Land

What is a judicially approved definition of private nuisance?

Found in Winfield and Jolowicz on Tort: '...unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it'

Are landlords liable for nuisances of tenants?

General rule is that they are not. However, there are situations where they will be liable: Where they have expressly or impliedly authorised the nuisance - Tetley v Chitty [1986] Where they ought to have known about it Where landlord has promised to repair property and fails to do so, giving rise to the nuisance - Payne v Rodgers

How does the court decide how to use this discretion?

Guidelines in Shelfur v City of London Electrical Lighting Co [1895], court may award damages instead when: - harm is small - capable of quantification - capable of adequate compensation If not, court will grant an injunction

Explain dispossession

Means the defendant moves onto your land and takes possession of it (or part of it) e.g. travellers, squatters, student protesters on campus. Claimant would need to bring a claim to recover possession of the land. An action to recover land is part of the tort trespass to the land.

What examples are there of the court having more discretion than the Shelfur principles would seem to show?

Miller v Jackson [1977] - injunction refused as cricket matches deemed in public interest However, Kennaway v Thompson [1981] power boat racing was not deemed in the public interest

Who can sue in private nuisance?

Not everyone, Hunter v Canary Wharf [1997] establishes: - only a person with right to exclusive possession of land can sue in private nuisance - e.g. owner-occupier has the best right - Tennant of the land also has right to exclusive possession through his propriety interest in leasehold title - therefore, owner occupiers and tenants both can sue in private nuisance as both have right to exclusive possession Note: landlord who has parted with possession through lease can also sue in private nuisance if permanent damage is being done to his property

How might lack of property interest interfere with the HRA 1998?

Under s6 of the 1998, courts should interpret the law consistently with the ECHR and Art 8 provides that everyone has the right to private/family life, it can therefore be argued that Hunter does not comply with the ECHR

Is interference with private/quiet enjoyment of land recoverable?

Yes, although it is not a 'tangible' benefit

Is it actionable per se?

Yes, do not need to prove tangible loss as its there to protect rights, rather than to compensate, often given nominal damages. Of course, however, in some cases there will be greater losses to compensate

What are the differences between private nuisance and negligence?

1. Private nuisance is an interference with land, only someone with proprietary interest in land can sue. In negligence, potential claimants is much wider, as it is not necessary to show enjoyment of land has been effected. 2. Private nusiance rehires some continuity, isolated incidents will not constitute a nuisance, unless it results from the sate of affairs. Liability in Negligence doesn't require continuity. 3. Concept of reasonableness has relevance for both torts. In deciding whether an interference is unlawful in nuisance, it is whether use of land its unreasonable. In negligence, it is whether the act was unreasonable. 4. When a defendant is sued in private nuisance for a naturally arising hazard, courts will willing to take into consideration financial means. Defendant's financial means are irrelevant in Negligence. 5. Defendant can be liable in nuisance, even if he's exercised reasonable care. In Negligence, only liable if fell below standard of the reasonable person. 6. Following hunter, personal injury is no longer within the scope of private nuisance. 7. An injunction is a potential remedy in nuisance. It is not in Negligence.

Who is liable in private nuisance?

1. creator of nuisance 2. occupier of land from which the nuisance originates 3. landlord

Who can sue?

A claimant must be in possession of the land i.e. have the immediate right to occupy/exclude others, but they need not own the land. Whether or not others can will be a matter of the facts of the case e.g. Mousanto plc v Tilly [2000] a licensee was found to have exclusive possession, but generally, without personal right will not have possession Squatters have the right of possession and can use trespass against anyone who doesn't have a better right to possession (e.g. legal owner or previous squatter) - Delaney v TP Smith Ltd [1946]

Explain public benefit

A defendant may often argue that his activity is reasonable as it benefits the public e.g. food in 'smelly' chip shop in Adams v Ursell [1913] However, courts consistently take the view that the interests of the public will not deprive an individual of his private rights - therefore, rarely a relevant factor

Explain indirect interference with the land

A person's use can be interfered with by things done elsewhere not on the land. Main example is things done on a neighbours land e.g. industrial process causing toxic fumes, tree roots ruining house, noisy neighbourly activities. A claimant would need to bring action to stop the interference and obtain compensation for any damages caused. The tort of to provide a remedy for this would be nuisance.

What does the definition mean for cases

Adopted in many cases e.g. Read v Lyons & Co Ltd [1945], essentially must prove two things: 1. interference with claimant's use and enjoyment of land or some rights eh enjoys over it 2. interference is unlawful

Are there similarities between the two?

Although there are lots of differences, its important to realise the possibility of claims in both torts. This would only be the case where the claimant has suffered actual (tangible) damage to his property as intangible damage would be insufficient for a claim in Negligence.

How are damages awarded

Any loss incurred to date Court has limited power to award damages for future loss: - physical damage to claimant's land - personal discomfort e.g. Hunter v Canary Wharf, Lord Hoffman said for loss of amenity If an interference is persisting, an injunction might be more suitable as it might prevent future damage

What is land?

As confirmed in Bocardo v Star Energy UK Onshore Ltd [2010] Includes the surface of the land and also any building on it, any plants on it and the soil beneath it Lord Hope confirmed that owner of the surface of the land is also the owner of what lies beneath it unless such rights have been taken away by agreement in common law or statute

What did Lord Wright say in Sedleigh-Denfield v O'Callaghan [1940] on how the courts should measure an unlawful interference?

Balance the rights of one person to do what he is lawfully entitled to do on his own land against his neighbour's right to enjoy his land free from interference

Who cannot sue in private nuisance

Children of owner-occupier Hotel guests Live in housekeeper

How do causation and remoteness of damage work in private nuisance

Claimant must prove the unlawful interference caused his damage - usual rules apply (e.g. 'but for' test) Cambridge Water Co v Eastern Counties Leather plc [1994], court said test for remoteness was 'Wagon Mound' test and that liability in nuisance does not depend on defendant's guilt, however, fault does have a role to play in remoteness stage. - Liable only for uses of land which involve foreseeable harm.

In which case the did the courts clarify the law relating to localities and what did they say?

Coventry v Lawrence [2014] If activities cannot be carried out without creating a nuisance, such activities will have to be entirely discounted when assessing the character of the locality. Also, if activities are in breach of planning permission, they will not be taken into account when assessing the character of the locality.

In which case did the court say it should not fetter its discretion in applying Shelfur principles? What did it say?

Coventry v Lawrence [2014] If all tests aren't satisfied it doesn't mean an injunction cannot be granted. E.g. court may decide it is in public interest and therefore not grant an injunction.

Explain occupier

Current occupier of land is the usual defendant In addition, occupier of land may be liable for nuisance created by another person if: - nuisance was created by employee acting in course of employment - where nuisance is created by an independent contractor, provided the nature of the work carried a special danger of the nuisance being created - where the nuisance is created by a visitor, predecessor in title, or trespasser, or arises from some natural occurrence, provided the occupier has adopted or continued it Sadleigh-Denfield v O'Callaghan [1940] confirmed that occupier is liable for someone else's nuisance when he 'adopted' or 'continued it'

Explain the ineffective defences

DEFENDANT 'CAME INTO NUISANCE' As long as defendant continues to use land in the same way, he cannot rely on this defence, however, if he significantly changes it, claim will fail - Coventry v Lawrence [2014] PUBLIC BENEFIT But will consider when determining an injunction CONTRIBUORY ACTIONS OF OTHER Doesn't matter if it was multiple people PLANNING PERMISSION View of courts is only Parliament can take away private rights by primary/secondary legislation, and planning permission is given by local authority and it therefore doesn't legitimaise a nuisance - Wheeler v Saunders [1995]. However, planning permission can change the character of a neighbourhood - Gillingham BC v Medway docks Co Ltd [1992] Coventry v Lawrence - where planning permission stipulates conditions e.g. noise, it may be used in assisting claimant's case.

What are the remedies for private nuisance?

Damages Injunction Abatement

What remedies are there for trespass to the land?

Depends on the context of the trespass. A trespasser whose in occupation of claimant's land e..g squatter - order of possession which requires them to leave and return rightful possession. Continuing interference with possession might seek injunction and damages for past interference Finally, claimant might have suffered tangible damages - damages.

What is the first requirement of tort of trespass to the land?

Direct interference - must flow almost immediately and without any intervention of the defendant

What are the three broad ways a defendant might interfere with your enjoyment of land?

Dispossession Interference with possession Indirect interference with land

In which case was the interaction between the common law nuisance and Article 8 of the ECHR considered? What was said?

Dobson v Thames Water Utilities [2009] Defendant was a public body, so duty bound to comply with s6. Courts had to consider whether it was necessary in private nuisance to give additional compensation under 'just satisfaction' for breach of article 8(3) to others who had no property interest. Court reiterated following 'Hunter' that damages are awarded as damages to land and the thought it was 'highly improbable Strasbourg would think 'just satisfaction' would require non-property owners to be awarded compensation. Despite this, they said the world 'usually' which leaves it open to possibility.

What are the relevant factors in determining what is therefore unlawful?

Duration and frequency Excessiveness of conduct/extent of harm Character of neighbourhood Public benefit Malice

What are effective and ineffective defences.

Effective will enable defendant to escape liability, latter, although argued, will not.

How can trespass to the land arise?

Entering claimant's land Acting in excess of one's permission to be on the land - failing to leave within reasonable time - doing something outside scope of permission - The Calgarth [1927] Bringing anything into direct contract with the land Damaging the land

When will injunctions be awarded?

Equitable - a discretion of court after considering all circumstances Injunction won't be awarded where common law damages would've been accurate - common law only available for past breach If court doesn't grant injunction, it has power to grant damages instead - damages granted in lieu of injunction can cover future breaches

Explain malice

Hollywood Silver Fox Farm v Emmett [1936] - sole purpose of the defendant's action was to upset silver foxes and thus malice meaning it was unreasonable Therefore, malice will often tip the balance and potentially make an interference unlawful that would've been reasonable - Christie v Darcey [1893]

In which case were the three types of interferences given? By who? And what are they?

Hunter v Canary Wharf [1997] Lord Lloyd: [QUOTE]: 1. nuisance by encroachment on 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 his land

When may a person's entry to another's land be lawful? In which case was this stated?

If that person has given express or implied permission that he can be there E.g. Robinson v Hallett [1967], Lord Diplock said if someone's front gates were open, he has given an implied licence to enter and check whether he may be admitted to conduct his lawful business

What is the second requirement?

Intentional interference Defendant need not know he was trespassing, but it does need to be voluntary e.g. cannot be pushed onto land - Smith v Stone (1647). Will have trespassed if you thought you were on your land but strayed onto neighbours - Basley v Clarkson (1681)

What is an injunction

Is a court order which restrains the commission or continuance of some wrongful act in the future. NB: not available in nuisance as it is about past act

What defences are there for trespass to the land?

Justification/consent e.g. had owners permission, permitted by law e.g. police officer Necessity (same as trespass to the persoN)

Which cases show it is not impossible to have a successful claim in trespass to the land in respect to aircrafts?

Kelsey v Imperial Tobacco Co ltd [1957] Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) Ltd [1987

Why are cases involving land often difficult to resolve?

Land is unique and immovable meaning that it is not always possible to compensate with money e.g. if you've been dispossessed of land you need to gain possession of it, not to be financially compensated. The fact it is immoveable means if a neighbour is annoying you, you cannot just move it.

Which is the widest of these three interferences and how have the courts dealt with this?

Last (often known as interference with personal comfort or loss of amenity) is potentially very wide indeed e.g. smell, vibration, noise. And interferences with rights enjoyed over land (e.g. right to light by prescription). However, courts are generally slower to find actionable nuisances based on personal discomfort than actual damage to property or encroachment. In Walter v Selfe (1851) Sir Knight-Bruce VC said to be actionable, the interference had to be something that materially interfered with 'ordinary comfort', not 'elegant or dainty modes... of living. E.g. Loss of view is not an actionable interference (Aldred's case (1610)) In Hunter v Canary Wharf [1997] House of Lords decided that loss of TV reception was not actionable - can equally apply to other modern luxuries

Is a negligent interference possible?

League Against Cruel Sports Ltd v Scott [1986] is authority for the fact that a trespass can exceptionally be committed negligently - they needed to sue in trespass as they wanted an injunction (not available in Negligence) Possibility was considered in Network Rail Infrastructure v Conarken Group ltd; Network Rial Infrastructure v Farrell Transport Ltd [2010] - measure of damages would be the same regardless - possibility of negligent trespass might not be that significant as damages are the same However, as league case how's, if claimant is wanting an injunction, ability to sue in trespass can be significant

What did the court do in Bernstein v Skyways & General Ltd [1977]

Limited rights of an owner to the airspace above the land to 'such a hight as is necessary for the ordinary use and enjoyment of his land and the structures on it' Tort of nuisance may be relevant if interference fell outside of ordinary use Claim failed because: - outside ordinary use - airline complied with civil Aviation Act 1982

What does Hunter v Canary Wharf [1997] show in confirm in respect to damages?

Nuisance is not actionable per se, so claimant must show he has suffered damage. Also that physical damage to land is recoverable. Lord Hoffman expressed that there would be no claimant for personal injury in private nuisance - look to tort.

What is the tort of trespass to land? History and definition.

One of the oldest actions at common law (tort not a crime - so signs should say 'trespassers will be sued'). NB: certain statutes do make certain trespasses a criminal offence. Definition: Unauthorised entry by one person on another person's land Or, intentional direct interference by one person to another person's land

Explain creator

Original creators of the nuisance main liable for it, even if land is now occupied by someone else as the creator did the first wrong. However, if creator can no longer be found, or it is not financially worthwhile suing, claimant must look elsewhere.

What are the effective defences?

PRESCRIPTION If nuisance has continued for more than 20 years they will have acquired the right. NB: Must have been actionable for 20 years - Sturges v Bridgman (1879) STATUTORY AUTHORITY Sometimes statute will allow defendant to commit nuisance and this can be relied upon if nuisance was a result fo doing the thing the statute authorised. This can apply to any tort, most commonly nuisance. CONTRIBUTORY NEGLIGENCE Usual rules apply CONSENT If claimant has specifically agreed to accept interference ACT OF GOD OR NATURE Not strictly a defence but an operation of law concerning circumstances in which an occupier can be liable for a natural event. If it results from a 'secret unobservable process of nature' - Wringe v Cohen [1940], or an act of god, defendant won't be liable unless he adopts or continues it

What types of injunctions are there?

PROHIBITORY INUNCTION Prohibits certain act MANDATORY INJUNCTION Orders defendant to take action to rectify consequence of his wrong Granted less readily A 'QUIATIMET' INJUNCTION Usually injunctions are granted after tort has happened Exceptionally granted to prevent damages, if claimant can show: - certainty damage will happen without injunction - damage is imminent - defendant won't stop without a court order

What claims torts are relevant if a claimant's issue relates to his own land?

Private nuisance Trespass to the land potentially Negligence, if he has suffered property damage

Where does damage to personal property lie? Are there any exceptions?

Probably outside the scope, appropriate action would be Negligence. This was not dealt with specifically in Hunter. However, other cases (Halsey v Esso Petroleum) have allowed recovery on the basis that such losses flow as a consequence of personal discomfort caused by suisance. In Hunter, Lord Hoffman also said that where a claimant can prove recoverable damage, defendant is liable for any consequential losses following from it e.g. loss of profit from business operations (Andreae v Selfridge & Co Ltd [1938])

What are the two types of nuisance at common law, what are they?

Public and private nuisance - only need to know about private Public nuisance exists to protect the public's exercise of public rights. Although individuals can sometimes sue in public nuisance, usually cases are brought by the AG on behalf of the public. Often, public nuisances are crimes. In contrast, private nuisance exists to protect an individual's enjoyment of his own property.

Will abnormal sensitivities be taken into consideration?

Robinson v Kilvert (1889), claim failed because claimant's paper was abnormally sensitive and it wouldn't have been effected if it was normal. So, when deciding whether an interference is unlawful, the court will look at its impact on the normal neighbouring land, ignoring any abnormal sensititities. However, if claimant can show interference is unlawful when judged against the normal use of land, he can recover all his loss even if greater (due to sensitivity) than the normal use. Above is illustrated by McKinnon Industries v Walker [1951], claimant's sensitive orchids damaged, but normal flowers would have also been damaged - could therefore recover loss of orchids.

What is abatement?

Self-help Victim must give prior warning to wrongdoer, except in an emergency or where nuisance can be removed without going into wrongdoers land - Lemmon v Webb [1895] Although it is a legal remedy, it can cause serious issues and best advice is to reach agreement with neighbour before exercising the right.

Which statement, by whom and in which case does the importance of the character of a neighbourhood originate from?

Sturges v Bridgman (1879), Thesiger LJ said: 'what would be a nuisance in Belgrave square would not necessarily be so in Bermondsey' - NB out of context in modern London but sentiment still stands

What is an unlawful interference?

The word that best describes unlawful is 'unreasonable' - it does not usually mean criminal. Qualification of 'unlawful' is necessary because not all interferences will constitute actionable nuisances. E.g. you have to tolerate a certain level of noise, smells etc. as part of every day life. But you should not be expected to tolerate unreasonable (excessive) interferences. Unlawful therefore means 'substantial and unreasonable'

What can a claim in nuisance also be used for?

To provide a remedy for interference with rights over land e.g. right of way

How are causation and remoteness measured?

Trespass is actionable per se, but if claimant has suffered tangible damage, he must show defendant's tort caused the damage (normal 'but for' and intervening acts applies) Remoteness is governed by the 'direct consequences' test from RE Polemis [1921]

Explain duration and frequency

Very important - longer the interference, more likely to be unreasoanble If short term, may be expected to put up with it Spicer v Smee [1946] shows that an isolated happening will constitute an actionable nuisance if it emanates from some continuing state of affairs one the defendant's property - in this case it was the nature of the defendant's wiring

Which other instances has the approach from Sedleigh-Denfield been adopted? Give cases.

Visitors - Lippaitt v South Gloucestershire CC [1999] Predecessors int tile - St Anne's Well Brewery Co v Roberts (1928) Natural events - Leakey v National Trust [1980]

When will the character of the neighbourhood not be considered?

When there is property damage - e.g. 'harmful deposits' in Halsey v Esso Petroleum Co Ltd [1961] Stems from St Helen's Smelting Co v Tripping (1865), where Lord Westbury said character of neighbourhood is only relevant in cases of only personal discomfort and inconvenience, not physical damage to property

Explain direct interference with posession

Where a claimant remains in possession, the defendant might interfere with that possession e.g. using a path to drive without permission where there is no right of way, coming to land and taking things e.g. fishing, dumping rubbish without permission. Claimant needs to bring court to order to stop the interference e.g. injunction or declaration of rights. A remedy for this is trespass to the land.

In the above examples, claimant has remained in possession, what else does trespass to the land cover?

Where defendant has possessed land and dispossessed claimant e.g. squatters

Explain excessiveness of conduct/extent of harm

i.e. how removed it is from normal behaviour e.g. Matania v National Provincial Bank Ltd [1936], noise from renovations every day from 8am-5pm was deemed to be excessive Court will consider all factors, however, so if claimant was at work all day - the above would not be excessive An interference which causes physical damage is likely to be considered excessive

What other remedies are there for trespass to the land?

injunction order for possession