#19880 - Nuisance Doing P Qs - Tort Law

In a Nutshell

Preconditions

1. Capacity of C to sue

2. Capacity of D to be sued

3. A threshold level of inconvenience

Elements of the Tort

1. An interference by D with C’s use and enjoyment of land

2. D committed as an unreasonable user

3. D’s interference caused the ‘damage’

   1. And this isn’t too remote

Defences

• Statutory authority

• Right of prescription

• Independent contractor

• ‘Common enemy’

• Proprietary estoppels

• Act of Allah

• Volenti non fit injuria

Misc

• Art. 8 ECHR

The Whole Nut

PRECONDITIONS

9. Capacity of C to sue

For C to sue, they must have either a proprietary or possessory interest in the land – this is the ‘Hunter rule of standing’. Who has a proprietary or possessory interest?

Those with just a beneficial ownership or non-exclusive possession can’t sue – Colour Quest v Total Downstream. Here’s some case examples of people who can’t sue:

ii. Capacity of D to be sued

Where D creates the nuisance

It’s usually the owner/occupier of the land where the nuisance originates. C might sue multiple Ds on the same land – for example in Coventry v Lawrence, C sued 6 Ds who were either owners or occupiers.

It gets complicated where D’s nuisance-activities arise from communal areas/land not belonging to D. The courts have taken two approaches:

Narrow view

Southport Corp v Esso Petroleum – Denning LJ said rules from Sedleigh-Denfield v O’Callaghan apply where D has to be in possession and control of the land. More recently – Hussain v Lancaster CC.

Wide view

Olympic Delivery Authority v Persons Unknown, Welsh Water v Barratt Homes. In the latter, nuisance didn’t require a use by D of its land. This appears to be the position in modern law.

Where D adopts/continues the nuisance

Continue – D knows about nuisance and doesn’t stop it where he had the reasonable time and means. Adopt – D continues the nuisance and makes use of it for his own benefit (Sedleigh-Denfield v O’Callaghan).

Where D authorises the nuisance (landlords only)

D either actively participates in the nuisance or otherwise authorises it by his conduct. Or, tenant’s nuisance was highly likely to result from the purposes for which the landlord let property to tenant. Smith v Scott, affirmed in Coventry v Lawrence.

When does D actively participate?

Merely knowing isn’t enough – Hussain v Lancaster CC. Mostly a question...