#14681 - Land Torts - GDL Tort Law

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Private Nuisance

• Read v Lyons per Scott LJ: ‘...an unlawful interference with a person’s use or enjoyment of his land, or some right over, or in connection with, that land’

Private nuisance involves:

1. An unlawful interference (what is unlawful will be determined by whether or not D’s use of his land is reasonable)

2. With a person’s use or enjoyment of his land

Three types of use of land:

Hunter v Canary Wharf per Lord Lloyd

1. Nuisance by encroachment on a neighbour’s land

2. Nuisance by direct physical injury to a neighbour’s land

3. Nuisance by interference with a neighbour’s quiet enjoyment of his land

An action will only be considered an unlawful interference if it is an unreasonable use of land.

Reasonable Use of Land

Cambridge Water Co v Eastern Counties Leather plc

Tannery owner inadvertently contaminated a borehole owned by C

Held: the damage was too remote (Wagon Mound No. 1) – emphasised that it is a principle of give & take between neighbours - a balancing exercise (per Lord Wright)

Factors determining reasonable use:

• Locality of the alleged nuisance (the character of the land)

Sturges v Bridgman

Noisy pestle & mortar of a sweet shot operated for 20 years. C built nextdoor and was bothered by the noise.

Held: ‘coming to the nuisance’ is no defence. However the locality of an action must be considered in tandem with the alleged nuisance itself – ‘what would be a nuisance in Belgrave Square might not be a nuisance in Bermondsey’

St Helens Smelting Co

Held: the location of the alleged nuisance is not relevant in relation to physical damage to someone’s property

Coventry v Lawrence

An issue regarding planning permission & whether planning permission could change the locality of the area. D had PP to motor race in a nearby stadium, and C lived nearby.

Held: (SC) planning permission argument was invalid because PP was not a key factor in working out whether something is a nuisance or not. Just because D has PP to do the activity, doesn’t mean they can’t be sued in nuisance. It is the court’s jurisdiction to judge whether use is reasonable or not

• Particular sensitivity of the claimant is NOT taken into account

Robinson v Kilvert

C stored brown paper which was particularly sensitive to heat & it was damaged

Held: the damage was only caused by the exceptionally delicate nature of C’s trade, and an ordinary person using the land would not have been interfered with

• Duration of the interference

British Celanese Ltd v Hunt

1 off incident when wind brought some metal onto C’s land

Held: an isolated happening by itself could be a nuisance

Crown River Cruises

Fireworks display caused C’s boats to set fire

Held: here there was a nuisance because, though it was of short duration, the unlawful interference deprived C of his enjoyment of his property

• Public benefit – only goes to REMEDY, it cannot affect liability

• Bamford v Turnley per Baron Bramwell: the gain of public benefit is such to cover compensation to the minority who suffer - “live and let live”

Miller v Jackson (see ‘General Negligence’ doc)

Held: (majority) public benefit may only go to the remedy and not the existence of breach in the first place

Dennis v MOD

RAF base practised low-level flying near C’s house. MOD argued public benefit

Held: this must only go the remedy – here no injunction was awarded but rather damages

Art 8 claims will be alongside tort claims: interference may be justified by what is necessary & proportionate in a democratic society, however:

Marcic v Thames Water Utilities Ltd

Parliament took away C’s right to sue for flooding caused by Thames Water because it decided it was necessary to create a special scheme regarding water utilities

Held: this did not conflict with HRA, but they failed to explain how it was consistent

• Malice: where D is maliciously creating an interference it is less likely it will be reasonable

Christie v Davey

Crazy music teacher whistling and shrieking under the guise of music teaching

Held: this was a deliberate and malicious interference and therefore unreasonable

Hollywood Silver Fox Farm

D, a property develop, took a disliking to C and got someone to go around the edge of his land shooting a gun with hopes of disturbing breeding

Held: this was a malicious and deliberate interference and therefore unreasonable

Is fault required on the part of the tortfeasor?

• Lunney & Oliphant: depends on the remedy sought

  • Injunction:

    • D will already be aware and ostensibly going to carry on with his tortious activity by the time this gets to court, so fault isn’t really at issue.

    • However, the test of the reasonable user doesn’t square up to moral fault – the objective test can render faultless behaviour unreasonable and faulty behaviour reasonable

  • Damages:

    • D can be quite unaware

• Wagon Mound 2: the same actions may give rise to a claim in nuisance & negligence, but negligence is not always a component of nuisance. HOWEVER “fault of some kind is almost alwaysnecessary and fault generally involves foreseeability”

• Cambridge Water per Lord Goff:

  • Unreasonable interference may still be caused by a user taking all reasonable care to prevent damage

  • HOWEVER “it by no means follows that the defendant should be held liable for damage of a type which he could not reasonable foresee”

  • In this regard the requirement of foreseeability should be borrowed from negligence

Nuisance created by third parties

Sedleigh-Denfield v O’Callaghan

Trespasser laid a drain. D then came to use the drain and misplaced a grate so that it overflowed, flooding C’s land

Held: (HL) D were liable - they had adopted the drain from the trespasser. An occupier of land is liable for the continuance of a nuisance created by others if he continues or adopts it.

• Lord Atkin: an occupier is not an insurer of another’s land - “there must be something more than the mere harm done…to make the party responsible”:

  • Deliberate acts or negligence are not necessary

  • However “some degree of personal responsibility” is:

  • This flows from the ‘use’ of the land which has ‘caused’ the damage

• Lord Wright: no prima facie responsibility for damage done to neighbour’s property; there must be some degree of knowledge

Lippiatt and Febry

D failed to remove travellers from his land causing nuisances to neighbours

Held: this claim could not be struck out – he had taken no steps to evict them & knew they were there

• Gearty: argues that third party cases & 1 off cases will find liability where negligence would find liability (as far as property damage concerned)

Nuisance by act of God

Goldman v Hargrave

Lightning struck a tree and when the tree was cut down the next day it was still alight, setting fire to C

Held: liability found for the act of God because of his knowledge of the risk

Leakey v National Trust

C’s land damaged by a landslide from D’s property which she had offered to have repaired if they split cost- they had legal advice they wouldn’t be liable for acts of God previously

Held: liability found as they were aware of the naturally occurring hazard and failed to take reasonable steps to remove it

Holbeck Hall Hotel Ltd v Scarborough BC

The hotel suffered damage as a result of a massive land slip & tried to rely on the principle in Goldman

Held: reversing the trial judge’s decision, the scope of the duty imposed takes account of D’s resources

Who can claim a private nuisance?

Restrictive view: must have a land interest:

Hunter v Canary Wharf

Claims for excessive amounts of dust caused by construction of Canary Wharf as well as interference with TV reception. However many claimants had no property right

Held: per Lord Hoffman:

1. No right of action in tort for interference with light, air or signals – this must be through a covenant or easement only

2. Overruling Khorasanjian nuisance requires a proprietary interest, a licensee does not suffice

Malone v Laskey

Vibrations from D’s property caused the cistern from a toilet fall on C

Held: licensee – no property right and therefore her enjoyment of the land could not be actionable

More liberal view:

Koranasandjian

Harassment by phone calls to a girl at home

Held: Dillon LJ found it “ridiculous” to consider the modern state of nuisance determined by whether or not someone is a freeholder/leaseholder – focus on substantial link to the land

Conflict with Art 8 claimants:

Dobson v Thames Water

Child bringing a claim – odour & mosquitos emanating from sewage system

Held: declaration made that HR had been breached. Awarded damages to the occupiers, however did not feel it necessary to award damages to children under them to satisfy the breach

McKenna v British Aluminium

Striking out application in a claim brought by children

Held: application dismissed:

• Nuisance, removed from HRA, (and Rylands v Fletcher liability as an extension of nuisance per per Lord Goff in Cambridge Water ) does not grant a right of action to non-property right holders

• Applicants arguing that land-based tort should not be extended by its definition to non-property right holders

• However the courts are public bodies for the purposes of HRA

• The court must be able to give damages under Art 8 to “give it teeth” (Rosalind English)

• Neuberger J “There is obviously a case for saying that effect has not been properly given to Article 8(1) if a person with no interest in the home, but who has lived in the home for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only...