Nuisance (revision) PDF

Preview

Summary

NUISANCE References: Horsey and Rackley, Chapter 18 (pages 522-559) and Chapter 19. Nuisances are divided into two separate categories – 1. private nuisance - The two actions are conceptually distinct although the same facts can produce liability in both forms of nuisance. PRIVATE NUISANCE - Private...

Description

NUISANCE References: Horsey and Rackley, Chapter 18 (pages 522-559) and Chapter 19. Nuisances are divided into two separate categories – 1. private nuisance -

The two actions are conceptually distinct although the same facts can produce liability in both forms of nuisance.

PRIVATE NUISANCE - Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. – Winflied -

“Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of his ownership or occupation of land” – Clerk & Lindsell

- Not all interferences with another’s enjoyment of land will be actionable - an activity will only be a nuisance if in all the circumstances the interference is an unreasonable one. - The law seeks to draw a balance between the conflicting interests of landowners - the right of an occupier to use his land as he chooses and the right of his neighbour not to have his use of land interfered with. Private nuisance can be categorised in the following way:1)

Encroachment on the claimant’s land e.g. by tree branches or roots. (Davey v Harrow Corporation (1958)).

2)

Physical damage to the claimant’s land or property on it e.g. by flooding, vibrations or noxious fumes which damage vegetation.

3)

Interference with the claimant’s comfort or convenience e.g. through smells, dust, using premises as a brothel or excessive noise. – intangible things. Not interfering with the land directly but it means that you cannot enjoy your land as such.

4)

Interference with an easement, e.g. obstructing a private right of way. -

-

The tort is concerned with the land rather than the person; thus you cannot claim for personal injury as in public nuisance. Damage must be established- but it can be assumed. Unlawful conduct can be 1. Intentional, 2. Negligent or 3. Neither.

The course will concentrate on those nuisances falling within categories 2 and 3 above. An important distinction is drawn between these two categories for the purposes of private nuisance.

Physical damage St. Helens Smelting Co. v Tipping (1865) 11 HL Case 642 Facts: Claimant owned property near to smelting works. Complained that the noxious gas and other matter caused damage to his hedges & trees therefore intervening with his beneficial use of the land. Defendant was liable.

-

-

-

Lord Westbury differentiated between physical damage and intangible damage. In cases involving the latter, the degree of interference has to be measured against all the surrounding circumstances, such as the nature of the locality. With physical damage, however, such matters are irrelevant - as the above case demonstrates, the occupier is protected from physical damage no matter where he lives. Where the claimant complains about interference with his use and enjoyment of land a balancing exercise is undertaken to determine whether the defendant’s user of land was reasonable. (see below). This exercise is irrelevant in cases of physical damage (subject to certain exceptions e.g. abnormal sensitivity cases see later).

With physical damage occupier is protected from physical damage no matter where he lives. In addition, where the P complains about the interference with use and enjoyment of land. If physical damage has occurred the courts do not determine whether reasonable unless D’s use of land abnormally sensitive

Interference with enjoyment of land -

-

-

Where the claimant alleges interference with his comfort or convenience in his use of land then liability in nuisance is a matter of degree - a question of balancing competing interests. The defendant’s activity may in itself be perfectly lawful and only be actionable because it exceeds reasonable limits. The defendant’s activity will be unlawful if it is found that the interference caused to the claimant is unreasonable. This is a question of fact which depends on all the circumstances of the case. Comfort and inconvenience are not measured by the standards of the claimant, but by those of any ordinary person who might occupy the claimant’s property. Reasonableness in this context does not mean an absence of negligence - if the court considers that an interference is excessive then the fact that the defendant has taken all reasonable care and reduced it to a minimum is no defence - the

irreducible minimum is itself the nuisance. Some of the factors which the court will consider in determining whether the interference is unreasonable are as follows; (locality, abnormal sensitivity, duration of the interference, public benefit, malice and negligence).

1)

Locality The nature of the locality may be significant - contrast living in an industrial area with living in a quiet secluded residential area. As Thesiger L.J. said in Sturges v Bridgman (1879), “What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. Laws v Florinplace Ltd (1981) 1 All ER 659

Facts: Florinplace began operating a hard-core pornography shop. Residents brought a motion seeking an interim injunction against the store's continued operation. They claimed nuisance on two grounds: -

1) that the nature of the business offended residents and thus was an unreasonable interference with the enjoyment of their property, and 2) that the business would attract clientele which might accost local girls.

The court held that there can be a nuisance if the use of a property is an affront to the reasonable susceptibilities of ordinary people. No matter how discreetly the business was carried on, its nature must be apparent for customers to locate and use it.

In Lawrence v Fen Tigers Ltd (2014), the Supreme Court held that in determining the nature of the locality for present purposes, the defendant’s activities could be taken into account, but only to the extent that they did not constitute a nuisance. If his activities could not be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood. Thus, in Lawrence, where the claimants objected to excessive noise from a nearby motorsports stadium, the character of the locality was assessed on the basis that it did include some limited noise from speedway, stock-car and banger racing. It should also be noted at this stage that the prevailing standards of the locality may change over time, for example, if planning permission is granted to develop an area for industrial purposes. However, the grant of a waste management permit by the Environment Agency will not change the nature of the locality for these purposes (Barr v Biffa Waste Services (2012)).

2)

Abnormal Sensitivity

If the claimant or his property is abnormally sensitive, no liability will arise for interference that would not have troubled a person of ordinary susceptibilities. Robinson v Kilvert (1889) 41 ChD 88 Facts: K heated premises to assist in making of paper boxes. R occupied floor above and complained heat dried out the brown paper he warehoused there causing reduction in it’s value. Held: activities which would not injure any but the most sensitive of trades were not actionable nuisances. Did not succeed. Heath v Mayor of Brighton (1908) 98 LT 718 Facts: An injunction was sought by a vicar and the trustees of a church to stop the noise emanating from the defendant’s power station. Vicar complained that it interfered when giving his sermon. As no-one else appeared to have been bothered by the noise the injunction was refused. By contrast, if the defendant’s activity would have interfered with the ordinary use of land in any event, he will be liable, despite the delicate nature of the claimant’s operations. McKinnon Industries Ltd v Walker (1951) 3 DLR 577 - the complaint said that my orchid will not grow because of the sensitive nature of orchids because they are affected by the noxious fumes and smuts which had also caused shrubs, trees, hedges and flowers to die and these were not abnormally sensitive. 3)

Duration of the Interference If an interference is of a temporary nature it is less likely to be regarded as unreasonable. In some cases, however, a temporary interference will be actionable if the gravity of the interference is sufficiently serious. Thus, in De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914), an injunction was granted to stop pile-driving carried on during the night time as it disturbed the sleep of persons affected. An isolated incident can amount to a nuisance so long as it can be attributed to a continuing “state of affairs”. Castle v St. Augustine’s Links (1922) 38 TLR 615

- people nearby objected o disturbed sleep due to pile driving. Partial injunction granted. – did not stop it from happening all together, but said that they cannot continue working at night. 4)

Public Benefit

Since nuisance is the law of give and take the court is inevitably concerned to some extent with the utility or general benefit to the community of the defendant’s activity. Thus, we must all put up with the rattle of early morning milk deliveries, as opposed to the same level of noise made by drunken neighbours. This approach, however, will only justify interferences up to a certain level and when that level is exceeded the court will not accept the view that the claimant should put up with the harm because it is beneficial to the community as a whole. However, it is clear from the recent case of Dennis v Ministry of Defence (2003) that the public benefit aspect of the defendant’s activity might well influence the nature of the remedies awarded. Facts: If Community benefits then required to put up with certain activity – rattling of milk crates. However, the Ct will only justify interferences to a limit. Exceeding this limit then court will not accept public benefit as an excuse. - The court refused to treat the Harrier training as an ordinary use of land and held that although there was a public benefit to the continued training of Harrier pilots, the claimants should not be required to bear the cost of the public benefit. - Appropriate damages were awarded but an injunction was refused because it would be inappropriate because of the public benefit.

5)

Malice When the defendant’s conduct is motivated by malice this may convert acts which would otherwise be lawful into actionable nuisances. Christie v Davey (1893) 1 Ch 316 -

Where the D’s conduct is motivated by malice it may convert acts which would otherwise be lawful into an actionable nuisance

-

The claimant was a music teacher. She gave private lessons at her home and her family also enjoyed playing music. Her house adjoined the defendant’s property. The defendant had complained of the noise on many occasions but the noise continued. In retaliation he started banging on the walls and beating trays and shouted. Held: The defendant’s actions were motivated by malice and therefore did constitute a nuisance. An injunction was granted to restrain his actions.

This decision was followed in Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468 Facts: C bred silver foxes for their fur. They are known to be particularly sensitive. If disturbed when pregnant they can miscarry and eat their young. D was the claimant’s neighbor objected to the fox farm - fired a gun on his own land close to the where the animals were bred. C brought an action in nuisance. The defendant was liable despite the abnormal sensitivity of the foxes

 Why? because the D was motivated by malice. McNaughten J opined intention of the D was relevant in nuisance. No social utility if activities done with malice. McNaghten J considered that the intention of the defendant is relevant in nuisance and granted an injunction and awarded damages. Activities done maliciously with the object of injuring a neighbour have no social utility and cannot be regarded as “reasonable”. 6)

Negligence It has already been noted that the exercise of reasonable care by a defendant will not necessarily prevent his activity from amounting to a nuisance. If the interference is found to be a nuisance then the defendant will be liable even though he may have taken all reasonable care to prevent or minimise the interference. On the other hand, where the defendant has been negligent this may be evidence of unreasonable user, since the law would not usually expect someone to put up with an interference that could be avoided by the exercise of reasonable care. Finally, in some cases of nuisance negligence is an essential requirement of liability (see later).

-

NB – know already that even if D has exercised reasonable care may still constitute a nuisance However, if the D has been negligent works to aid the C because law will not usually sanction something that could have been avoided if reasonable care had been taken

Parties to an action in Nuisance Who can sue? The traditional view is that private nuisance protects interests in land and therefore a person who does not have a proprietary interest in the land affected cannot sue. - Private nuisance only protects interests in land therefore the traditional view that a person who does not have possession or propriety interest in land could not sue Malone v Laskey (1907) 2 KB 141  This view was confirmed more recently by the House of Lords in the following case - C was injured when vibrations from an engine on an adjoining property caused the cistern in the toilet to fall on her. She was unsuccessful in her claim as she did not have a proprietary interest in the house. Her husband was a mere licensee through his employment as a manager.

Hunter v Canary Wharf Ltd (1997) 2 All ER 426

Applying Malone v Laskey (1907) the House of Lords held that since the tort of nuisance was designed to protect the claimant’s enjoyment of his rights over land a person who has no rights over the land affected by an activity cannot sue in private nuisance. Accordingly, only a person with a right to exclusive possession of the land affected, such as the freeholder, a tenant in possession or a licensee with exclusive possession, can sue. A mere licensee or occupier has no right to sue but a lessor can sue provided the nuisance can be shown to have damaged his reversionary interest. However, it may be that the traditional common law view confirmed in Hunter is not compatible with Article 8(1) of the ECHR which states that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. - This possibility was recognised by Neuberger J in McKenna v British Aluminium Ltd (2002) when he refused to strike out a claim by over thirty children from a number of households who alleged that emissions and noise from the defendant’s factory amounted to a private nuisance. However, since this was a mere striking out application, and not a full trial, it cannot be regarded as a strong authority. - Application made to strike out claims brought in nuisance by neighbouring residents of the d’ts factory. Not all of the claimants had a proprietary interest in the land, in that they were children but they nevertheless sought to claim in nuisance against the defendant. Who can be sued? There are three potential defendants in a private nuisance action. The following three categories are not mutually exclusive. A) Creator The better view is that the person who creates a nuisance is liable regardless of whether or not he has any interest in the land on which it originated. (Jones v Portsmouth CC (2003)). - concerned subsidence of C’s property by tree roots. Council were liable for nuisance despite the fact that they did not own or occupy the land. Why? Because they had ;lawful exercise of control over the tree. B) Occupier The person occupying the land from which the nuisance emanates will be the usual defendant in private nuisance. The occupier will be liable for his own acts or omissions and, in some circumstances, the acts or omissions of others. -

This covers the occupier’s servants under the principle of vicarious liability – if you took an employee of the person who was making the nuisance to court your claim is unlikely to succeed. The employer will be responsible for the torts committed or created by his/her employees provided its in duration of the business.

-

and also the acts of lawful visitors because the occupier can exercise control by preventing their entry. Therefore, authorising a licensee’s activity which creates the nuisance will suffice.

Trespassers An occupier is not liable for a nuisance created by a trespasser on his land, unless he either adopts it or continues the nuisance. An occupier ‘adopts’ a nuisance if he makes use of it for his own purposes and he ‘continues’ a nuisance if he knows or ought reasonably to have known of its existence and fails to take reasonable steps to abate it. Sedleigh - Denfield v O’Callaghan (1940) A.C. 880 Facts: The D occupied land where a trespasser had laid a pipe which blocked in a heavy storm and flooded adjacent land. D knew of the nuisance but did nothing about itheld he was liable as he had adopted and continued the nuisance. -

However, if there are no effective steps that could be taken to avoid the harm, the occupier will not be liable. The view seems to be that, as with naturally occurring nuisances (see below), the particular occupier’s abilities and resources will be taken into account in determining what amounts to reasonable steps for present purposes.

Acts of Nature An occupier may also incur liability for a nuisance that arose on his land from natural causes. In such circumstances, liability is based upon the occupier’s actual or constructive knowledge of the hazard, ability to foresee the consequences of not removing it, and the ability to abate it. Leakey v National Trust (1980) QB 485 In these cases an occupier is under a duty to do that which is reasonable in all the circumstances to prevent or minimise the rise of damage to his neighbour or his neighbour’s property. The test of what is reasonable is determined subjectively - ie, the duty is to take reasonable steps given the particular circumstances of the defendant occupier including his own means and the expenditure required. A poor occupier upon whose land a hazard arises may satisfy his duty by notifying his wealthier neighbour and requesting additional resources to deal with the danger.

Knowledge of the nuisance -

Just knowing that T’s had caused a nuisance is not enough to secure liability. The occupier must have failed to take reasonable steps to abate the nuisance.

-

Principle applied in Leakey v National Trust 1980, where damage was done by movement of land itself to adjoining land below it. In these cases the occupier should do what is reasonable to minimise the risk.

C) Landlord -

The general rule is that a landlord who has parted with possession and control of premises is not liable for nuisances arising on them. However, a landlord will be liable if he has participated directly in the commission of the nuisance or if he is found to have ‘authorised’ the nuisance. Authorisation will apply where the landlord is aware of the purpose for which the premises are to be let and the nuisance is the inevitable or nearly certain consequence of that purpose.

Harris v James 1897 - the landlord was taken to have authorised the nuisance caused by tenants working a lime quarry because when they let the land, they knew of the activities being carried out.

Tetley v Chitty (1986) 1 All ER 663 -

the L.A. liable because they knew when they let the land it would be used for GoKarting.

Contrast Smith v Scott 1973 The L.A held not liable fo...