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Land Torts _______________________________________________________
? 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 notParticular 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 withDuration 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 propertyPublic 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 consistentMalice: 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 o 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 o 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: o Unreasonable interference may still be caused by a user taking all reasonable care to prevent damage o 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": o Deliberate acts or negligence are not necessary o However "some degree of personal responsibility" is: o 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
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