Private Nuisance exam template PDF

Preview

Summary

Private Nuisance Nature of nuisance Private nuisance is an unreasonable interference with a person’s right to the use or enjoyment of land. The function of the law is to strike a fair and workable balance between the conflicting interests of neighbours, embodying the principle of “give and take, liv...

Description

Private Nuisance 1.

2.

Nature of nuisance Private nuisance is an unreasonable interference with a person’s right to the use or enjoyment of land. The function of the law is to strike a fair and workable balance between the conflicting interests of neighbours, embodying the principle of “give and take, live and let live”. Forms of Nuisance- What constitutes interference with the use or enjoyment of land? a) Actual damage to land St Helens Smelting Co Physical Interference: The character of the locality/ suitability for D’s activity is irrelevant where damage to property results. Never reasonable to tolerate an inference causing physical damage. BNZ v Greenwood Non- physical Interference: “the test is simply whether a reasonable person, living or working in the particular area, would regard the interference as unacceptable” b) Encroachment May be encroachment (intrusion) without physical damage. No immunity with respect of natural conditions (French) c) Interference with enjoyment of land Hunter v Canary Wharf Ltd [1997] impact of TV signal not actionable damage - If the utility of the land has been diminished by the existence of the nuisance Williams v Network Rail knotweed grew over to adjoining property was actionable - Knotweed not damage simply because it diminished value of land BUT the knotweed interfered with the amenity of that land without proof of damage as it posed an immediate burden in terms of difficulty and costs of developing for the new owner d) Interference with access Wu v Body Corporate locks were changed so co-owners couldn’t enter. Held trespass - SC affirmed that in interference cases, some emanation of the effect of a nuisance from the D’s land to the P’s land is usually required allows rare exceptions - Emanation: Requires a transportation of the alleged nuisance (e.g. noise, dirt, vibrations) BEMA Property Investments Ltd remotely reprogramming locks to deny access did interfere with an owner’s enjoyment of land - Recognised ‘usually’ meant not always emanation is not always necessary. - Sufficient that the intrusion disturbed the owner’s peace of mind and enjoyment of the land

3.

Substantial and Reasonable Harm The interference with the P’s use and enjoyment of land must be substantial and unreasonable. Almost all human activity involves some risk of harm or annoyance to others and thus everyone must put up with a certain level of interference as an accepted incident of living in close proximity to others. The P must prove that the interference suffered exceeds what a normal occupier in the P’s position could reasonably be expected to tolerate. BNZ v Greenwood reflected glare of sun from glass veranda in city - NZ adopted Walter v Selfe objective test - Conflicting interests of the parties are to be balanced by reference to the standard of “reasonableness”

- Test: whether a reasonable person, living or working in the particular area, would regard the interference as unacceptable? This a question of fact to be determined by reference to a range of factors: St Helens Smelting Co nature of the harm and relevance of locality/ character of neighbourhood - A person living in an industrial area cannot insist upon the same freedom from noise and fumes and smells as the person living in a residential suburb. - Can’t justify physical damage but if interference with enjoyment it will be taken into account Lawrence v Fen Tigers - Nature of locality: ‘character’ too monolithic  ‘established pattern of uses’ - Existence of planning permission (obtained in 1990, P brought house in 2006- no noise limits) - The grant of planning permission does not mean its lawful- wrong to deprive a property owner of a right to object what would otherwise be a nuisance. - The fact that an activity had the benefit of a planning permission is not in itself a bar to the claim. But may be relevant that the planning authority took the view that the activity was acceptable at some times, as a cautious approach is usually taken in granting permission. Fearn v Trustees of the Tate Gallery invasion of privacy created own architectural design/ sensitivity - Affirmed planning permission not sufficient to prevent an action - Land used for a good motive/ reason/ socially valuable is relevant in determining reasonability weighing exercise  but once the relevant reasonable standard is exceeded, the D liable regardless of value of activity - Public benefit not relevant if it is a nuisance  relevant to remedy Robinson v Kilvert- abnormal sensitivities of person or property not taken into account Christie v Davey Malicious motive reasonable activity may be unreasonable if the D acted with malice. 4.

Standard of Liability and Test for Remoteness Concerned with whether the level of interference caused by the activity is reasonable NOT the care taken by the defendant a) Creating a nuisance Liability appears to be strict in theory but fault in some sense of foreseeability (awareness of likely damage) is required. Cambridge Water Strict liability if you create a nuisance Hamilton v Papakura Adopts Cambridge principle in NZ Wagon Mound (No 2) Remoteness test applies to all nuisance cases- must be able to foresee all kinds of damage b) Adopting or continuing a nuisance - Occupier knows or ought to know of its existence on the land and fails to take reasonably prompt and effective steps to remove or abate it. Sedleigh Denfield continued use of present pipe, later blocked and drowned land - Continues- with knowledge of its existence fails to take reasonable means to bring to end - Adopts- makes use of the structure which constitutes the nuisance Goldman v Hargrave lightning caused fire, D didn’t stop it - Must show negligence to prove continuation of a nuisance

5.

Who can sue? Hunter v Canary Wharf Ltd Nuisance is a tort against land and thus the plaintiff must have a legal interest in the land affected by the nuisance. Persons who use the land, but lack proprietary or possessive interests cannot bring claims in nuisance (family, employees, guests)

6.

Who is liable? a) Control over land where the nuisance occurs Sedleigh Denfield Sufficient degree of control over the land  strict liability Matheson v Northcote College- Schools controlling position over their land responsible Cocking mother owner property, daughter lived there, claim against barking dog - Mother as licensor was occupier, granted license to daughter to live there - Liable as had sufficient control to be able to abate the nuisance Wu v Body Corporate Altered locks- Didn’t matter that the locks were on P and D’s landdenial of access was nuisance for interference with P’s natural rights of access b)Authorisation of a nuisance? Harris v James Owner liable if he authorised the conduct causing the nuisance - Authorisation is implied where the creation of the nuisance is the natural and necessary consequence of carrying on the activity for which the property is let Southwark London Borough Council - To authorise a nuisance, the landlords must “participate directly in the commission of the nuisance, or they must be taken to have authorised it by letting the property” Lawrence v Fen Tigers Ltd - Landlord liable for the tenants motocross stadium? Letting the land for a stadium did not fall within the inevitable, or nearly certain consequence- possible for the planned use of land to not cause a nuisance - Considered active or direct participation- landlords did not try to make tenant reduce noise, appealed against a noise abatement notice, erected hay-bale wall around site - These factors could not be described as participation in the nuisance  claim failed c) Adopting or continuing the nuisance Fault- based liability for continuing a nuisance Sedleigh Denfield- adopts  makes any use of the erection which constitutes the nuisance

7.

Defences a) Statutory authority - Statutory bodies that are authorised by empowering statutes to set up the thing creating the nuisance may seek to rely on the relevant statute in defence. - Such an authority may be expressly given, or it may be implied as a necessary consequence of the authority. Allen v Gulf Oil Refining - A nuisance is not inevitable if it could have been avoided by taking care with regard for others. - Onus is on the D to show that he or she used all reasonable care and skill for otherwise the interference will be seen as having been caused by the D’s incompetence. - Negligence will exclude all statutory defences. - Statute authority can depend on mandatory vs permissive etc. Lawrence v Fen Tigers Ltd - Resource consent can ultimately lead to a change in the character of the neighbourhood so that the activity becomes reasonable for the area and is no longer a nuisance.

b)Consent Ports of Auckland Coming to the nuisance is no particular defence BUT one suggested qualification: Lawrence v Fen Tigers a claimant who changed the use of their property after the defendant had started the activity alleged to cause a nuisance should not have the same rights to complain c) Contributory negligence BNZ v Greenwood- Not available where D strictly liable. May be where the D has negligently adopted/ continued a nuisance 8.

Remedies a) Damages At common law, damages may be awarded for past loss, or together with an injunction if it is still continuing- in which case, each new and separate infliction of harm gives rise to a fresh cause of action. The purpose of damages is to compensate for the diminution in the value of the plaintiff’s interest in the land. Basic measure of damages is: - Physical Damages- the diminution in the market value of the land. Reasonable cost of restoring the property, provided it is not disproportionate to the diminution in value. - Interference with Enjoyment- the amount by which the utility or amenity value of the land is diminished. Damages may be awarded for personal discomfort, annoyance, inconvenience, injury to health, physical damage to land, buildings and chattels, for depreciation in value, loss of profits through restrictions on use of land, and loss of enjoyment. Consequential losses if not too remote (Wagon Mound) e.g. damage to animals, lost rent or profits. b)Injunction - prohibitory, mandatory, quia timet - The injunction is the primary remedy for a nuisance. P can seek injunctive relief if the defendant’s activities will continue to cause harm unless restrained. - Quia timet injunction- not yet suffered harm but strong possibility that a state of affair’s on the defendant’s land will cause harm unless something is done to change the state of affairs. Kennaway v Thompson- Injunction requires defendant to modify behaviour rather than cease c) Damages in substitution for an injunction Under s 13 of the Senior Courts Act, the court has the power to award equitable damages in lieu of an injunction. In that case, the plaintiff is awarded a single sum of damages to compensate for all past and future harm, in which case the defendant has the right to continue the nuisance creating activity. Historically, the courts were reluctant to exercise this power and following Shelfer damages could be given in lieu if the injury was small, could be estimated in money and if it would be oppressive to grant an injunction. This continued to be a general rule for a long time until recently Lawrence v Fen Tigers brought about a large change regarding the issuing of injunctions essentially claiming Shelfer as out of date. It was stated that the failure to satisfy the Shelfer test does not mean that an injunction should not be granted. The approach should be much more flexible and the prima facie position was that an injunction should be granted, so the legal burden was on the defendant to show why it should not. Subject to that, the outcome should depend on all of the evidence and arguments. Lawrence v Fen Tigers was recently affirmed in NZ by the High Court in McInness and is thus likely to have persuasive authority in this case, it also has the broad support from leading commentator Stephen Todd. -

Lord Sumption- injunction should not, as a matter of principle, be awarded where the use being objected to has received planning permission

-

Lord Neuberger- found it hard to imagine a circumstance where public benefit could not as a matter of law be a relevant factor.

Rylands v Fletcher Nuisance principles tend to arise when there is continuing, or intermittent harm caused by the defendant. For cases of isolated escape, liability is covered by the rule in Rylands v Fletcher. The rule covers the isolated escape of something harmful to the plaintiff’s land when the defendant is making “non-natural” use of their land. Like nuisance, liability is strict and it is no defence that the defendant took all reasonable precautions. However, as with nuisance, the escape must have been foreseeable, even if the immediate cause of the escape was not. The rule of Rylands v Fletcher was confirmed as a subset of nuisance in New Zealand in the Cambridge Water case, and then Hamilton. Same rules as nuisance: - Need a possessory or proprietary interest in land to sue (Canary Wharf). - Basic measure of damages is the same – the diminution in the market or amenity value of the P’s interest in the land affected by the escape. Things Likely to do Mischief if it Escapes Contemplates there must be an escape from land Non-natural Use Must be special use bringing with it an increased danger to others - The focus is not on whether care was taken in relation to the manner of conducting the particular use, rather it is on the risk inherent in the activity such as it can be considered as non-natural whatever precautions are taken. Inherent risk- Storage or supply of water, fire or electricity IN BULK - Cambridge Water: storage of substantial amounts of chemical is non-natural Transco- Something out of the ordinary in the place and time - Supply of water (for 64 flats) was natural activity natural use of land Defences a. Plaintiff’s Default- D not liable where the escape is due solely to the plaintiff’s own default b. Act of God- Applies where the escape was due directly to an extraordinary act of nature of which a reasonable person could not recognise the possibility of such occurrence c. Act of Stranger- D not liable where damage is caused by deliberate act of 3rd party who the D is not responsible for Holderness: test is whether the occupier had the power to control the activities of the person on the land Liability for the Escape of Fire

Public Nuisance The tort of public nuisance can be defined as an interference “which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”. Historically, the tort originated as a common law crime in which the Court of Chancery would issue an injunction at the suit of the Attorney- General to restrain the commission of a public nuisance. Contemporarily, it has a limited field of practical operation and to a large extent has been superseded by specific statutory measures. Strict liability for creating a continuing interference with public rights. Fault based liability for failing to abate a continuing interference with public rights created by third parties or arising from natural causes. Widespread Private Nuisance- A nuisance which is so widespread in its range and effects that it would not be reasonable to expect one person to take proceedings to stop it, so that an action on behalf of the general public

may be brought (PYA Quarries). If there is such a nuisance, then the AG has standing to seek an injunction to restrain it. This can be brought by way of a relator action. As a general rule it’s better to let a relator action do all the work rather than be stuck in litigation. Special Damage- Where a person has suffered particular special damage over and above the general inconvenience suffered by the public, she or he is able to bring a claim in tort (Walsh v Ervin).

Trespass to Land 1.

2.

Nature of Trespass BEMA Property Investments Trespass is an unjustified direct interference with land in the possession of another to protect the possessory interest. Trespass is actionable without proof of damage, and although the act of trespass must be intentional, honest mistake is no defence. Land - Lockwood land includes things growing on the land, buildings or fixed structures - Kelsen land includes the airspace above it cf: Bernstein rights only extend to so high as was necessary to enjoy the use of the land

3.

Forms of Trespass a. Entering land (Matheson) b. Remaining on land after expiry of authority or license (Howden) c. Putting or leaving object on land (Matheson) d. Excluding owner (Wu v Body Co)

4.

Intention of Defendant- What state of mind do you need to establish trespass? Shattock- a defendant is liable if he or she intentionally or negligently performs an act that at law constitutes a trespass - An honest and reasonable belief that you had a lawful right to enter is irrelevant. Provided the person intends to enter, any mistaken belief does not matter

5.

Possession or Right of Possession a. Actual possession Shattock An action for trespass must be brought by the person in possession of the land. - Actual possession is a question of fact- consists of the intention to possess land, and the exercise of control over it to the exclusion of other persons. b. Action for recovery of land

6.

Remedies a. Criminal Proceedings b. Self- help CA s56 allows reasonable or necessary force to be used in defence of land c. Damages actionable per se- can get nominal damages without proof of harm d. Injunction- Senior Courts Act s 13

7.

Defenses- Claim of Right, Licence, Statutory Authority, Execution of Process, Distress, Recaption of Chattels...