Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/20

Click to flip

20 Cards in this Set

  • Front
  • Back

NUISANCE

  • Private affecting a particular individual
  • Public impacting on a wider group of people

PRIVATE NUISANCE

  • Substantial and unreasonable interference with the use and enjoyment of private land.
  • Requires (some kind of) fault and (a certain kind of) damage, which should not be too remote.
  • ‘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.'
  • ’‘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.’‘Principle of give and take as between neighbouring occupiers of land’

Cambridge Water Co Ltd v Easter Counties Leather plc [1994] (private nuisance - remoteness (foreseeability of nuisance) - Rylands v Fletcher: something must be brought onto the land or accumulated for unnatural use - the dangerous thing must escape - damage caused must be reasonably foreseeable)

  • D company was leather manufacturer using chemical solvents in tanning process; chemicals stored in drums on their premise; after new regulations, tests carried out C's water found it polluted by chemicals from the tannery as spillages had leaked into the water; first instance: dismissed Rylands v Fletcher on basis of no non-natural use of land due to amount of time tannery had been in operation and the industrial area of locality; CoA rejected and held storage of chemicals was non-natural use of land, found D liable on strict liability

  • HoL: Goff looked at precise words from Rylands v Fletcher "anything likely to do mischief if it escapes" "something he knows to be mischievous" and "liability for natural and anticipated consequences"...so Rylands required "at least foreseeability of risk" as a prereq to damages recovery; tort strict liability only in sense that D would be liable for consequences of escape if had taken steps to prevent it occuring...Goff concludes Rylands required foreseeability by D of the relevant type of damage; no liability

  • GOFF comment: Rylands is species of private nuisance

Malone v Laskey [1907] (who can sue? requirement of proprietary right in the land - yes)

  • C was wife of leaseholder so was not entitled to exclusive possession in her own right; C was injured when vibrations from neighbouring property caused toilet cistern to fall on her head; C's claim rejected as she lacked proprietary interest in the land

Khorasandjian v Bush [1993] (who can sue? requirement of proprietary right in the land - no)

  • daughter of property owner was harassed by D; her action in private nuisance succeeded despite lack of proprietary interest in the property, most likely because no clear need for an injunction to protect her and no other basis upon which this could be issued

Hunter v Canary Wharf [1997] (who can sue? interest in the land)

  • residents of Canary Wharf development experienced interference with TV signals due to construction of large tower nearby; some of claimants were homeowners while others were family members, lodgers, and others without proprietary interest in the affected property
  • CoA ruled occupation of home was sufficient basis for claim; HoL reversed this, reinstated requirement of proprietary interest from Malone v Laskey (with amendment that wife's beneficial interest in family home conferred a proprietary right on her); furthermore interference of television signal taken not to qualify as nuisance;
  • private nuisance is about property rights and not one about protecting against nuisance caused to individuals independently

HUNTER v CANARY WHARF, categories of nuisance


  • Lord Lloyd: ‘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.’

ELEMENTS OF THE TORT


  1. Substantial and unreasonable
  2. interference with the use and enjoyment of private land
  3. causing damage

  • Factors relevant to unreasonableness:

  1. Locality (St Helen's Smelting Co v Tippings (1865))
  2. Extent
  3. Duration and frequency
  4. Social utility / Public benefit
  5. Practicality of avoiding interference
  6. Malice (Christie v Davey [1893])
  7. Sensitivity of claimant

Robinson v Kilvert (1889) (sensitivity of the claimant)

  • C carried out trade involving heat-sensitive paper; sought to bring action in private nuisance against occupier of cellar in same building as heat rising from D's trade in the cellar damaged C's paper
  • C lost; reasonable use of land would not become unreasonable merely because it affected someone with particular sensitivity unless it 'interferes with ordinary enjoyment of life, or ordinary use of property for purposes of residences or businesses'

Hollywood Silver Fox Farm Ltd v Emmet [1936] (malicious interruption)

  • D persistently fired shotgun on his own land in order to disrupt breeding of foxes on neighbouring farm as he felt the fur farm devalued his own land which he was trying to sell
  • not unreasonable for farmer to fire shotgun on his own land, BUT fact that D did so with aim of disrupting lawful activities of his neighbour changed character of his actions and rendered them unreasonable and an actionable nuisance

PRIVATE NUISANCE, MORE CASES


  • Who can be sued? Who can sue?
  • creators, occupiers and landlords
  • Sedleigh-Denfield v O’Callaghan [1940] council, culvert, negligent grate placement, D's workers clear culvert but heavy storm resulted in flooding and damage to neighbour's land; D liable as adopted and continued the nuisance
  • Dobson v Thames Water Utilities [2011] D liable for negligent failure to control odour from sewerage facility; damages in nuisance for injury to property and not sensibilities of occupiers
  • Smith v Scott [1973] bad tenant neighbours; landlord is not liable for nuisance committed by his tenant, but to this rule there is, so far as now in point, one recognised exception, namely, that the landlord is liable if he has authorised his tenant to commit the nuisance
  • Tetley v Chitty [1986] Go-Kart track; Where a landlord expressly or impliedly gives his consent to a use of land which has as a necessary and natural consequence the cause of sufficient noise to be classed as a nuisance, the landlord can be liable in nuisance
  • Hussain v Lancaster City Council [1999] C suffered harassment, racial abuse at his shop due to neighbourhood tenants of council; outside the scope of nuisance since the acts of the perpetrators did not involve the tenants’ use of the tenants’ land. Furthermore the Council had neither authorised nor adopted the nuisance.
  • Lippiatt v S Gloucestershire CC [2000] D failed to remove travellers/gypsies from land who caused nuisance to neighbouring farms; travellers not tenants, so council still occupying land; D can be liable for a state of affairs he did not create if it can be said that he adopted or continued the state of affairs
  • NATURAL NUISANCE
  • Leakey v National Trust [1980] D owned land, large mound, landslide; C had notified D of this potential problem, large crack in mound, offered to pay to fix, rejected; defendant is liable for a naturally occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard.
  • Holbeck Hotel Ltd v Scarborough BC [2000] C owned hotel, D owned land between hotel and sea, landslide, erosion, hotel went into the sea; D not liable, must consider resources and cost for D to prevent nuisance, must consider foreseeability of magnitude of nuisance, must consider that C also had role to play in preventing nuisance in this case

PRIVATE NUISANCE, MORE CASES

  • Factors relevant to unreasonableness:
  • Foreseeability
  • Delaware Mansions Ltd v Westminster City Council [2002] tree roots causing cracks in sidewalks/pavements; D knew about it, it was foreseeable, did nothing
  • Locality
  • St Helen's Smelting Co v Tippings (1865) see slide
  • Baxter v Camden LBC(No 2) [2001] ineffective sound insulation of flats, landlord not liable, duty for quiet enjoyment does include positive duty to improve to meet a higher standard, standard of locality taken as is...low-income, cheap housing
  • Gillingham BC v Medway (Chatham) Dock Co Ltd [1993] turn dockyard into commercial port, nuisance in regards to vehicles going in and out; not liable, planning permission given, reference to locality, development of port changes character of locality
  • Wheeler v JJ Saunders Ltd[ 1996] C owned land, rented out the farm part of it to D who built house for pigs, second house close to C's own house, D liable: planning permissions is not same as statutory authority and so no defence; planning permission MAY alter character of locality, no guarantee it does, must evaluate and on facts did not
  • Extent
  • Walter v Selfe (1851) burning bricks a nuisance, inconvenience that materially interferes with ordinary physical comfort of human existence, not dainty modes of living
  • Tetley v Chitty [1986] Go-Kart track, landlord liable, noise sufficient to be a nuisance
  • Duration and frequency
  • Midwood v Manchester [1905]
  • British Celanese Ltd v AH Hunt Ltd [1969] did not store their foil strips properly, on two occasions they were blown onto C's property, causing power to be cut to C; even if power cut is one-off event, improper storage was continuous, D liable
  • SCM (UK) Ltd v W J Whittal & Son Ltd [1970] building a wall, accidentally cut main power to C's factory causing loss of production for a day; D liable, loss reasonably foreseeable; D ought reasonably to have C in contemplation due to proximity
  • Barr v Biffa Waste Management Services Ltd [2012] D liable for emission of smells; statutory authority not a defence to cut down private law rights, not reasonable use
  • Social utility / Public benefit
  • Miller v Jackson [1977] cricket case, higher fence, no personal injuries, some property damage; cricket club liable, no defence that she came to the nuisance, no injunction as would be loss to community
  • Dennis v Ministry of Defence [2003] estate near RAF Wittering base; no injunction, training of military social benefit though not ordinary use of land BUT serious actionable nuisance, C not required to bear cost of that benefit, C awarded appropriate damages under HRA 1998
  • Practicality of avoiding interference
  • Andrae v Selfridge & Co Ltd [1938] building a selfridge next to a hotel, causing nuisance of hotel; Adjoining owners are expected to put up with a certain amount of discomfort. Temporary building works are a common and ordinary use of land.
  • Malice
  • Christie v Davey [1893] music lessons, pots on wall, malice
  • Bradford v Pickles [1895] underground streams fed C, D sought to drain them from under his land; not liable as long as Pickles had a right to take an action on his property, there is no way that can be converted to an illegal action, no matter what his motives.
  • Hollywood Silver Fox Farm Ltd v Emmet [1936] shotgun on farm, malice
  • Sensitivity of claimant
  • Cooke v Forbes (1867) fumes blackened some weaved products being hung to dry; "It is no answer to a complaint by a manufacturer of a nuisance to his trade, to say that the injury is felt only by reason of the delicate nature of the manufacture."
  • Robinson v Kilvert (1889) delicate brown paper, heat from below
  • Eastern and South African Telegraph Co v Cape Town Tramways [1902] submarine cable transmissions disturbed by electrical current escape One cannot increase his neighbour's liabilities by putting his land to special uses.
  • McKinnon Industries v Walker [1951] steel manufacturing fumes killed C's delicate plants at his residence/business; D liable even though orchids delicate; As soon as the defendants had infringed the right to ordinary enjoyment they can also claim protection from damage because of unusual sensitivity.
  • Network Rail Infrastructure Ltd v Morris [2004] C recording studio near main rail line, electromagnetic field interfered with electric guitars, causing loss of clients; D not liable, sensitive use of land and interference not foreseeable

PUBLIC NUISANCE

  • materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects
  • nuisance has affected a class of people
  • the claimant has suffered special damage

Attorney-General v PYA Quarries [1957] (class of people)

  • process of quarrying was disrupting local community both in terms of dust and vibrations caused and also scattering of splinters of rock and stone around neighbourhood
  • argument that the nuisance only affected some local people and so lacked a sufficiently public nature was rejected;
  • DENNING, a public nuisance is so "widespread in range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings...to put a stop it but that it should be taken on the responsibility of the community at large"

Examples of classes of people

  • local communities
  • groups of individuals with a common interest
  • users of a public highway
  • small groups of people with common characteristics
  • indirect impact on the community

R v Rimmington [2006] (class of people)

  • D sent racially abusive letters to 538 people
  • HoL accepted D's argument that public nuisance should not be used for conduct which is also covered by statutory offence unless there was a good reason for doing so...moreover, public nuisance should not be used as a means to deal with conduct that was directed at several individuals rather than at the community more generally

MORE PUBLIC NUISANCE CASES


  • Benjamin v Storr (1874) coffee house, horse wagon parked in front of it, blocked lighting and interfered with enjoyment of dwelling; must show a particular injury to himself beyond that which is suffered by the rest of the public. It is not enough for him to show that he suffers the same inconvenience in the use of the highway as other people do, if the alleged nuisance be the obstruction of a highway. Other cases show that the injury to the individual must be direct, and not a mere consequential injury; the injury must be shown to be of a substantial character, not fleeting or evanescent.’
  • In re Corby GroupLitigation [2009] Corby industrial center then dried up, lots of toxic waste and had to clear away factory and waste; trucks spilled the waste in residential areas while removing it, released into air; upper limb defects in babies increased after this by a lot; Council liable in negligence, public nuisance, breach of statutory duty; first in world for linking defect and air pollution
  • Gillingham v Medway Chatham Dock [1993] D turned dockyard into port, change of character of neighbourhood, planning permissions, D not liable
  • Halsey v Esso Petroleum [1961] depot across the road; acid smuts damage C's car which was on public road not his property at the time, continuous emission of smells, loud noise from tankers throughout day; D liable, C awarded small damages + 6 week injunction; Character of neighbourhood may affect findings on discomfort and inconvenience but not where physical damage occurs- On the facts of case, character was not applied to damaging deposits, but was considered in relation to noise and smell complaints; can recover damages for his car even though not on his property on basis of Rylands OR public nuisance

DEFENCES TO NUISANCE

  • Effective defences: prescription (private only), statutory authority
  • Ineffective defences: coming to the nuisance, public benefit, acts of others

Sturges v Bridgman (1879) (defences - prescriptive right)

  • D had been carrying on confectionary business that involved use of noisy equipment that created strong vibrations for more than 20 years; Dr who owned adjacent house unable to use his newly built consulting room because of noise and vibration
  • actionable nuisance not negated by prescription because nuisance only started once consulting room was built; time period commences not from start of act in general but from start of it becoming nuisance
  • furthermore: What constitutes reasonable use of one's property depends on the character of the locality and that it is no defence that the plaintiff "came to the nuisance".

MORE DEFENCE CASES


  • statutory authority
  • Allen v Gulf Oil Refining [1981] smell, noise, vibration of oil refinery; D's actions in building refinery authorised by Act of Parliament; D not liable; D must prove they were within Parliament's intention in so far as the nuisances occasioned were necessary to fulfill Parliament's intention and actions
  • Marcic v Thames Water Utilities [2004] claimant, whose property had been subject to flooding as a result of overloaded sewers, did not have a common law action in nuisance against the defendant as to allow such an action would set at nought the comprehensive statutory scheme laid down in the Water Industry Act 1991. The claim under the Human Rights Act 1998 was ill-founded and the statutory scheme complied with the European Convention on Human Rights.
  • Dobson v Thames Water Utilities [2011] liable to C, failure to control odour from sewerage facility