trespass to land and nuisance

Question 1

Private nuisance

Answer 1

It includes consequential interferences with land from a direct action (Southport Corporation v Esso Petroleum [1954]).

Question 2

Definition of private nuisance

Answer 2

‘any unlawful interference with a person’s use or enjoyment of land or some right over it.’

It is actionable on proof of some damage (including ‘amenity’ interests)

Question 3

St Helens Smelting v Tipping (1865)

Answer 3

One of the seminal cases of the industrial revolution, from which this tort arose. Poisonous vapours reached the claimants land from a smelting factory 1.5 miles away, and material injury to property and injury to the value of the property were distingusihed between.

Question 4

Requirements for unlawfulness

Answer 4

There must be some sort of emanation from the defendant (Hunter v Canary Wharf [1997])

It must be substantial and unreasonable. ‘a balance has to be maintained between the right of the occupier to do which he likes with his own, and the right of his neighbour not to be interfered with.’ (Sedleigh-Denfield v O’Callaghan [1940])

It is a ‘rule of give and take, live and let live’ (Bramwell J, Bamford v Tunley [1862]).

Question 5

Who can sue?

Answer 5

The first step in a claim.

Question 6

Malone v Laskey [1907]

Answer 6

set the initial boundaries - you must have a proprietary interest in the property, and cannot just be merely present in the property.

Khorasandjian v Bush [1993] challenged the requirement for proprietary interest as she was a child living at home and there is no difference between this and a wife living at home.

Question 7

Hunter v Canary Wharf [1996] (for who can sue)

Answer 7

Reaffirmed the Malone v Laskey judgment where a claimant must have an interest in the property, i.e. by a landowner, tenant, grantees of an easement or with exclusive possession of the land.
You cannot be a member of the family, a guest, lodger or employee.
A Strasbourg case following this one and found that this distinction is a violation to Art 8.

Question 8

McKenna v British Aluminium [2002]

Answer 8

30 children complained for emissions and noise from a factory and it was argued that the claim should be struck out as per the principles in Hunter - the claims were refused strike out but it was never taken any further.

Question 9

The reasonable user in this tort

Answer 9

This is a consequence based tort so taking reasonable care does not preclude liability.

Question 10

Factors always considered in determining reasonable use

Answer 10

Intensity:

• duration
• frequency
• timing

Question 11

Factors sometimes considered, dependent on the claim

Answer 11

• nautre of the locality

Question 12

Factors considered if relevant to the claim

Answer 12

• sensitivity of the claiamnt

- bad intention of the defendant

Question 13

always considered: Intensity of the interference

Answer 13

A threshold exists – everyone has to put up with some type of nuisance (Southwark London BC v Mills [2001]).

Question 14

Kennaway v Thompson [1981]

Answer 14

“nearly all of us living in these islands have to put up with a certain amount of annoyance from our neighbours… Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear.”

Question 15

sometimes considered: nature of the locality

Answer 15

Reasonableness may depend on the charater or nature of the locality. E.g. farm smells are less likely to be a nuisance in rural areas (Hirose Electrical UK v Peak Ingredients [2011]).

The locality principle only applies where C has suffered a lost amenity.

Question 16

Sturges v Bridgman [1879] (for establishing nuisance)

Answer 16

‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.’ This suggests that poorer people must put up with more than affluent people. This was illustrated in the more recent case of Baxter v Camden London BC (No 2) [2001] in which the court of appeal said that the ‘occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises.’

Question 17

locality changing over time

Answer 17

It may go from industrial to residential or vice versa.

Question 18

Gillingham BC v Medway (Chatham) Dock [1993]

Answer 18

planning permission was granted to turn a residential area into a commercial area by building a port. The increased commercial traffic in the area caused disrupted sleep and general nuisance. The judges held however that the granting of planning permission changed the locality from residential to commercial and thus no complaint could now be made, as they had their opportunity when the planning application was made.

Question 19

Wheeler v JJ Saunders [1996]

Answer 19

the defendants situated pig sties as close to their neighbours as possible in order to annoy them, as they did not get along. The smells emanating from the pig sties affecting the claimant’s holiday cottages and their homes – so, despite the defendants having planning permission for the pig sties, this did not alter the character of the locality and they were still liable for private nuisance caused by the smell. The nature of the locality stayed the same, despite planning permission.

Question 20

Watson v Croft Promosport [2009

Answer 20

the court of appeal ruled that despite planning permission being given for a racing circuit, the activity would still be an actionable nuisance and an injunction could be granted to prevent the activity continuing for more than 40 days per year.

Question 21

considered if relevant to the claim: sensitivity of the claimant (‘abnormal sensitivity’)

Answer 21

A nuisance must amount to an annoyance of anybody.

Question 22

Robinson v Kilbert [1889]

Answer 22

the claimant rented premises from the defendant which he used as a paper warehouse. The defendant then created a manufacturing business in the cellar which required hot and dry air, which heated up the paper store and damaged some special brown paper. The claimant sought an injunction for the defendant heating the cellar. It was ruled that ‘a man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it something which would not injure anything but an exceptionally delicate trade.’

The extent of the damage must be compensated however, no matter how delicate the industry (McKinnon Industries v Walker [1951])

Question 23

Network Rail Infrastructure v Morris (t/a soundstar studio) [2004]

Answer 23

electromagnetic interference from the rail signalling system was affecting the sound of guitars in the recording studio. The rail company argued that this could not be foreseen due to the distance between the studio and the signalling system. The court of appeal adopted a considered approach. The appeal was allowed, as establishing liability in nuisance required a test not of foreseeability alone, but of foreseeability as an aspect of reasonableness. The concept of abnormal sensitivity was thought outdated and the sensitivity was irrelevant – the correct test was whether it was foreseeable that specific damage would be caused to the specific claimant.

Question 24

considered if relevant to the claim: bad intention

Answer 24

The motive is only considered if it contains malice or bad faith.

Question 25

Christie v Davey [1893]

Answer 25

a music teacher worked from her home. The defendant sent a strongly worded letter to the teacher telling her to stop making such nuisance in terms of musical instruments – the teacher did not reply so the defendant purposely banged on the teachers walls, shouted, banged metal trays together etc to annoy the claimant. The claim was a success and the counter claim wasn’t – the defendant had acted ‘only for the purpose of annoyance’.

Question 26

Bradford Corporation v Pickles [1895]

Answer 26

Malice is not always considered: the defendant deliberately drained his land to decrease water supply to his neighbour, hoping to force the neighbour to buy his land. The House of Lords rejected the claim for injunction, refusing to take malice into account.

Question 27

Hollywood Silver Fox Farm v Emmett [1936]

Answer 27

the defendant deliberately fired his gun to prevent foxes being farmed next door breeding. An injunction was granted to stop him, even though the ‘abnormally sensitive’ argument appears in relation to breeding foxes. The claim would have probably failed if the gunshots were done without malice.

Question 28

Defences to nuisance

Answer 28

Volenti and contributory negligence also apply. Other defences include

• statutory authority
• twenty years prescription

Question 29

Statutory authority

Answer 29

this is a total defence (Manchester Corp v Farnworth [1930]). Planning permission is not valid (Gillingham) neither are environmental permits (Barr & Ors v Biffa Waste Services [2012]).

Question 30

Allen v Gulf Oil Refining [1981]

Answer 30

statute allowed for the expansion of the Gulf Oil company in an area of Wales. The statute provided authority for creating the oil refinery but did not mention how it could be used – local residents claimed in nuisance. However the House of Lords saw it an opportunity for statutory interpretation and ruled that the statute implicitly authorised the actions of the oil refinery (by a bare majority).

Question 31

Hatton v UK [20003]

Answer 31

This case shows the influence of Strasbourg on domestic tort law. the claimant lived close to Heathrow airport. The night flights quota was introduced for controlling noise in the area but the claimant claimed for a violation of art 8 (respect for a private family life). The Grand Chamber agreed that there was a violation and awarded damages, but they turned it over on appeal from the UK government citing that the airport was beneficial for the economy and they could move from the area if wished. The claimants were successful however in a claim for breach of art 13 as they hadn’t been provided an adequate remedy by the national courts.

Question 32

Twenty years’ prescription

Answer 32

If something has been present for twenty years then you cannot complain about that thing.

Question 33

Sturges v Bridgman [1879] (for twenty years prescription defence)

Answer 33

it was ruled that the point of nuisance begins when the claimant becomes aware of it – as such the doctor in this case was granted an injunction for an activity that a confectioner had carried out for more than 20 years.

Question 34

Coming to the nuisance

Answer 34

IS NOT A DEFENCE.

Miller v Jackson [1977]: the new buyers of a newly developed property successfully claimed for nuisance from a nearby cricket ground hitting balls onto their property despite the cricket doing so for 70 years. The claim for ‘coming to the nuisance’ was not valid. A claimant will also have a right to sue even if they should share part of the blame of the nuisance. In Miller they successfully received damages, not an injunction.

Question 35

Considerations in the type of remedy

Answer 35

The utility of D’s action is relevant. Injunction is an equitable remedy and as such the courts maintain a wide ambit of discretion through which they can consider the utility of the defendant’s actions. High social utility activities will thus less likely receive an injunction (Dennis v Ministry of Defence [2003]).