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42 Cards in this Set
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St Helen’s Smelting Co v Tipping (1865) 11 HLC 642
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Land usechanges of industrial revolution and land use conflict.D ranfactory in industrial area and lots of environmental pollution.Pollutioninterfered with property in 2 ways:
1) Damagedproperty- killed trees, crops and animals on land 2) Seriousloss of amenity and comfort Courtdistinguished these 2 ways of bringing about a nuisance. a) Physicalproperty damage and b) sensible personal discomfort (amenity harm) –coughing and spluttering Bothways of causing nuisance are about property and not the person- it is anuisance because of the way it affects your land. Ifoperations of trade are necessary for trade and commerce, for the enjoyment of propertyand for the benefit of inhabitants of the town and public at large it isnecessary for him to subject himself to these consequences. Distinctionbetween activities of a neighbour which cause material injury to property(locality is irrelevant) and sensible personal discomfort (in which locality isrelevant) Thecharacter of the locality (nature of area) is relevant to amenity claim BUT not a property damage claim.Estatein St Helen’s was an industrial area. Court was trying to reach a balance betweeninterests of industry and agrarian landholders. Theytook into account the locality for amenity BUT physical damage to property isNOT something a landholder has to put up with. BUT court did not decide whether the locality causedlocal amenity as there was physical damage. Level of pollution was enormous soif locality had been a defence in this case it would have been difficult toimagine any situation in which amenity harm in an industrial area constituted anuisance. This remains open(��v�c0 |
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Hunter v Canary Wharf Ltd [1997] AC 655
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Canary Wharf tower regeneration- several hundred litigants with 2 complaints
1) The presence of the tower blocked TV reception 2) Building works in whole area led to dust and noise which constituted a private nuisance Court clarified that private nuisance is a tort about property and not people D: a lot of claimants do not have standing in private nuisance as they have no proprietary interest- cannot sue in nuisance. Non property claimants- children, spouses Issue: who can sue in private nuisance Held: coughing and spluttering is not because it affects people but because it affects the use and value of land they only people who can sue are those with a property interest. Only owners and tenants can sue. Damages: how to calculate when harm is to property and not personal? HR Act- right to private life and home. Question of whether telling people who had no property right they could not sue in nuisance was a breach of their right to a home? On the malice point- obitercomment that if the structure was placed their maliciously to interfere withneighbours land then it might be a private nuisance which confirms motive couldbe relevant. HLdecided mere presence of a building cannot constitute a nuisance.Planningsystem is a better place to manage the development of tall buildings and notnuisance. GlzY~��!�d0 |
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Jain v Housing Association
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- existing of HR Act was seen as a reason NOT to change CL compliance with ECHR- do not need to evolve. If issue under HR bring a claim under HRA and not CL
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Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28; [2009] 3 All E.R. 319
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Nuisance by smell and insects from a sewage site on residential property for years. Whether D has a proprietary or possessory nearest in land was necessary to consider when awarding damages. Proprietary interest brought claim in nuisance Those without proprietary interest brought a second claim under the HRA Act- using it to ensure compliance with ECHR and not changing CL.
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Transco plc v Stockport MBC [2004] 2 AC 1
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Cannot have claim for personal injury Confirmed limitations on standing
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Walter v Selfe
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C has to establish that Ds activity is not areasonable user of land AND/OR does itcause an unreasonable interference of land.Reasonable user is balancing tool. Need to have toleranceagainst reasonable interference “Question of fact, is interference with landnot merely according to the elegant anddainty habits of living but according to plain and sober notions amongst our people.”Need a certain degree of severity and seriousfor there to be an actionable claim
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Barr v Biffa Waste Services Ltd [No3] 2012] EWCA Civ 490
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Bad smells First instance: court indulged in lengthy and complicated discussion of reasonable user of land. As if it were a free standing test- negligence like. CA: Reasonable use is not the same as reasonable care Carnwarth- what objectively was normal would feel it reasonable to have put up with. reasonable user is not a free standing test- description of the common law approaches when judges try to decide whether there is a claim in nuisance.
LandfieldsmellCompliancewith planning permission is no defence£3million of costs from each sideFirstInstance: judge complicated analysis and said the waste management license heldby D was a defence to private nuisance CA:Carnwarth- this analysis was wrong and there is no defence of compliance withterms of license.y"Kdd |
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Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264
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Reasonable user: The principle of give and take between neighbours and occupiers of land Goff: foreseeability of damage in nuisance- is fault required when C is seeking damages and not an injunction to compensate for past damage and not prevent future damage. The foreseeability of harm is indeed a prerequisite of the recovery of damages in private nuisance as in the case of public nuisance A failure to take reasonable care in carrying out an activity on land is not necessary to establish liability in nuisance. A d will be liable for the reasonably foreseeable consequences od the unreasonable user. But law allows D to cause foreseeable harm to neighbour if his use is reasonable.
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Sturges v Bridgman (1879) 11 Ch D 852
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“What would be a nuisance in Belgravia square would not be inBermondsey”The implication that thereare different noises and smells in areas. BUT locality criticised- froman environmental perspective it makes it difficult to clean things up- iflocality criteria is strictly applied hard to improve things.
NO COMING TO THE NUSIANCE DEFENCE |
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Coventry v Lawrence [2014] UKSC 13
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D use land for various use ofmotor sport- have planning permission for the use of this land,C said private nuisance bynoise which impact amenity.SC: Question: Did D’s activity itself constitute part of the description of locality.Issue: when you describe thelocality difference between rural area with houses OR rural with motor racingcircuit?Neuremberger- acknowledgedhis approach had an element of circularity.D’s activity is relevant toassessing character of locality save to the extent that D’s activity it is anuisance. Nuisance part of Ds activityis discounted when assessing locality Criticised for their lack ofclarity over locality. Possible that nuisance is sobad that even in industrial area it can still be successful claim- so not adefence but highly influential with amenity cases. Cs were new comers to thearea and did not want activity to carry on and were harassed. SC: Neuremberger- presentsthis as orthodox- we confirm there is no defence of coming to the nuisance BUT then says this is if thenewcomer is coming into the area and making the same use of land. House had been there for manynews.BUT if new use of land. Thenthere may be a defence of coming to the nuisance. If it is the use of theclaimants land and not occupation of land that changes in such a way that whatwas previously not bothering anyone becomes a nuisance it may well be a defencefor D to argue that it is only because of Cs change of use that made it a nuisance. Potentially a big change inlaw of private nuisance.- BUT presented as no change at all. Issue: who was liable?Held: a landlord can be liable for nuisance ifit either authorised the nuisance or participated directly in the nuisance. Authorisation: BUT need very high degree ofprobability that the letting of the property would lead to a nuisance notenough to say landlord was aware of nuisance and did not do anything about it. Question of direct participation: question offact for the trial judge and some disagreement- majority said no participation,minority said landlords in this case had gone well beyond what an ordinarylandlord would do to support their tenants activities. Very difficult to establish landlordparticipated The strict approach in Shelfer does not survive.Supreme court presents caseas old fashioned an inappropriate for modern circumstances- four tests shouldnot be fetter on courts discretion. When court decides whether to grant aninjunction or not public interest is relevant to remedies. The existence ofplanning permission may provide some support for the contention that the actionis of benefit to the publicMore flexibility in remedies-BUT which planning permissions? Cannot be all planning permissions otherwisecannot award injunctions again as a remedy.How do we calculate damages? What do the damages mean- what sort of damagesare they?What do we do if C or D sellup?- does the compensation that has been awarded run with the property and ifso how? |
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Halsey v Esso
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When locality is taken into account the ds use of land may still be nuisance even if it us a type of activity suitable for the area. Locality principle does not provide immunity and will be weighed up against other releant factors,
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Baxter v Camden LBC
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Action failed as noise was part of ordinary use of premises of lands and occupiers of low cost, high density housing be expected to tolerate higher levels of noise from their neighbours than others in more spacious and substantial premises.
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Christie v Davey [1893] 1 Ch 316
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P were musical family. D then commenced a series of noises in his house such as knocking on wall, shrieking, whistling and banging trays in response to noise in Ps house.
Held: injunction granted- noises made in Ds house were not legitimate. Excessive and unreasonable- deliberately for purpose of annoying Ps. It would have reached an entirely different view in absence of a malicious motive. The level of noise alone would not have been an actionable nuisance it was the motive which made in actionable. Malice makes a difference in noise cases |
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Bradford Corp v Pickles [1895] AC 587
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Took opposite approach. Spring on Ds land which feeds residents reservoir. D diverted the stream so that the reservoir is empty and the dam was purposefulness to get money from corporation. Court held: Not all malicious uses of property affect the legality of the use. Lawful act, allowed to divert stream, however ill the motive might be he had a right to do it. Motives and intentions were reliant Pickles was about prevention of something where neighbour had no right to receive the water escaping from one property to another. Not tortious to deprive someone of emanations from your own property Best explained by the nature of Ds right and not a lack of an emanation from Ds land. How to reconcile with Christie?- water rights are special rights?
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Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468
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Breeding foxes for fur. D instructed his son to fire bird scaring cartridges as near as possible to Ps breeding pens. Christie case was applied and malice rendered discharge of firearm as unreasonable use of land. Held: doing it specifically to interfere with neighbours use of land is a nuisance. Shooting rabbits without malice would not be actionable.
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Allen v Flood
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No property owner has an absolute right to create noises on his own land = right which law gives him is qualified that it must not be exercised as a nuisance.
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Miller v Jackson [1977] QB 966
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Cricket club said they were therefirst- this was not a defence- otherwise you freeze land uses. Denning: is the use by thecricket club of this ground for playing cricket a reasonable use for it?For over 70 years it wasplayed for benefit of community as a whole It does not suddenly become anuisance because one of the neighbour’s chose to build a house on the very edgeof the ground in such a position that it may well be struck by the ball on therare occasion. Building of the house did notconvert the playing of cricket into a nuisanceGave priority to cricketclub- purchaser could have reasonably foreseen that there was a risk a ballmight hit.Would not grant injunctionbecause inhabitants of the village cannot be deprived from their facilities ofinnocent recreation.
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Robinson v Kilvert (1889) 41 Ch D 88 T
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this particular kind of paperwas sensitive to temperature and was damaged as a result of Ds business, P who carries out an exceptionally delicatetrade cannot complain because it was injured by a neighbour doing somethinglawful on his property. It would not hinder an ordinary trade. If normal people would not beeffected no nuisance.
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Network Rail Infrastructure limited v CJ Morris (Soundstar Studio) [2004] EnvLR 41
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Ds Train signalling system created Electro magnetic interference to sound of electric guitars in Cs recording studio. D accepted electro magnetic interference was capable of constituting an interference. BUT CA said Cs use of land would probably be sensitive BUT queried whether Robinson remained good law/criteria. Said sensitive use test was less important as foreseeability of harm was required for public nuisance and the peculiar elements on private nuisance have been overtaken by the question of reasonableness. Claim failed interference was not reasonable foreseeable as a result of the Ds conduct it could not amount unreasonable use of land. Buxton LJ noted that the extra sensitive use of land limitation was subsumed under the general requirement of reasonableness of Ds use of land. BUT rely on cases very unlike the ones they relate to- overstate the role of reasonableness in a negligence type sense. Barr Case – CA was adamant that courts do not make so much of reasonableness in the modern way. Private nuisance has NOT headed down the road of fault. This case is doubted
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Sedleigh-Denfield v O’Callaghan [1940] AC 880
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D owned land on which a pipe had been builtconstructed by local authority without Ds knowledge. It extended onto Ds landand amounted to trespass and workers who constructed it were trespassers. P was owner of adjoining land which wasflooded as the pipe was blocked/HL: D liable for continuing or adopting thenuisance.assumed that Ds had knowledge of the pipe andtook no reasonable steps to remedy it. Atkin- so degree of personal responsibility isrequired, something more than the mere harm done to make the Ds responsible DidD continue the nuisance? If a manpermits offensive things in his premise to continue to offend he permits thenuisance to continue if he knows It is offensive Ds knew the damage, they were able to preventit and they omitted to prevent it Wright: D’s knew or ought to haveknown of the nuisance. Romer- even though act oftrespasser created the interference- but D’s could have taken simple steps toprevent the flooding Porter: they could reasonably have abated thenuisance. But took no steps. So can occupier be liable fornuisance on his land created by acts of 3rd party?Can an isolated event amount to anuisance?
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Smith v Giddy
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An occupier of land on which trees grew whose branches overhung his neighbour’s property had committed a nuisance provided that some damage had occurred.
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Giles v Walker
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An occupier who allowed thistles to grow on his land was not liable when the thistle seeds blew onto his neighbours land and resulted n a proliferation of thistles as they’re the natural growth of the soil.
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Goldman v Hargrave [1967] 1 AC 645
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Australian Lightning strike on Ds property a tree caught fire and became a fire risk PC: D owed C a duty based upon knowledge of hazard and ability to abate it. applied Sedleigh-Denfield that the occupier owed a duty to neighbour to remove any hazard and foresight of damage to his neighbour if he failed to act. Standard of care was what is reasonable to expect of him in the circumstances, because the duty to act was imposed on the occupier the individual resources of the occupier were considered in assessing whether his response was reasonable. PC liability if any arose in negligence and nothing else. Subjective fault based test- standard is to require of the occupier what is reasonable to accept of him in his individual circumstance.
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Leakey v National Trust [1980] QB 485
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Confirmed PC decision in Goldman applied in UK Ps owned 2 house which were built on the base of a large mound on Ds land. Natural weathering had led to the mound being broken off and falling onto Ps land. Ds refused to take any remedial action. CA: Claim upheld in nuisance BUT proper claim was in negligence and not nuisance There was a duty, breach. So where alleged nuisance is caused by a natural occurrence an action may be commenced in either nuisance or negligence but that liability will be determined according to principles applicable to the law of negligence but that liability will be determined according to principals applicable to the law of negligence slightly modified in that the Ds resources are considered n determining what Is a reasonable response to the risk created by the natural occurrence. h
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Anthony v Coal Authority [2006] Env LR 17
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Extended this to amenity harm which isproblematic as amenity dos not fit with negligenceResidents in coal tip owned by D fire broke out in 1996- clouds of smoke andnoxious fumes affected the amenity of properties. Fire was finally put out in 2000- smoke was sobad C said they had to keep windows closed, couldnot use garden, carpets ruined, breathing and visibility impactedFirst Instance Held: when coil heap wasconstructed harm was not reasonably foreseeable and so the construction of thetip was not a nuisanceSo applied law on 3rd parties andnatural events- became a nuisance- at which point the measured duty of caretest was applied.1) D have knowledge?2) Reasonably steps to abate it?Not strong authority- but applies the cases ofCambridge Water were similarly the original activity harm was not foreseeableand then the measured duty of care was applied.
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Delaware Mansions Ltd v Westminster CC [2002] 1 AC 321
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encroachment oftree roots onto his property.The House of Lordsfound that the action of the tree roots in dehydrating the soil and inhibitingrehydration damaged the soil and was a continuing nuisance: “Damage consistingof impairment of the load-bearing qualities of residential land is, in my view,itself a nuisance.” This continuing nuisance grounded the claimant’s cause ofaction. Lord Cooke stated that, applying the concepts of reasonableness betweenneighbours and reasonable foreseeability, a defendant, having been given noticeof the nuisance and the opportunity to abate it, might fairly be expected tobear the cost of reasonably necessary remedial works, and the party on whom thecost fell may recover it.rm+waŶߛ'd0
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Bamford v Turnley (1862) 3 B & S 66
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D burning bricks resulted insmoke and smell which affect P’s enjoyment at land Court: the fact Ds activityis for public benefit does not preclude the identification of a privatenuisance. D’s activity was for publicbenefit if activity is economically beneficial it should be undertaken
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Marcic v Thames Water Utilities [2003] UKHL 66; [2004] 2 AC 42
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Court said: statutory framework in public interest left no space for common law Question of statutory interpretation. 8"
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Allen v Gulf Oil Refining [1981] AC 1001
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D built and operate an oilrefinery with Gulf Oil Refining Act 1965. (Parliamentary Act)Question is one of statutoryinterpretation Parliament could authorisethe overriding of private nuisance but this only applied if the privatenuisance was the inevitable result of what was authorized. Which meant that anuisance is not inevitable if you picture a really well run oil refinery.Incorporates an idea of negligence liability- so if you carelessly causeproblems you lose defence�ߨ8d0
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Gillingham DC v Medway (Chatham) Dock Co Ltd [1993] Ch 19
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An access road to the dockwas used 24hrs a day and residents of 2 nearby roads were seriously impacted. itaffected a sufficient enough number to be classed as public nuisance. Local authority changed itsmind after giving planning permission for dock development. Planning authorities canrevoke their permission but they have to pay compensation and local authorityrather than paying compensation brought an action in nuisance. There was a lack of clarityover why court decided there was no nuisance.- uncertainty whether CA said:1) that the planning permission worked as adefence like statutory authority OR 2) CAdecided that the permitted developments changed the nature of the locality of the area into a dock localitywhere the noises created by the dock were reasonable uses of land.
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Wheeler v JJ Saunders [1996] Ch 19
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Resolved Gillingham uncertainty. Planning permission is not a defence as this would change a private right into a matter of administrative decision making. BUT some planning permissions according to CA may change the nature of the locality. (BUT which planning permissions changed locality- suggestion that strategic planning permissions)
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Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28; [2009] 3 All E.R. 319
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Sewage plant- smell and mosquitos. Question was how to value this nuisance whichwas in the past (had finished)Harm is to interest of land BUT Valuation ofinterference in cases of loss of amenity should consider the actual impact andthe actual experiences of those in occupation. Have to show an actual effect onamenity before you can claim substantial damages.
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Shelfer v City of London Electric Lighting [1895] 1 Ch 287:
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Electricity generation- D said cannot award injunction because it would close them down and have a negative impact on the local population. Court said: may be permissible once decided an injunction is permitted you can award damages in lieu of an injunction. BUT very difficult conditions. When could courts use statutory power to award damages in lieu of an injunction?
1) If injury to P’s legal rights are small 2) And is one capable of being estimated in money 3) And one which can be adequately compensated by small money payment 4) And the case is one in which it would be oppressive to the D to rant an injunction then damages in substitution for an injunction to be given Only in rare cases- because for the Ds conduct to be held as a nuisance it must unreasonable either causing property damage or significant interference with amenity and in those circumstances it I difficult to characterise the injury to Cs legal rights as small. |
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Dennis v Ministry of Defence [2003] 2 EGLR 121 (High Court)
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Fighter jet pilots over a rural property Caused a nuisance to owners of property BUT said the public interest in the defence of the realm does not prevent there being a private nuisance but in this case it means they cannot award an injunction but damages in lieu Public interest is relevant to remedies but cannot be used to justify the conduct.
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Watsonson v Croft
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Made clear by Morrit that the public interest of Ds activity was only relevant in marginal cases where the damage to the C was minimal -
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Rylands v Fletcher (1866) LR 1 Exch 265
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Separatestrict liability tort for dangerous activitiesD hadconstructed a reservoir to provide water for a mill. Unknown to D there were mine shafts under thewater and flooded Cs property.If youbring something onto your land (which is likely to cause mischief/danger) andit escapes provided you weremaking a non natural use of land then you are strictly liable.Held:where there has been an escape of a dangerous thing in the course of a nonnatural use of land, theoccupier is liable for damage to another as a result of the escape. D is liablefor the foreseeable consequenceof the escape. Blackburn-he can excuse himself by showing escape was due to Ps fault ot hat the ecapewas a consequenceof a n act of god.
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Cambridge Water Case
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Facts: D used a solvent in their manufacture of leather, the solvent was kept in large drums that the D moved drums by forklift and over many ears they spilled little amounts of solvent onto the concrete floor of the factory. The chemical percolated through the concrete floor into a chalk aquifer, several miles to the Cs borehole- which provided drinking water. Regulations changed and banned boreholes with such chemicals in the water Cambridge water could no longer use this borehole and sued.
HL: applied Rylands The rule in Rylands is a part of the Tort of private nuisance- it is an application of private nuisance not independent tort and applies to one off ESCAPE and not an ongoing activity. (BUT this leak was ongoing for years) This must mean that Hunter applies as it is a private nuisance tort- therefore, you need a proprietary interest to bring a claim in Rylands Cannot sue for personal injury Reasonable foreseeability of damage is part of the Rylands and Fletcher rule- the harm must be reasonably foreseeable C failed to show foresseability Goff: C argued liability should be strict and not foreseeability as this is an environmental case- BUT rejected it is for parliament to pursue a special form of strict liability and NOT the courts (FirstInstance of Cambridge water- running of a factory is for general benefit ofcommunity because it providesemployment. Any industrial activity was considered for benefit of community andtherefore it wasNOT non natural use)BUT donot need to exaggerate the idea of non-natural use because harm must beforeseeable.Storageof chemicals even in industrial area is a classic case of non-natural use. And attractsthe rule in Ryland’sand fletcher.Did notdefine non natural use but tells us the non-natural use does not need to beapplied so harshly in thefutureMoregenerous approach to Cst_provr��,�c0 |
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Transco plc v Stockport MBC [2003] 3 WLR 1467
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D supplied water to a multi-storey block of flats, the pipe they used supplied 66 dwelling without negligence the pipe to the block of flats failed, water escaped, and water from pipes undermined an earth bank. As the earth bank erode a gas pipe was exposed and at risk of reaching, this was an emergency which meant it needed to be fixed. HL: Confirmed you needed a proprietary interest. Foreseeability is about remoteness and NOT about reasonable people being careful. Bingham: whether or not the thing is dangerous also relates to it use of the land
HL inTransco takes a stricter approach to non-natural use than Cambridge WaterWalker:extraordinary risk to propertyBingham:extraordinary and unusual use of property- quite out of the ordinaryHoffman:criteria of exception risk creates a high threshold for Cs.HL wereinvited to abolish Rylands rule- counsel could not find an successful casessince WW2- HL did notabolish .no escape from property consider the risks the land use created.Even though water pipe was larger than ordinary domestic pipes, itwas supplying water t domestic property and was ordinary use~�� �c0 |
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AG v Corke
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Accumulation of itinerant travellers satisfied the ‘dangerous’ things requirement of Rylands.
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Rickards v Lothian [1913] AC 263
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Need toestablish D engaged in non natural use of property: Non natural use was ‘somespecial use bringing with it increased danger to others not merely the ordinaryuse of land or such a use for the general benefit of the community.
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Read v J Lyons & Co [1947] AC 156
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P isinjured when inspecting property. C failed because she was on Ds property andthere was no escapeof anything from property.No escape, no liability
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Stannard v Gore [2012] EWCA Civ 1248 CA
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decision D was a tyre fitter and installed a large number of tyres on its property. No negligence but electrical fault and tyres caught fire which spread to neighbour property. CA- no Rylands liability, he had brought tyre’s onto his property but the tyre’s did not escape. It was the fire that escaped. If you deliberately started a fire on property and escaped then strictly liable but in this case he did not start the fire. n
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