Tort 11 The law of nuisance and the rule in Rylands v Fletcher

What amounts to a private nuisance? Sedleigh-Denfield v O'Callaghan [1940]

'A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society. The forms which nuisance may take are protean†. Certain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances

Penner criticism of canary wharf case

800 foot tower is not ordinary use of one land so nuisance cause should be actionable. We should not be able to say that generally we can use land as we would like since tall buildings could change wind direction, or cause snow fallover as in canadian case.

Dunne v North Western Gas Board (1964).

Gas escaped from a gas main caused by a burst water main. The gas travelled along a sewer and was ignited causing a series of explosions resulting in injuries to five claimants. One was blown off her bicycle, two young children were injured playing in the street and a husband and wife suffered injuries in their home. They each brought an action based on liability under Rylands v Fletcher. Held: The defendant was not liable. The Gas Board had not accumulated gas for their own purposes. Works carried out by virtue of a statutory authority are a recognised exemption to liability under the rule in Rylands -v- Fletcher.

Colls v Home and Colonial Stores VIMP for light cases

HL held that Colls was entitled to " . sufficient light" . to light his premises " . according to the ordinary notions of mankind" . . As, he would have in excess of this amount, even after the erection of the new building, he had not suffered an actionable interference with his easement of light. The extent of the entitlement to light was described by Lord Lindley in the following terms: " . Generally speaking an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business." .

An occupier who has adopted or continued a nuisance Sedleigh-Denfield v O'Callaghan (1940) VIMP a local authority, without the D's permission (and therefore as a trespasser), had placed a drainage pipe in a ditch on the D's land with a grating designed to keep out leaves. The grating had not been fixed in the correct position, with the result that, during a heavy rainstorm, the pipe became choked with leaves and water overflowed onto the plaintiff's land.

HL held the D liable. He had adopted the nuisance by using the drain for his own purposes to drain water from his land. He had also continued the nuisance because his manager should have realised the risk of flooding created by the obstruction and taken reasonable steps to abate it. occupier of the land is best placed to deal with the nuisance, he or she will be liable if they are found to be at fault.

Delaware Mansions Ltd v Westminster City Council (2002) The council refused to remove a mature plane tree that was causing damage to a building. The C therefore spent over £570,000 carrying out underpinning works and claimed the cost from the council.

HL held the council liable for that sum. The C was not merely entitled to damages for the damage to the property that had occurred during its period of ownership. If the tree had been removed the need to underpin would have been avoided and the total cost of repair to the building would have been only about £14,000!

Rapier v London Tramways Co (1893).

If the noise and the smell from the stabling for large numbers of horses (used to pull trams) is intolerable in a densely-populated residential neighbourhood, it is no defence that the D has used all reasonable care to minimise the annoyance. TEST: if smell is so bad and continuous so as to interfere with comfort and enjoyment of ordinary people. NOTe not for hypersensitive

Statutory authority

If the nuisance is caused by the activities of a local authority (or any other body acting under statutory powers), it may be a defence that it is acting within the scope of its authority and therefore authorised by Parliament to act in this way. It is a question of interpretation of the relevant Act.

Leakey v National T (1980) - failure to protect neighbouring villagers from the effect of subsidence to its land) Cs' land had been damaged by falls of soil and other debris from the D's land known as Burrow Mump. The falls were caused entirely by nature there was no human activity involved that would have caused the fall. The Ds were aware of the risks since 1968. They had taken legal advice and were told that they would not be liable for naturally occurring slides and consequently did nothing to prevent such slides. Following the exceptionally hot dry summer of 1976 and unusually heavy rainfall in the autumn, Mrs Leaky noticed a big crack appear in the bank above her house. She informed the National T and offered to pay half the cost of making it safe. Her offer was rejected. A few weeks later there was a large fall. She joined forces with other neighbours to bring an action in nuisance.

National T were liable following the Privy Council decision in Goldman v Hargrave. A D 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.

Matania v National Provincial Bank (1936)

Under the principle of vicarious liability, an occupier of land can also be liable for the actions of their employees; in Matania v National Provincial Bank,[29] it was also established that they could be liable for the activities of independent contractors under certain circumstances.[

Employers

Where the occupier of the land exercises control over employees who cause a nuisance in the course of employment, he or she will be liable. This will extend to liability for independent contractors where the employer owes a non-delegable duty to the C:Matania v National Provincial Bank (1936) and Bower v Peate (1876).

Canary Wharf cf Bank of new zealand v Greenwood

in Bank of new zealand v Greenwood the glare reflecting from a neighbouring building was held to be a nuisance, but this was distinguished from Canary Wharf since in that case the source was the building, here the building blocked the source. however Penner criticizes this as there is no basis for this distinguishing.

The nature of the locality Sturges v Bridgman (1879)

'What would be a nuisance in Belgrave Square† would not necessarily be so in Bermondsey'. This means that the nuisance will be judged according to the area in which it occurs. For example, emission of smoke from a factory will not be considered a nuisance in an industrial estate, but would be likely to be found to be a nuisance in a largely residential area.

private nuisance

'unlawful interference with a person's use or enjoyment of land, or some right over, or in connection with it'.

McKinnon Industries Ltd v Walker (1951)

(recovery for harm to orchids when fumes would have damaged any flowers grown

establishing nuisance is very dependent on facts of case and evidence. positive v negative evidence Sargant J

1 person who gives accurate evidence that he observed something is worth 4 who said they never did observe that thing.

Bramwell B in Bamford other sources of nuisance

1. annoyance: if wanton or malicious 2. no D for public utility (land normally for private use) 3. no regard for temporariness emphasize common use criterion. (e.g. temporariness) trivial interferences are not actionable , but more important one are.

Hunter v Canary Wharf 2 key issues

1. is interference of tv signal due to Ds building interference 2. is is claim for damages limited to people with interest in the land.

BRamwell B in Bamford, why is reciprocality fair?

1. nuisance in question is comparitively trivial 2. flow from natural/ordinary use of the land. assumes that neighbours are engaged in same types of activities. however applies to situations where the activities are similar.

Wagon Mound No 1 defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.

A test of remoteness of damage was substituted for the direct consequence test. The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.

Charing Cross Electricity Supply Co v Hydraulic Power Co (1914);

A water main burst causing damage to the C's property. The C brought an action based on the principle established inRylands v Fletcher. The D sought to rely on the defence of statutory authority. However, whilst the statute granted permission to the D to keep the water main at high pressure there was no obligation to do so. The defence therefore failed.

Utility This is not a defence, although it may encourage the court to be more flexible in deciding a remedy

Adams v Ursell (1913) and Miller v Jackson (1977).

The nature of the locality Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd. (1993) Neighbours complained at the development of a new commercial port on the site of a disused naval dockyard. Heavy vehicle traffic at night had a seriously deleterious effect on the comfort of local residents.

Although a planning consent could not authorise a nuisance, it could change the character of the neighbourhood by which the standard of reasonable user fell to be judged. decided both that planning permission did not create a license to cause nuisance and that legal acts could count as a public nuisance. However, he came to the conclusion that no public nuisance had been created, saying that the change in the neighbourhood's character altered what was acceptable there: " . where planning consent is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously

Damages for personal injury?

Although damages have been awarded for personal injury in the past (see Hale v Jennings (1938); Shiffman v Order of the Hospital of St John of Jerusalem (1936); and Perry v Kendricks Transport Ltd (1956)), Lord Bingham in Transco affirmed that 'the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land'. The same rule therefore applies for all forms of private nuisance.

De Keyser's Royal Hotel Ltd v Spicer Bros Ltd (1914)

An injunction was granted to prevent building work taking place at night despite the fact the work was only temporary in nature. The interference was considered unreasonable since it interfered with the C's sleep.

Holbeck Hall Hotel Ltd v Scarborough BC (No 2) (2000). Cs owned Holbeck Hall, a four star hotel situated on South Cliff in Scarborough. The D 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 Cs brought an action based on the principle in Goldman v Hargrave and Leakey v National T. The trial judge found for the C and the Council appealed.

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

Hatton and others v. The United Kingdom demonstrates impace of HRA onnuisance properties in the area surrounding Heathrow Airport, London. Before October 1993 the noise caused by night flying at Heathrow had been controlled through restrictions on the total number of take-offs and landings; but after that date, noise was regulated through a system of noise quotas, applicants complained, among other things, that, following the introduction of the 1993 scheme, night-time noise increased, especially in the early morning, which interfered with their right to respect for their private and family lives and their homes, guaranteed by Article 8. They also claimed that judicial review was not an effective remedy within the meaning of Article 13, as it failed to examine the merits of decisions by public authorities and was prohibitively expensive for individuals.

Article 8 The Court noted that the Government had acknowledged that, overall, the level of noise during the quota period (11.30 p.m. to 6 a.m.) had increased under the 1993 scheme. The Court also observed that, as Heathrow airport and the aircraft which used it were not owned, controlled or operated by the Government or by any agency of the Government, the United Kingdom could not be said to have "interfered" with the applicants' private or family life. However the State had a positive duty to take reasonable and appropriate measures to secure the applicants' rights under Article 8 and to strike a fair balance between the competing interests of the individual and of the community as a whole. In the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country was not sufficient to outweigh the rights of others. States were required to minimise, as far as possible, the interference with these rights, by trying to find alternative solutions and by generally seeking to achieve their aims in the least onerous way as regards human rights. In order to do that, a proper and complete investigation and study with the aim of finding the best possible solution which would, in reality, strike the right balance, should precede the relevant project. In conclusion, the Court considered that, in implementing the 1993 scheme, the State failed to strike a fair balance between the United Kingdom's economic well-being and the applicants' effective enjoyment of their right to respect for their homes and their private and family lives. There had accordingly been a violation of Article 8.

assessment of damages following cambridge waters, the Wagon Mound test is applicable

D will not be liable for any damages which could not reasonably have been forseen

Fred owns the local cricket club, which he established five years ago after receiving planning permission from the local council. It provides entertainment for the local community and draws in big crowds in the summer. Recently, Mrs Groan has moved next to the cricket ground and is complaining about the noise. She wants an injunction to close the club down. She is terrified that she will be hit by a cricket ball, although no-one has so far been hit by a ball. Fred believes there is only one chance in a million that this could happen.

Assuming that Mrs Groan has a good cause of action in private nuisance (she has an interest in land and the noise or potential threat to property suffice), the question arises whether Fred has any defences to her claim. Planning permission is not a defence. Prescription cannot be established on the facts. Equally he cannot rely on the social utility of cricket, nor the fact that Mrs Groan has come to the nuisance. He must therefore hope that the court will exercise its discretion in his favour when deciding what remedy to award Mrs Groan. Miller v Jackson (1977) suggests that the court may refuse an injunction and award only damages rather than close down a club providing a benefit to the local community. In contrast, Kennaway v Thompson (1981) prefers to award an injunction on terms which keep the club open, but reduces the risk of a nuisance. It remains to be seen whether an injunction could be drafted which could protect Mrs Groan and allow cricket to continue to be played.

Who can sue?

Before Transco, it was unclear whether the C would need a right in land to sue. Although there were decisions permitting non-occupiers of land to sue for damages ( Shiffman v Order of the Hospital of St John of Jerusalem (1936) and Perry v Kendricks Transport Ltd (1956)), they were inconsistent with the position in private nuisance, set out in Hunter v Canary Wharf. Transco confirmed that the C must have some right in the land to sue.

Coming to the nuisance It is a well-established rule that the C may sue even though the nuisance was, to his or her knowledge, in existence before he or she arrived at the premises.

Bliss v Hall (1838) and Miller v Jackson (1977).

Unforeseeable act of stranger

Box v Jubb (1879), Rickards v Lothian (1913) Ribee v Norrie (2001). The 3P's actions must be unforeseeable: Northwestern Utilities Ltd v London Guarantee Co (1936).

How does Canary Wharf reasoning conflct with Barmwell in Hole v Barlow

Bramwell stated that the reference for reasonable conduct is determined by what neighbour's could reasonably expect. the standard is NOT the reasonableness of Ds conduct.

Powell v UK

European Commission observed that: "It is true that aircraft noise nuisance of considerable importance both as to level and frequency may seriously affect the value of real property or even render it unsaleable and thus amount to a partial taking of property"

Defences

C fault: Ponting v Noakes Unforeseeable act of stranger Act of God Statutory authority Consent

Malone v Laskey It has been questioned whether the exclusion of family members living in the home is consistent with Article 8 of the European Convention on Human Rights

C was injured when vibrations from an engine on an adjoining property caused a bracket to come loose and the cistern to fall on her in the lavatory. She was unsuccessful in her claim as she did not have a proprietary interest in the house. Her H was a mere licensee through his employment as a manager.

Dunton v Dover District Council

Children's play area next to hotel garden, noise disturbed, Economical loss may be recoverable. demonstrates the tradeoffs judges use in balancing interests restricted hours for playground, but no complete closure. limit the users to those under 12, less noise.

Box v Jubb (1879) 3P caused the D's reservoir to overflow onto the plaintiff's land by emptying his own reservoir into a stream which fed the D's.

D was not liable. Where the escape of a mischievous substance is due to the wrongful act of a stranger, there is no liability under RYLANDS v. FLETCHER (1868)

public nuisance

Cs who have experienced special damage above and beyond that suffered by the rest of the public.

Kelsen v Imperial Tobacco

D committed trespass by allowing an advertising board to project eight inches into P's property at ground level and another above ground level. NOTe this can offer indirected protection to the passage of light, however no guarantee in English law.

Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996).

D conducted a firework display. Some burning debris from the display landed on a nearby barge which caught fire. The D was liable despite the nuisance only lasting twenty minutes.

Nichols v Marsland (1876)

D diverted a natural stream on his land to create ornamental lakes. Exceptionally heavy rain caused the artificial lakes and waterways to be flooded and damage adjoining land. The D was held not liable under Rylands v Fletcher as the cause of the flood was an act of God.

Gillingham v Medway

D had obtained planning permission to turn a disused dockyard into a commercial port operating 24 hours a day. Local residents brought an action in public nuisance in relation to the noise created by Heavy Goods Vehicles throughout the night. They were seeking an injunction to restrain the activities during the night. It was held that where planning permission is given for a development or change of use, the question of nuisance will thereafter fall to be decided by reference to a neighbourhood with that development or use and not as it was previously. The C's actions therefore failed.

Adams v Ursell (1913)

D was in the trade of selling fried fish. The shop was located in the residential part of a street. Faced with a claim for an injunction, he argued that his business benefited the public, especially the poor and therefore the smell produced by his trade was justified. Held: Court rejected the defense as P's comfort and convenience also had to be considered

Goldman v Hargrave (1967) A 100 foot red gum tree on the D's land was struck by lightning and caught fire. The following morning the D contacted a tree feller to cut down the tree saw it into ss. The wood was still smouldering and the D failed to douse it with water to eliminate the risk of fire. Over the next few days the weather became very hot and reignited the fire which spread to neighbouring property.

D was liable for the naturally occurring danger that arose on his land as he was aware of the danger and failed to act with reasonable prudence to remove the hazard. Being fault-based, unlike the usual test for private nuisance, the courts apply a very distinctive test for liability. In finding liability in Goldman, Lord Wilberforce added that the D's conduct should be judged in the light of his or her resources and ability to act in the circumstances. In his Lordship's view, it would be unjust to demand a standard of conduct of which the D was not capable, or to require an excessive expenditure of money. If, therefore, the D is poor, and abatement will require vast expense, the D will not be considered N. Equally, less will be expected of the infirm than of the able-bodied.

Ribee v Norrie (2001). landlord owned a property converted into a 'hostel' with individual bedrooms and communal facilities, to which the landlord retained access. A fire, started as a result of a carelessly discarded cigarette in the communal area, spread to a neighbouring property and caused damage. The owner claimed damages on a number of grounds including nuisance, negligence and the principle of Rylands v Fletcher.

D was liable under Rylands v Fletcher. The person who started the fire was not a stranger. It was within the power of the D to prohibit smoking on the property so he had control over the 3P's actions.

Act of God Due to the advances in modern technology and science, this defence is largely defunct

D will not be liable where the escape is due solely to natural causes in circumstances where no human foresight or prudence could reasonably recognise the possibility of such an occurrence and provide against it: compare Nichols v Marsland (1876) and Greenock Corp v Caledonian Rly (1917).

Factors determining reasonable use

Damage to property or personal discomfort The nature of the locality Duration and frequency Utility of the defendant's conduct Abnormal sensitivity Malice

HRA s 6

Despite the fact that the Acts state that it applies to public bodies, it has had increasing influence on private law litigation between individual citizens leading some academics to state that it has horizontal effect as well as vertical effect (as in disputes between the state and citizens). This is because section 6(1) of the Human Rs Act defines courts and tribunals as public bodies meaning their judgments must comply with human Rs obligations except in cases of declarations of incompatibility. Therefore judges have a duty to act in compatibility with the Convention even when an action is a private one between two citizens

Hollywood Silver Fox Farm Ltd v Emmett (1936). Hollywood Silver Fox Farm carried on a business of raising silver foxes which are very skittish - if disturbed during breeding they may refuse to breed, miscarry or kill their young. Due to a dispute between the plaintiff and the D the D had his son fire off a gun on his land as close to the breeding pens as possible. Hollywood brought action for an injunction against this behaviour.

Does a landowner have an absolute right to create noise on his property? injunction granted Emmett argued that the plaintiff's business required an extraordinary degree of quiet and therefore should not prevent him from using his land in a way that would not be a nuisance to the general public and, relying on the decision in Bradford, that his right to shoot on his own land could not be made illegal by his motives. The court held that there was a nuisance and that when considering a nuisance for noise the motive for the production of the noise must be taken into consideration; whether or not he was using the land in a legitimate and reasonable manner. Citing a previous case, they held that "[n]o proprietor has an absolute right to create noises upon his own land, because any right which the law gives him is qualified by the condition that it must not be exercised to the nuisance of his neighbours

Miller v Jackson (1977) Ds were members of the Lintz Cricket Club. Cricket had been played at Lintz cricket ground for over 70 years. The land was owned by the National Coal Board (NCB) who also owned some fields surrounding the grounds. Four years prior to the action, the NCB sold one of the fields and a development of Wimpey homes was put up in close proximity to the cricket ground. Mrs Miller purchased one of the houses and brought an action against the cricket club seeking an injunction to prevent them playing cricket at the ground. Initially quite a number of balls were hit over the houses. However, in 1976 the cricket club erected a higher fence and the number of balls hit out was reduced to nine over a two year period. There had been no personal injuries resulting from the balls but some property damage had been caused which the cricket club had paid for. Mrs Miller complained that she could not use her garden during matches and would often stay out of the house altogether.

Ds were liable in both negligence and nuisance (Lord Denning dissenting) However, Cumming Bruce LJ refused the injunction on the grounds that it would be inequitable to grant an injunction given that the cricket ground had been used for so long and would be a loss to the community and Mrs Miller received the benefit of being adjacent to an open space.

Rickards v Lothian (1913) C ran a business from the second floor of a building. The D owned the building and leased different parts to other business tenants. An unknown person had blocked all the sinks in the lavatory on the fourth floor and turned on all the taps in order to cause a flood. This damaged the C's stock and the C brought an action based on the principle set out in Rylands v Fletcher.

Ds were not liable. The act which caused the damage was a wrongful act by a 3P and there was no non-natural use of land.

Cambridge Water Co v Eastern Counties Leather plc (1994) D owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the C water company. The borehole was used for supplying water to local residents. The water was contaminated at a level beyond that which was considered safe and Cambridge Water had to cease using the borehole. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.

Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

Shelfer v City of London Electric Lighting Co (1895).

Electricity company caused structural damage to a house and nuisance to its occupier. The trial judge awarded damages but refused an injunction. The CA reversed this allowing an injunction. Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that -- (1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction: -- then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction.

public nuisance: C, there are two main concerns

Has the nuisance affected a class? Can I show special damage? Special damage consists of damage in excess of that suffered by the public at large. It must be direct and substantial and covers personal injury, property damage, loss of custom or business and, it is claimed, delay and inconvenience.

Page Motors Ltd v Epsom and Ewell BC (1982) A group of gypsies occupied D local authority's land.

Held: D was found liable when the gypsies' activities caused a nuisance to P's business, as D was aware of the gypsies on its land. Subjective test ought to be applied to an occupier for the act of 3rd parties who were not under his control in that if the occupier knows that a 3rd party is causing nuisance to others, he must take reasonable steps to stop the nuisance.

if Leakey correctly states the law what should have been impact on Hunter

Hunter should have been liable considerably because relative resources of parties. so unfortunate that claim in Hunter was dismissed on basis that it was caused by the tower itself.

nuisance does not confer right of prospect, considered a delight and not a necessity Victoria Park Racing v Taylor

Hunter v Canary Wharf interference to a TV signal was NOT actionable, not a necessity.

C fault: Ponting v Noakes laimant's horse died after it had reached over the defendant's fence and ate some leaves from a Yew tree. The defendant was not liable under Rylands v Fletcher as the Yew tree was entirely in the confines of the defendant's land and there had therefore been no escape.

I do not see that they can be made responsible for the eating of these Yew leaves by an animal which, in order to reach them, had come upon his land. The hurt which the animal received was due to his wrongful intrusion. He had no right to be there and the owner therefore has no right to complain.

Lambton v Mellish (1894) Mellish and Cox were refreshment contractors who lived near Lambton's property. They both used organs, although one is much louder than the other. They are played constantly and create a nuisance for Lambton and his family

If the actionable damage is the aggregate of two or more smaller damages, then all of the parties are liable for the remedy against the overall damage proportionally to their own input as long as they are aware of each other's actions.

Hunter v Canary Wharf awarding of damages

In the case of a transitory nuisance, the capital value of the property will seldom be reduced. But the owner or occupier is entitled to compensation for the diminution in the amenity value of the property during the period for which the nuisance persisted. To some extent this involves placing a value upon intangibles. e.g. smell of neighbouring pigs in Bone v. Seale [1976] There may of course be cases in which, in addition to damages for injury to his land, the owner or occupier is able to recover damages for consequential loss. He will, for example, be entitled to loss of profits which are the result of inability to use the land for the purposes of his business. Or if the land is flooded, he may also be able to recover damages for chattels or livestock lost as a result. But inconvenience, annoyance or even illness suffered by persons on land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness. It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them. Once it is understood that nuisances "productive of sensible personal discomfort" do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable.

Bliss v Hall (1838)

It is no defence to prove that the C came to the nuisance: Bliss v Hall (1838) 4 Bing NC 183, where P moved next to a candle-making factory which had been operating for three years;

Victoria Park Racing v Taylor case considered the issue of nuisance and whether or not a racetrack was entitled to prevent a man who lived next to the racecourse from viewing and broadcasting the races from a platform constructed in his backyard. action by C because loss of revenue from betting rights due to retransmission of races. Loss of prospect is not a nuisance

It is not shown that the broadcasting interferes with the use and enjoyment of the land or the conduct of the race meetings or the comfort or enjoyment of any of the C's patrons. Indeed, it appears quite impossible that any such result would be caused by the action of Angles[6] in standing on this platform aloof from the racecourse, observing the races and talking into a microphone or telephone. The principle upon which liability for acts in the nature of nuisance is founded is not to be restrained by the instances in which that liability has been found to exist.

only those with rights in the land, namely an interest in land or exclusive POS, will be able to sue:

Malone v Laskey (1907) and the HL in Hunter v Canary Wharf Ltd (1997)

Bower v Peate (1876). plaintiff and the D were neighbours. The plaintiff's house suffered damage when its foundations were undermined by the D's excavation contractor. It is clear from the judgment that the action against the D owner was not brought in negligence.

Liability could have been imposed in this loss of lateral support case on the basis of nuisance (as discussed above) or interference with an easement: Atiyah, Vicarious Liability in the Law of Torts (1967) at 331 - at this time easements could arise by prescription in England. In other words liability could have been imposed in Bower on other grounds and it was not necessary to contribute to the developing doctrine of non-delegable duty. Nevertheless, the court laid the foundation for non-delegable duty: [A defendant will be liable] for injury caused by an act certain to be attended with injurious consequences, if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for such prevention may arise.

Hunter v Canary Wharf: tv reception

Lord Cooke, held that right to tv is analagus to right to prospect, not a necessity. In addition, in the absence of easements or covenants, owner has the right to build as he likes. however malicious construction to interfere with neighbour may constitue a nuisance. in addition here zone was under project to encourage dev. fell within strategic planning decision affected by considerations of public interest (as in Wheeler).

Cambridge Water Co. v Eastern Counties Leather plc vimp rule in Rylands v Fletcher D owned a leather tanning business. Spillages of small quantities of solvents occurred over a long period of time which seeped through the floor of the building into the soil below. These solvents made their way to the borehole owned by the C water company. The borehole was used for supplying water to local residents. Cambridge Water brought actions based on negligence, nuisance and the rule in Rylands v Fletcher.

Lord Goff established that only foreseeable harm would be recoverable. His Lordship also questioned whether the rule should continue to be seen as analytically distinct from nuisance: 'it would . . . lead to a more coherent body of CL principles if the rule were to be regarded as essentially an extension of the law of nuisance to isolated escapes from land'. Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in negligence. The Wagon Mound No 1 case applies to determine remoteness of damage.

nuisance as strict liability

Lord Goff implies that it is not a D to say all reasonable care was taken, C must there suffer damage.

Hunter v Canary Wharf Ltd (1997) Canary Wharf Ltd undertook to construct a large tower (now known as the One Canada Square), for commercial and residential purposes. The tower was completed in November 1990, reaching 250 metres in height, and 50 metres squared in area.

Lords rejected the interim case of Khorasandjian v Bush,[3] where it had been found that no proprietary interest in a property was required to bring an action. In doing so, they upheld the findings of Malone v Laskey,[4] establishing again that only householders with a right to a property could commence actions in nuisance.[5] The second issue was that, after establishing who could bring an action for nuisance, what rights were protected by the tort. Lord Lloyd in his judgment referred to three areas of private nuisance: " Private nuisances are of three kinds. They are (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 his land.[ NOTE here that repeated unwelcome phone calls were an actionable nuisance

Thomas v National Union of Mineworkers nuisance concerns owners of the land,not users, but here the dictum J Scott stretches the application of nuisance.

Nuisanc is concerned with interference of right to enjoy land,... but it should not be limited. " ...consider sitaution where one person follows another and continues to irritate him.civil court should restrain conduct, name of the tor is not important. has been criticised as elevating harassment into general tort.

distinction between liability and damages

Penner: D is liable for damages, but the actual measure of damages depends on the amount of loss or interference.

My neighbour is building an extension to his home for which he has planning permission. Last weekend it was very sunny and I decided to sunbathe in my garden. Unfortunately, my neighbour was drilling all weekend and it was unbearable. I complained and was told that it would not last for long and that I would have to put up with it. To express my annoyance, I have been playing my music very loud late at night.

Planning permission is not a relevant factor unless it changes the character of the area: see Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) and Wheeler v JJ Saunders Ltd (1996). However, the court would consider: i. The duration and frequency of the drilling. ii. The level of noise. Was is 'unbearable' to the reasonable person or are you being 'extra-sensitive'? See Heath v Mayor of Brighton (1908). iii. Malice: I have been deliberately playing loud music: see Christie v Davey (1893).

general concerns for private/public nuisance

Private nuisance will be relevant where the C suffers interference with use of his or her land. Public nuisance has a different concern. This is usually a disturbance which affects the public in general and the C in particular. It is important to ascertain (a) what kind of nuisance is applicable; (b) whether liability arises; and (c) if not, whether there are any other relevant Ts, for example negligence.

Damages

Private nuisance, as a T to land, is considered to protect proprietary interests. The rule therefore, as suggested by the leading case of Hunter v Canary Wharf (1997), would seem to be that the householder may obtain damages for interference with his or her interest in land, be it physical or non-physical, but not for personal injury. Damages will be awarded for the diminution in the value of the land or lesser enjoyment of the use of land or its fixtures: see Hunter v Canary Wharf, notably Lord Hoffmann's judgment.

Hubbard v Pitt

Protesters handed out leaflets and carried posters outside the C's estate agency. He claimed in trespass. The Ds appealed the grant of an interlocutory iunjunction to prevent their demonstrations. Held: The injunction was upheld. The question of Rs to use the highway was irrelevant; the court was concerned only with the private law Rs of the C in relation to an alleged private nuisance. Denning MR, dissenting, said 'The public have a right of passage over a highway: but the soil may belong to someone else. The owner of the soil may sue if a person abuses the right of passage so as to use it for some other and unreasonable purpose. Such as where a racing tout walked up and down to note the trials of the race horses: see Hickman v Maisey [1900] The courts 'should not interfere by interlocutory injunction with the right to demonstrate and to protest any more than they interfere with the right of free speech; provided that everything is done peaceably and in good order.' and 'the right to demonstrate and the right to protest on matters of public concern . .

Andreae v Selfridge & Company Ltd (1938).

Selfridges failed to keep the noise and dust of building work to a minimum are were found N as they had conducted its operations in such a way noise and dust had interfered with the reasonable and comfortable occupation of Andreae on her premises. The contractor must take proper precautions, and see that the nuisance is reduced to a minimum as Andreae had suffered damages.

Smith v Scott (1973)

Smith v Scott (1973)

Kiddle v City Business Properties Ltd (1942). plaintiff was the occupier of a shop which formed part of a building belonging to the Ds who had demised the shop to him. The shop was situated in an arcade, the glass roof of which was the property and under the control of the Ds. Rain-water from this roof ran into a gutter over the plaintiff's shop and was carried to the sewer by piping which ran down the side of the shop. Owing to an accumulation of rubbish in the piping rain-water escaped from the gutter, found its way into the plaintiff's shop, and damaged his stock. The Ds had made adequate arrangements for the inspection and cleansing of the gutter and piping, and there was no negligence on their par

The Plaintiff takes the property as he finds it and must put up with the consequences n the absence of negligence, the Ds were not liable to the plaintiff in an action for nuisance for allowing the water to escape on to his premises as (1.) the plaintiff's shop formed part of a larger building belonging to the Ds and he must be held to have taken the shop as it was and could not complain that the building was not constructed differently; and (2.) the arrangements for the collection and carrying away of water from the glass roof to the sewer was for the joint benefit of both the plaintiff and the Ds.

Damage to property or personal discomfort

The courts are more willing to find a nuisance where physical damage to property has been caused, and tend to ignore factors such as the nature of the locality (discussed below). Personal discomfort will normally have to be substantial to merit a response: Walter v Selfe (1851) and St Helen's Smelting Co v Tipping (1865).

In the absence of an express provision, the courts will interpret the Act to ascertain whether authorisation is implied: see Allen v Gulf Oil Refining Ltd (1981). laimant brought an action in nuisance for the smell, noise and vibration created by an oil refinery which had been constructed by the D on their land. The D's action in constructing the oil refinery was authorised by an Act of Parliament. Where the nuisance is the inevitable consequence of the performance of the authorised operations, a defence will lie. It is not inevitable, however, if caused by the negligence of the D.

The defendant was not liable as it had a defence of statutory authority. Lord Wilberforce: "The respondent alleges a nuisance by smell, noise, vibration, etc. The facts regarding these matters are for her to prove. It is then for the appellants to show, if they can, that it was impossible to construct and operate a refinery upon the site conforming with Parliament's intention, without creating the nuisance alleged, or at least a nuisance. Involved in this issue would be the point discussed by Cumming Bruce LJ in the Court of Appeal, that the establishment of an oil refinery, etc. was bound to involve some alteration of the environment and so the standard of amenity and comfort which neighbouring occupiers might expect. To the extent that the environment has been changed from that of a peaceful unpolluted countryside to an industrial complex (as to which different standards apply Sturges v. Bridgman (1879) 11 Ch.D.852) Parliament must be taken to have authorised it. So far, I venture to think, the matter is not open to doubt. But in my opinion the statutory authority extends beyond merely authorising 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.

Helen lives in her parents' house and has suffered due to persistent telephone calls from a former admirer. Can she sue in private nuisance to get him to stop?

The facts resemble Khorasandjian v Bush (1993) where the daughter was permitted to sue in private nuisance to obtain an injunction to stop persistent telephone calls to her parents' home where she lived. Note, however, that following Hunter v Canary Wharf (1997), it is not enough to live with one's parents. To have a right to sue, the C must possess an interest in land or exclusive POS of the land. In Hunter, the HL held that Khorasandjian v Bush had been incorrect in allowing the daughter to sue. Their Lordships were influenced, however, by the introduction of the Protection from Harassment Act 1997, which imposes criminal and civil liability for harassing behaviour. s 1 provides that '(1) A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other'. Helen may therefore seek damages and/or an injunction under s.3, but note that a 'course of conduct' must involve conduct on at least two occasions: s.7(3). Conduct does, however, include speech: s.7(4).

Parker v Smith

The question ... is whether the effect of the D's building is to diminish the light ... so sensibly to affect the occupation of the C's premises and make them less fit for occupation.

Hopeful District Council has decided to use a local church hall as a drop-in centre for drug addicts. It is very successful and attracts a number of people each day. Unfortunately, local householders have complained that after visiting the drop-in centre, saying that the addicts have been throwing needles in their gardens and the burglary rate has increased. Would the Council be liable for the actions of the addicts in nuisance?

The question here is whether the Council is liable for its failure to control the activities of others. The drug addicts do appear to be interfering with the use and enjoyment of the local householders' land. Is this, put simply, a Lippiatt or an Hussain situation? The church hall appears to be the focal point for the addicts - can it be said to be a 'launching pad' for their activities? If so, the relevant authority would seem to be Lippiatt and the Council would be liable. This is supported by the fact that the addicts are licensees and not tenants. Note, however, how thin the line seems to be between this scenario and Hussain where the Council was not found to be liable.

Read v J. Lyons & Co Ltd

The respondents were not liable, since there had been no escape from the land which was a pre-requisite to liability under Rylands -v- Fletcher. No claim in nuisance or under the rule can arise if the events complained of take place wholly on the land of a single occupier. There must be an escape from one tenement to another. " . escape . . means escape from a place where the D has occupation of or control over land to a place which is outside his occupation or control." . and " . For if a man commits a legal nuisance it is no answer to his injured neighbour that he took the utmost care not to commit it. There the liability is strict, and there he alone has a lawful claim who has suffered an invasion of some proprietary or other interest in land." .

Janice plans to build a shed in her back garden and has bought wood and corrugated iron for this purpose which she leaves in her back garden. One night, there is a severe storm. Ken, her neighbour, is awoken by the storm and rushes out into his garden where he is hit by a large piece of corrugated iron which has blown over from Janice's garden. He is now seriously ill. Due to the extraordinary winds, pieces of wood and iron blow into Ken's garden ruining his prize flowers.

This is an isolated incident and concerns an escape from one piece of land to another. This should indicate to the student the likelihood of a claim under the rule in Rylands v Fletcher. The four Cambridge Water requirements must be satisfied: Here, there is clearly an escape, but the other requirements may be more difficult to satisfy. Is placing building materials on your land ¡¥something likely to do mischief¡¦ or, to use the terminology of Transco: has Janice brought some dangerous thing onto her land which poses an exceptionally high risk to neighbouring property should it escape, and which amounts to an extraordinary and unusual use of her land? Arguably building materials can cause serious injury, but is building a shed an ¡¥unusual¡¦ use of her land? Equally, it may be difficult to establish that the accident was reasonably foreseeable as the circumstances are somewhat unusual. In any event, as seen below, any personal injury claim is unlikely to be recoverable. In relation to defences and remedies, it is now unlikely that a storm would be classified as an Act of God and the other defences do not appear to apply. It is questionable, however, whether Ken can sue for his personal injuries , but he may recover the damage to his prize flowers (property damage) if he can show that the damage was reasonably foreseeable.

Wheeler v Saunders cf Gillingham v Medway

Wheeler CA denied an action where D used statutory authority. denied because it would be incorrect to go against will of Parliament.

St Helen's Smelting Co v Tipping (1865) C owned a manor house with 1300 acres of land which was situated a short distance from the D's copper smelting business. He brought a nuisance action against the D in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The D argued that the use of property was reasonable given the locality and the smelting works existed before the C purchased the property.

Where there is physical damage to property, the locality principle has no relevance. It is no defence that the C came to the nuisance.

St Helen Smelting v tipping C owned a manor house with 1300 acres of land which was situated a short distance from the D's copper smelting business. He brought a nuisance action against the D in respect of damage caused by the smelting works to their crops, trees and foliage. There were several industrial businesses in the locality including and alkali works. The D argued that the use of property was reasonable given the locality and the smelting works existed before the C purchased the property.

Where there is physical damage to property, the locality principle has no relevance. It is no defence that the C came to the nuisance. judge said that there was no liability for nuisance if D's activities were carried on in a convenient and suitable place. The court stated that in order for it to be a nuisance there must be " . material injury to property" . , and in such a case the location of the nuisance is irrelevant. Whereas if only simple discomfort is caused, the location of the activity is relevant. However, in the latter case, a landowner has to put up with " . those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and public at large" . . This does not apply where material injury to property is concerned.

are two main areas where the HRA may have some impact on the T of private nuisance and the rule in Rylands v Fletcher:

Who can sue? Increasing the landlord's liability for the actions of tenants. question here is of compatibility with Article 8 (right to a private and family life) and Article 1 of Protocol 1 (right to peaceful enjoyment of one's POSs

ECHR approach to human rights It requires that there be a reasonable relationship of proportionality between the means employed (e.g. the state action that interferes with a person's human Rs) and the legitimate aim sought to be realised. As a means of assessing proportionality the European Court of Human Rs (the European Court) has formulated a test known as the "fair balance test".

a fair balance be struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental Rs, so that the individual does not bear an excessive burden.

a. My neighbour plays the trumpet at all hours and, as a result, I cannot sleep. b. My neighbour has parked his car across the road outside my house. As a result, I cannot drive to work. c. My neighbour's barbecue exploded and my garden is now covered with pieces of broken metal.

a. This is a private nuisance - it interferes with my use and enjoyment of land. b. This does not interfere with my land because the nuisance occurs outside my property. It cannot therefore be classified as a private nuisance. It affects the public and I have suffered special damage: this is a public nuisance. c. Here we are dealing with an isolated escape from one garden to another. This indicates potential liability under the rule in Rylands v Fletcher.

Sedleigh-Denfield v O'Callaghan (1940), liab arises in 2 ways

adopting a nuisance, that is, using the state of affairs your own purposes; or continuing a nuisance, that is, with actual or presumed knowledge of the state of affairs, failing to take reasonably prompt and efficient steps to abate it.

Northwestern Utilities Ltd v London Guarantee Co (1936). 3P's actions must be unforeseeable:

although bringing things onto land for the purposes of provided public utilities (water, gas etc.) is arguably for the entire public's benefit, such accumulations still fall under the rule, as the relevant companies are accumulating for their own purposes. Fire extinguishers and sprinkler systems have been held to fall outside the principle. degree of care which that duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled. appellants were carrying gas at high pressure which was very dangerous, if it should escape, they owed a duty to the owners of the hotel, to exercise reasonable care and skill that the owners should not be damaged. The degree of care which that duty involved must be proportioned to the degree of risk involved. The City might at any time be conducting operations in connection with their sewers in the vicinity of the appellants' mains, and it was the duty of the appellants to watch such operations. The operations in question were, from their public nature and conspicuous character and from the time during which they went on, such that a failure by the appellants to know of them was plainly not consistent with due care on their part in the interests of members of the public likely to be affected. Although under the exception to the rule in Rylands v. Fletcher (1868) L. R. 3 H. L. 330, the appellants would not be liable for damages caused, without default on their part, by the independent, conscious act of a third party, they were negligent in failing to foresee and guard against the consequences to their works of the City's operations.

Wheeler v JJ Saunders Ltd (1996)

amended the precedent set by Gillingham Borough Council v Medway (Chatham) Dock Co Ltd.[1] Wheeler was a veterinary surgeon who owned Kingdown Farm House; the wider farm was owned by J.J. Saunders Ltd, who used it for raising pigs. After Saunders gained planning permission for a pair of pig houses, Wheeler brought an action in nuisance, alleging that the smell of the pigs interfered with his use and enjoyment of the land. When the case went to the CA, Saunders argued that the granting of planning permission for the pig houses had changed the nature of the area, as in Gillingham, making the nuisance permissible. The CA rejected this argument, holding that a pair of pig houses was not a sufficient development to change the nature of an area

Kennaway v Thompson (1981) D was a member and acting on behalf of the Cotswold Motor Boat Racing Club which carried out motor boat racing. Water sports including motor boat racing had been carried out at the Club's waters since the early 1960s. 1972 the C moved into a house which she had had built on land she inherited from her father. The house was situated 390 yards from the start line for the races. The frequency of the races increased over time and the club's waters were often used as a venue for both national and international races. The C brought an action against the club in nuisance for the noise and disturbance experienced. She was successful in the claim and was awarded damages, however, the judge refused to grant an injunction following Miller v Jackson. The C appealed.

an injunction was granted. Lord Cairn's Act allowing discretion to award damages in lieu of an injunction should only be used in exceptional circumstances Shelfer v City of London Electric Lighting approved, Miller v Jackson doubted.

Greenock Corp v Caledonian Rly (1917). West Burn flowed in a channel considerably below the surrounding ground which drained into it and in particular was below the level of Inverkip Road. In 1908, in order to form a playground for C, the natural channel of the West Burn was altered. A culvert was constructed and the burn buried. flood damage

appellants had failed to establish any defence: " . It is true that the flood was of extraordinary violence, but floods of extraordinary violence must be anticipated as likely to take place from time to time. It is the duty of any one who interferes with the course of a stream to see that the works which he substitutes for the channel provided by nature are adequate to carry off the water brought down even by extraordinary rainfall, and if damage results from the deficiency of the substitute which he has provided for the natural channel he will be liable. Such damage is not in the nature of damnum fatale, but is the direct result of the obstruction of a natural watercourse by the defenders' works followed by heavy rain

Hole v Barlow

as long as use of his own land was reasonable, it was not a nuisance even if it interfered with the neighbour's enjoyment of his land.

Public nuisance,

both a crime and a T. It is defined by Romer LJ in Attorney-General v P.Y.A. Quarries Ltd [1957] 2 QB 169 at p.184: 'any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case.'

comment of Lord Hope in Canary concerning foresight

building should be placed for inspction before construciton, building should know if there will be infringement.

Hussain v Lancaster CC

campaign of racial harassment against a shopkeeper on the D's housing estate. It was alleged that the council, as landlords, should have intervened to prevent their tenants from harassing the Hussains. The CA rejected this claim. The council's standard form tenancy agreement had included a clause instructing the tenant 'not to discriminate against or harass any residents or visitors'. In the circumstances, the council could not be said to have authorised these acts. Secondly, the tenants' actions did not involve a use of their land, which would be required to render the nuisance actionable.

Marcic v. Thames Water Utilities Ltd Article 1 Protocol 1

claimant's successful reliance on Article 1, Protocol 1 and the extent to which this article may be used in cases where a person's home is affected by environmental pollution, flooding, severe noise or other types of interference. Where a person's home has been seriously and adversely affected by a nuisance, a partial expropriation of the property may occur which is sufficient to invoke the second rule of Article 1, Protocol 1. In Marcic, there was no expert evidence of any diminution in value of the claimant's house nor expert evidence of whether or not it was unsaleable. Judge Havery acknowledged that the references to unsaleability were only "the opinions of a layman". Nevertheless the judge, accepting expert evidence of damage to the property, was satisfied that the value of the house had been seriously and adversely affected by the nuisance and that it was of sufficient magnitude to constitute a partial deprivation of possessions within the meaning of Article 1, Protocol 1.

Ineffective defences

coming to a nuisance social utility nuisance due to many.

Spruzen v Dossett

complaint of noise from steam organ. affected comfort of invalid person injunction granted on basis that person was invalid, so circumstances are important. However bad health would not have been sufficient.

Allen v Greenwood VIMP

concerned deprivation of ligth to a greenhouse. light was reduced to a level insufficient for greenhouse, but enough for regular use. held that the easement protected normal use for the greenhouse. Important to look at ordinary uses of the building, here a greenhouse.

private nuisance and the associated rule in Rylands v Fletcher

confined to interference with your rights in land,

Transco plc v Stockport MBC (2003) Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground beneath the gas pipe had washed away when the council's water pipe leaked

confirmed that the rule was in fact a subset of private nuisance. This case is particularly important because the HL took the opportunity to review the modern scope and application of the rule in Rylands v Fletcher. In favouring a restrictive approach, the rule will in future be confined to exceptional circumstances where the occupier has brought some dangerous thing onto his land which poses an exceptionally high risk to neighbouring prop

Hunter v Canary Wharf cf public nuisance

contrasts with public nuisance where the C has long been accepted to obtain damages for personal injury in addition to damage to property, loss of custom, and perhaps even particular inconvenience caused to the individual

Tetley v Chitty (1986)

council allowed a go-kart club to use their land for a race track. Nearby residents brought an action in nuisance. The council were held liable for authorising the activities of the go-kart club. The noise was an ordinary and necessary incident to go-kart racing which was the purpose for which the permission to use the land was granted.

Abnormal sensitivity Robinson v Kilvert (1889) VIMP D carried on a business of making paper boxes. This required a warm dry atmosphere. The D operated from the basement of their premises and let out the ground floor to the C. The C used the premises for storage of brown paper. The heat generated from the D's operations damaged the brown paper belonging to the C.

defendant was not liable. The damage was due to the special sensitivity of the paper. " . It would, in my opinion, be wrong to say that the doing something not in itself noxious is a nuisance because it does harm to some particular trade in the adjoining property, although it would not prejudicially affect any ordinary trade carried on there, and does not interfere with the ordinary enjoyment of life.

Marcic v Thames Water Utilities Ltd (2003) cf McKenna C's house was regularly flooded by waters including also foul sewage from the respondent's neighbouring premises. He sought damages and an injunction. The Ds sought to restrict the C to his statutory Rs.

damages were restricted to the statutory ones and Judicial review, the issues was best handled by a regulatory board. The D was regulated under the 1991 Act by the Director-General, who had enforcement powers. By 18(8), when a contravention occurred the means of enforcement provided was to be the sole remedy. The water company was not a normal land owner, but rather operated by virtue of the statutory scheme, and the statutory remedies excluded the CL ones. "Direct and serious interference of this nature with a person's home is prima-facie a violation of a person's right to respect for his private and family life (Article 8) and of his entitlement to peaceful enjoyment of his POSs (Article 1 of the First Protocol). The burden of justifying this interference rests with Thames Water. " Even so, the claim under human Rs law failed because of the existence of the statutory remedy. That scheme struck a reasonable balance. Parliament had acted well within its bounds as policy maker. Water Industry Act 1991 (ss. 22 and 94(3)) made private actionability impossible. importance of the financial resources of public authorities should not be underestimated. Money or more specifically, the lack of it, is likely to play a significant role in ascertaining whether a public authority has complied with its section 6 duty.

Defences: act of a stranger Sedleigh-Denfield v O'Callaghan (1940). The council undertook some work on the D's land at the request of a neighbouring landowner. They had placed a culvert in a ditch to allow the water to drain away, however, they had Nly placed a grate in the wrong place which rendered the grate useless and the culvert became prone to blockages. The D's workers had cleaned the culvert periodically over a three year period to prevent blockages. However, a heavy rain storm caused a blockage and the ditch became flooded. The flood spread to neighbouring property owned by the C and caused substantial damage. The C brought an action in nuisance for the damage caused. The D argued that he had neither consented to nor had knowledge of the existence of the culvert.

defendant was liable. An occupier may be liable for the acts of a trespasser if they adopt or continue the nuisance. Lord Maugham: "My Lords, in the present case I am of opinion that the Respondents both continued and adopted the nuisance. After the lapse of nearly three years they must be taken to have suffered the nuisance to continue; for they neglected to take the very simple step of placing a grid in the proper place which would have removed the danger to their neighbour s land. reasonable steps are required, here removing the cause would not have been hard.

Injunctions

discretionary remedy and the C has no right to an injunction. Note that the court may decide to give damages 'in lieu' of an injunction: s 50, Supreme Court Act 1981 and Shelfer v City of London Electric Lighting Co (1895). The court will seek to achieve an equitable result.

Article 1, Protocol 1

does not, in principle, guarantee a right to the peaceful enjoyment of POSs in a pleasant environment. It protects against interference with the economic value of property, but it does not extend to purely aesthetic qualities relating to the greater peace, comfort or enjoyment of the property. The European Commission of Human Rs (the European Commission) had accepted, in principle, that excessive noise can amount to a confiscation of property if it substantially reduces the value of the property

BAss v Gregory right to air nuisance if obstructed the C claimed to possess an easement right for passage of air through a defined channel, and to discharge foul air coming from his cellar into an old disused well in the yard of a neighbouring owner, who claimed a right to obstruct the orifice. cellar was a very ancient one, excavated from the rock, and had been formerly used for brewing, for which use ventilation was necessary, and it was found, as a fact, that the ventilating shaft in question had existed certainly for more than forty years, and that there had been communication through that shaft to the well and up through the well and the grating at the top of it into the open air, so that the well became the ventilating shaft for the cellar. It was also found that this state of things was known to the D, and to those before him who occupied the yard in which the old well was.

ecided in favour of the C, on the presumption of a lost grant. Concerning the degree of purity which a man may reasonably expect to find in the air which reaches his building, and the cases in which he may successfully take action against his neighbour for nuisance, or the cases in which a man may successfully assert and maintain a privilege by way of easement to pollute the air to an unusual extent, there is much room for conflict of opinion in different cases which may arise. The right to purity of air, though a natural CL right, is from the nature of things one of degree only. No one has a right to demand that the air which reaches his tenement over the lands of others shall be absolutely pure.

Cambridge waters v eastern counties leather unreasonableness and non natural use are control factors. These render the D liable even if he took precautions

established the principle that claims under nuisance and Rylands v Fletcher must include a requirement that the damage be foreseeable; it also suggested that Rylands was a sub-set of nuisance rather than an independent T, a debate eventually laid to rest in Transco plc v Stockport Metropolitan Borough Council. Based on the original decision in Rylands, Goff argued that it had always been intended for foreseeability of harm to be a factor, something not previously put into law by the English judiciary. He then stated that Rylands was arguably a sub-set of nuisance, not an independent T, and as such the factors which led him to including a test of foreseeability of harm in Rylands cases also imposed such a test on all nuisance cases. " . It could not be right to discriminate between different cases of nuisance so as to make foreseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others" . . If, as Goff was stating, Rylands was an element of nuisance, this decision should apply to it.[12] In the original judgment in Rylands, the judge had stated that it covered " . anything likely to do mischief if it escapes" . , and that liability should be to " . answer for the natural and anticipated consequences" . ; this wording implies that he intended for " . knowledge to be a prerequisite for liability" . Eastern Counties Leather were not liable as the damage was too remote. It was not reasonably foreseeable that the spillages would result in the closing of the borehole. The foreseeability of the type of damage is a pre-requisite of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher in the same way as it applies to claims based in N.

Halsey v Esso Petroleum

example of case where escaping fumes and smuts with sulfuric acid caused damage which was recoverable as nuisance.

Leaky v National Trust , damage assessment key finding

extent of liability would depend on resources available to abate the nuisance. here damage was caused by a natural defct of the land, however D was still liable. It was noted in this case and questioned why D should be liable for naturally occurring fault on his land, which may go on for a prolonged period... ---------------- in addition the old common law idea was in the case of naturally occuring defects neighbour should 1: be informed 2. be given reasonable access to land to remedy damage himself.

Halsey v Esso Petroleum Co Ltd (1961)\ damage to personal property would appear to be recoverable: at all material times the occupier of No. 28, Rainville Road, Fulham, brought this action against the Ds, the Esso Petroleum Company Ltd., the owners and occupiers of an oil storage and issuing depot, the Hammersmith Depot adjoining Rainville Road, claiming an injunction to restrain the Ds, their servants or agents from carrying on or permitting to be carried on their business at their depot in such a manner as (a) to cause or permit excessive and prolonged vibration from boilers and pumps installed in the depot through the 24 hours of the day and night; (b) to cause or permit such excessive and prolonged noise from the boilers and pumps; (c) to cause or permit the discharge from the smoke stacks of the boilers of a harmful substances, which, inter alia, discoloured and rotted clothes and damaged motor- car cellulose and paint work; (d) to cause or permit excessive noise by oil tankers arriving at and leaving the depot at all hours of the day or night; and (e) to cause or permit obnoxious vapours or fumes to be emitted from the depot, or otherwise to conduct the depot so as to cause a nuisance to the plaintiff's property in Rainville Road and to him or members of his family in the occupation of his property. The plaintiff also claimed damages, including special damage of £5 for damaged clothing and £100 by reason of damage to the paintwork of his car.

filling oil tankers at 10am was held to be reasonable, but the same activity undertaken at 10pm was unreasonable. A private nuisance is normally a "continuing state of affairs", not a one-off situation; there are exceptions, such as in De Keyser's Royal Hotel v Spicer,[52] where piledriving at night was considered a nuisance. In such situations, the normal remedy is to grant an injunction limiting the time of the activity.[50] Another exception was found in British Celanese v AH Hunt Ltd,[53] where an electronics company stored foil strips on their property which blew onto adjoining land, causing the power supply to a nearby yarn manufacturers to cut off. A similar incident had occurred 3 years earlier and the defendants had been warned to store their strips properly; it was held that even though the power cut was a one-off event, the method of storing the foil strips constituted a continuing state of affairs, and the defendants were liable.[54]

Transco plc v Stockport MBC (2003) VIMP Transco plc (British Gas come commercial) had sued the council for repairs of £93,681.55 underneath one of its pipes in Brinnington. The ground beneath the gas pipe had washed away when the council's water pipe leaked.

held that because the quantities of water from an ordinary pipe is not dangerous or unnatural in the course of things, the council was not liable. Lord Hoffmann, however, remarked on the irony that had the pipe belonged to a 'water undertaker' s.209 Water Industry Act 1991 creates strict liability unless (with further irony) the loss is to a Gas Act 1986 company. Their Lordships protected the rule in Rylands v. Fletcher but within strict confines. The escape must be of something dangerous, out of the ordinary, which did not include a burst waterpipe on council property. Lord Bingham in Transco affirmed that 'the claim cannot include a claim for death or personal injury, since such a claim does not relate to any right in or enjoyment of land'. The same rule therefore applies for all forms of private nuisance.

Sturges v Bridgman (1879) Defendant in this case is the occupier, for the purpose of his business as a confectioner, of a house in Wigmore Street. In the rear of the house is a kitchen, and in that kitchen there are now, and have been for over twenty years, two large mortars in which the meat and other materials of the confectionery are pounded. The Plaintiff, who is a physician, is the occupier of a house in Wimpole Street, which until recently had a garden at the rear, the wall of which garden was a party-wall between the Plaintiff's and the Defendant's premises, and formed the back wall of the Defendant's kitchen. The Plaintiff has, however, recently built upon the site of the garden a consulting-room, one of the side walls of which is the wall just described. It has been proved that in the case of the mortars, before and at the time of action brought, a noise was caused which seriously inconvenienced the Plaintiff in the use of his consulting-room, and which, unless the Defendant had acquired a right to impose the inconvenience, would constitute an actionable nuisance. The Defendant contends that he had acquired the right, either at common Law or under the Prescription Act, by uninterrupted user for more than twenty years.

held that the fact the doctor had " . come to the nuisance" . , by which the Judge meant moved to an area where the nuisance had been operating for years without harming anyone, was no defence. The doctor's legal right to have the nuisance stopped was not lessened by the confectioner's longstanding practice. time will only start from the moment the C is aware of the nuisance.

HRA 1998.probably impact on land law

here a tenant of a public authority landlord is actively causing a nuisance or harassment to a person so as to interfere with that person's right to respect for his or her home and private life, it is likely that, in compliance with its section 6 duty not to act in a way that is in violation of Article 8, the public authority must take some positive action. Given the qualified nature of Article 8 and the need for proportionality, the positive action to be taken may be no more than to take all the relevant factors into consideration in order to decide whether to take any action against the perpetrator. The relevant factors are likely to include the limited resources of the local authority and the Convention Rs of the perpetrator of the nuisance, for example, would POS proceedings against the perpetrator be a disproportionate measure?

Higgins v Betts

if a house had an unusually large amount of light and was deprived of a substantial part, even though there is sufficient light remaining, it is still a nuisance.

Mowan v Wandsworth LBC (2001). A council tenant brought action against the council as his landlord, as the council would not terminate the occupation of the tenant in flat above him whose behavour was a nuisance to neighbouring tenants. The tenant above him had a mental disorder, and the police received frequent complaints about this tenant from the residents of the other council housing and advised the council that she should be in a care home. However, the council thought that she should be in the community.

if society considers that some people should be able to/encouraged to live in the community then we cannot all turn into NIMBYs

distinction between liability and damages application to Hunter and interest in the land.

in Hunter people were not entitled to sue when they had no interest in the land. the problem is when people have invitees or tenants etc their discomfort should be actionable. this is similar to the case of property damage. i.e. measure depends on amount of damage. e.g. if there is a garden damaged, it might be more, but cannot claim more damage just because there might have been a garden, but then how is this different to invitees in Hunter???

Carr Saunders v Dick McNeil Associates

in deciding if light deprivation is a nuisancecourt must take into account facts. usage of the premise in current and possible future uses.

There are three main remedies

injunction; abatement; damages. It is important to consider which remedy would best suit the C's needs. Does he or she want to stop the nuisance? If so, he or she should seek an injunction. Where the nuisance is no longer continuing, he or she would no doubt be seeking damages. In most cases, the C is likely to be seeking an injunction.

Public nuisance

interference does not affect the C¡¦s land but the public as a whole and the C has suffered ¡¥special damage definition:any nuisance is "public" which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as "the neighbourhood"; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case.' (Romer LJ in Attorney-General v P.Y.A. Quarries Ltd [1957]

Walter v Selfe (1851) Selfe began manufacturing bricks on his property in the English countryside, the owner and tenant of the neighbouring house and garden took him to court. They sought an injunction against the burning process, objecting that the resulting smoke, vapour, and "floating substances" caused inconvenience and discomfort. highlights test of reasonableness to balance interests of various parties.

interference must be unreasonable but " . not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people. Knight Bruce, the Vice-Chancellor who heard the case, determined that the brick burning constituted a nuisance and issued an injunction prohibiting any burning that damaged or annoyed the plaintiffs or injured their garden. The plaintiffs, he said, were entitled to "unpolluted and untainted air," which he described as "air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence - a phrase to be understood of course with reference to the climate and habits of England."(2) Knight Bruce stated that there must be give and take between neighbours and the interference must be substantial, not fanciful Knight Bruce found it unnecessary to determine whether the smoke from Mr. Selfe's brick burner threatened human or animal health. Suffice it to say that it was "an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among English people."(3) Mr. Selfe tried without success to defend his brick burning on the grounds that others also polluted the local air. But, the Vice-Chancellor responded, the plaintiffs had not objected to these more remote operations.

considerations when ealuating if torts arise

liability (should the court intervene?) and remedies (if so, how?).

Duration and frequency

longer and more frequent the interference, the more likely it will be found to be a nuisance: De Keyser's Royal Hotel Ltd v Spicer Bros Ltd (1914) and Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996). S.C.M. (United Kingdom) Ltd v W.J. Whittal & Son Ltd (1970) -

Hunter (2) nuisance and interest in land

majority of HL, essence of Nuisance is intereference with rights in enjoyment of land.

D Consent

may be express or implied and arises generally in the context of escapes from something maintained for the common benefit, for example, the water tank for a block of flats. In such circumstances, the tenant is assumed to forgo any rights against the landlord due to the benefit he or she gains, provided the escape occurs without negligence: Kiddle v City Business Properties Ltd (1942).

Rylands v Fletcher rule deals with damage caused by isolated escapes from your neighbour's land.

mill owner had employed independent contractors to build a reservoir on his land to provide water for his mill. During the course of building, the independent contractors discovered some old shafts and passages of an abandoned coalmine on the D's land, which appeared to be blocked. When the reservoir was filled, the water burst through the old shafts, which were subsequently found to connect with the plaintiff's mine. As a result, the plaintiff's mine was flooded and he sought compensation.

Due to many

no excuse that the D was simply one of many causing the nuisance in question: see Lambton v Mellish (1894) where Chitty J held that 'if the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable wrong, each is amenable to the remedy against the aggregate cause of complaint'

principle of locality Rushmer v Polsue and Alfieri

not allowed to use printing presses at night even though the district contain other printing companies also working at night. Exception to principle of locality, but shows how judges look at the facts of each case. Here a substantial addition of noise was found.

Utility of the D's conduct

not an important consideration. Private nuisance is concerned with the results of the D's conduct on the C and not on the community as a whole. It may, however, influence the court in exercising its equitable jurisdiction whether to grant an injunction (see Miller v Jackson (1977)

actionable damage nuisance v negligence

nuisance: liability based on fault, damage suffered is interference with amenity negligence: law of negligence gives no remedy for discomfort or distress which does not result in bodily or psychiatric illness.

If the individual cannot prove special damage,

only other basis on which an action may be brought in T is in the name of the Attorney-General by means of a relator action (for example, P.Y.A. Quarries ) or by a local authority under s 222 of the Local Government Act 1972: Stoke-on-Trent City Council v B & Q (Retail) Ltd (1984).

D Statutory authority

operates in a similar manner to that of private nuisance (see 11.2.4). Green v Chelsea Waterworks Co (1894); Charing Cross Electricity Supply Co v Hydraulic Power Co (1914); and Dunne v North Western Gas Board (1964).

Southwark LBC v Mills; Baxter v Camden LBC (2001)

ordinary use of your home will not amount to a nuisance, even if it discomforts your neighbour due to poor soundproofing or insulation

who can sue? McKenna v British Aluminium Ltd [2002]

over 30 claimants sued in nuisance over the noise and fumes, some of the children had no interet in the land. Through implementation of s8 of the Human Rs Act, their claim was not struck out. refused to strike out a claim for private nuisance and under the rule in Rylands v Fletcher which was brought by over 30 children from various households. They did not have Rs to land. Nevertheless, Neuberger J found that 'there is obviously a powerful case for saying that effect has not been properly given to Article 8.1 if a person with no interest in the home, but who has lived in the house for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only person who can bring proceedings'. It is, however, weak authority - a striking-out decision from Birmingham District Registry - and it remains to be seen whether the courts will follow it.

Three types of private nuisance can arise in practice:

physical injury to land (for example, by flooding or noxious fumes) substantial interference with the enjoyment of the land (for example smells, dust and noise) encroachment on a neighbour¡¦s land, for example, by spreading roots or overhanging branches, which is of minor significance.

Malice Christie v Davey (1893) state of mind of the D would also seem to be relevant in assessing whether the D's use of his or her land is reasonable.

plaintiff succeeded in obtaining an injunction when her neighbour, frustrated by the noise of music lessons in her home, expressed his annoyance by knocking on the party wall, beating trays, whistling and shrieking. In the words of North J at 327: 'what was done by the D was done only for the purpose of annoyance and in my opinion, it was not a legitimate use of the D's house'.

Mint v Good (1951);

plaintiff was injured by the collapse of a wall which separated the highway from the forecourt of a house owned by the D. The house was let on a weekly tenancy. No right to enter was expressly reserved to the owner. The judge found that the wall was a nuisance, but dismissed the claim against the owner because he had not specifically reserved the right to enter the premises. Held: Appeal allowed. A right to enter was to be implied in the circumstances.

three main types of nuisance

private nuisance public nuisance statutory nuisances.

Landlord's liability for his or her tenants

provided the local authority adopts a decision-making process which satisfies proportionality and does not impose a disproportionate burden on the persons concerned, it may escape liability.

Twenty years prescription

provides a defence where the nuisance has interfered with the C's interest in land for more than 20 years. Two points should be noted: it does not apply to public nuisance, and time will only start from the moment the C is aware of the nuisance. See Sturges v Bridgman (1879)

Catherine works in a city law firm in central London, but commutes from Balham in South London every day. To reach the station, she must pass under a railway bridge. Unfortunately due to pigeons roosting in the bridge, her suit has been ruined by pigeon droppings. She has complained to the railway company who own the bridge, but they refuse to do anything about the pigeons and told her to walk faster under the bridge. She has spoken to other commuters who have suffered the same problem. Advise Catherine. (Consider Wandsworth L.B.C. v Railtrack plc [2002] QB 756.)

question here relates to a public nuisance. The problem does appear to affect the 'reasonable comfort and convenience of life of a class of Her Majesty's subjects', that is, the people passing under the bridge. On the basis of Sedleigh-Denfield (which remember applies to both public and private nuisance), if the D was aware of the nuisance caused by the pigeons, had a reasonable opportunity to abate it, had the means to abate it, but has chosen not to do so, then the D will be liable. But has Catherine suffered 'special damage'? Her, presumably expensive, suit is ruined, but we are told that the other people passing under the bridge suffer the same fate. In the Wandsworth case, the action was brought by the local authority under s 222(1) of the Local Government Act 1972 which enables a local authority to institute civil legal proceedings in its own name where it considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area. The question of 'special damage' was therefore not in issue. On the assumption, however, that not every person suffers harm who walks under the bridge, Catherine may bring her claim for damages.

two CA decisions of 2000 which are difficult to reconcile: Hussain v Lancaster CC and Lippiatt v South Gloucestershire

question in both cases was whether the local authority would be liable for the actions of their tenants (in Hussain) or their licensees (in Lippiatt).

Bamford v Turnley VIMP rejects Hole v Barlow

reasonable user - the principle of give and take as between neighbouring occupiers of land, under which " . those acts necessary for the common and ordinary use and occupation of land and houses may be done, if conveniently done, without subjecting those who do them to an action:" . The effect is that, if the user is reasonable, the D will not be liable for consequent harm to his neighbour's enjoyment of his land; but if the user is not reasonable, the D will be liable, even though he may have exercised reasonable care and skill to avoid i t. Strikingly, a comparable principle has developed which limits liability under the rule in Rylands v Fletcher . Reaonsable user depend on impact on neighbour's land. rule of give and take, i.e. we create nuisance with ordinary use of our land, must tolerate it from our neighbour. (Bramwell B in this judgement)

Consequential economic loss

recoverable: Andreae v Selfridge & Company Ltd (1938). Equally, damage to personal property would appear to be recoverable: see Halsey v Esso Petroleum Co Ltd (1961) - damage to laundry hanging in the garden. It should of course always be considered whether the claim satisfies the rules of remoteness, which is the same test as used in negligence: are damages of a type which can be reasonably foreseen?

rule in Rylands v Fletcher

rule of liability imposed on a person due to an escape of a non-natural substance from the D's land. HL in Cambridge Water Co v Eastern Counties Leather plc (1994) and Transco plc v Stockport MBC (2003) determined that it will only apply where the loss suffered is reasonably foreseeable and that it is, in reality, an extension of the T of private nuisance to isolated escapes from land.

Halsey v Esso Petroleum cf Dunton v Dover District Council

scientific decibel readings can be used to aid in determining noise level 80-100 very lound 100+ deafening Dunton v Dover District Council decibel readings of a children scream is insufficient, in this case an appreciation of the situation as a whole was necessary to conclude that there was nuisance.

Abatement

self-help remedy and thus to be exercised with caution. The most obvious example is where your neighbour's branches grow over your fence and you cut them back. The HL examined this remedy recently in Delaware Mansions Ltd v Westminster City Council (2002), but it is a remedy of limited utility and realistically only worth considering in relation to minor problems such as encroaching roots and branches.

Heath v Mayor of Brighton (1908) Abnormal sensitivity cf Robinson v Kilvert plaintiffs were Tees of a church. The D built an electricity sub station next door. The plaintiffs sought an injunction, saying that the humming sound emitted could be heard in the church.

special requirements for quite required in a church did not impose anyhigher standard from neighbours as regards the special use made of land. The plaintiffs had not established that the noise was a sufficient interference to support an injunction.

defences specific to nuisance in addition to the ordinary defences of voluntary assumption of risk and contributory negligence

statutory authority twenty years prescription the act of a stranger

Gaunt v Fynney cf Spruzen v Dossett

such things to offend against law must be done in a manner, which beyond fair controversy, are to be regarded as excessive.' But once again a question of whether an interference is sufficiently excessive is a question of fact and is different for different cases. must be careful when finding nuisance for people who are overly sensitive to noise.

test Sedleigh-Denfield v O'Callaghan [1940]

test is one of 'reasonable user', balancing the interest of Ds to use their land as is legally permitted against the conflicting interest of Cs to have quiet enjoyment of their land. It is not a test of reasonable care. It is no defence to prove that the D had taken all reasonable care to prevent the nuisance occurring: Rapier v London Tramways Co (1893). The court will look at the result of the D's conduct.

Rylands v Fletcher rule 4 points

the D brings on his lands for his own purposes something likely to do mischief which escapes (see Read v J. Lyons & Co Ltd (1947)) due to a non-natural use which causes foreseeable harm.

Who can be sued?

the creator's landlord or employer. Equally, should you be unable to identify the creator - for example if it was caused by a trespasser who has since disappeared - it is important to be able to bring actions against other parties, such as the local council, who may be able to intervene to assist you. Employers and their employees An occupier who has adopted or continued a nuisance landlord

disseisin

the process of wrongfully or unlawfully dispossessing a person of his rightful real property.

Lippiatt v South Gloucestershire

travellers had been allowed to stay on council land and had caused havoc by trespassing, dumping rubbish and other acts of vandalism on neighbouring land. In finding the council liable, Hussain was distinguished on two grounds: The travellers had used the land to commit the nuisance, here, by using it as a ¡¥launching pad¡¦ to commit acts of nuisance on neighbouring properties. The council was more likely to be liable for the acts of trespassers and licensees than tenants (as in Hussain). While tenants have statutory protection, it is easier to evict trespassers and licensees from land. By failing to do so within a reasonable period of time, the council found itself liable. It must be questioned whether this distinction is a convincing one. It is far from established that a private nuisance must emanate from use of land. It will in most cases, but is this the same as a rule? Thompson-Schwab v Costaki (1956).

Sedleigh-Denfield applications

tresspassers on the occupier's land (Page Motors Ltd v Epsom and Ewell BC (1982)) and acts of nature (Goldman v Hargrave (1967) - failure to extinguish with adequate care a tree which had been struck by lightning and had caught fire - and Leakey v National T (1980) - failure to protect neighbouring villagers from the effect of subsidence to its land)

Marcic v. Thames Water Utilities Ltd, and HRA

undertaker to prioritise its remedial works in respect of flooding that was at issue. Since, on the face of it, this system lacked proportionality and thereby infringed Article 8, the defendant was in breach of its obligations under section 6 of the HRA 1998. This decision clearly has wider implications for all public authorities, imbued with positive obligations under Article 8, to respect a person's home and private life. Therefore, where a council tenant's human rights under Article 8 are interfered with due to excessive noise, serious disrepair, health and safety issues such as a cockroach infestation or any other types of nuisance, the public authority must show that in reaching a decision on whether or not to take any action, it has taken into account all of the relevant factors and has carefully balanced them to ensure that no-one suffers a disproportionate burden. In satisfying proportionality, the emphasis is not so much on the actual outcome of the public authority's decision but more on the decision making process in reaching that decision

. Green v Chelsea Waterworks Co (1894)

water main burst causing damage to the C's land. Chelsea Waterworks co were under a statutory obligation to maintain high pressure in the water main. This would mean that any escape would inevitably cause damage. They were not liable under Rylands v Fletcher as they had the defence of statutory authority.

S.C.M. (United Kingdom) Ltd v W.J. Whittal & Son Ltd (1970)

when a D by his negligence causes physical damage to the person or property of the plaintiff, in such circumstances that the plaintiff is entitled to compensation for the physical damage, then he can claim, in addition, for economic loss consequent on it ."

landlord There are three situations where the C may sue the landlord in addition to any claim against the tenant:

where the landlord has expressly or impliedly authorised the nuisance :court will examine the purpose for which the premises are let and consider whether the nuisance was a necessary consequence of the letting Tetley v Chitty (1986) where the landlord knew or ought to have known of the nuisance before letting (see Brew Bros Ltd v Snax (Ross) Ltd (1970)) where the landlord COVed to repair or has a right to enter to repair (see Mint v Good (1951); ss 11 and 12 of the Landlord and Tenant Act 1985; and s 4 of the Defective Premises Act 1972

Thompson-Schwab v Costaki (1956)

where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to amount to an actionable nuisance as the activity was considered offensive in itself. There was no need to demonstrate that the activities were noisy. Also activity did not emanate from the use of land. argument that activity did not physically affect P was rejected. observed that forms of actionable nuisance are varied and cannot be defined precisely.