#15589 - Torts Of Land 1 Private Nuisance - GDL Tort Law

Tort Law : Torts of land 1, Private Nuisance

Introduction:

• Torts of land = Torts which deal with damage and loss to another arising out of unreasonable use of one’s land.

• Three torts covered on syllabus

• Private nuisance

• Public nuisance

• Rule in Rylands v Fletcher

• Not examinable on GDL

  • Trespass to land

  • Statutory powers controlling environmental damage (eg, The Environmental Protection Act 1990)

  • European Directive on Environmental Liability 2004

Private Nuisance

Introduction

• Private nuisance protects private rights in the enjoyment of land.

• Basic of a private nuisance claim: use of one’s land that causes an interference with the use or enjoyment of another’s land, covers wide variety of situations.

• Not actionable per so, C must prove damage

  • Although, uniquely to private nuisance, damage may consist of ‘sensible personal discomfort’

  • Or C may have suffered property damage (which adversely affects C’s use and enjoyment of the land).

• Balances the conflicting interests of the D and C to use and enjoy their land.

• Bamford v Turnley (1862):

  • The rule of ‘give and take ... live and let live’.

  • Definition of private nuisance: ‘ ... any continuous activity or state of affairs causing a substantial and unreasonable interference with a plaintiff’s land or his or enjoyment of that land’.

  • So the interference with land must have some duration, and be more than trivial.

• Southwark London BC v Tanner (2001):

  • Lord Millett: ‘the governing principle is good neighbourliness’.

Distinguishing negligence

• There is no absolute standard in nuisance (like the ‘reasonable man’ in negligence).

• Take into account the severity of loss suffered by C. We don’t see this in negligence, where the actual loss of C is irrelevant to liability. Whereas for private nuisance – worse loss = more likely to establish liability.

• Fault is mostly irrelevant (with some exceptions)

  • Cambridge Water v Eastern Counties Leather (2004)

• Nuisance is older than negligence and the principles have not responded to change in same rate as negligence.

  • Barr v Biffa Waste (2012): Carnwath LJ: ‘the 19^th century principles for the most part remain valid’. Not a complicated/developing area.

Structure for claim

• Who can sue?

• Who can be sued?

• Loss

• Indirect interference

• Use of land must be unreasonable (unlawful).

  • Factors:

  • Type of loss is foreseeable

  • Not a one-off event

  • Abnormal sensitivity

  • Malice

  • Location

  • Duration and time

  • Public benefit

  • Defences

Who can sue?

• Anyone with a legal interest in the land [[i.e. a possessionary or proprietary interest, eg freehold or leasehold]]. Mere permission to use or occupy the land is insufficient.

  • Rationale for this: a claim in nuisance arises from interference with one’s land.

• Malone v Laskey (1907):

  • Land was occupied by a manager, who worked for the tenant and his wife. The manager’s wife (injured when a toilet cistern fell on her) did not have any legal interest in the land, so no right to sue.

• For a while, looked like courts were relaxing this requirement:

  • Khorasandjian v Bush (1993)—no longer good law

  • No legal interest in land; court allowed claim in private nuisance.

• But the expansion in Khorasandjian was Overruled in Hunter v Canary Wharf (1997)---restored the fundamental requirement: Overrules Khorasandjian—you do need a legal interest in the land.

  • Claims in private nuisance because all the residents couldn’t get a TV signal.

  • HELD: only those with legal interest in land can bring a claim.

• Some attempts to challenge this on Art 8 ECHR ground, since HRA 1998

  • McKenna v British Aluminium (2002): rule requiring C to have an interest in the land was scrutinised—whether it infringed right to a fair trial (Art 6) to enforce a right to respect for private and family life (Art 8).

  • Dobson v Thames Water (2009): confirmed the position in Hunter v Canary Wharf, need a legal interest. Said they are different types of claims. HRA claim doesn’t effect individual elements of a tort.

Who can be sued?

• Can sue the owner

• Can sue the creator of the nuisance

  • Can sue the creator of the nuisance (as long as they can be found), even though they may not be in a position to end the nuisance, and even though they may not be the occupier of the land.

  • Thomas v NUM (1986)—public nuisance case, but same principle applies:

  • We looked at this case re assault.

  • For nuisance, even though the miners were on someone else’s land, they were still creating a nuisance, and thus were potential defendants.

• Can sue the occupier-

  • The usual D is the occupier of the land from where the nuisance has come. Can be liable for nuisances create by them and liable for those created by others.

  • Occupier’s responsibility derives from: fact they have control over the land and occurrences upon it.

  • Leakey v National Trust (1980):

  • National Trust, didn’t own the land; but was liable for a large mound of earth it had accumulated on its land, when then collapsed onto C’s neighbouring land.

  • Although award of the hazard, National Trust took no steps to prevent the harm from happening.

  • National Trust didn’t own the land, but were occupiers.

• Occupier Liability for third parties

  • Independent contractors

  • An occupier would not normally be liable, but could, in rare circumstances, occupier could be liable for nuisances caused by their independent contractors.

  • If occupier has asked the contractor onto their land to perform certain tasks, and those tasks cause a reasonably foreseeable or inevitable nuisance liability arises.

  • Matania v National Provincial Bank (1936): an occupier was liable for the foreseeable excessive noise and dust caused by contractors altering their property.

    • Unusual case, because building work does not normally form the basis of a private nuisance claim—ppl are expected to put with a certain amount of ‘give and take’ or ‘live and let live’ in their daily living (Bamford v Turnley).

  • Predecessors in title

    • If the nuisance was created by the occupier’s predecessor in title and existed before the occupier obtained the land, the occupier would only be liable if they continued or adopted the nuisance.

  • Trespassers

    • If the nuisance was created by a trespasser, the occupier would only be liable if they continued or adopted the nuisance—Sedleigh-Denfield v O’Callaghan (1940): a water pipe that had been unlawfully put under D’s land and leaked gave rise to liability. D had used the poorly maintained pipe, and was liable when water leaked onto C’s land, even though the pipe had been laid by the local authority.

    • However, occupier may escape liability if they take reasonable steps to abate the nuisance.

  • Naturally occurring nuisances or natural condition of the land

    • The law had traditionally absolved the occupier from liability

    • However, Australian case, Goldman v Hargrave (1967), PC held an occupier liable for a naturally occurring nuisance where they knew or ought to have known of a danger; and failed to take reasonable steps to abate the nuisance.

    • But the duty to abate a natural occurring nuisance is subject to the means of the occupier, who will not be expected to bankrupt themselves in the process of averting the nuisance (Holbeck Hall Hotel v Scarborough BC (2000)

    • Court will consider what steps it is fair, just and reasonable to expect D to take, considering the resources available to both D and C, and must take into account the competing demands and public purpose of the funds of public authority defendants: Vernon Knight Associates v Cornwall CC (2013), CA.

• The landlord

  • A landlord will not usually be liable for a private nuisance unless they have created it; or authorised it; or knew or ought to have known of the nuisance at the time of letting the property; or if they have expressly or impliedly reserved the right to enter and repair.

  • Lippiatt v South Gloucestershire CC (2000)

  • Members of a traveller community.

  • Court held that the council could be responsible (even though it wasn’t them causing the problems), but the council controlled the land and were responsible for the third parties.

  • CF Hussain v Lancaster CC (1999):

  • Tetley v Chitty (1986);

  • Defendant Landlord, with full knowledge at time of leasing, was held liable for leasing premises to a go-cart club.

  • Landlord/tenant case.

  • Re go-kart racing. Landlord let premises out to ppl running go-kart site. Landlord knew the purpose of land, to be used for go-karting.

  • Noise level is something you expect from this activity so landlord’s held responsible, had given express or implied permission to the noise/disruption.

  • Coventry v Lawrence (2014)

  • Can’t automatically assume Landlord will be responsible just because they knew what activity would be carried out on the land by the lessees.

  • You might not be aware of the noise/disruption that the activity will cause.

ELEMENTS OF PRIVATE NUISANCE

• 3 ELEMENTS: (1) Indirect interference; (2) Damage; (3) Unlawful Interference

Element (1)--Indirect interference

• Direct interference would be actionable in trespass to land—not suitable for a private nuisance claim.

• So for private nuisance, must be indirect interference with the use or enjoyment of C’s land.

• Kelsen v Imperial Tabaco (1957)

• Sedleigh-Denfield v O’Callaghan (1940): a flood of water was held capable of constituting a private nuisance.

• Indirect interference occurs where the nuisance starts on D’s land, but then causes damage to some aspect of C’s use/enjoyment of his land: it is unintentional and often intangible, eg smells, noises, vibrations.

• Egs of indirect interference:

  • Noise/sounds

  • Smells

  • Fumes

  • Vibrations

Element (2)—Damage/Loss

• Private nuisance not actionable per...