Tort 5: Land

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Tort 5: Land
2013-04-17 10:21:59

Tort 5
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  1. Read v Lyons
    Nuisance; definition

    Scott LJ approved Winfield & Jolowicz's definition of nuisance as:

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

    Therefore, C needs to show:

    - that there is an interference with C's use of and enjoyment of land or some rights he enjoys over it; and

    - that the interference is unlawful.
  2. Malone v Laskey
    Nuisance; who can sue in private nuisance?

    A wife of an owner does not have the right to bring a claim in private nuisance, unless she has a proprietary interest in the home.
  3. Hunter v Canary Wharf
    Nuisance; types of interference; who can sue in private nuisance?; damages recoverable

    Lord Lloyd said the three types of interference within private nuisance 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.

    Disruption to TV reception caused by a new building was not an actionable interference in private nuisance.

    • Also, only a person with the right to exclusive possession of land can sue in private nuisance (ie owner-occupier or tenant)
    • Nb- landowner may sue if a tenant is causing permanent damage (eg structural damage) to the property.

    Finally, Lord Hoffman said that no claim lies in private nuisance for personal injury. Such a claim lies in Negligence. Hoffman also suggested, consequential losses should be recoverable too.
  4. Walter v Selfe
    Nuisance; types of interference

    Sir Knight-Bruce VC said that to be actionable in nuisance, the interference had to be something that materially interfered with 'ordinary comfort' not 'elegant dainty modes... of living'.
  5. Aldred's Case
    Nuisance; types of interference

    Loss of a view is not an actionable interference.
  6. Sedleigh-Denfield v O'Callaghan
    Nuisance; 'unlawful' interference; 'adopting' or 'continuing' nuisances

    Lord Wright said "a balance has to be maintained between the right of the occupier to do what he likes with his own land 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.'

    Also, D may 'adopt' a nuisance that he did not create. According to Maugham VC, occupiers 'adopt' a nuisance if they make use of the thing which constituted a nuisance.

    In this case, D had used the drainage ditch for several years but made no attempt to rectify the fault, although the council had incorrectly installed the feature at the request of a neighbouring landowner (ie they were a trespasser)

    Nb- this principle extends to nuisances created by visitors, predecessors in title and natural events.
  7. Spicer v Smee
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    An isolated happening will constitute an actionable nuisance if it emanates from some continuing state of affairs on D's property.

    In this case the continuous and dangerous nature of D's wiring represented this.
  8. Matania v National Provincial Bank
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    The more excessive the interference (in this case noise) the more likely the interference will be unlawful.

    In this case substantial renovation work carried out by D between 8-5 each day was found to be excessive.
  9. Sturges v Bridgman
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    'What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.'

    The courts will taken into account the character of locality in order to decide whether a particular interference is unlawful.
  10. St Helen's Smelting Co; Halsey v Esso
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    Lord Westbury in St Helen's Smelting said that the character of the neighborhood should only be relevant in cases involving personal discomfort and inconvenience, not physical injury to property.

    In Halsey, the character of the neighborhood was therefore not taken into account when deciding whether the 'harmful deposits' amounted to an unlawful interference.
  11. Hollywood Silver Fox Farm v Emmett
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    D's malice is often likely to tip the balance in favour of unlawful interference, even if in normal circumstances it would be reasonable.

    In this case the sole purpose of D's shooting was to annoy C and, in particular, to upset C's silver foxes during breeding time.
  12. Robinson v Kilvert
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    If D's interference only affects C because C is abnormally sensitive, then C's claim may fail.

    In this case, D's interference reduced the weight of paper that was sold according to weight. However, normal paper is not sold according to weight. If normal paper had been affected then a nusiance could have been established.
  13. McKinnon Industries v Walker
    Nuisance; relevant factors in deciding whether interference has been substantial and unreasonable

    C grew sensitive orchids and D's business emitted fumes which damages the orchids. The fumes would have damaged ordinary, more robust plants. C could, therefore, establish an actionable nusiance and recover  the damage to the orchids.
  14. Tetley v Chitty
    Nuisance; who is liable for private nuisance?

    The general rule is that landlords are not liable for nuisances created by tenants since they do not have exclusive possession (Hunter v Canary Warf)

    However, the landlord will be liable where he expressly or impliedly authorised the nusiance (ie the nuisance is the inevitable result of the letting).

    In this case, a local council let a piece of land to a go-kart racing club for use as a racing track. The court found that the inevitable consequence of this letting was the creation of a noise nuisance to neighbours.
  15. Payne v Rogers
    Nuisance; who is liable for private nuisance?

    • Where a landlord has covenanted to repair premises or has the right to enter to do so and, in either case, fails to make repairs, giving rise to the nuisance, he may be liable.
    • (though the tenant may also be liable as occupier)
  16. Halsey v Esso
    Nuisance; damage recoverable

    Allowed C to recover damages to personal property on the basis that such losses flowed as a consequence of the personal discomfort caused by the nuisance.
  17. Andreae v Selfridge
    Nuisance; damage recoverable

    In Hunter, Lord Hoffman suggested that where C can prove recoverable damage (damage to property and/or personal discomfort) then D would be liable for any consequential loss of profits where a nuisance prevents a business from operating normally, as in this case.
  18. Cambridge Water Co v Eastern Counties
    Nuisance; remoteness; D's fault

    Lord Goff said 'foreseeability of harm is indeed a prerequisite to the recovery of damages in private nuisance'

    Therefore, the court must decide whether the kind of damage which occurred was reasonably foreseeable to someone in D's position at the time the relevant acts were done.

    In this case the type of harm (contamination of water) was not reasonably foreseeable as at the time D acted, the properties of the chemical were not known.

    Therefore, Lord Goff said that although lack of fault on D's part will not exonerate him from liability for nuisance, he may still escape liability as 'the control mechanisms are found within the principle of the reasonable user.' (ie the remoteness test
  19. Sturges v Bridgman
    Nuisance; defences- prescription

    For the defence of prescription to succeed, the nuisance must have been actionable for twenty years.

    In this case, D had been creating the noise and vibration (while making sweets) for more than twenty years, but this did not give rise to an interference until C (a doctor) opened a consulting room at the bottom of his garden.

    As such, the nusiance only became actionable when the consulting room was built so it was from this point the nusiance became actionable. The 20 year prescription defence did not apply.
  20. Allen v Gulf Oil Refining
    Nuisance; defences- statutory authority

    An oil company was authorised by an Act of Parliament to construct an oil refinery in a particular location.

    An oil company was able to successfully plead statutory authority as a defence on the basis that the operation of the refinery was implicit authorised by the Act of Parliament and the nuisances were, therefore, inevitable.
  21. Wringe v Cohen
    Nuisance; Acts of god 'defence'

    Where an interference on D's land results from a 'secret unobservable process of nature' (eg subsidence under or near foundation of D's house) then D will not be liable in nuisance unless he adopts or continues the nuisance.

    This could also apply to other acts of God, such as lightening or floods.
  22. Wheeler v Saunders
    Nuisance; defences- planning permission

    Only Parliament can take away private rights to sue (through prim. or sec. legisaltion). Therefore, the mere grant of planning permission (through local authorities) does not legitimise a nuisance.

    A farmer obtained planning permission to build a pig unit on his land, which interfered with the enjoyment of some holiday cottages. The farmer was not allowed to claim in his defence that he had planning permission.
  23. Gillingham v Medway Docks
    Nuisance; planning permission and character of the neighborhood

    Planning permission can operate to change the character of the neighborhood.

    In this case the planning authority granted planning permission for a dock to be converted into a commercial dock.

    The character of the neighborhood to be considered was after the planning permission had been granted, not before. The residents now lived in an area that was a container port- in this context the level of noise was not unlawful.
  24. Miller v Jackson
    Nuisance; remedies- injunctions (private v public interest and C's who 'came to the nuisance')

    Although public interest is not likely to enable D to escape liability for nuisance, it may dissuade the court from ordering an injunction.

    In this case it was considered appropriate that the public interest in the playing of cricket should prevail over the private interest in the claimants in not having their house and garden inundated by cricket balls.

    Furthermore, Cs had bough their house knowing that cricket was played next door and balls would, therefore, sometimes be hit on to their property.

    The court took into account both the public benefit of D's conduct and the fact that C 'came to the nuisance' in deciding that damages were an adequate remedy
  25. Kennaway v Thompson
    • Nuisance; remedies- injunctions (public v private interests)
    • The court decided that the public benefit of the power boat racing was not sufficient to deprive C of an injunction. It therefore granted a prohibitory injunction but did not halt club's activities altogether; rather, it restricted the club's racing activities and the noise levels of boats using the lake at other times.

    This is perhaps a fairer approach than that in Miller v Jackson as it achieved a better balance between the rights of C and the wider public benefit.
  26. Shelfer v City of London Electric Lighting Co
    Nuisance; remedies- damages in lieu of an injunction

    The power to award damages instead of or in addition to an injunction is contained in s50 Senior Courts Act 1981

    The court must first decided that the case is suitable for an injunction. If so, the next issue is whether damages in lieu of an injunction should be awarded.

    In this case, set out a 'working rule' to ascertain when damages in substitution for an injunction may be given:

    - where the injury to the plaintiff's legal rights is small;

    - and is one which is capable of being estimated in money;

    - and is one which can be adequately compensated by a small money payment;

    - and the case is one in which it would be oppressive to D to grant an injunction.
  27. Lemmon v Webb
    Nuisance; remedies- abatement (self-help)

    The victim must normally give prior notice to the wrongdoer, except in an emergency or where the nuisance can be abated without entering the wrongdoer's land.
  28. Mills v Brooker
    Nuisance; remedies- abatement (self-help)

    If tree branches overhang from D's property into C's property, C may cut down the offending branches himself since he does not need to enter D's land to do so.

    However, the branches belong to D so must be returned.