Tort lecture- Private Nuisance Tort- Land Tort PDF

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Private Nuisance- Land TortLand Torts Land torts protect a person’s ability to use and enjoy their land freely without unwanted or unwarranted interference.  Only nominal damages awared if claiamnts cant prove they have suffered lossLand torts = Trespass :intentional and direct interfaces with rig...

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TORT 14 Private Nuisance- Land Tort Land Torts  

Land torts protect a person’s ability to use and enjoy their land freely without unwanted or unwarranted interference. Only nominal damages awared if claiamnts cant prove they have suffered loss

Land torts

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• Trespass:

intentional and direct interfaces with rights over property • Private nuisance: indirect and unreasonable interferences with property interests (actual physical damage or loss of amenity) • Public nuisance? An unlawful act or omission which endangers or interferes with the lives, comfort, property or common rights of the general public… common law offence • Rylands tort: once-off ‘escapes’ of things on land Our focus: private nuisance

Negligence v Land Torts The exact relationship or overlap is not properly established but there are notable differences: • Protection • •

Negligence: protection from harm… claim based on personal injury Land torts: protects ability to use and enjoy land… claim focused on land and ability to enjoy it

Where Focus lies • •

Negligence: primarily conduct-based Land torts: consequence-based

Fault requirement: •

Negligence: fault based

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Land torts: fault plays a very limited role

Private Nuisance: Regulates the relationship between neighbours by defining their mutual rights and obligations with respect to the use of their property •

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Private nuisance = the unreasonable (unlawful) interference with a person’s use or enjoyment of land or some right over that land… it involves indirect interferences and actionable only on proof of some damage Tort against land not the person Governing concept: ‘reasonable use of land’ Unlike negligence, the conduct of the defendant is not (usually) relevant: That is, they/she/he might take all precautions but may still be an ‘unreasonable land user’ Have to prove damage

There must be harm/injury which can be divided into two: damage to property (diminished value) and interference with use and enjoyment (diminished utility) Three manifestations of nuisance 1. Nuisance by interference with ‘amenity’ interests: quiet enjoyment of land (creating noise / dust / smells) 2. Nuisance by encroachment on a neighbours land (tree branches) 3. Nuisance by direct physical injury to land (flooding / noxious fumes) St Helen’s Smelting v Tipping: e.g. of individuals vs industry, damage to property v personal discomfort and the relevance of ‘location/ locality rule’ (discussed in next lecture) -

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A copper smelting company and Tipping had a large estate close to the company, the vapours that came from smelting process was noxious and killed of tipping’s hedges, trees, fruit and herbage and his cattle were left in a rather unhealthy state. Claim based on being prevented from enjoying the use of his land- diminished utility and also claimed the value of the property has been deep depreciated as a result of noxious fumes Material injury to property and one based o an act that produces personal discomfort, this is what amounts to an interference with amenities or interferences with amenity interests Counterpoint page 546 of Horsey and Rackley Important to note that damages to property and interference with amenity interests do not reflect two separate torts; these are 2 actionable consequences that fall under the tort of private nuisance Courts appear to view physical damage as a gave form of tort of nuisance while interferences with amenity interests, those interests where you can enjoy your property, are considered less serious when they’re interfered with.

Examples of nuisance: • •

Your neighbour leaves waste on their/her/his land to putrefy. It begins to smell, and flies gather – possibly there are rats that may go onto your land. Your neighbour plays music constantly, full blast, seven days a week… day in and day out…

These would give rise to an action in nuisance because there is an indirect harm arising on one person’s land and it spreads to another’s

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Claiming in private nuisance: four hurdles to overcome •

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1. The claimant must have ‘standing’ in relation to their/her/his ‘neighbour’ Look at who can sue, who can be sued, and what they can be sue for (look at remedies in next lecture) 2. There must be ‘emanation’ = something that can move from one neighbour’s property to onto another’s property 3. Demonstrate that the tortfeasor is an unreasonable user of the land Look at the ‘matrix of factors’ 4. Defences

Hurdle one: Standing – Who can sue? Standing= do they have a legal right to sue someone? Question: ??? v Defendant Traditional view- only those who have a legal interest in the land affected can sue in private nuisance. So a person with no proprietary interest I the land but with whom householder’s share their homes have no cause of action Malone v Laskey -

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Trustee of a building society who owned lots of properties, rented out a house to company Witherby and Co which was Mr Malones employer, Witherby and Co sublet the house to Mr M who moved in with wife and other relatives. Premises next door= also owned by building company, there was an engine used to generate electricity, it caused considerable vibrations which eventually caused the water tank in Mr M toilet to become insecure. Building society agreed to secure water tank, iron bracket put in place, but that gave way because of vibrations and iron bracket fell on Mrs Malone whilst she was on toilet, causing her serious injuries. She initiated a claim against the building society on basis that the engine on the structure next door was a nuisance, her standing was brought into question; her legal right to sue the building society brought into question too. Court found: action for nuisance could be maintained only when a persons right of property had been affected by the nuisance. Here, mrs m was not deemed to have a right to property as she had no interest in the property- she didn’t have a right of occupation in proper sense of the term, cant maintain an action for nuisance. Interest of proprietary held by Mr M employer who leased the property from the building society. Mrs M status: a mere licensee as she was just merely present

• ‘Actions for nuisance could be maintained where a person’s right of property had been affected by the nuisance’: ‘Interest in the property’/‘proprietary interest’ vs ‘mere licensee’ Shift after Malone indicating courts were willing to accept that if you could demonstrate a substantial link to the property instead of a legally recognised interest then you could sue in nuisance. Hunter v Canary Wharf – rejected above position

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Residents of London Docklands area sued Canary Wharf for damages on the basis of nuisance being that canary wharf had constructed a very tall tower called the Canary Wharf tower, this interfered with residents tv reception. Most of plaintiffs were children, spouses or relatives of people who had proprietary interests in the property; total of 690 plaintiffs but a large portion of them didn’t have exclusive right to possess the place where they lived. Courts explored whether living in a home was sufficient for standing, to establish a right to sue

• Initially: Accepted ‘substantial link’ (Khorasandjian v Bush) court of first instance found the class of persons who had standing was limited to those with an exclusive right to possess relevant property Court of appeal rejected this: Lord Justice Poll found that its essential there must be a substantial link between person and land. This sufficient link then confers on the occupants a capacity to sue In private nuisance • HoL: a person must have a right to the land affected = right to exclusive possession of the land (freeholder or tenant in possession, or even a licensee with exclusive possession) • McKenna v British Aluminium • •

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Striking out application, case was denied and parties eventually settled out of corut All claimants in this case were children, they recognised even though they don’t have an interest in the property/ land, they are permanent residents and were subject to the defendants noxious emissions and noise pollution that all arise from its activities as a business (British Aluminium) Claimants said they accept common law position in Hunter but needs to change if issue comes under HRA Human rights might support an expansion of standing

Hurdle one: Standing – Who can be sued? Claimant v ??? • • • •

We can sue our neighbour We are not concerned with neighbour principle from Donoghue Nuisance adopts a narrow construction of neighbour but it goes beyond literal meaning Cocking v Eacot: wrongdoers liability, Landlords Liability, Occupiers liability… question of possession and control. In this case: 2 defendants Mrs Waring and her daughter Ms Eacott. Mrs W owned the property, she granted her daughter a bare license to live in the house, Ms E paid no rent, Mrs W didn’t occupy property but covered all expenses Mr and Mrs Cocking next door neighbours, they complained there was excessive barking of Miss E dog and they were specific about this, they explained the dog was barking 5 to 10 times per month. Other= there was largely intentional abuse of shouting coming from Mis E property Miss W tried to avoid liability as she was no more than Landlord and she wasn’t personally involved in any of the alleged incidences. She did however get a possession order which she could use to force her daughter out of the house in response to initial complains that Mrs W chose to not enforce the order against her daughter

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Court said: persons that may be sued for nuisance can be defined into 3 classes. The wrongdoer, the occupier, the landlord and tenant. Landlords cannot become liable by simply failing to enforce a covenant that they cannot escape liability and they cannot then escape liability by including a covenant in its lease agreement. Covenant in context of land refers to an agreement regarding how land can be used To be liable in nuisance, landlord must participate either directly in the commission of the nuisance or must be taken to have authorised the nuisance by letting the property to the tenant. Omission doesn’t count Landlord enjoys limited liability because they have no control nor possession of the property for which the nuisance emanates Occupier usually responsible because even if not directly caused it, control & possession achieved. Owner may be deemed an occupier of property for these purposes, even if owner has allowed others to reside or undertake activities in the land Mrs W an occupier as maintained possession and control through her daughters residence

Hurdle one: Standing – What can they be sued for? Can only claim for reasonably foreseeable harm done… Cambridge Water Co v Eastern Counties Leather Used and stored chlorinated solvent which was situated a mile away from claimants borehole, they used borehole water for domestic purposes. Water as a result was unfit for human consumption. They claimed negligence, nuisance and the rule in Rylands Court of first instance dismissed actions in negligence and nuisance because ECL couldn’t have reasonably foreseen the damage that occurred and the claim based on violence was dismissed on ground that storage and use of solvent was, in the circumstances, natural use of land. Appeal: foreseeability of harm of relevant type by the Tannery was a prerequisite for recovery of damages both in nuisance and Ryland. Failed in nuisance because couldn’t establish that the permission which had occurred was in the circumstances foreseeable damage to land -

For if a plaintiff is in ordinary circumstances only able to claim damages in respect of personal injuries where he can prove such foreseeability on the part of the defendant, it is difficult to see why, in common justice, he should be in a stronger position to claim damages for interference with the enjoyment of his land where the defendant was unable to foresee such damage.

• NB: focus is on injury to land not personal injury • Common remedies: abatement, damages, and injunctions… Hurdle two: Emanation Anything is capable of amounting to a nuisance PROVIDED that there is emanation: something must move from one neighbour’s property onto another’s property… smell, smoke, noise, shrubbery, roots. • ‘Anything’? Hunter v Canary Wharf v Fearn v Board of Trustees of the Tate Gallery • Hunter v Canary Wharf: Lord Geoff held as a general rule a man is entitled to build on his own land, its not restricted by the fact the presence of the building may in itself interfere with his neighbours

TORT 14 enjoyment of the neighbours land. In the absence of an easement, so being the right to cross land for a particular purpose, more is required than mere presence of a neighbouring building to give rise to an action in private nuisance “For an action in private nuisance to lie in respect of interference with the plaintiff’s enjoyment of his land, it will generally arise from something emanating from the defendant’s land. Such an emanation may take many forms–noise, dirt, fumes, a noxious smell, vibrations, and suchlike. Occasionally activities on the defendant’s land are in themselves so offensive to neighbours as to constitute an actionable nuisance as in … where the sight of prostitutes and their clients entering and leaving neighbouring premises were held to fall into that category. Such cases must however be relatively rare. Mere fact the building gets in the way or prevents something from reaching claimants land is generally speaking, not enough for nuisance or to overcome hurdle of emanation HOWEVER: Fearn v Board of Trustees of the Tate Gallery [2019]: non-emanation not complete bar, ‘gaze’/deliberate overlooking as emanation, protection of privacy -

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Claimants live in block of flats, more glass windows than walls. These flats are next door to the Tate museum which recently opened a viewing balcony that would allow visitors to get a 360 view of London, its free and accessible to a constant flow of people Visitors have ben taking pictures of the flats, waving at claimants busing living in their private space, also incidences of people looking into flats with binoculars Claimants sought injunction to force state to close a portion of the balcony, to protect the privacy of claimants and stop the nuisance Court of first instance: establish whether this situation constitutes a nuisance For it to be nuisance something must emanate and at this stage, people are just looking it seems no emanation.

In Hunter: Lord Geoff didn’t say there always had to be an emanation his statement acknowledges there could be non-emanation cases meaning you won’t be completely barred from bringing nuisance in this case- engages issues about PRIVACY Judge Manns judgement: gaze of watchers, people watching is the analogous to an emanation for these purposes, it may be metaphorical to say that a gaze emanates in the same way as noise or smell, metaphor is compelling and would require the gaze to be treated in the same way

• On appeal [2020]: Emanation remains a requirement & other laws to protect privacy: court links privacy to nuisance and adds a caveat, is there a legitimate expectation to privacy? Court of appeal found the overwhelming weight of judicial authority was to the effect that mere overlooking from one property to another wasn’t capable of giving rise to a course of action in private nuisance Three matters mitigated against developing the common law by recognising that the cause of action of private nuisance extended to overlooking First: difficult to apply the objective test in nuisance for determining whether had been a material influence an interference with the amenity value of the affected land

TORT 14 Second: there are other ways to protect land owners from overlooking in particular planning, planning laws and control e.g why did they build the flats the way they did Finally, invasion of privacy rather than damage to interests and property. Issue of invasion of privacy is covered by other laws Land Torts- Private Nuisance Continued: •

Hurdle three: Unreasonable use by the defendant

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Hurdle four: Defences

Hurdle three: unreasonable use by the defendant Not every interference = nuisance… Governing concept: ‘reasonable use of land’ What is reasonable v unreasonable use??? It depends… Hurdle three: unreasonable use by the defendant and the ‘matrix of factors’ •

Three categories: 1. Factors that are always considered: intensity, duration, frequency, and timing of interference Factors that are always considered Intensity – including duration, frequency and timing of the interference A factor that is sometimes considered, dependant on the type of claim The nature of the locality Other factors that are sometimes considered, if relevant to the claim Sensitivity of the claimant; bad intention of the defendant. 2. A factor sometimes considered depending the type of claim: nature of the locality •

NB!!!!! By ‘type of claim’ = is it a claim for loss of amenity (interference with amenity interests OR is it a claim for material physical damage to property

3. Factors sometimes considered if relevant to the claim: sensitivity of the claimant and bad intention of the defendant We will work through each of these in detail… Hurdle three (cont.): Factors always taken into account •

Everyone has to put up with interference from their neighbours: ‘a degree of give and take must be expected’... ordinary everyday living is not nuisance •

Interference can become unreasonable when the interferences occur frequently or for long periods of time •

Kennaway v Thompson: ‘irritating noise causes an inconvenience beyond what other occupiers in the neighbourhood can be expected to bear’

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The intensity of the interference ‘[N]early all of us living in these islands have to put up with a certain amount of annoyance from our neighbours. Those living in towns may be irritated by their neighbours' noisy radios or incompetent playing of musical instruments; and they in turn may be inconvenienced by the noise caused by our guests slamming car doors and chattering after a late party. Even in the country the lowing of a sick cow or the early morning crowing of a farmyard cock may interfere with sleep and comfort. Intervention by injunction is only justified when the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear. The question is whether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live' - Kennaway v Thompson [1981] Q.B. 88, 94

The court of appeal states that irritating noises are normal issues in our lives, and sometimes noises create an annoying inconvenience but in order for these to constitute a nuisance, it must move beyond what your neighbours would expect to hear In this case Kennaway put up with this noise for long periods of time, one could argue that when she knew there would be a noisy episode she could make arrangements to be away from her home. But the court found there to be no reason why she should have to leave her home to enable the races to make noises which are a nuisance Court ended up with placing an injunction: restricting the clubs activities to reduce intensity of nuisance, reduced number of events the club could have it prescribed

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