Unit 8: Land

Question 1

What are the 4 methods of sueing in terms of something that has happened to land ?

Answer 1

○ Private nuisance
○ Trespass to land
○ Rule in Rylands v Fletcher
○ Negligence
OR Public nuisance (but for a class and shared land)

Question 2

what are the three methods of interference with PRIVATE NUISANCE COVERS ?

Answer 2

Hunter v Canary Wharf [1997] Lord Lloyd said three types of interferences within PN:
* (1) nuisance by encroachment on a neighbour’s land;
* (2) nuisance by direct physical injury to a neighbour’s land; and
* (3) nuisance by interference with a neighbour’s quiet enjoyment of their land.

Question 3

What are the factors which the court will take into account when determining the interference in PRIVATE NUISANCE is UNLAWFUL?

Answer 3

• Duration and frequency
• excessiveness or conduct / extent of harm
• Character of neighbour hood
• Public benefit
• Malice
• Abnormal sensitivity

Question 4

Who can be liable in PRIVATE NUISANCE ?

Answer 4

1. The creator of the nuisance
2. The occupier of the land from which the nuisance originates (whether or not the occupier created it)
3. The landlord

Question 5

what damages are recoverable in PRIVATE NUISANCE ?

Answer 5

• Physical damage to land or buildings is recoverable
• Hunter v Canary Wharf - HoL stated was inappropriate to use private nuisance to claim for personal injury - would use neg for this
• Given the reasoning in Hunter v Canary Wharf damage to personal property is probably outside the scope of PN - specifically dealt with in the case and other cases (Halsey v Esso Petroleum)
• Hunter v Canary Wharf was stated that where the claimant can prove recoverable damage - def would be liable for any consequential losses

Question 7

What are the tests for CAUSATION AND REMOTENESS in PRIVATE NUISANCE ?

Answer 7

• but-for and rules on intervening acts
• Cambridge Water Co v Eastern Counties Leather plc [1994] decided that the same test for remoteness of damage (the ‘Wagon Mound’ test) applies
• Cambridge Water Co v Eastern Counties Leather plc that liability in private nuisance does not depend on the defendant’s fault (STRICT LIABLITY)

Question 8

What are the EFFECTIVE AND INEFFECTIVE defences for PRIVATE NUISANCE ?

Answer 8

EFFECTIVE
- prescription
- statutory authority
- Contributory negligence
- Consent
- Act of god or nature
- necessity

INEFFECTIVE
- came to nuisance
- public benefit
- third party contributory actions
- planning permission

Question 9

what remedies are available for PRIVATE NUISANCE ?

Answer 9

• Damages, Injunctions, Abatement

Question 10

what are the key differences between PrivN and NEG?

Answer 10

• PN is interference with lan
  PN requires some continuity
• Concept of reasonableness is relevant in both but for different part
• if hazard in PN arose naturally the courts are willing to consider financial situation
• strict liability in PN
• intangible damages claim available in PN
• personal injury or property damage not available to recover in PN
• injunction is not available in neg

Question 11

A) What is the RYLANDS V FLETCHER rule and B) what must be establish to make a claim successful ?

Answer 11

A) case of the same name Rylands v Fletcher (1868) - Created a tort that covers the situation where there is an escape of something dangerous in the course of a non-natural use of land - The occupier of the land is liable for the damage caused as a result of the escape, irrespective of fault.

• imposes strict liability for the harm because it is not based upon the need to prove that the occupier failed to take reasonable care or that the defendant has been an unreasonable user of their land.

B) elements of the tort are:
1. the defendant brings onto their land for their own purposes something likely to do mischief
2. if it escapes
3. which represents a non-natural use of land
4. it causes foreseeable damage of the relevant type.

Question 13

What defences are available in a claim with the RYLANDS V FLETCHER rule?

Answer 13

• escape caused by unforeseeable act of stranger
• escape caused by an act of god or nature
• Statutory authority
• Consent
• Contributory Negligence

Question 14

A) What is PUBLIC NUISANCE and B) what are the elements of it ?

Answer 14

A) an act or an omission that endangers the life, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects. (Archbold: Criminal Pleading, Evidence and Practice (2023))

B)
1. unreasonable conduct that materially affects the reasonable comfort and convenience of a ‘class of Her Majesty’s subjects’; and
2. the claimant has suffered particular harm.

Question 15

What are the key differences between PUBLIC and PRIVATE NUISANCE ?

Answer 15

• Pub concerned with unreasonable conduct which has a larger scope
• Pub claimants don’t need proprietary interest in the land that is being discussed
• Ds can be liable for isolated event under PUB
  SIMS
• many cases both can be released
• defences are the same

Question 16

what is the definition & types of TRESSPASS TO LAND ?

Answer 16

• The intentional direct interference with the claimant’s possession of land.
• Actionable per se, meaning without the need to prove tangible loss. This is because the principal function of the tort of trespass to land is to protect the claimant’s rights rather than simply to provide compensation for damage.

types:
○ entering upon the claimant’s land;
○ acting in excess of one’s permission to be on the claimant’s land;
○ bringing anything into direct contact with the land;
○ damaging the land.

Question 17

What is the effect of implied permission on TRESSPASS TO LAND ?

Answer 17

may be lawful even if no express permission is given
○ Robson v Hallett [1967] Diplock LJ said that ‘when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business’.

Question 18

what is LAND defined as in TRESSPASS to LAND ?

Answer 18

Land includes the surface of the land and also any building on it, any plants in it and also the sub-soil beneath it - Confirmed by SC in Bocardo v Star Energy UK Onshore Ltd [2010]

Whether airspace above the land is part of the ‘land’ for the purposes of a claim in trespass considered in the case of Bernstein v Skyviews & General Ltd [1977] (CONFUSING RULES)

Kelsen v Imperial Tobacco Co Ltd [1957] (a sign on the defendant’s land which projected over the boundary of the claimant’s property - WAS land)
○ Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd [1987] (cranes on the defendant’s land which swung across the claimant’s property - WAS land)

Question 19

What are the requirements to be shown in TRESSPASS TO LAND ?

Answer 19

A) DIRECT INTERFERENCE
- direct interference requires the interference to flow almost immediately and without any intervention from the actions of the defendant.
- indirect / consequential interferences will not count as trespass but maybe actionable under a different type of claim.

B) INTENTIONAL INTERFERENCE
- Intentional here means the act (which constitutes trespassing) must be voluntary
- No trespass therefore will be committed if someone else forcefully throws you onto someone else’s land - Smith v Stone (1647)
- Would have trespassed if you thought you were on your own land but innocently strayed onto your neighbour’s - Basely v Clarkson (1681)
- The case of League Against Cruel Sports Ltd v Scott [1986] - authority (at first instance) that a trespass can exceptionally be committed negligently BUT measure of damages would be the same whether the claim was made in negligence or in trespass - So possibility of a negligent trespass may not be of great practical significance

Question 20

who can sue under TRESSPASS to LAND

Answer 20

• C must be in possession of the land
• Owner-occupier or tenant under a lease will have possession
• Squatters also have the right to possession of the land they occupy and can use trespass against anyone apart from persons with a better right to possession (namely the legal owner and/or earlier trespassers – Delaney v TP Smith Ltd [1946]

Question 21

establish the following for TRESPASS OF LAND:

A) the rules for causation and remoteness
B) the defences available to a trespasser
C) remedies in this claim

Answer 21

A)
- Causation is normal but for and intervening acts)
- Remoteness is governed by the ‘direct consequences’ test from Re Polemis [1921] - more onerous to the D than Wagon Mound.

B)
- Justification or consent
- Necessity

C)
- depends of the nature of the possession of land
- claimant faced with a trespasser who is in occupation of the land (squatter) will want to obtain an order for possession. (order for squatter to leave)
- claimant who is subjected to continuing interference with their possession may seek an injunction to prevent the trespass continuing in the future.
- Trespass is actionable per se, so a claimant can seek damages to reflect the interference with their possession of the land, even where no tangible damage has been caused.
- LEGAL COSTS - General rule is that the successful party will recover their costs from the losing party.