Nuisance Notes

NUISANCE AND RYLANDS V FLETCHER

TRESSPASS TO LAND

Any direct interference with land in the possession of another is trespass and is actionable per se (without proof the trespass caused damage to C). Interference must be direct and immediate.

• League Against Cruel Sports v Scott [1985]: C used land as a sanctuary for wild animals and prohibited hunting. D’s hunt trespassed on C’s land on several occasions and C sued for trespass. The court held that D was liable for trespass. This case established two key points: (i) D’s act of moving onto C’s land can be negligent (D need not know he is trespassing / intend to trespass); (ii) if D has control over something which trespasses onto C’s land (e.g. dogs here), D can be liable.

One issue is airspace:

• Anchor Brewhouse Developments v Berkley House [1987]: D’s crane over-sailed C’s land, but did not interfere with C’s normal use of land. C sought an injunction. Scott J cranes constituted a trespass.

• Bernstein v Sky Views [1977]: D flew over C’s land to take an aerial photo of C’s house (which he would then attempt to sell to C). Griffiths J: no trespass. An owner has rights to the airspace above his land (e.g. removing overhanging branches) but C’s rights do not extend to an unlimited height. Balance between rights of the owner to enjoy land and rights of public to use airspace is best struck by drawing line at any incursion which may “interfere with the ordinary use and enjoyment” of land.

NUISANCE

Distinguishing public and private nuisance (NB: same incident can be both):

• Private nuisance: an unlawful interference with use / enjoyment of land; or a right relating to land.

• Public nuisance: a crime covering interferences with rights of the public at large. To claim in tort, an individual must prove he has suffered more damage than the rest of the community. Can be, but does not have to be, connected with use / enjoyment of land.

PRIVATE NUISANCE

Definition unreasonable non-trespassory interference with use/enjoyment of land, or right relating to land.

1. Non-trespassory

Distinguishing between trespassory / non-trespassory interference:

• Direct interference: if a person / physical object crosses onto C’s land, it is trespass.

• Indirect interference: no person / physical object crosses onto C’s land (e.g. a noise/smell), this is nuisance. NB: a physical object crossing will be indirect where C does not have sufficient control.

2. Actionable interference with land

There are four types of non-actionable interference:

• Interference with C’s view: Aldred’s Case [1610]: although smells from a pigsty could constitute nuisance, the obstruction of light could not. Light is “a matter only of delight, and not of necessity” and “the law does not give an action for such things of delight.”

• Interference with TV reception: Hunter v Canary Wharf [1997]: Lord Goff: D is entitled to build on his land, so the fact that a building stops something reaching C’s land is not enough to constitute a nuisance. Left open the question of whether an activity on D’s land which prevents a signal from reaching C (as opposed to obstruction of a signal by a building) could be a nuisance.

• Diversion of percolating water: an occupier has an absolute right to appropriate/divert percolating water (i.e. flowing through undefined underground channels). This does not apply where water is a defined stream / channel. D’s purpose for diverting the water is irrelevant (even if D is malicious).

• Bradford Corp v Pickles [1895]: D owned land which supplied water to C’s dams. D diverted water feeding the spring. HL: D was entitled to do so, even though his purpose was to force C to pay him to stop: “if it was a lawful act, however ill the motive might be, he had a right to do it.”

• Interference with privacy: Victoria Park Racing v Taylor [1937]: Aus HC: C built a tower on his land, so he could see over a fence surrounding a dog track, and report on the racing (breaking D’s monopoly). D was refused an injunction. No right not to have land overlooked.

Three broad types of actionable interference (categories listed by Lord Lloyd in Hunter):

• Encroachment: e.g. branches/roots of a tree encroaching C’s land. Smith v Giddy [1904]: D allowed tree branches to overhang the boundary with C’s land. KB: D liable in nuisance.

• Direct physical damage to C’s land / fixtures: e.g. flooding, damage to buildings/trees/crops. Key distinction is between fixtures (damage is actionable) and chattels (damage is not actionable).

  • St Helen’s Smelting Co. v Tipping [1865]: vapours from D’s factory damaged trees on C’s land. Physical damage must be ‘material’ rather than trivial. Here damage was actionable.

• Interference with C’s comfort/convenience in quiet enjoyment of his land: e.g. noise/ smells.

  • Halsey v Esso Petroleum [1961]: C lived in a residential area; D owned an oil factory on a neighbouring industrial development. D’s factory emitted unpleasant smells/noise day and night; and acid smuts built up on C’s car in the street. QBD: D was liable in public nuisance for the noise emitted by trucks driving at night and acid smuts on C’s car. D was liable in private nuisance for noise emitted from his boilers at night and for acid damage to C’s property.

2(a) Unreasonable interference: physical damage cases:

Where the interference physically damages C’s land / fixtures, unreasonable interference will be established without reference to other factors discussed below:

• St Helen’s Smelting v Tipping [1865]: D’s extensive copper smelting caused damage to C’s trees; the area was one in which there was a history of smelting. HL: there is a distinction between nuisance causing ‘material injury’ to C’s property and nuisance causing inconvenience/discomfort. For the former, no balancing exercise is necessary; D’s argument that this was a neighbourhood where smelting took place was therefore not relevant where there was material injury to the property.

2(b) Unreasonable interference: comfort and convenience...

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