Torts Of Land 1 Private Nuisance Notes

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...

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