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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 : 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 : 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 : 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 : 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 : 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). o Bradford Corp v Pickles : 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 : 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 : 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). o St Helen's Smelting Co. v Tipping : 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. o Halsey v Esso Petroleum : 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 : 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 cases: Need to balance interests of C and D: Halsey v Esso: "the law must strike a fair and reasonable balance between the right of C... to the undisturbed enjoyment of his property, and the right of D... to use his property for his own lawful enjoyment". The test is claimant focused --- what can C reasonably be expected to put up with? Although there is a need to weigh the interests of C and D; if D's interference with C's enjoyment of land is intolerable, it will be nuisance, no matter social utility of D's conduct. However, social utility /
reasonableness of D's conduct is relevant when asking what C can reasonably be expected to tolerate.
? Barr v Biffa Waste Services : Smells from Ds landfill site affected C's quiet enjoyment of land. HL: 'reasonableness' asks: did interference "create an amount of discomfort in excess of that which an ordinary person could reasonably be expected to put up with." Here, where the area had a history of tipping / waste disposal, question was whether the discomfort was in excess of what ordinary person could reasonably be expected to put up with. Remitted to trial judge. Ordinary use of residential premises is not actionable: Southwark LBC v Mills  C was disturbed by noise from upstairs tenants. HL: noise was part of the ordinary use of the premises and "occupiers of low cost, high density housing must be expected to tolerate higher levels of noise from their neighbours than others in more substantial and spacious premises" Hypersensitivity not taken into account: interference with C's comfort/convenience is assessed objectively --- no 'egg shell skull' rule that requires Ds to take Cs as they find them. Follows from fact that harm in such cases is D's lessening the utility of the land, not discomfort to people on it:
? Robinson v Kilvert : C traded in sensitive paper, stored above D's premises. Heat from D's premises damaged C's paper. CA: this was not nuisance; the heat would not have been 'substantial interference' with a reasonable person's use of C's premises and the fact C did not use her property in a normal way did not make D's normally reasonable behaviour unreasonable. Nature and extent of the interference --- must be substantial
? Halsey v Esso Petroleum : if interference is noise or smell "it is always a question of degree" whether it constitutes nuisance. Factors include: (i) character of the noise/smell; (ii)
intensity of the smell / volume of noise; (ii) duration and frequency; (iii) timing of the interference. Last factor is important: in Halsey factor noise was permissible during the day, but not at night. Nature of the locality: character of the neighbourhood will be taken into account; an interference may be unreasonable in the city, but not the countryside. Halsey v Esso: standard is that of "the ordinary, reasonable, and responsible person who lives in this particular area." Further, "The character of the neighbourhood is very relevant and all the relevant circumstances have to be taken into account."
?????Can D's own activities be taken into account in determining nature of locality: o Coventry v Lawrence : In 2006 C bought a house adjacent to a speedway racetrack, which had been there since the 1970s. C claimed in nuisance for noise from stadium. Could the court take into account D's own activities in running the track?
? Lord Neuberger: court can take into account D's activity in assessing the nature of the locality as long as that activity does not itself amount to a nuisance. "In my view, to the extent that activities are a nuisance to C, they should be left out of account when assessing the character of the locality." Here, D could rely on its running the race track to establish that such activities were part of the nature of the locality, but could only do so insofar as those activities were not a nuisance to C.
? Neuberger acknowledged that this involves an element of circularity, but was concerned that if all D's activities could be taken into account then Ds "could invoke their own wrong against C in order to justify their continuing to commit that very wrong" and, as a result, it would become very hard for C to ever establish a nuisance claim.
?????Relevance of planning permission: Wheeler v JJ Saunders : (planning permission for pig sties) and Barr v Biffa Waste (planning permission for a dump) held planning permission will only change the nature of the locality if it is large scale "a strategic planning decision affected by considerations of public interest" (e.g. a housing estate). This was rejected in Coventry o Coventry v Lawrence: was planning permission for the stadium relevant?
? Relevance of planning permission: grant won't chance nature of localityLord Neuberger: "The mere fact that the activity... has the benefit of a planning permission is normally of no assistance to D in a claim brought by a neighbour who contends that the activity causes a nuisance to her land in the form of noise or other loss of amenity". This is because planning decisions are made in the public interest and public interest cannot trump private rights. However, it may have relevance at the remedy stage; where D's activity is sanctioned by planning permission, damages will normally be granted instead of an injunction.
? Lord Sumption: "It may at best provide some evidence of the reasonableness of the particular use of land in question."
? Relevance of D's compliance with terms of planning permission:
?????Lord Neuberger terms may be used to assess whether D's use of his land was reasonable. E.g. if planning permission stipulates limits as to the
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