Week 1- Private and Public nuisance (Rylands v Fletcher)

Question 1

What are the 3 types of private nuisance as recognised in Hunter v Canary Wharf??

Answer 1

Hunter v Canary wharf 1997 AC 655

1) Nuisance by encroachment on a neighbour’s land
2) Nuisance by direct physical injury to a neighbour’s land
3) Nuisance by interference with a neighbour’s quiet enjoyment of his land

Question 2

What does Lord Goff recognise as an imperative element of the rule in Rylands liability specifically?

Answer 2

Foresight: Lord Goff introduced the requirement that D foresaw that he had “done something which he recognised, or judged by the standards appropriate at the relevant time of place, or ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be”, reasserting the rules in Rylands v Fletcher.

Question 3

What are the 8 criteria for private nuisance in problem questions?

Answer 3

1) Recognise the TYPE of private nuisance- (physical damage or loss of amenity usually)
2) Who can sue? (interest in land/ exclusive possession)
3) Who can be sued? Nuisance creator, including tenant where he expressly authorises nuisance, or virtually certain nuisance with implied authorisation. Also includes he who adopts or continues the nuisance.
4) Reasonable user enquiry (amenity interference only) factors which affect the reasonableness of the interference eg timing, level, locality etc.
5) Sensitivity- sensitivity may affect the level of damages payable but will not suffice for nuisance if the normal person would not complain of nuisance.
6) foresight/ remoteness- D would have to foresee or ought to have foreseen the link between their conduct and the loss suffered by the claimant- objective test
7) Defences- (prescription, statutory authority, coming to nuisance(not a defence, as reiterated in Coventry v Lawrence, unless P changes the use of their land after the nuisance has commenced))
8) Appropriate remedy (derived from type of nuisance suffered eg damage or amenity)- remedy could be abatement, injunction, damages- must reflect past and future damages (only consequential economic loss or damage recoverable)

Question 4

Facts and significance of St Helens Smelting v Tipping?

Lord Westbury

Answer 4

Facts- Tipping purchased an estate of great value in a place known to be local to smelting works, with the price of the property said to reflect this. He suffered physical damage to his property as a result (crops, trees, foliage)

Significance- Tipping was successful in his claim-
Difference struck between amenity loss and physical damage.
-Lord Westbury- “it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort”
-The latter may lead to a reasonable user enquiry and whether or not the plaintiff should be expected to subject himself to a nuisance, with regards to the
reasonableness of the nuisance created (sometimes known as locality rule). Not applicable to physical damage claims as always unreasonable, even if undertaken with due care and reasonable practices.
-Also no defence that plaintiff came to the nuisance with full knowledge of the smelting works

Question 5

What is the rule regarding locality and reasonable user for different types of private nuisance?

Answer 5

Two types of private nuisance are physical damage to land and amenity interference:

• Locality looks at the local area around the land, and combined with reasonable user, will evaluate the extent to which the nuisance is a reasonable use of land with which D cannot be liable for the amenity loss to neighbouring land, on account of being a reasonable use of land.
• Give and take dictates that an occupier may be expected to put up with an inconvenience because the nuisance-creator is acting as a reasonable user; only if they are carrying out works unreasonably may there be a claim in private nuisance. Some operations will be deemed unreasonable no matter how they are carried out.
• It is irrelevant to physical damage to property because this can never be considered a reasonable use of land.

Question 6

How does reasonable user differ to reasonable conduct?

Answer 6

“Reasonable user is not the same as reasonable conduct, since some activities in some places are destined to be judged unreasonable no matter how carefully they are carried out. On the other hand, the idea of ‘give and take’ means that some activities are protected unless they are carried on without due regard for one’s neighbours”

Question 7

What does private nuisance claim to protect?

Answer 7

The ordinary use and enjoyment of land

Question 8

How does the criteria of sensitivity operate, and how should it be distinguished into two different ways of operating?

Answer 8

As J Luxmoore puts it, there is no protection for “elegant or dainty modes and habits of living”, which can be considered sensitivity in its normal understanding.

• Where there is nuisance amounting to physical damage, the same rule seems to apply. The fact that the defendant has exercised reasonable use of property which has caused damage to the sensitive and eccentric use of the premise by the plaintiff will not amount to an action.
• This must be distinguished from the fact that the claimants sensitivity bears an impact only on the value of his damaged property, rather than sensitivity regarding the susceptibility to damage (where it isn’t relevant); only if an action succeeded would this be relevant, because the damages payable by the defendant would be that of the increasingly expensive property eg where flowers were damaged by a factories fumes which happened to be expensive orchids; the fact they were these expensive orchids rather than daisies is only relevant to the damage payable. The flowers would be damaged by the fumes regardless of the type of flower.

Question 9

Facts and significance of Bradford corporation v Pickles?

the effect of malice and motive

Answer 9

Facts- The plaintiffs supplied water to Bradford, some of it from a spring on land owned by Pickles. Pickles began work on his land which diverted water from its natural route (which flowed from Pickles land to the spring used by BC). Plaintiffs claimed this was done with malice to deprive them of water.

Significance- The HL resolved the issue by rejecting the injunction, on the basis that neither party had any proprietary right to the water, as it was an underground channel. Instead, Pickles had the right to divert or appropriate the water, as it ran beneath his own land first, before reaching the spring, and BC could not prevent this. The malice in question also was decided not to be relevant to the case, no matter Pickles motive for messing with the water flow.
-In the words of Lord Halsbury, Pickles “did something maliciously which he was entitled to do”.

Question 10

Coventry v Lawrence 2014 UKSC facts and significance:

planning permission

Answer 10

Facts- Claimants bought a house near a motorsport stadium, the noise from which was permitted by planning permission (by the council). The claimants complained about the noise generated, and noise reduction works were instructed for the defendants. Despite the imposition of these works, the claimants continued with a claim for nuisance for loss of amenity.

Significance- The most important point is in relation to the locality assessment- where the activities cannot be carried out without causing a nuisance, they will be entirely discounted when looking at whether the claimants should expect some give and take; obviously discounting the activities of the defendants works against them, as it is easier for the claimants to establish that the locality is otherwise of a quieter type.

SC held that planning permission would not afford a defence for the defendants, who also argued that they gained the right to cause the nuisance by a 20 year prescription, however only 16 years had elapsed. It is mostly irrelevant because they lacked the protection of this defence; however it must be distinguished, in that the nuisance must have been around for 20 Years, not simply that the activities relevant to the nuisance have been carried out for 20 years.

• The importance of the activities which create the nuisance may be sufficient in deciding what damages should be available; an injunction for noise may not be the most beneficial as it may adversely effect the public interest eg the entertainment of the motorsports or the jobs created by the entity.
• Again, coming to the nuisance is no defence, as by the time that the plaintiffs came to the noise, the motorsport stadium had not gained a right by prescription. There was no change in the use of their land, rather they bought and occupied the house int he same way that anyone else would.

Question 11

Who can be sued in a claim for nuisance? simple and not so simple examples.

Answer 11

• The creator of the nuisance is the simplest example of who can be sued.
• A property occupier who adopts a nuisance from a previous owner, created a positive duty on the owner to cease the nuisance. The extent of the duty is that the owner should take “reasonable steps to mitigate the effect of the nuisance.” (Sedleigh v O’Callaghan)
• Also includes landlords who expressly authorise a nuisance, or licensors offering a license and therefore still occupy the property, and foresee that their tenants create a nuisance, as in Cocking v Eacott.
• The fact that a landlord does nothing to stop the nuisance is not in itself grounds for liability, whereas it is for a licensor (occupier)- each case will turn on its facts.

Question 12

Sedleigh-Denfield v O’Callagha 1940 Ac 880 facts and significance:
(What does continuing and adopting of a nuisance entail?)

Answer 12

Facts- A pipe was laid on the defendant’s land without their knowledge or consent, by a trespasser. The occupiers became aware of the pipe’s existence, and it was used to drain their field. A grating placed on the pipe failed to prevent it from flooding, and subsequently got blocked and overflowed onto the claimant’s land.
-The grating was placed in the wrong place which led to the blockage and subsequent flooding.

Significance- The new land occupiers had both adopted the nuisance and continued its effects; either was ground for liability, even if they had not themselves laid the pipe. They were sufficiently connected to its adverse effects and had chosen not to mitigate its effects or cease the nuisance.

• “Continues” defined by Viscount Maugham as “with knowledge or presumed knowledge of its existence. He failed to take any reasonable means to bring it to an end though with ample time to do so.” He “adopts” it if he makes any use of the erection, building, bank, or artificial contrivance which constitutes the nuisance” (adopts therefore more severe than continues, but either suffices)
• No defence of act of a third party because they subjectively created the nuisance by wrongly fitting the grate, even though the pipe was not laid by them.

Question 13

Who can be sued in private nuisance? Importance of the Burrow Mump (Leakey and others v national trust)
-What is the duty when a natural phenomenon causes a nuisance to neighbouring land?

Answer 13

Natural weathering caused damage to neighbouring land, due to the collapse of a large mound of land on the defendants land, which damaged the neighbouring land.

• “A defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard.”
• The defendants had a positive duty to a neighbour when their land, through natural phenomenon, created a nuisance on his neighbour’s land, and there was a ‘measured duty of care’ to deal with the nuisance, as much as they could reasonably be expected to do so.
• Also added that the positive duty was subjective/ measured, in that they could only do as much as they were reasonably expected to do under this positive duty, with regards to the circumstances and resources available to the defendant, as well as the foreseeability of the risk which could be ascertained with the resources available to the defendant.

Question 14

How can landlords, tenants and licensees be liable for nuisance and what is the difference between a tenancy and a license?

Answer 14

A landlord can be liable for a nuisance created by a tenant only if he has authorised that nuisance: “A landlord cannot be liable for an action for authorising his tenant to do something that would not be actionable if he did it himself”.
-The fact a landlord fails to stop or discourage a nuisance does not make him liable, unless they have previously authorised such nuisance

A landlord offering a tenancy no longer occupiers nor controls the property, whilst a landlord offering a license gives the licensee use of the property but remains in control and possibly occupation.

Question 15

Cocking v Eacott 2016 EWCA Civ 140 facts and significance-

Liability of landlords versus licensors in a tenancy

Answer 15

• “A landlord who has granted a tenancy is not in general liable in nuisance if his tenant commits that tort.” due to the fact that they have not participated nor contributed to that nuisance, and no longer occupy the property.
• Conversely, in a license where the licensor continues to occupy and control the property, they may be liable for a nuisance emanating from their property due to the control which they have over the property.

Facts-The dogs persistent barking caused a nuisance to the neighbours, and the licensor continued to occupy the residence when she let her daughter (and daughters dog) occupy the property as well.

Significance- the licensee is liable even when she does not directly cause the nuisance, because she continues to occupy the property from which the nuisance derives, and she allowed the dog to occupy with her. She was equally as liable as her daughter, who only had a bare license to the property. ON the proper construction of the facts the defendant licensor still occupied the property and was liable as such.

Question 16

Who can sue in private nuisance according to Hunter v Canary Wharf, and how does it differ to public nuisance?

Answer 16

• In answering this question, we are answering the question of who’s interests can be sufficiently protected. Hunter v Canary Wharf has confirmed the proposition that nuisance is a tort committed against property rather than against a person, whilst in public nuisance, there is a wider protection of interests which can extend to “special damages”; a form of personal injury.
• Therefore property owners are the ones capable of suing due to the type of tort which private nuisance is.

Question 17

What were the lords almost unanimous about with regards to what private nuisance is committed against?
-How does Lord Hoffmans example prove this in Hunter v Canary Wharf?

Answer 17

The tort is committed against land rather than against the person.

-Hoffmann seems to suggest that more substantial damages should be awarded eg for noise nuisance where there is a family or a single person who occupies a very valuable property, compared to a similar or larger family living in an ordinary dwelling; it is related to the value of the land rather than the accumulative discomfort suffered by all residents because of the number of residents residing in the property

Question 18

What is an abatement?

Answer 18

-A form of self-help, used in very limited and exceptional circumstances where there is a very low amount of work required to remove a nuisance eg an overhanging branch

Question 19

What is an injunction?

Answer 19

An injunction is a court order to cease or decrease the extent of a nuisance. The court can exercise some discretion, between a complete prohibition, to setting time limits on the creation of a nuisance, with regards to the public interest as well as the interests of third parties, dealt with on a case-specific level.

Question 20

What are damages and what damages are payable? What can be claimed (for amenity loss) and what can be compensated for, following Shelfer v city of London electric co (4 criteria for future damages)- recently disputed in Coventry v Lawrence?

Answer 20

• Some nuisances are confined to past damage or interference and are not perpetuating; even with continuing nuisance damages are often awarded as well- Coventry v Lawrence tells us that damages in lieu of an injunction might be necessary if there are societal benefits to the continuation of a nuisance.
• Hoffmann suggests that “the sums awarded in cases of amenity nuisance must reflect the diminution of amenity value in the property affected, even if temporary.”
• Damages may also be awarded in the anticipation of future damages, in place of an injunction, with the following criteria originally being cited as authoritative following Shelfer v city of London electric lighting co:
  1) If the injury is small 2) And is one which is capable of being estimated in money 3) and is one which can adequately be compensated by a small money payment 4) and the case is one I n which it would be oppressive to the defendant to grant an injunction then damages rather than injunction may be appropriate

Question 21

How is a private nuisance defined?

Answer 21

An unreasonable interference with the use and enjoyment of land or with some right over, or in connection with it.

Question 22

What is a public nuisance and what 3 categories has it been split into?

Answer 22

“A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all her Majesty’s subjects.”

1) Amalgamated public nuisance
2) Nuisance affecting a sufficient class of people, actionable by individuals suffering “special and substantial damage”
3) Cases relating to the highway

Question 23

What are amalgamated public nuisances?

Answer 23

Made up of a series of private nuisances with a sufficient number of claimants all suffering relevant nuisance, to an extent that it can be considered a public nuisance because they are indiscriminate in their effect on the community.

Question 24

AG v PYA quarries 1957 facts and significance (Public nuisance)

Answer 24

Facts- The defendants operated a quarry and used a blasting technique which emitted large quantities of dust and noise, as well as causing vibrations which interfered with the enjoyment of land for many individuals in the area. The claimants sought an injunction preventing the continuation of a public nuisance as a result. The defendant’s alleged that what was being carried out was in fact a private nuisance which affected only those in the area and that they were therefore not bound by the injunction prohibiting ‘public nuisance’ as a result.”

Significance- “In other words, a normal and legitimate way of proving a public nuisance is to prove a sufficiently large collection of private nuisances.” (Romer LJ)
-The injunction granted for public nuisance was successful, and that the definition of “public” with regards to this form of public nuisance was as follows. “Any nuisance is public which materially affects the reasonable comfort and convenience of life of a class of her majesties subjects. The sphere of the nuisance may be described generally as “the neighbourhood”.

Question 25

What is the public nuisance of individuals suffering special damages concerned with? What are the constituent elements of it?

Answer 25

-“A public nuisance which affects the comfort or convenience of sufficient class may also be actionable by an individual seeking damages.”

Special damage must be ‘particular, direct and substantial’, which encompasses a broad range of actionable damages, including pure financial loss.

Question 26

How is public nuisance separate from private nuisance following Corby group litigation v Corby BC

Answer 26

Facts- Claimants born with deformed upper limbs and blame Corby council for their reclamation of a large area of contaminated land which has been acquired from BSC. The defendants claimed it had been settled that personal injury had no place in a claim of nuisance, and in this case would rest on the assumption that public nuisance was not separate from private nuisance, both of which protected property rather than personal interests. The long-standing principle that personal injury were sufficient grounds for a claim of public nuisance was challenged.

Significance- The academic opinion of Professor Newark that there is no room for personal injury in a claim of nuisance was not binding law, even where the House of Lords accepted his academic argument. Personal injury was actionable under public nuisance, even if not under private nuisance, and the defendant’s appeals were dismissed, despite their argument.
-The right protected under public nuisance of this kind is “the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life, safety, health etc of the public.

Public nuisance has therefore been given binding and authoritative treatment as a tort separate from private nuisance, protecting a different nature of interests, in that the protected interests personal (injury) rather than proprietary (damage)

Question 27

problem question checklist for Public nuisance (5 steps)

Answer 27

1) Explain what a public nuisance is: it could be unreasonable interference with a public right eg a right of way, OR it could be unreasonable interference with the health, comfort, safety and or convenience of the public. (remember that public nuisance is a criminal offence)
2) Who can sue? “Her majesty’s subjects” but must be a PUBLIC problem, in that in its nature the nuisance is affecting the public, sometimes described as “indiscriminate” rather than a singular person (which would be discriminate)
3) Who can be sued? The person/ company from which the nuisance derives from
4) What is the claim for? Most often this is “special and substantial damage”; this differs from private nuisance because the interests which are protected are wider, to include personal injury, as well as damage to property (which might fall under amalgamated The damage must be “special” in that it is not a normal or expected side effect of the nuisance but is sufficiently bad.
5) Remedies available- damages for health expenses are the most obvious example. Damages in lieu of an injunction often used because it may have adverse socio-economic problems if an injunction was granted. Damages often have to reflect the lost opportunity for the injunction, on top of medical expenses etc.

Question 28

Which of the two types of nuisance is Rylands liability and why?

Answer 28

IT is an example of private nuisance because it derives from damage to property/ land rather than personal injury.

Question 29

What is the basic rule derived from Rylands and fletcher?

4 requirements?

Answer 29

1) A person brings something on his land and collects and keeps it there
2) This is done for his or her own purposes; no longer imperative.
3) The thing in question is likely to do mischief if it escapes
4) The damages done is a natural consequence of the escape

Question 30

Why is Rylands liability not just another form of negligence and therefore why does negligence not need to be established?

Answer 30

No negligence needs to be established and as Rylands liability is merely a form of private nuisance, D may be liable despite showing the utmost care.

• The utmost care may be shown, but the risk of damage which derives from the non-natural use of land and simultaneous accumulation of ‘something likely to do mischief if it escapes’ accounts for the fault elements of the tort, in the absence of negligence.
• Following transco, it is the risk rather than the eventual damage/ escape which must be foreseen.

Question 31

Important points from Blackburn Js leading judgement in Rylands v Fletcher?

Answer 31

1) “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
2) D answers for “Natural and anticipated consequences” implies that the damage attributable to the escape is foreseeable and not too remote. The risk of escape and the subsequent consequence seemingly must be foreseen. Foreseeing the risk of escape and or damage suffices for D therefore answering for the natural and anticipated consequences of their activity/ accumulation, because he recognises that where there is a risk of escape (and his use of land is unnatural), consequences will flow.

Question 32

What is the accumulation element of R and F?

What effect does an ENTIRELY NATURAL accumulation have on Ds innocence?

Answer 32

• D must have ‘accumulated’ something on his land, and it must be something that is ‘likely to do mischief’ if it escapes- the risk associated with the escape appears to be one of a high threshold ie exceptionally dangerous if the risk was to materialise. It could be brought directly by the defendant, or perhaps it accumulates naturally, as a result of an action by the defendant. Eg a reservoir created by D which fills with rainwater. An ENTIRELY natural accumulation of a thing will not fall within the rule of R v F.
• The reservoir example is not entirely natural because the accumulation occurs as a result of the building of the reservoir, it is irrelevant that it is naturally filled by rain water because D is likely to foresee the risk of the escape of this rainwater.

Question 33

What is the escape element of R and F liability? How does the escape criteria prevent Rylands liability being considered as strict liability?

Answer 33

The escape is an imperative part of the actionable case, and without such an escape, there is no claim for nuisance of this kind. With regards to strict liability, the fact that no liability is imposed without this escape suggests it has not developed into fully fledged strict liability.

• D would otherwise be liable for accumulating something with the utmost safety (although this would be subject to natural user, ie it would have to be ‘extraordinary and unusual’)
• Escape has taken the meaning of escaping the land which is owned by the defendant, or the land which he occupies or controls, not merely escaping the place where it would otherwise sit within Ds land eg water which escapes the reservoir but doesn’t reach a neighbour’s land. It must escape one land owner’s land and reach another owners land
• Fire is no exception to this rule, but the fire must’ve been accumulated by the defendant. -Not merely the accumulation of flammable materials, as it would be the fire, rather than the accumulated materials, which escape and cause damage.

Question 34

Who can sue under Rylands and for what damages?

Answer 34

As Rylands is yet another form of private nuisance, and the tort is committed against land, personal injury is not an an actionable damage, otherwise it would be special damages under public nuisance. Rather, damage to property in addition to consequential economic loss or further damage is actionable, whilst pure economic loss is not.

Question 35

How has the foreseeability question for Rylands liability been settled following Cambridge water and Transco?
WHAT ACTUALLY NEEDS TO BE FORESEEN?

Answer 35

It was suggested in Cambridge water that the foresight of damage was tied up with the foresight of escape, and that the anticipated consequence therefore could not be actionable if the escape was unforeseeable.

Following Transco, it has been settled that neither the damage NOR the escape need to be foreseen. Merely the RISK of damage or escape.

Question 36

Facts of Transco v PLC met BC, and how it differs to the facts of Rylands?

Answer 36

Facts- The block of towers, Hollow end towers, was supplied with water, as has been statutorily required for a while. The pipe supplying this water was much greater in size than one supplying a single dwelling, in order to cope with demand (66 dwellings). Without negligence on the part of the council or anyone acting on their behalf, the pipe failed at a point whereby water escaped, and remained undiscovered for a long period of time, amounting to a large amount of water accumulating. The water had flowed from the area to an embankment supporting Transco’s 16-inch high pressure gas main, collapsing and leaving the gas main in a dangerous situation; the gas main could crack at any time. The immediate actions of Transco, to rectify this issue through their insurance, were sought to be recovered through damages.

-The council itself had not accumulated any water; rather they arranged a supply of water which was continuous in its operation. It was not like the reservoir in Rylands, it was normal and routine, and therefore a natural use of the land. The water had accumulated due to the failure of the pipe.

Question 37

What are the two main defences to Rylands liability?

Answer 37

Vis major

Acts of a stranger

Question 38

Facts and outcome of Cambridge water v ECL?

Answer 38

Facts- ECL were a leather manufacturer who used PCE, a solvent, which eventually contaminated nearby waters. CWC bought a borehole, which had been contaminated by PCE (expelled by ECL), at a time when the dangerous nature of PCE had not been subject to sufficient research. Eventually, a European standard was imposed to regulate levels of PCE in drinking water, and the borehole used by CWC was contaminated with PCE, above the recommended concentration by the EU.

Outcome- The risk of damage or escape was not foreseeable by ECL and at the time there lacked the requisite knowledge regarding the danger of PCE. The escape and subsequent damage was therefore unforeseeable. It was a natural use of the land with the village being described as an ‘industrial village’
-It also dictated that Rylands was a subset of private nuisance, rather than an independent tort.

Question 39

Criteria for problem question on Rylands liability?

Answer 39

1) Who can sue? Anyone with an interest in the land affected by the escape.
2) Who can be sued? Anyone giving authority to the nuisance, implied or expressed. The accumulator who brings/collects/ accumulates the potentially dangerous thing.
3) Foresight- The escape may be the most unlikely thing in the world, but so long as D foresees the risk of damage that will be suffered by the defendant if the escape was to happen, the claim would pass this stage of the test. No requirement that the escape itself is foreseen, in terms of the nature of the escape.
4) An escape must in fact happen; no guilt for the mere accumulation eg a swimming pool.
5) Protected interest- the use and enjoyment of your land without damage or amenity loss. Also protects proprietary interest in consequential loss, whether it is purely economic or not eg the loss of things which aren’t land or fixture, such as an expensive painting which is lost through physical damage to land.
6) Natural use of land- it seems a very vague test, which the courts have approached through a range of different ways. Some say that the use of land has to be non-natural in that it is extraordinary in its use. Others say that it is a use which increases the risk of harm as a result, whilst it’s been contended that both requirements must be fulfilled to constitute a non-natural use. Either way, it has to be a very high threshold to bring an action.
7) Any defences which might apply eg statutory authorisation, consent, sensitivity,
NB it is no longer required, or at least there is no longer emphasis, on the notion that D brings the thing onto his land for his own purposes.

Question 40

Allen v Gulf oil 1981 facts and significance?

extent of statutory authority

Answer 40

Facts- the claimants brought litigation for the smell, noise and vibration created by a new oil refinery authorised by an act of parliament.

Significance- the appellants had to show that it was unavoidable to cause the nuisance during the construction of the oil refinery, conforming with parliaments intention.
“But in my opinion the statutory authority extends beyond merely authorising a change in the environment and an alteration of standard. It confers immunity against proceedings for any nuisance which can be shown (the burden of so showing being upon the appellants) to be the inevitable result of erecting a refinery upon the site—not, I repeat, the existing refinery, but any refinery—however carefully and with however great a regard for the interest of adjoining occupiers it is sited, constructed and operated. To the extent and only to the extent that the actual nuisance (if any) caused by the actual refinery and its operation exceeds that for which immunity is conferred, the plaintiff has a remedy.” (lord Wilberforce)

Question 41

What is the threshold for the risk which exists alongside the escape for rylands?

Answer 41

It has been stated in Obiter comments in transco by Lord Bingham that “I do not think the mischief or danger test should be at all easily satisfied. It must be shown that the defendant has done something which he recognised, or judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognised, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be.”

Question 42

What is the requirement of non-natural use in Rylands?

Answer 42

A subjective test which is to be inflexibly applied by the courts to dictate whether or not the use of land and the accumulation, all circumstances considered, is to be considered natural, and therefore absolving D of liability.

Question 43

Facts and significance of Wringe v Cohen 1940?

Answer 43

“In Wringe v. Cohen [1940 1 K.B. 229] the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and the defendant Cohen was the owner of the adjoining house. The defendant had let his premises to a tenant who had occupied them for about two years. It appears that the gable end of the defendant’s house collapsed owing to a storm, and fell through the roof of the plaintiff’s shop. There was evidence that the wall at the gable end of the defendant’s house had, owing to want of repair, become a nuisance, i.e., a danger to passers-by and adjoining owners. It was held by the Court of Appeals that the defendant was liable for negligence and that if owing to want of repairs premises on a highway become dangerous and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the collapse the occupier or the owner if he has undertaken the duty of repair, is answerable whether he knew or ought to have known of the danger or not.” (strict liability)

Question 44

Southwark LBC v Mills 1999 facts and significance?

Answer 44

Facts- Mills was a tenant in a council flat which was built in 1919 and owned by Southwark LBC. Mills complained under a provision within the tenancy agreement that the noise insulation between the flats was wholly inadequate as against normal use of the premises. Mills sought an order that the ineffective insulation amounted to a breach of covenant for quiet enjoyment, and therefore, specific works should be conducted to remedy this.

Significance- A covenant for quiet enjoyment is one under which the landlord covenants not to substantially interfere with the tenant’s lawful possession of the premises. Frequent excessive noise was capable of amounting to such interference, but the covenant was prospective in nature, and could not apply to conditions which were in place prior to the grant of the lease. The noise was caused by structural defects which were present at the time of the grant and must have been in the contemplation of the parties and the council could not, therefore, be held to have been in breach of covenant.

Question 45

Holbeck hall hotel v Scarborough BC 2000 facts and significance regarding extent of the duty in Leakey and Hargrave?

Answer 45

Facts- The claimants owned Holbeck Hall, a four star hotel situated on South Cliff in Scarborough. The defendant council owned the land between the hotel and the sea. A massive land slip took place on the cliff. The lawn of the hotel disappeared into the sea and the ground under the seaward wing of the hotel had collapsed. As a result the hotel became unsafe and had to be demolished. The claimants brought an action based on the principle in Goldman v Hargrave and Leakey v National Trust. The trial judge found for the claimant and the Council appealed.

Held:

Appeal allowed, the Council were not liable. In assessing the scope of the duty imposed under the principle in Leakey v National Trust the courts are to take into account the resources of the defendant.

Stuart Smith LJ:

“the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust.”

Question 46

How does Lord Bingham view the non-natural user requirement in Rylands and it’s relative strictness?

Answer 46

Lord Bingham:

“I think it clear that ordinary user is a preferable test to natural user, making it clear that the rule in Rylands v Fletcher is engaged only where the defendant’s use is shown to be extraordinary and unusual. This is not a test to be inflexibly applied: a use may be extraordinary and unusual at one time or in one place but not so at another time or in another place.”

Question 47

Facts and significance of Halsey v Esso 1961?

Answer 47

Facts- P owned a house in a residential area in Fulham. Ds owned and occupied an oil storage and issuing depôt which adjoined the street, on the river bankIn the depôt, opposite the plaintiff’s house, was a boiler house containing two steam boilers with metal chimney stacks from which, from time to time,
noxious acid smuts were emitted which damaged the plaintiff’s washing hung out to dry, and also damaged the paintwork of his car standing in the street outside his houseDs introduced a night shift from 10 p.m. to 6 a.m. at the depôt, and since then the noise from the boilers went on throughout the night despite efforts
made by the defendants to minimise it. This noise, which varied in intensity, at its peak reached 63 decibels, causing the plaintiff’s windows and doors to vibrate, and he could not sleep through it. The sound of trucks passing to and from the depot at night reached 83 decibels and was an additional ground for noise nuisance.

Issues

Whether the property had to stand on the land of the plaintiff when it was damaged in order for P to receive damages for it under
Rylands.

Whether the activity of D was made worse by the time of day at which it was committed

Judgement

Veale J:

Held that the standard of respect of discomfort and inconvenience from the nuisance
of noise and smell was objective:

“It may be possible in some cases to prove that noise or smell have in fact diminished the value of the plaintiff’s property in the market. That consideration
does not arise in this case, and no evidence has been called in regard to it. The standard in respect of discomfort and inconvenience from noise and smell which I have to apply is that of the ordinary reasonable and responsible person who lives in this particular
area of Fulham.”

“This is not necessarily the same as the standard which the plaintiff chooses to set up for himself. It is the standard of the ordinary man, and the
ordinary man, who may well like peace and quiet, will not complain, for instance, of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live alongside a factory. ”

Held that the efficiency or relative cleanliness of the air produced by the depot
was not a defence to giving off acid smuts:
“I find as a fact that lagging has not cured the emission of acid smuts, though they may now be less frequent. There is no defence to this action so far as noxious smuts are concerned.”

Noise -
Held that the noise constitute a nuisance because it went “far beyond a triviality”

Nighttime -
D’s actions on the subject of noise constituted a nuisance, but only at night. “I hold that the defendants are also guilty of nuisance in this respect, but only during the night shift”

“I also, I hope, bear in mind all the circumstances, including the circumstance that
a man is entitled to sleep during the night in his own house. I have no hesitation in saying that the plaintiff has
satisfied me that the defendants’ user of their tankers in all the circumstances is unreasonable. On this view they are liable as for a public nuisance, since it is conceded that noise can be special damage if it affects the plaintiff more than the ordinary
member of the public.”

Question 48

Facts and significance of Network Rail infrastructure v Williams 2018?

Answer 48

Facts- The Claimants, Mr Williams and Mr Waistell, are the owners of two adjacent bungalows in Maesteg, South Wales, which back onto a railway cutting owned by Network Rail Infrastructure (“NRI”). Japanese knotweed from the cutting encroached on their properties and after unsuccessful attempts to eradicate the problem the Claimants brought a private nuisance action against NRI.

Significance- The Claimants applied for an injunction to require NRI to treat and eliminate the knotweed on their land plus damages under various heads of loss.

The claim in nuisance was brought on two alternative bases:

• Encroachment – arguing that NRI was liable as occupier of the land where the knotweed was present, for its encroachment onto the Claimants’ land;
• Quiet Enjoyment / Loss of Amenity – arguing that the presence of knotweed on NRI’s land in close proximity to the Claimants’ land was a sufficiently serious interference with the quiet enjoyment and amenity value of their properties to constitute an actionable nuisance as its presence affected the ability to sell the properties at market value.

At first instance the encroachment claim was dismissed on the basis that to be an actionable nuisance there had to be actual physical damage, and none was established. However, the quiet enjoyment/loss of amenity claim succeeded on the basis that loss of amenity could include diminution as a result of the Claimants inability to dispose of their properties at a proper value.

Therefore the Court found that NRI had breached this duty which had caused a continuing nuisance and damage. Whilst it considered that it was not appropriate to grant an injunction compelling NRI to treat the knotweed it did award the following damages: