Week 17: Part III Nuisance, Defences & Remedies Flashcards
Plus quam tolerabile
That which is beyond tolerable.
Provide examples of nuisance.
‘Noise, smell, vibration, pollution’
Define Nuisance in the common law sence. (Different from statutory definition).
Use of land, in a way that affects others enjoyment of their land
Trespass is illegal. Discuss.
Trespass is not a criminal wrong, but a civil wrong and therefore actionable.
Trespass applies only to land, otherwise considered home breaking.
Public Nuisance.
Criminal wrong in England. Similar to that of breach of the peace in Scottish criminal law.
Why is there more nuisance jurisprudence in England?
Larger jurisdiction - proportionally more actions taken.
Fearn & Others v The Tate Gallery
- Viewing platform looked directly into a number of glass-walled flats across the road.
- Does the court entitle you to look into your neighbor’s home
- English cases may not be applicable in depict.
- Did not grant any remedies
- Parties likely settled
- No definitive outcome
- Majority of judges did declare an extraordinary degree of intrusion
What did Andy Wightman MSP famously say?
The poor have no lawyers.
What did the Esk River case involve.
Esk River used for dying production. One use of the river was to wash away the factories pollution.
Kerr v Earl of Orkney
- While the rain can certainly be considered an act of God, the dam was man made and therefore they were entitled to compensation.
English Cambridge Water v Eastern Counties Leather [1994]
o Pollutant behaved in a way nobody throught it would behave
o Air pollution perforated the ground
o Was not foreseeable
Watt v Jamison 1954
- Ingress of sulphureous water vapor from a neighbor’s gas heater; flue connected through a common gable. Caused damp, discoloration, crumbling of brick plaster, damaged stonework and dry rot.
Locality principle - a certain amount of annoyance must be accepted as a result of living in an urban tenement.
Was he exposed to as more than is tolerable
What sort of nuisances are intolerable?
What are the factors to be considered in nuisance cases? (3).
- More than is tolerable – in context, case by case basis
- The location of nuisance – some activities may be expected in the town but not he country or vice versa
- Note was also public interest question – there is a clear public interest in having wastewater collected and treated.
Ben Nevis Distillery (Fort Willaim) Ltd v British Aluminum 1948
Noxious fumes, but a significant public interest; held this was not a reason to refuse the proof; and then, 1949, that ‘reluctantly, interdict would be deferred for remedial works
Whisky requires fresh water for production
Following WW2 – precious materials are in short supply
Aluminum production required water source
Public interest that aluminum be smelted
Only get damages if the defendant is at fault.
Webster v Lord Advocate 1985
Nuisance action regarding the noise of the Military Tattoo and of the construction of the stands
Tattoo not a nuisance, construction was in law
Deferred the interdict for a year to allow the construction company to come up with a less noisy method of construction
Is timing a factor in nuisance?
Long negative prescription may apply – Prescritpion & Limitation (Scotland) Act 1973 S. 7
Planning (Scotland) Act 2019 s. 25
New developments may also be subject to planning conditions re nose insulation, to avoid existing difficulties with existing cultural venues or facilities
Reqiurements for fault/culpa. (5).
- Where there is an ongoing nuisance (more than tolerable, in context) an interdict is always available (but may be delayed)
- Where the nuisance is ongoing it may be less important to aver fault (it may ‘speak for iteslf’, res ipsa loquitor)
- Interdict is useful for ongoing issues such as neighborhood amenity. However, where there has been loss or harm to property, interdict will only be useful if the problem will recur and anyway will not compensate for the harm.
- Nuisance in the past was sometimes described as being of ‘strict’ liability, especially in English cases (There still may be defenses for acts of God or 3rd party involvement)
- In Scotland where there is a claim for damages there must be some element of fault or culpa
RMA Bakeries v Strathclyde Regional Council 1985
Absolute duty – impossible to maintain the pipes, you can inspect and maintain them but to an extent. (Flooded bakery)
Kennedy v Glenbelle Ltd 1996
- This involved damage to an upper flat caused by the removal of a load bearing wall in the basement. Glenbelle Ltd owned the basement and did not appear; the second defenders were Charles Scott, consulting engineers. There was a claim against both defenders; in nuisance in that the engineers instructed the works which they should have known would cause harm and in negligence for failing to take reasonable care.
- HELD: That both the grounds merited a proof
What are the five ways in which culpa arises?
MINRI
Malice,
Intent,
Negligence,
Recklessness, or
Conduct which a special risk of abnormal damage where fault could always be INFERRED
Define STATUTORY nuisance.
Prejudicial to health or nuisance.
Which body are responsible for inspecting their areas?
Local authorities.
What document may a local authority serve if a nuisance exists or is likely to exist?
Abatement notice.
