: the longer it lasts, the more likely it is unreasonable.

-locality (SPD only): what is reasonable use will depend, in part on the character of the area

-abnormal sensitivity: a C who is unusually sensitive cannot claim that activities that would not interfere with the ordinary occupier are a nuisance

-malice: where the D’s aim is solely to annoy the C, this will normally constitute a nuisance

-D’s lack of care: likely to count in the C’s favour

-excessive behaviour: this may indicate unreasonable use of land

Question 11

What defences are available for private nuisance claims?

Answer 11

1. 20 Years’ Prescription-if the D’s activity has been an actionable nuisance for 20 years or more, the D will have earned the right to commit the nuisance. It is the length of time a C could have complained that is crucial.
2. Statutory authority-if the D has exercised all due care and the nuisance is an inevitable consequence of the activity.
3. Consent-if the C specifically agrees to the D causing the nuisance, then that consent will be a defence.
4. Contributory negligence-usual rules apply.
5. Acts of third party/God.
6. Necessity-usual principles apply.

Question 12

Is the defence of moving to the nuisance an effective one (refer to Miller v Jackson-1977)?

Answer 12

No, this will not justify the commission of a nuisance.

Miller v Jackson (1977): land near a cricket pitch was sold to developers and cricket balls hit onto the C’s garden amounted to a nuisance despite the fact they’d been playing on the ground for more than 70 years.

Question 13

What are the three remedies for private nuisance claims?

Answer 13

-Injunction, primary remedy can be full or partial.

-Damages, likely awarded if the activity benefits the public

-Abatement, a self-help remedy where the C acts to stop the nuisance e.g. cutting down overhanging branches on a neighbours land

Question 14

What can public nuisance be defined as?

Answer 14

Acts or omissions of the D that materially affect the reasonable comfort and convenience of life of a class of HM’s subjects-AG v PYA Quarries (1957).

Question 15

Who can sue in public nuisance?

Answer 15

-An individual who has suffered special damage which means over and above the rest of the class or in a way that is different in kind to the rest of the class: Rickett v Met Railway (1867)

-A local authority, if the authority has suffered damage it may sue on its own behalf or on behalf of inhabitants of its area

-Attorney General where a class of people are affected and no individual action is possible/forthcoming, the AG may bring a claim on the class’s behalf in their name

Question 16

Who can be sued in public nuisance?

Answer 16

The creator of the nuisance or any person who is responsible for the nuisance e.g. owner/occupier

Question 17

What are the four elements of public nuisance?

Answer 17

1. Act or omission
2. One-off event or continuous
3. Class of HM’s subjects-the effect of the nuisance must be sufficiently widespread, a representative cross-section must have been effected
4. Materially affects comfort and convenience

Question 18

What damage is recoverable in public nuisance?

Answer 18

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

The C can also claim for inconvenience provided it is material.

Question 19

What defences are available for public nuisance claims?

Answer 19

Same defences as private nuisance except for prescription. The main defence is statutory authority.

Question 20

What remedies are available for public nuisance claims?

Answer 20

Injunctions and/or damages.

If the claim is brought by the local authority/AG, only available remedy is an injunction.

Question 21

Describe the outcome of the following successful public nuisance claims:

Wandsworth Council v Railtrack Plc (2011)

Castle v St Augustine’s Link (1922)

Answer 21

Wandsworth Council v Railtrack Plc (2011): nuisance was defecating pigeons. The D had to pigeon proof their bridge as a prevention measure.

Castle v St Augustine’s Link (1922): C was struck by a golf ball from D’s golf course. Flying golf balls were held to be a public nuisance as the class of persons affected were highway users and C had suffered special damage.

Question 22

What is the rule in Rylands v Fletcher?

Answer 22

The case established the rule that anyone who uses their land in a non-natural way and causes damage to another person’s land is strictly liable, regardless of fault.

This rule protects against interference due to an isolated escape from the D’s land.

Question 23

Who can sue under the rule in Rylands v Fletcher?

Answer 23

It is a sub-species of private nuisance therefore the C must have a proprietary interest in the land affected.

Question 24

Who can be sued under the rule in Rylands v Fletcher?

Answer 24

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

Question 25

What are the types of loss recoverable under the rule in Rylands v Fletcher?

Answer 25

Property damage and consequential economic loss.

Question 26

What are the five elements of a Rylands v Fletcher claim?

Answer 26

1. The D brings onto land and accumulates there;
2. For their own purposes anything likely to do mischief (damage) if it escapes.
3. It escapes
4. The escape caused foreseeable harm; and
5. Non-natural use of land

Question 27

D brings onto land and accumulates there-does this have to be voluntary?

Answer 27

Yes, the D must have voluntarily brought something onto the land.

Giles v Walker (1890): no liability for the spread of thistles from the D’s land as they grew there naturally and had not been brought onto the land.

Question 28

For their own purposes anything likely to do mischief (damage) if it escapes-provide examples.

Answer 28

Water, acid, explosives etc.

Transco v Stockport Met Borough Council (2003): the House of Lords held that the thing that escapes has to be reasonably recognised as having an exceptionally high risk of causing a danger if it were to escape.

Question 29

The thing must escape-can the escape be slow?

Answer 29

The thing brought onto the land must escape. The escape can be slow and over a period of time-Cambridge Water Co v Eastern Counties Leather plc (1994).

Question 30

Escape caused foreseeable harm-how is this element assessed?

Answer 30

The D 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.

Cambridge Water Co v Eastern Counties Leather plc (1994): pollution to water in a borehole 1.3 miles away was not reasonably foreseeable.

Question 31

What defences are available for Rylands v Fletcher claims?

Answer 31

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

Question 32

Describe the defence of common benefit, with reference to the case of Peters v Prince of Wales Theatre (1943).

Answer 32

If the C agreed to the accumulation of the material by the D, there will be no liability.

Peters v Prince of Wales Theatre (1943): D was not liable as the sprinkler system was equally for the benefit of the C and the C was deemed to have consented to the use of the sprinkler system as it had been installed prior to his lease.

Question 33

Describe the defence of act/default of the Claimant with reference to the case of Dunn v Birmingham Canal Co (1872).

Answer 33

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

Dunn v Birmingham Canal Co (1872): C dug under the D’s canal causing it to flood his land.

Question 34

What remedy is the most common for Rylands v Fletcher claims?

Answer 34

Damages given that the types of loss recoverable are property damage and consequential economic loss.