Trespass, Nuisance And Rylands V Fletcher Nuisance Notes

Trespass to land, nuisance, and the rule in Rylands v Fletcher

Trespass to land

Trespass to land = unjustifiable interference with the possession of land.

Entry upon another’s land is tortious regardless of whether the entrant knows that he is trespassing (Conway v George Wimpey & Co Ltd (1951)), even if D has lost his way or believes the land is his. However, D is not liable for involuntary entry (when he is thrown or pushed onto another’s land) bc there is no act (Smith v Stone (1647)). Where land adjoining the highway is unintentionally entered (e.g. due to a crash), C must prove D was negligent (River Wear Commissioners v Adason (1877)).

Entick v Carrington (1765) – Trespass = actionable per se (i.e. regardless of whether C has suffered damage), but an action is only normally brought without damage if C wishes to deter persistent trespassing or there is a dispute about boundaries or rights of way.

A. Possession

• Physical presence ≠ sufficient, e.g. owner of a house possesses it, not the lodger (Allan v Liverpool Overseers (1874)). Also, continuous physical control is not necessary (a person does not lose possession of their house when they go on holiday).

• A lessor of land gives up possession to his tenant tenant alone can bring an action for trespass. Lessor can only bring proceedings for wrongful entry if it has caused permanent damage to the land (reducing the value of his reversion) (Ward v Macaulay (1791)).

• While having a legal interest in the land is not necessary, “in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land” (Slade J in Powell v McFarlane (1977)).

• The immediate right to possess (“constructive possession”) is the lawful right to retain possession when one has it, or to acquire it when one has not. Once a person entitled to immediate possession actually enters upon the land and so acquires possession, he is deemed to have been in possession from the moment that his right to it accrued this fiction (trespass by relation) means that C can sue for acts of trespass (plus damages) committed while he was actually out of possession (see Dunlop v Macedo (1891)).

B. Interference

• For trespass, interference with another’s possession of land must be direct + immediate (i.e. not indirect or consequential). E.g. D walks onto C’s land; D throws X onto C’s land; D allows his cattle to stray onto C’s land; D plants tree on C’s land all trespass. D plants tree on his own land and the roots project into C’s land nuisance (Smith v Giddy (1904)).

• Trespass on a highway

  • It is not trespass to participate in a peaceful assembly on a highway, provided it is reasonable and causes no obstruction (DPP v Jones (1999)). Since only the possessor can complain of trespass, other highway users still owe the same DoC to trespassers on the highway (Farrugia v GW Ry (1947)).

• Trespass to subsoil

  • Any intrusion upon the subsoil may amount to trespass. The subsoil and surface may be possessed by different persons (e.g. A and B, respectively).

  • Cox v Glue (1848) – Hence, walking on land only affects the surface (trespass against B), digging affects both the surface and subsoil (trespass against A and B), tunnelling only affects the subsoil (provided the entrance and exit holes are in one’s own land trespass against A).

• Interference with airspace

  • An advertising sign erected by D on their own property which projected into the airspace above C’s shop created a trespass (Kelsen v Imperial Tobacco Co).

  • Didow v Alberta Power (1988) – A landowner’s rights over the airspace above his property only extend to such a height as is necessary for the ordinary use and enjoyment of the land and structures on it, so that the flight of an aircraft “several hundred feet” above a house ≠ trespass.

  • s76(1) Civil Aviation Act provides that civil aircraft which fly at a reasonable height do not commit trespass. s76(2) CAA provides that if material loss/damage is caused to any person or property by, or by a person in, or an article or person falling from an aircraft while in flight, taking off or landing, then, unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages are recoverable without proof of negligence or intention or other cause of action (as if the loss/dmg had been caused by the wilful act, neglect or other default of the owner of the aircraft).

• Continuing trespass

  • Trespass may be “continuing” gives rise to actions from day-to-day so long as it lasts. Transfer of the land by the injured party does not prevent the transferee from suing for continuing trespass (Hudson v Nicholson (1839)).

  • Failing to remove something from land which was lawfully there to begin with but then caused damage to the land may attract liability; an action lies if the thing does damage to the land after it ought to have been removed (Konskier v Goodman Ltd (1928)).

  • However, there is no trespass if D merely omits to restore land to the same condition in which he found it (apart from removing anything he put on it), e.g. failing to fill up a pit he dug on his neighbours land liable in trespass for original digging but not for continuing trespass for allowing it to remain there.

Defences

License

• D may have a license = “that consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful” (Sir Frederick Pollock). Licenses preclude liability for a consent-requiring act, giving the licensee a right in personam against the licensor.

• Seeff v Ho (2011) – The acts of the licensee must not exceed the terms of the license.

• A person is not a trespasser if he is on land with the permission (express or implied) of the possessor (see Robson v Hallett (1967)), who may exclude anyone from entering upon the land regardless of whether he has good reason or not.

• A bare license (one granted otherwise than for valuable consideration) may be revoked at any time, at which point the licensee becomes a trespasser but is allowed a reasonable time to leave and remove his goods. Some contractual licenses = irrevocable.

• Cornish v Stubbs (1870) – After revocation the licensee becomes a trespasser but must be allowed a reasonable time in which to leave and to remove his goods.

• A licence coupled with an interest is irrevocable bc it confers a right in rem to something when you have entered, e.g. a tree cut down on the licensor’s land (Thomas v Sorrell (1672)). Until the tree is carried away the license is irrevocable (Wood v Leadbitter (1845)).

• Winter Garden Theatre (London) Ltd v Milleniu Productions Ltd (1946) – Whether a contractual license not coupled with an interest is irrevocable is a question of construction of the contract in light of the relevant and admissible circumstances. Where a contractual license is granted for a limited period and for a definite purpose it is irrevocable until the accomplishment of the purpose.

• If a license has been executed, the licensee cannot be compelled to undo what he has lawfully done. An executed license is only irrevocable where the license can be construed as authorising the doing of exactly what has been done.

• Public law may restrict the power of a public body to revoke a licence to enter its premises. This does not apply to the owners of ‘quasi-public’ places such as shopping malls.

Justification by law

• The most important statutory powers for the police are given in the Police and Criminal Evidence Act (PACE) 1984:

  • s17: A constable may enter and search premises for the purpose of arresting a person for an indictable offence (plus various other purposes).

  • s18: A constable may enter premises after an arrest for an indictable offence and search for related evidence.

  • When lawfully on the premises, a constable may seize anything which he reasonably believes to be evidence of any offence, provided he has reasonable grounds to believe it would otherwise be concealed, destroyed, etc.

  • A police officer has a power of entry to premises to prevent a breach of the peace (Thomas v Sawkins (1935)).

• Private persons may be justified when entering another’s property when doing so to prevent a serious offence (Handcock v Baker (1800)). Other statutes also authorise other forms of entry, e.g. accessing neighbouring land to carry out maintenance where entry is necessary to do so.

• Where entry is justified by law (not the land’s possessor) and the actor abuses his authority, he becomes a trespasser ab initio and his act is deemed unlawful from the very beginning, however innocent his conduct may have been prior to the abuse (Six Carpenters’ Case (1610)).

• Abuse must be a positive act, not a mere omission (Delta Holdings Ltd v Magrum (1975)).

• However, it now seems that partial abuse of authority does not render everything done under it unlawful. The law may withhold judgment on the lawfulness of an act for a time, allowing it to depend on subsequent events (Southam v Smout (1964)).

Remedies

Re-entry

• The person entitled to possession can enter/re-enter the premises but the Criminal Law Act 1977 makes it an offence for anyone to use/threaten violence for the purposes of securing entry to any premises occupied by another.

• However, the CLA does not change that a landowner is not civilly liable if he uses no more force than necessary to remove the trespasser and their property from his own land (Hemmings v Stoke Poges Golf Club (1920)).

Action for the recovery of land

• A person dispossessed of land can recover it specifically with an action for the recovery of land. He may obtain an order for possession against persons in occupation of his land if they entered or remained there without his license or consent, whether or not he is able to identify those persons.

• Requirement:

  • C must show that he has a better title than D, and usually prior possession is evidence of title (paper title is sufficient but not necessary).

• D may plead the defence of jus tertii if he can prove that a 3^rd party has a superior right to C.

  • This defence cannot be used in an ordinary action of trespass, but it ought to be allowed to the defendant in an action for the recovery of land.

  • However, where C relies on prior possession of the land, the defence of jus tertii cannot be raised (see Mayor of London v Hall (2010)). Regardless, D cannot rely upon jus tertii where he has acquired possession from C himself. There is a rule that D is estopped from denying the title of the person from whom D derived his interest, e.g. tenant cannot deny landlord’s title.

Damages

The action for mesne profits lies for damage which C suffered through having been out of possession of his land, enabling C to claim a reasonable rent for the possession of the property by D up to the time when possession is surrendered (Jones v Merton L.B.C. (2008)), plus damages for any deterioration and the costs of getting possession.

• Calculation of damages: the sum which the parties would have agreed by way of a rent/licence fee on a hypothetical basis as a willing seller and buyer at the time of the trespass (must consider the context). C in an action for the recovery of land may join it with a claim for mesne profits if so, it is unnecessary for him to have entered the land before he sues.

• NB: Ramzan v Brookwide Ltd (2011) – C was required to choose between alternative heads of loss: the loss of profits from his inability any longer to use an adjoining room as a restaurant OR mesne profits (since he could not both use the room and let it out).

Aggravated damages may be awarded in cases where D’s conduct has been high-handed, insulting or oppressive. Exemplary damages may be awarded where the requisite conditions are met.

Nuisance

There are many statutory nuisances which give rise to criminal liability and are aimed at protecting the environment (incl. controlling the depositing of waste), although the principal remedy is an order to prevent the harmful activity’s continuance (much cheaper and faster than a CL injunction). The CL is used where statutory provisions are inapt or where there are advantages in civil action, but civil actions for nuisance are mostly brought through means other than the CL.

Public nuisance = crime. Private nuisance = tort.

Public nuisance

Public nuisance = one which materially affects the reasonable comfort and convenience of life of a class of the public who come within the sphere/neighbourhood of its operation.

• If a large section of the public is affected, no civil action can be brought by a private individual (prevents multiplicity of actions).

• Unlike in private nuisance, in public nuisance C need not have an interest in land and C must show damage going beyond that suffered by the public as a whole.

Private nuisance

Private nuisance = some unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it. Requirements:

• Interference with C’s use/enjoyment of land.

• Interference = unreasonable.

Takes 3 forms:

1. encroachment on another’s land

2. direct physical injury to another’s land

3. interference with another’s land

A nuisance is based on a continuous or recurrent condition/activity. No physical emanation from D’s premises is necessary. Noises and smells can be nuisances, as can other offending businesses (e.g. prostitution – Thompson-Schwab v Costaki (1956)), but not every slight annoyance is actionable. The mere presence of a building is not actionable.

Many things may amount to a nuisance in fact but may not be actionable due to the circumstances (e.g. character of D’s conduct, balancing of interests: D’s right to use his land as he sees fit and C’s quiet enjoyment of his land).

Nuisance = a non-trespassory interference with the use/enjoyment of land (or rights over it). Trespass may refer more to infringement of exclusive possession of land.

NB: Nuisance can also be the infringement of a servitude (e.g. obstruction of a right of way).

Reasonableness

Central issue = was D’s conduct reasonable “according to the ordinary usages of mankind living in… a particular society” (Lord Wright in Sedleigh-Denfield v O’Callaghan (1940)). ‘Reasonableness’ refers to the balancing of the competing rights of C and D given all the circumstances. If the court considers that the interference is excessive, then the fact that D has taken all reasonable care and minimised the activity is no defence – the irreducible minimum is a nuisance (Rapier v London Tramways Co (1893)). It is the “reasonableness” of D’s conduct that matters, not whether he took “reasonable care”.

There is no precise test for reasonableness – it depends on a number of factors:

A. The type of harm and character of the locality

St Helen’s Smelting Co v Tipping (1865) – HoL drew distinction between:

1. “material injury” or “sensible injury to the value of the property”, and

2. “personal discomfort” or “amenity value” (usefulness/utility of the land).

Hunter v Canary Wharf (1997) – Physical damage = a physical change in the land which makes it less useful.

Where the harm = “personal discomfort” OR “amenity value”, the character of the locality is relevant (Coventry v Lawrence (2014)) – there must be something over and above the everyday inconveniences which are inevitable in that locality.

Where the harm = physical damage/material injury to C’s property, the character of the locality is irrelevant (St Helens Smelting Co v Tipping (1865)). I.e. the nuisance will be actionable.

NB: cannot recover for personal injury bc nuisance = tort against proprietary rights.

Coventry v Lawrence (2014) – D’s motoring events were making noise.

• Lord Neuberger: D’s own activities could be taken into account in determining the character of the locality, but not to the extent that they constituted a nuisance to C (e.g. a reasonable level of noise).

• Lord Neuberger: Having planning permission is normally of no assistance to D regarding a loss of amenity value case. Only occasionally could the terms of the permission be relevant where the project is exceptionally large and the permission is the “result of a considered policy decision”. Planning permission may be more relevant in determining an appropriate remedy.

• D may have a defence if C has changed the use of the land, and D’s pre-existing activity has thus become a nuisance.

Leakey v National Trust (1980) – What is reasonable is a question of fact depending on the circumstances, including D’s resources, physical capacity and the practicality of taking steps. C’s capacity to protect himself from damage may also be relevant.

St Helens Smelting Co v Tipping (1865) – It is no defence that C “came to the nuisance”.

B. Utility of D’s conduct – only relevant to remedy (Coventry v Lawrence)

The court will consider the utility or general benefit to the community of D’s conduct when determining reasonableness, but ONLY UP TO when serious damage is being done to C’s enjoyment of his property or to his livelihood – it is unfair for C individually to carry the burden of an activity from which many others benefit.

Even where serious damage is done to C’s enjoyment/livelihood, the utility of D’s conduct may be considered in determining the remedy (Coventry v Lawrence (2014)).

C. Abnormal sensitivity

The law does NOT take into account abnormal sensitivity in either persons or property.

Robinson v Kilvert (1889) – D manufactured paper boxes in a cellar. C occupied the house above and stored brown paper there. D’s business required hot and dry air which damaged C’s brown paper. However, the air did not inconvenience C’s workmen nor would it have injured paper generally D not liable. A person carrying on an exceptionally delicate trade cannot complain of his neighbour’s lawful activity if that activity would not injure anything except an exceptionally delicate trade.

NB: Once a nuisance is established, remedies extend to delicate and sensitive operations.

D. Limits to protection

Hunter v Canary Wharf Ltd (1997) – D is not liable in nuisance for constructing a 250m high tower which interferes with C’s television reception. There is also no natural right to a view, light, or the free passage of air. The case left open the question of whether D’s activity interfering with C’s television reception would have constituted a nuisance. This case also explicitly acknowledges the principle that C can claim for any loss caused by the violation of his right.

No general requirement of physical damage (noises and smells are sufficient).

The only natural right to support of one’s land by one’s neighbours is for the land in its natural state (a right to support of the land with buildings on it must be acquired by grant or prescription) (see Dalton v Angus (1881)).

Bradford (Mayor of) v Pickles (1895) – No interest at CL in percolating/underground water until appropriation. Hence… Stephens v Anglia Water Authority (1987) – pumping out groundwater, leading to withdrawal of support and collapse of C’s properties ≠ nuisance.

E. Temporary injury

If nuisance = temporary and occasional, then only in extreme cases will an injunction be granted (damages are the more likely remedy). An injunction will not be issued where damages would be an adequate remedy (Coventry v Lawrence (2014)). A relevant factor when determining damages is the duration of the alleged nuisance. Frequency and gravity of the likely harm are important factors in determining whether a dangerous state of affairs exist on D’s land.

It is often said that a “continuing state of affairs” is necessary in nuisance, but there can be liability in private nuisance for a single or isolated incident – an isolated incident is definitely actionable if it falls within the rule in Rylands v Fletcher (1866).

F. Malice

Bradford (Mayor of) v Pickles (1895) – A bad motive cannot make a legal act wrongful.

Hollywood Silver Fox Farm Ltd v Emmett (1936) – D’s intention is relevant in determining liability in nuisance. Likely reasoning: acts done maliciously cannot have any social utility and are thus not ‘reasonable’ this case seems the better view. NB: D must still have infringed a legally protected interest of C, or else C has no cause of action.

Hollywood represents the normal rule. Bradford turns on the peculiarity of the law governing percolating water.

Standard of liability in private nuisance

Unclear: how necessary is fault in private nuisance?

Injunctions – Here the court is merely balancing D and C’s rights irrelevant of whether D knew of or intended to create the nuisance. Purpose of remedy = protect from future damage.

Creation vs continuing – D “continues” a nuisance (for the creation of which he is not responsible) if, once he knows or ought to know of its existence, he fails to take reasonable precautions to abate it. Only then will he be liable in nuisance.

Innocently created nuisance – Where D creates a situation which interferes with C’s land, there is no liability where a person in D’s position at the time of the act would not have reasonably foreseen that interference (Cambridge Water Co v Eastern Counties Leather Plc (1994)). When D discovers the interference he is expected to do what is reasonable in the circumstances, which will not always be to remove the interference.

Liability for known risks – D takes all reasonable care in carrying on an activity which presents a known (albeit remote) risk to neighbours, but nonetheless some catastrophe occurs for which D is not to blame D has created the nuisance (Cambridge Water Co v Eastern Counties Leather Plc (1994)).

However, in the later case of Transco Plc v Stockport MBC (2004), HoL accepted that the rule in Rylands v Fletcher was a sub-species of the tort of nuisance concerned with liability for exceptional risks created by use of the land. The rule in Rylands v Fletcher entails some element of strict liability, though it is far from absolute.

It is difficult to justify that there is little strict liability in the law of nuisance, given the need for reciprocity between benefits and burdens. If D undertakes construction work (very carefully) on his property and damages C’s neighbouring property, why should D benefit from the construction work at C’s expense?

The Rule in Rylands v Fletcher

D owned a mill and constructed a reservoir on his own land. The reservoir was placed over a disused mine. Water from the reservoir filtered through to the disused mine shafts and then spread to a working mine owned by C, causing extensive damage.

It was decided by Blackburn J (who delivered the judgment of the Court of Exchequer Chamber) and the HoL that a claim in nuisance under Rylands v Fletcher requires that C shows that:

1. D brought something onto his land.

2. D made a “non-natural use” of his land (per Lord Cairns LC).

3. The thing was likely to do mischief if it escaped.

4. The thing did escape and cause damage.

Further requirement by HoL in Cambridge Water v Eastern Counties Leather (1994):

5. Harm of the relevant type must have been foreseeable.

   1. NB: cannot be death or personal injury – this is bc the rule in Rylands v Fletcher is thought of as a sub-species

Lord Cranworth: “If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage.” I.e. strict liability.

Lord Cairns LC stressed that if the water was naturally there, no liability would arise.

Who can be C?

Hunter v Canary Wharf Ltd (1997) – Reaffirmed that only he who has suffered an invasion of some sufficient proprietary or other interest in land can claim for private nuisance (extended to Rylands by McKenna, confirmed in Transco).

Qualifying interests include:

• owner-occupier

• tenant or person with de facto exclusive possession

• owner of an incorporeal hereditament can sue for disturbance of his right

• reversioner (must show that permanent injury to his property is likely to be caused)

Where C does not hold a qualifying proprietary right and D is a public body, C may be able to claim under ECHR Art.8 (right to respect for one’s private and family life and one’s home).

In Canary Wharf, Lord Hoffmann suggested that damages may be affected by the size, value and commodiousness of the property but not by the number of people in occupation. NB: One cannot claim for personal injury in a private nuisance action.

NB: For a public nuisance, any person who has suffered special damage can sue in respect of it.

Who can be D?

A. Creator of the nuisance

The person who creates a nuisance is always liable for it.

Hussain v Lancaster CC (2000) – No nuisance because the acts did not involve Ds’ use of their land, even though it affected Cs’ enjoyment of theirs. But then…

LE Jones (Insurance Brokers) Ltd v Portsmouth CC (2002) – There is no authority “for the proposition that a person cannot be liable in nuisance unless he is in occupation of the land or has some legal interest in it”. In other words, it is not necessary that the nuisance was created by the use of D’s land.

This is especially useful in relation to independent contractors who create a nuisance on their employer’s land, over which they do not have possession. In other cases it has simply been assumed that the creator of the nuisance is liable despite having no interest in any relevant land, e.g. Fennell v Robson Excavations Pty Ltd (1977).

B. Occupier

Sedleigh-Denfield v O’Callaghan (1940) – The occupier of the premises where the nuisance exists is generally liable during the period of his occupancy. Justification: occupier usually has the power to take measures to prevent or eliminate the nuisance.

The occupier is vicariously liable for his servants but cannot be held liable for the acts or omissions of an independent contractor employed by him, except where the principle is under a “non-delegable” duty to see that care is taken by the independent contractor.

Regarding licensees on the premises for their own purpose (rather than to do work for the occupier), the occupier is only liable if he knew or ought to have known of the nuisance and failed to take steps to control the licensee (Lippiatt v South Gloucestershire Council (2000).

Sedleigh-Denfield v O’Callaghan (1940) – D is liable for damage caused by trespassers’ acts on his own land provided that he knew or ought to have known about the source of the interference (here, a grating which caused a pipe blockage, resulting in C’s land being flooded – D’s servant ought to have realised the risk of flooding arising from the obstruction).

• NB: HoL drew no distinction between public and private nuisance.

Goldman v Hargrave (1967) – An occupier is not liable for a state of affairs either created by a trespasser or resulting from an act of nature unless either he adopts the nuisance (by using the state of affairs for his own purposes) or he continues the nuisance (fails to take reasonably prompt and efficient steps to abate it once he has actual or constructive knowledge of its existence)*. Further, Lord Wilberforce acknowledged the increasingly “positive character” of an occupier’s duty (as opposed to merely abstaining from creating a danger), meaning that an occupier may be liable for failing to take reasonable steps to abate a natural nuisance (confirmed by CoA in Leakey v National Trust (1980)).

Therefore, it is no longer relevant whether the state of affairs was originally created by a third party of by nature - once the occupier becomes aware of the nuisance and fails to take reasonable steps within a reasonable time, he may be liable for any damage it may cause.

Where D is not himself responsible for the creation of the source of the danger, the court is entitled to consider D’s individual circumstances. Lord Wilberforce in Goldman v Hargrave: “One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it… The standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances”. Where an act of nature is unforeseeable, it would be unfair to hold an occupier liable for damages caused by it.

• NB: This standard of care is the same across ‘nuisance’ and ‘negligence’: it is the general duty of care to one’s neighbours.

Public authorities were thought to be able to escape liability if their drainage or sewerage facilities were adequate when installed. However, Marcic v Thames Water Utilities Ltd (2003) held that an industry regulator would determine what expenditure/precautions to require of such public bodies. Civilians could complain to this regulator under ECHR Art.8 right, who could issue enforcement notices against the public body, and whose decisions would be open to judicial review.

Montana Hotels v Fasson Pty (1986) – Where the nuisance existed before the occupier acquired the property (i.e. a latent defect), the occupier will be liable if he knew or ought reasonably to have known of its existence. If not, the predecessor may remain liable for injury caused by the nuisance, but only if he created it (Roswell v Prior (1701)). NB: The duty to remedy a nuisance not created by oneself is part of the price of occupation of land.

C. Landlord

Tetley v Chitty (1986) – Landlord = liable if he expressly or impliedly authorises his tenant to create a nuisance (tenant is also liable). This includes when the landlord knows that the tenant’s use of the land will naturally and necessarily create a nuisance.

Gandy v Jubber (1865) – Landlord = liable if he knew or ought to have known of the nuisance before the letting, even if he took from the tenant a covenant to repair (Brew Bros Ltd v Snax (Ross) Ltd (1970)). Tenant also liable.

Regarding nuisances which arise after the tenancy has commenced, s4 Defective Premises Act 1972 established a duty on the landlord to take reasonable care to ensure that anyone who might reasonably be expected to be affected by defects in the state of the premises is reasonably safe from personal injury or property damage caused by the defects. Tenant also liable but can obtain an indemnity if landlord has covenanted to repair.

Damage

Public nuisance – C must prove damage.

Private nuisance – Court will often presume damage where it is so likely that damage will occur that it would be superfluous to demand evidence of its occurrence. Not necessary that C should show any loss of trade or diminution in the capital value of the property.

• Where the nuisance is to a servitude, no damage needs to be proved, although probability that substantial damage will ensue must be shown. If damage is not presumed, it might be difficult to establish that any one act has caused it.

Defences and non-defences

The following do not provide a defence to an action in nuisance:

• It is no defence to prove that C “came to” the nuisance, or that the place is a convenient one for committing it. C comes to the place “with all the rights which the common law affords” (Bliss v Hall (1838)).

  • However, if C has changed the use of the land, and D’s pre-existing legal activity has thus become a nuisance, D may have a defence that there is no nuisance because the activity is part of the character of the locality (Coventry v Lawrence (2014)).

• Planning permission, unless the permission is the “result of a considered policy development” (Coventry v Lawrence)

• It is no defence that an activity causing a nuisance is useful (Adams v Ursell (1913)).

• It is no defence that a nuisance was created by the independent acts of many persons, even if none of them were per se unlawful. This is because reasonableness of an act considers the surrounding circumstances, including the conduct of others.

• It is no defence to claim jus tertii (that some third party had better title to the land than C) – only possession or occupation is necessary to entitle C to sue for nuisance.

The following do provide a defence to an action in nuisance:

• Legislative authority – The damage must arise from the exercise of statutory powers and D must prove that the damage is an “inevitable” consequence of the activity. If the statute is merely permissive (i.e. not imposing a duty on D to do X), then D may be liable for inevitable consequences of the works. Distinction = requiring vs allowing D to do X.

  • NB: s3 HRA requires legislation to be read and given effect in a way which is compatible with the convention rights “so far as it is possible to do so”.

• Prescription – 20 years continuance will, by prescription, legalise a private nuisance but not a public one. The period only commences once the nuisance is known by C to exist (important where the nuisance existed before C came to it).

• Consent and contributory negligence – Law Reform (Contributory Negligence) Act 1945.

Remedies

The only effective remedy for an already-committed nuisance = damages. Continuous nuisances injunction. SC in Coventry v Lawrence (2014) said the courts should use damages as a remedy more often, either instead of an injunction or as well as an injunction which may order less than complete cessation of D’s activity.

Prima facie position = grant an injunction legal burden is on D to show why an injunction should not be granted. In Coventry v Lawrence (2014), Lord Neuberger suggested that some guidelines for determining the appropriate remedy could be found in Shelfer v City of London Electric Lighting Co (1895): damages, rather than an injunction, should be given if:

1. the injury to C’s legal rights = small,

2. the injury can be estimated in money,

3. the injury can be adequately compensated by a small money payment, and

4. the case is one in which it would be oppressive to grant an injunction against D.

(A.L. Smith LJ)

NB: these tests only offer guidance – the judges have discretion.

Most important development in Coventry v Lawrence (2014) = the extent to which the court took into account the public interest in the continuation of D’s activity when determining whether to grant an injunction. The court also said that having planning permission would have “real force in cases where it was clear that the public authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity cannot be carried out without causing the nuisance complained of”.

Measure of damages – Lord Neuberger in Coventry v Lawrence (2014) suggested that damages “should not always be limited to the value of the consequent reduction in the value of C’s property. While double counting must be avoided, the damages might well… also include the loss of C’s ability to enforce her rights, which may often be assessed by reference to the benefit to D of not suffering an injunction”.

Highways

Nuisance re: highways = “any wrongful act or omission upon or near a highway, whereby the public are prevented from freely, safely, and conveniently passing along the highway” (Jacobs v LLC (1950)).

A. Actionable obstructions

Each person is deemed to assume the normal risk of passage along the highway. Only when D does something which is in the circumstances unreasonable does it become actionable, e.g. a temporary obstruction which is reasonable in amount and duration may be permissible. It is unclear whether D will be liable in nuisance if he leaves his vehicle obstructing the highway even if it poses no risk to other road users – accident cases are usually dealt with in the law of negligence.

B. Access to and from the highway

Anything which prevents access to a person’s property which adjoins the highway at least nominal damages. While the private right of access is subject to the public right of passage, the latter may be temporarily interrupted by an adjoining owner – a reasonable exercise of both must be allowed.

Preventing others from coming onto C’s premises and doing business with him is both a private and a public nuisance (re: the latter – loss of trade = special damage).

Queuing is only unreasonable when the proprietors of the establishment which causes it are liable for nuisance. This is so if the obstruction (queue) is due to an unusual method of conducting business, but not if other circumstances were the primary cause (e.g. food shortages in wartime).

C. Damage on the highway from premises adjoining the highway

The mere fact that something projects over the highway from land/building adjacent to it does not per se constitute an actionable nuisance (bc no damage done).

If damage is done by the collapse of a natural projection (e.g. tree) onto the highway, the occupier is liable if he knew of the defect or ought, on investigation, to have known of it. If damage is done by the collapse of an artificial projection (e.g. sign), then the occupier or owner is answerable whether he knew or ought to have known of the danger or not (Wringe v Cohen (1940)). A good defence = unforeseeable act of a trespasser, or that the damage has resulted from “a secret and unobservable operation of nature”, e.g. subsidence.

C need only show that D had control over the defective premises and that the injury resulted from their dangerous condition gives rise to presumption that D failed in his duty of inspection + repair, only rebuttable by proof that the accident was inevitable.

D. Condition of the highway

Highways Act 1980 s41(1): “The authority who are for the time being the highway authority for a highway maintainable at public expense are under a duty… to maintain the highway.” s58(1) provides that it is a defence to prove that the authority had taken such care as in all the circumstances was reasonably required to secure that the part of the highway to which the action relates was not dangerous for traffic. It does not include removing ice or snow (Mills v Barnsley BC (1992)), but s41(1A) provides that the highway authority is under a duty to ensure, so far as is reasonably practicable, that safe passage is not endangered by ice or snow.

The Act applies to nuisance, negligence and breach of a statutory duty, but only where C has suffered personal injury or property damage.

Condition of pavements. The criterion to be applied in relation to maintaining the pavement is reasonable foreseeability of danger (Littler v Liverpool Corp (1968)).

Vehicular traffic. The highway authority must provide not merely for model drivers, but for the normal run of drivers to be found on the roads (incl. those that make mistakes). Duty is sig. less stringent than to repair every defect in the highway which might foreseeably cause harm.

Nature of the defence under s58 – the authority is liable for the negligence of its contractors. Proof that the accident would have happened even if due care had been taken ≠ defence.

Cellar coverings. A frontage must take reasonable care to keep safe gratings or flagstones covering a cellar under the street.

Textbooks used: McBride and Bagshaw; Winfield and Jolowicz

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