Land Torts

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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”:

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