Nuisance Flashcards

Question

Is Rylands v Fletcher a species of private nuisance?

Answer 1

- Transco tried to restate rule with certainty by classifying it as a sub-species of private nuisance, so that liability is because D is responsible for isolated escapes which have unreasonably interfered with the use and enjoyment of C’s land. IAO this classification is misguided: o Private nuisance is a tort while to be liable under RvF D doesn’t have to commit any legal wrong o Original rationale behind rule (internalizing costs to commercial enterprises) doesn’t justify confining liability to neighbouring land and not extending to eg. personal injuries o Reason provided in Transco doesn’t justify confining compensation to damage to land (eg. Lord Bingham cites the Aberfan tragedy as an example of an exceptional case where RvF would apply (waste heap slid down hill and buried a school, killing 116 children) – implication is that owner of school can sue for damage to buildings without having to prove fault, while parents of children would have to prove fault

Answer 2

o Read v Lyons: Macmillan – RvF is part of law concerning “the mutual duties of adjoining or neighbouring landowners”; suggests that only owner can be liable o Several cases held Ds liable who weren’t owners or even tenants; Lord Bingham in Transco [11] refers to D as “occupier” suggesting all occupiers can be liable ♣ NOTE: However at [4] and [11] he also refers to C as having only to be an “occupier” of the land – an apparent oversimplification (because in fact C would have to have exclusive possession/right to possess – this also undermines Lord Bingham’s classification of D having to be an “occupier” and suggests a misuse of the word in general not authority for widening rule in Read v Lyons o Some dicta suggest anyone responsible for storing the substance can be liable regardless of connection to land (Rainham v Belvedere Lord Summer: can’t escape liability “which otherwise attaches to them on storing it there merely because they have no tenancy or independent occupation”). IAO dicta are correct (consistent with who can be liable in private nuisance)

Answer 3

o Same as Hunter v Canary Wharf’s treatment of other private nuisances: C must have legally recognized interest in land/in exclusive possession; can only sue for harm caused to land, harm to amenity value and consequential damage to property (not personal injury) o Cattle v Stockton: Blackburn J – employees in the mine couldn’t claim for lost wages (no claim for PEL) but loss of amenity value and economic loss consequential on physical damage may be claimable (Cambridge Water v Eastern Counties Leather was such a claim)

Answer 4

o At first thought that thing had to be “inherently dangerous” (Hale v Jennings 1938) but Stallybrass concluded that this is unhelpful because nothing is always dangerous just like nothing is always safe o Transco – Bingham restated dangerousness at [10] as D “judged by the standards appropriate at the relevant place and time, he ought reasonably to have recognized, as giving rise to an exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been”

Answer 5

o Blackburn J - RvF applies only to keeping on land something “which was not naturally there” o Cairns LJ (HL) drew distinction between “natural” and “non-natural” use

Answer 6

PC held that escape of water from ordinary plumbing didn’t fall within RvF (Lord Moulton – must be “some special use bringing with it increased danger to others, and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community”) – last bit could be interpreted as improper use only (really restrictive)

Answer 7

o Lord Goff spoke against Moulton’s classification: ♣ Storage of substantial quantities of chemicals on industrial premises should be a classic case of non-natural use ♣ Creation of employment couldn’t establish use as natural ♣ Since HL also deciding that RvF doesn’t apply to unforeseeable consequences of escape, there will in future be less need to interpret “non-natural user” narrowly to limit liability ♣ Development of RvF alongside private nuisance might mean “non-natural user” will develop alongside “reasonable user” in private nuisance (suggests that excluded from “non-natural user” will be risks accepted as part of ordinary social give and take)

Answer 8

o Bingham – use doesn’t have to be unreasonable/improper to fall into RvF (preferred “ordinary”/”extraordinary” use rather than natural/non-natural use without giving guidance on the line between them) o Hoffmann says “ordinary” use is vague and offered alternative test: useful guide for “non-natural” use is to ask whether damage that eventuated was something against which CLAIMANT could reasonably be expected to have insured himself ♣ NOTE: What about changing this test to ask whether damage was something against which defendant ought reasonably have insured against (i.e. whether it was sufficiently foreseeable and he should have had the knowledge to purchase insurance)

Answer 9

o Etherton LJ said that D wasn’t using his small industrial estate “extraordinarily” by storing over 3,000 tyres there, because it was perfectly ordinary and reasonable to do so, and because it posed a foreseeable/recognized danger. IAO focus on danger rather than ordinary practice is much more convincing (and consistent with Goff’s view that storing large amounts of chemicals is non-natural) o Therefore IAO test based on degree of risk better than Hoffmann’s test for insurability (which should be irrelevant to classification of activity) ♣ Homeowner might insure against property damage but that doesn’t make the neighbouring fireworks factory exploding an ordinary activity ♣ Often both parties would be ensured; doubtful whether leaving claimant to bear the cost would be economically efficient (usually efficient only if C was better placed to avoid the harm or to evaluate/insure against the risk as a result of escape from D’s land – neither of these criteria is satisfied) ♣ Also unfair to make C pay the additional insurance premium o Two further points: ♣ Transco per Lord Scott at [89] – where use is permitted by statute it will be natural unless there has been negligence ♣ Blackburn J’s formulation contains “for his own purposes” – Court unlikely to protect D who stored for benefit of general public, but might if he stored for benefit of himself and C (though this overlaps with defence of consent)

Answer 10

o Read v Lyons: Thing must escape from D’s premises not merely from D’s control (here C was inspector at munitions factory injured by exploding shell – held RvF didn’t apply) o Transco: Where water escapes from one part of D’s premise to another part where it threatens to damage C’s pipe where he had an easement, Lord Scott said that RvF still didn't apply o Stannard v Gore: D’s unit was lit on fire and it spread to C’s unit because of tyres stored on D’s unit. Held RvF didn’t apply because the tyres (thing stored) weren’t the dangerous substances; the fire was. This will likely limit RvF from inflammable substances cases (however CoA thought precedent that rule should not be extended applied to any situation beyond those covered by formulation of rule in Transco)

Answer 11

o Rylands v Fletcher: “natural consequence” sufficient o Cambridge Water: Must be reasonably foreseeable that someone like C would suffer that kind of harm (here D ran tanning business that used large quantities of chemicals, some of which got spilled on D’s factory floor and seeped through into ground beneath and flowed into C’s borehole a mile away from D’s factory and contaminated the water. C sued D for costs of a new borehole and held not liable because unforeseeable that escape would cause someone like C to suffer a contaminated borehole) o Not needed to show reasonable foreseeability that thing would escape, just that if it did C would be harmed

Answer 12

- Liability under RvF is strict – it applies regardless of fault - However it is not absolute – there are defences available: o Act of stranger: D not liable if escape caused by act of stranger whom he couldn’t control o Act of god: “wholly extraordinary natural event” o Fault of C: C must be wholly at fault o Volenti: if C consented to the thing being stored (consent means acceptance of risk) ♣ Peters v Prince of Wales Theatre: D owned a theatre that had a shop which they leased to C, who knew that there was a sprinkler system in the building. When the system broke down and damaged contents of the shop, D were held not liable because C was happy to rent the place and were therefore held to have accepted the risk of the system breaking down

Answer 13

- Damages for cost of repair or diminution in capital value, and redress for consequential economic loss

Answer 14

Indirect physical damage to land cases (Sedleigh-Denfield, Leakey) should properly belong to negligence and not to nuisance, in analogy with Goldman v Hargraves. The lack of definition + absence of coherent goals or purposes have left nuisance vulnerable, especially to negligence → Williams and Hepple have suggested that nuisance is merely a sub-set of negligence, and occasionally, judges have ventured to this effect (ex. Lord Parker CJ in British Road Services v Slater). Private nuisance is an environmental tort – it is the best tool in common law to get sewage out of rivers/reduce unwanted noise/clean the atmosphere… - Its remedies are the strongest that courts can offer (injunction) - It responds to the harm done not culpability of the harmer But it’s been underutilized in pollution, but overloaded with new responsibilities while its very existence has been challenged → it is attacked and burdened because it lost all sense as to what it stands for. Three main problems: - Definitional Problem: private nuisance must be seen as distinct from public and statutory nuisance, and from interferences with servitudes → authorities from this area should not encroach on analysis of private nuisance - Structural Problem: costs/causation/burden of proof/locus standi obstacles to claimants, especially where D is a big business or the source of pollution is complicated scientific process → statutory nuisance procedure that was developed in response to this and thrived + expanded since o Thus, the impact of private nuisance is largely residual, though it remains highly relevant because statutory nuisance relies on the common law definition of nuisance. - Doctrinal problem: relationship between nuisance and negligence → non-physical damages are classic nuisance but physical damage to land appears more like negligence (involves analysis of D’s conduct and whether they knew what was happening) → IAO categorization of physical harm as private nuisance is anomalous because in 19C the boundaries of nuisance were not well understood so that it became an attractive receptacle for cases not easily classified → damaged private nuisance by introducing an emphasis on D’s conduct which is foreign to nuisance

Answer 15

 THESIS: Indirectly causing physical damage to land once belonged to negligence, and should now be returned to negligence so that nuisance can turn its undivided attention to protecting occupiers against non-physical interferences with the enjoyment of land “"the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive." (Lord Wilberforce, Goldman v Hargraves). → liability rested on “negligence and nothing else”; whether it fell within/overlapped with nuisance was "a question of classification which need not here be resolved”.  Thus their Lordships (rightly) steered away from Sedleigh-Denfield (which treated a similar hazard as a problem of nuisance – though the original writ claimed in negligence but this was not proceeded with because of difficulty establishing a duty of care) → why did Sedleigh-Denfield treat it as a nuisance claim? o “Continuance” allowed the court to suggest that D was engaged in an activity and didn’t simply fail to act? o Meant they didn’t have to confront negligence and its dislike of liability for omissions? o Relied heavily on cases that used the word “nuisance” loosely and unreflectively… Then, Leakey v National Trust followed Goldman but fell into the Sedleigh-Denfield trap – the pleadings referred only to nuisance, and Megaw LJ was consciously indifferent as to whether it was nuisance or negligence… But where was the nuisance? - Megaw LJ said that it was "the duty arising from a nuisance which is not brought about by human agency does not arise unless and until the defendant has, or ought to have had, knowledge of the existence of the defect and the danger thereby created” → this would mean that every defect capable of doing damage would be nuisance with only those giving rise to reasonably foreseeable danger attracting the duty of care… So negligence…? Result = conceptual confusion…

Answer 16

Authors who criticize private nuisance because of its uncertainty criticize two things: - Criterion of unreasonable user of land - Uncertainty as to the circumstances proof of carelessness is a prerequisite of finding liability Thesis: nuisance is not being absorbed by negligence but is an independent, sharply defined tort of strict liability. But it fails fully to incorporate the “polluter pays” principle because of its remoteness rules, so that it leaves risks not yet sufficiently identified by science to be carried by injured parties.

Answer 17

(because the vast majority of cases involve two occupiers of land because the nuisance arose from the defendant’s land so that some judicial dicta even suggest that it is a prerequisite)

Answer 18

Lord Goff in Cambridge Water v Eastern Countries Leather said that nuisance liability “has been kept under control by the principle of reasonable user” and notes the “striking” comparison between this and principle of natural use in RvF, drawing attention to a “similarity of function” between them) → IAO this to be rejected and results from a mistaken view of the reasonable user principle and its origins in nuisance – it has never been a general prerequisite of nuisance liability, but is a test developed out of a need to establish (in a limited category of cases) whether the alleged interference surmounts the threshold of interference necessary to give rise to an action in nuisance Example: reconciling Bradley Corporation and Hollywood Silver Fox: - Absolute right to extract water from beneath his land vs. relative right to make reasonable levels of noise (motivation being relevant only to the latter) → wrong because why is an occupier’s right to make a level of noise consonant with the nature of the locality any less absolute than his right to abstract groundwater? - Interference by noise is sui generis and subject to own rules of liability → whether right or wrong no support for Lord Goff’s view that unreasonable user is a general requirement - Interference with a legally protected interest (Christie, Hollywood Wilver Fox) so the issue is whether they acted unreasonably, wheras in Bradford there was no infringement on any such right or interest so motives were irrelevant → this means that an occupier has a legal though legally unenforceable right to silence in the enjoyment of their property whereas caselaw posits no existence of such a right and the only legally protected interest of occupiers is to be free from unreasonable levels of noise Thus, either 1) conflicting and irreconcilable decisions and Bradford should prevail, or 2) nuisance by noise is an isolated situation where the motivation of the defendant is relevant → either way no support for Lord Goff’s view that reasonable user test is general. Danger of comparing reasonable user test with non-natural use requirement = nuisance might be assailed by the same difficulties as RvF because of the uncertainties of the non-natural use requirement

Answer 19

Is nuisance no longer a strict liability tort, but has come to require a finding of fault on the part of D? Firmly established that reasonable foreseeability is a requirement: - Cambridge Water - Wagon Mound (No. 2): “Although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, e.g., in cases like Sedleigh-Denfield v. O'Callaghan ... the fault is in failing to abate the nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour.” (Lord Reid) But what must be reasonably foreseeable? That the consequences are reasonably foreseeable result of the operation/activity? Or of the causative event (discharge of chemicals, escape of gas…)?  IAO it is merely the causative event that has to be foreseeable, so that private nuisance is indeed a strict liability tort: “it appears from Lord Reid's statement of the law that he regarded it essentially as one relating to remoteness of damage.” (Lord Goff, Cambridge Water) meaning that the Wagon Mound’s reference to “fault” being necessary must be merely tangential because it relates to liability not remoteness.

Answer 20

A proper understanding of the modern tort of nuisance depends upon an awareness that its development has been significantly influenced by the fact that in the overwhelming majority of cases the interference complained of emanates from the land of the defendant. Except in situations where the interference is due to natural hazards or the actions of strangers--in which case the occupier is required to take reasonable measures to avoid the damage or abate the interference--the tort continues to be one of strict liability. Liability attaches by virtue of occupancy not of fault. The taking of reasonable care does not provide a defence. However, the occupier remains liable in nuisance only for those consequences which are a reasonably foreseeable result of the “escape” which gave rise to them. In respect of consequences which are not foreseeable--as a result for example of the limitations of current scientific knowledge or unusual natural conditions of which the occupier could not be expected to be aware--the loss continues to lie where it falls, the risk to be borne by the innocent third party. Finally, it is submitted that a degree of uncertainty is introduced into the situation by Lord Goff's elevation of the reasonable user test to the status of a general prerequisite of liability in nuisance.

Answer 21

The problem of social cost (Coase) = actions of business firms that have harmful effects on others (ex. smoke from factories) is an economic problem that calls for an economic solution. Drawing on Pigou’s idea that there are situations where the pursuit of private self-interest and the needs of the public welfare diverge in terms of both benefits or harms, and focusing on harms, he argues that “externalities” must be entered into the equation (through taxes) so as to correct the divergence between private self-interest and public welfare. He argues that rather than the factory being the cause of the harm, the social cost is a reciprocal one – if the factory can pollute without paying for damage to laundry next door, he harms the launderer; if the launderer who chooses to hang washing on a line can recover compensation, then he is harming the factory owner. Since someone will be harmed anyway, the real question is how to minimize harm → since the smoke only harms the laundry if the launderer hangs it, both cause the harm. Both parties can sort out their problems by making a contract (whatever the state of the law), so Coase argues that in a world where everyone behaved with economic rationality, and where there were no transaction costs, the parties would reach an economically efficient solution, and tort would have no function. In the real world, however, neither is true, and though Coase’s argument was to highlight the importance of transaction costs, the idea got around that it is best to leave conflicts to be sorted out by the market and not government regulation (and legal proceedings will merely function as steps in a bargaining process).

Answer 22

To settle the relevance of public benefit to liability for private nuisance.  Sir John Byles in Hole v Barlow (landowner sued over a nuisance caused by brick burning): not everybody’s enjoyment of life and property is rendered uncomfortable by the carrying out of an offensive or noxious trade in the neighbourhood, otherwise, great manufacturing towns would be full of persons bringing actions for nuisance to the great injury of the manufacturing and social interests of the community. Vs.  Bramwell B in Bamford v Turley: a thing is only to the public benefit when it is productive of good to those individuals, on the balance of loss and gain to all. It is for the public benefit that trains should be run, but not unless they pay their expenses. It would not be for the public benefit that there should be railways unless the railway was sufficient to compensate the loss occasioned by the use of land required for the site. Thus, no one things it would be right to take an individual’s land without compensation to make a railway. If one of these expenses is the burning down of a wood of such value that the railway would not run the train and burn down the wood if it were their own, neither is it for the public benefit that they should if the wood is not their own. Though Coase doesn’t refer to this, this can be seen as anticipating Coase’s idea on the proper relationship between law and economic theory. The conflict between the two cases led to the challenge in Tipping.

Answer 23

Was Tipping correctly decided, by essentially giving Tipping the power, through his vindication of the right of private property, to insist that he was entitled to choose to use his land as a gentleman’s residence and form, and to prevent his neighbour engaging in any incompatible land use? Coase doesn’t discuss it so uncertain as to how he would take the rejection of the public good defence (though probably in favour). Coase argues against the view that the mere fact than an industrial enterprise causes damage to third parties is a reason for imposing liability – if this closes down the enterprise, more may be lost overall than gained → this could have been the case in Tipping, if you take into account all third party effects (unemployment, moving costs, loss to local pubs, litigation costs, costs involved in Tipping moving elsewhere…). But the court doesn’t engage in this cost benefit analysis – this would have taken it too long as there is no limit to the amount of information which would be of potential relevance. + Cost benefit analysis would yield no general rule – it inevitably follows from Coase that imposing liability will sometimes make things better and something worse. But Coase’s thesis leads to the conclusion that from an economist’s point of view, general rules of tort liability are a mistake – the court should investigate the economic consequences and go for the allocation that leads to the most wealth nationally. But courts neither do nor can do this – it is wholly at odds with the idea of private property we have – in allocating private rights, private law treats economic efficiency as irrelevant.

Answer 24

1. Tort of nuisance is least satisfactory part of tort mainly because its boundaries are blurred 2. Historical origins of nuisance was inextricably connected to land, so idea of extending it to physical injury never occurred to lawyers until an “incautious obiter dictum” in 1535 3. Private nuisance was also concerned with interference with easements, most commonly the right of way, but the blocking of highways (as opposed to private ways) was a crime against the King and thus a new public nuisance category was developed 4. So far so good – the Courts rejected time and time again attempts to assimilate private way and highway blockage to keep the two distinct (rejecting a private individual’s claim to inconvenience caused by highway blockage though it is as troublesome as private way blockage) 5. However then there was a highway blockage case where Fitzherbert refused the action but gave the wrong reason: instead of saying that the criminal sanction barred private compensation, he said that to allow it to one would mean to allow it to a hundred (this is no reason – if a hundred private wrongs are committed then a hundred actions will ensue). Then he distinguished this case from the case where one man has suffered a greater hurt. 6. Two lines of cases emerged: one where C suffered greater hurt/inconvenience than everyone else where compensation was awarded (satisfactory) and another (unsatisfactory) where Cs suffered physical injury and were able to recover compensation despite the nuisance being public 7. Until end 18C there was just a stray case but Payne v Rogers led to a succession of cases where people claimed for falling through gratings and logs left on highways etc. but these cases were treated like negligence cases and the use of ‘nuisance’ was rare and incidental 8. In c.1840 the word ‘nuisance’ was used more often and ‘cellar flap cases’ began to creep from negligence to nuisance, for unknown reasons (IAO perhaps because Cs thought that by using nuisance they could recover damages for injuries caused by independent contractors); whatever the cause the result was unfortunate: a. One thing lying on highway would not be nuisance but another would; led to irreconcilable distinctions b. Cellar flap cases entailed stricter liabilities than when they were negligence c. In the same way “cross infections” brought negligence principles into nuisance d. This blurring of distinction between nuisance and other torts led to Rylands v Fletcher being misinterpreted as a landmark/revolutionary decision though the judges thought they were just restating established principles and that it was a simple case of nuisance rather than an exception i. NOTE: Supports contention by Lee that the most controversial and greatest developments in the law of nuisance are accidental and due to a misconception/disagreement as to what constitutes the basic principles of nuisance e. Cellar flap cases led to erroneous belief that personal injury could be recovered under nuisance 9. One can restore the law from its point of departure in Fitzherbert J’s judgment: a. ‘Nuisance’ only applies to interference with enjoyment by C of his rights in land b. Interference must be of some degree of permanence (exception: where D accumulated something on his land that is likely to do damage if it escapes – Rylands v Fletcher) c. Damage to the person or chattels cannot by itself amount to a nuisance (these are dealt with in trespass and negligence) d. Anyone maintaining anything near highway owes duty to those lawfully using it to prevent damage to their person and chattels. Appropriate remedy is action in negligence.

Answer 25

1. Nuisance actions are not very useful in any system of pollution control where the objective is social welfare: a. Principle of justice that postulates that existing property rights must be protected even if it will impose greater costs on society at large b. Private law’s ability to deal with environmental deterioration is limited as it depends on perceptible change (damage) c. Enforcement standards are likely to be selective: it often assumes that those with rights will know about them and be willing to enforce them, and that those who don’t will apply to the relevant authorities for these rights NOTE: Link this with the commentary on acid smuts where although pollution of this kind was a widespread problem not limited to C’s property D was nevertheless held liable because damage in this particular instance was traceable 2. Broad areas of statutory regulation testament to policy maker’s awareness of private law’s limited role

Answer 26

1. Private nuisance decisions are impossible to reconcile: court must determine whether there is a nuisance in any particular case and are free to use value judgments at a number of stages. Most particularly, the notion of “reasonableness” both in relation to D’s use and to interference with C defies any attempt at definition 2. Amenity cases are inherently relative and necessarily involve “weighing up” of interests. Since 19C through to Environmental Protection Act 1990 limitations to private enforceability of nuisance relating to public health and living conditions have been recognized, and as more statutory schemes were put in place and resolution depended less and less on civil courts, the court have moved away from a balancing act towards identification of type of harm or type of activity that attracts strict liability/conduct that attracts fault-based liability 3. Three different torts developed under private nuisance: a. Fault-based tort: applies to harms caused by natural events or third parties on D’s property (here key to liability is D’s conduct and damage required is physical damage). IAO this should be addressed in negligence not nuisance. b. Strict liability (Rylands v Fletcher) tort: IAO right now nuisance and RvF seem to be interchangeable terms; should abandon RvF terminology to allow a stronger tort of strict liability within private nuisance to develop c. Amenity harm: assessed in traditional unpredictable way involving all the circumstances 4. A greater distinction between the second and third tort should be developed so as to allow a strict liability tort to co-exist alongside the “reserve option” amenity tort a. NOTE: Author refers to amenity nuisance as a “reserve option” perhaps in light of the development of statutory schemes – perhaps these torts will become less and less relevant as more structured schemes emerge to govern construction 5. Recent cases (Hunter v Canary Wharf and Cambridge Water v Eastern Counties Leather) took conservative approaches to nuisance. In the latter case HL held that RvF is just a part of the law of private nuisance that applies to one off events rather than ongoing activity; HL explicitly rejected extending the rule into a special strict liability tort for ultra-hazardous activities 6. Developments seem surprising considering how conservative these decisions were, but the “enduring subtlety” of private nuisance has allowed it to evolve in unexpected directions, sometimes as a result of the court trying to bring it back to its foundations

Answer 27

1. Recently controversy developed as to whether physical property damage belongs to nuisance at all (which deals with enjoyment of property) 2. Gearty argued that physical damage should be dealt with under negligence and non-physical interference in private nuisance; this allows a strict liability tort to be maintained without allowing reasonable conduct/negligence concerns to infect nuisance (conclusion supported by HL in Hunter v Canary Wharf that confines nuisance to a tort against land, and Hirst LJ in Hussain v Lancaster CC in observing that both Smith v Littlewood and Hunger v Canary Wharf suggest assimilating physical damage cases into negligence) 3. However Court has in nuisance cases analysed conduct along negligence lines (breach of duty/fault): Sedleigh-Denfield, Goldman v Hargrave, National Trust v Leakey (leading to conclusion that requirement of negligence has been accepted in certain nuisance cases) 4. Calling a fault-based analysis “nuisance” (which connotes stricter liability) is dangerous: Holbeck v Scarborough BC extends encroachment under Leakey to provision of support, and CoA analysed the nuisance case wholly based on “duty of care” 5. Common factor in all these cases is that they concern physical damage, but holding that only amenity cases can be nuisance would be artificial 6. Narrow conception of Sedleigh-Denfield cases focuses on intervention by third parties and natural events; nuisance is called on because negligence usually doesn’t address omissions. Even accepting that certain nuisance cases are fault-based, Court has not drawn a proper distinction between nuisance and negligence: Marcic – CoA said categorization was a merely “academic” question; however, this risks confusing the interests engaged (while that case compensated the property damage caused by flooding, the amenity interests of inconvenience by repeated flooding must also be great) 7. Confusing the two also gives rise to danger that nuisance will be swallowed by negligence; maintaining the distinction requires the torts to be accurately defined, and the situations that require the Leakey subjective analysis to prevail over the objective analysis

Answer 28

1. Fault-based analysis in nuisance depends on third party/natural event intervention 2. Since St Helens there’s been a distinction between physical damage (doesn’t depend on characteristics of locality) and sensibilities nuisance, suggesting that physical damage nuisance doesn’t depend on relative interests of the parties (thus more absolute liability) 3. However not every activity attracts strict liability as per Cambridge Water: only “non-natural” use does (comparable to “reasonable user” in nuisance per Lord Goff) 4. Court refrained from defining “non-natural” use but rejects Lord Moulton’s definition in Rickards v Lothian that the use must not “merely be the ordinary use of the land or such a use as is proper for general benefit of the community” (wide interpretation of general benefit of the community makes it hard to keep principle within bounds) 5. Cross argues that it is a mistake to compare “natural user” to “reasonable user” because reasonableness depends both on D’s activity and C’s interference, while “natural use” depends solely on D’s action 6. Thus Cambridge Waters relaxes “non-natural” which until then was interpreted in a very defendant-friendly manner

Answer 29

1. Instead of abandoning strict liability courts have seemed to identify types of activity to which it applies, but this is subjective, involves much value judgment and can be inconsistent 2. Trend seems to be that industrial, waste management and farming uses attract strict liability while residential and allied uses are usually reasonable 3. Saying that an activity is unreasonable that isn’t unreasonable in the negligence sense can appear strained: important activities that had been granted an explicit license (as in Graham v Rechem) shouldn’t be termed unreasonable except in a technical sense. Also since the main remedy is an injunction, it would be inappropriate to issue one when the activity is “reasonable” in the conventional sense (i.e. desirable)

Answer 30

1. Strength of private nuisance lies in focus on activity itself rather than manner of carrying it out: certain permitted activities are expected to cause harm even if reasonably carried out but that doesn’t mean permitting losses to fall where they may 2. Identification of discrete categories of activity that attract strict liability is consistent with statutory approaches. However labelling them as “unreasonable” or “non-natural” is unsatisfactory because the Court is not assessing either, but rather whether strict liability is appropriate 3. We should concentrate on conscious reform rather than apparently unintentional developments a. Foreseeability inroad places the risks associated with new technologies on the victims without any real debate as to policy b. Historical limitations restrict our considerations to land though that is also unaccompanied by policy reasoning 4. More considered and comprehensive reform preferable to current ad hoc approach 5. A political consideration of which activities attract strict liability is needed 6. Cambridge Water led to strict(er) liability for dangerous activities, which is surely not what the HL intended in its focus on “doctrinal purity”. Private nuisance is a vulnerable tort (to negligence and to its own unpredictability and uncertainty) and in this respect the case has potential to breathe new life into the tort NOTE: Essentially saying that it is in trying to be conservative that the Court will effect the greatest change because of how unexpected the tort is. Seems to suggest that the greatest changes happen by accident. This is surely undesirable

Answer 31

⇒ Definition: something that materially affects the reasonable comfort and convenience of life of a class of the public who come within the neighbourhood of its operation o Whether a sufficient class is affected is a question of fact o Vague – covers a “multitude of sins, great and small” (Denning LJ – Southport v Esso Petroleum) ⇒ Private individuals cannot bring an action in public nuisance unless they have suffered special loss above and beyond the ordinary inconvenience suffered by the public at large o Justification: to prevent multiplicity of actions o Special loss must be substantial, direct and not consequential, and appreciably different in nature or extent to that suffered by the general public ⇒ Does not require any interest in land ⇒ Can sue for personal damage (Corby Group v Corby BC – though Lord Goff expresses doubt in Hunter v Canary Wharf at 692 (AC))

Answer 32

⇒ Definition: unlawful interference with a person’s use or enjoyment of land, or some right over/in connection with it ⇒ Three forms: o Encroachment o Direct physical injury to land o Interference with enjoyment of land ⇒ Must be continuous or recurrent ⇒ Mere presence of a building cannot constitute nuisance: Hunter v Canary Wharf ⇒ Nuisance over easements: Colls v Home and Colonian Stores – Lord Macnaghten said that the action for interference with an easement is sui generis, the function being to remedy the infringement of a right rather than to compensate for the commission of a wrong – the nature of the defendant’s conduct is less relevant than in other nuisance cases

Answer 33

⇒ Definition: is the defendant’s conduct reasonable “according to the ordinary usages of mankind living in… a particular society” (Sedleigh-Denfield v O’Callaghan)? ⇒ Different standard than negligence reasonableness, which treats the victim’s rights as absolute; nuisance reasonableness treats the balance as from both sides, as an attempt to balance the competing rights of neighbours – a rule of “give and take, of live and let live” (Bamford v Turnley) ⇒ Always a question of fact determined by reference to all the circumstances: time and place of commission, malice, seriousness of harm, manner of commission etc.

Answer 34

⇒ Irrelevant to “material injury” but relevant to personal discomfort: St Helens Smelting v Tipping – “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey” o Though even the inhabitants at Bermondsey are entitled to legal protection – there must be something over and above the everyday inconveniences inevitable to that locality o Consequences seem to lack full investigation, though it has been reiterated: Halsey v Esso, Miller v Jackson ⇒ Relevance of D’s own activity (Coventry v Lawrence) o Lord Neuberger: relevant, but not to the extent that they constituted a nuisance to the claimant (circular – but he considered it preferable to alternatives of ignoring them altogether or taking them into account without modification (as the CoA did) as it would mean that there would rarely be a successful claim for nuisance) o Lord Carnwath: in earlier cases involving noise, courts didn’t undertake an “interactive process” but rather proceeded on the basis that a “change in the intensity or character of an existing activity may result in a nuisance, no less than the introduction of a new activity” – whether it did so was a question of fact ⇒ Relevance of planning permission o Lord Neuberger (Coventry): permission is “normally of no assistance to the defendant” for noise or other loss of amenity – sometimes the terms of a permission may be relevant o Lord Carnwath: in “exceptional cases” (those where the project is exceptional in scale and permission the “result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses”) permission cannot sensibly be ignored when assessing the character of a locality

Answer 35

⇒ Can rescue a defendant up to a point, as anything above that would be to require an individual to carry the burden of an activity from which many others benefit

Answer 36

⇒ Not relevant: o Sensitive property: Robinson v Kilvert – a person who carries out an exceptionally delicate trade cannot complain because it is inured by his neighbour doing something lawful on his property o Sensitive persons: Heath v Mayor of Brighton ⇒ However once nuisance is established, remedies (damages/injunction) will extend to delicate and sensitive operations (eg. growth of orchids – McKinnon Industries v Walker)

Answer 37

⇒ No natural right to a view: Dalton v Angus ⇒ No natural right to light ⇒ No natural right to the free passage of air: Bryant v Lefever ⇒ Though light and free passage of air can be acquired by prescription: Clerk and Lindsell on Torts

Answer 38

⇒ Injunctions will not be issued against temporary nuisances except in exceptional circumstances (eg. De Keyser – because it was decided that undertaking the work by night was unreasonable) because injunctions are a discretionary remedy and will only be issued where damages would not be adequate ⇒ Damages are assessed taking into consideration the duration of the nuisance – all other circumstances must be taken into account to determine whether there has been an actionable nuisance: injury must be “of a substantial character not fleeting or evanescent” (Benjamin v Storr). Temporary nature is evidence (but inconclusive) that injury is too trivial to be considered a nuisance. ⇒ A “continuing state of affairs” is normally necessary for nuisance: Thesiger J in SCM v Whittal – a single isolated escape will not constitute a nuisance unless it arose from the “condition of the defendant’s land” which constituted a nuisance (though this rule is of little practical importance as a single isolated escape can satisfy Rylands v Fletcher)

Answer 39

⇒ Christie v Davey: malice did turn a lawful action into an actionable nuisance – North J: “if what has taken place had occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case” ⇒ Bradford v Pickles, reaffirmed in Allen v Flood, came to the opposite conclusion, but neither case mentioned Christie v Davey ⇒ Hollywood Silver Fox Farm v Emmett followed Christie v Davey and considered the intention of the defendant relevant to determining liability – Winfield and Jolowitz think that this represents the better view because acts done maliciously with the object of injuring a neighbour are devoid of any social utility and cannot be regarded as “reasonable”. Perhaps Bradford v Pickles can be regarded as a ‘no rights’ case because there is no right to percolating water, so intention is irrelevant – however, it then becomes difficult to defend Lord Cooke’s view in Hunter v Canary Wharf that the construction of a building with the purpose of interfering with a neighbour’s TV reception would be actionable.

Answer 40

⇒ Often said that it is, but the courts haven’t explored the meaning of the expression and have created conflicting dicta ⇒ Injunction: more concerned with whether the defendant should be allowed to continue, than whether liability is strict (thus we should be slow to transport what is said in injunction cases to other cases) ⇒ Continuing a nuisance: no liability unless aware or ought to be aware of the nuisance and fails to take reasonable precautions to abate it ⇒ Nuisances involuntarily created: no liability in damages where the possibility of interference of the type that occurs could not reasonably have been foreseen by someone in the defendant’s position when he did the acts (thus no liability for ‘historic pollution’ (acts that seem harmless but due to advances in knowledge become known to be hazardous)) – Cambridge Water. ⇒ Known risks carried out with reasonable care: in Transco, it was accepted that Rylands v Fletcher was a subspecies of nuisance, concerned with liability for exceptional risks created by the use of land. Thus it is unlikely that ordinary nuisance would attract liability for such risks; if they don’t fall into Rylands v Fletcher, then it is difficult to say how it might be unreasonable. ⇒ Therefore it seems that liability is not strict

Answer 41

⇒ Only those with an interest in land (Hunter v Canary Wharf) – only occupiers (owners, tenants and those in de facto exclusive possession) and not their family, guests, lodgers or employees, can sue ⇒ As damages are attached to injury to property, they are not modified to reflect the number of occupants, nor are they increased if there are multiple occupiers: Lord Hoffmann – Hunter v Canary Wharf ⇒ No claim for personal injury ⇒ Article 8 ECHR grants a right to respect for private and family life and one’s home irrespective of proprietary interests – so where a public authority is concerned, non-occupiers can recover damages from there, but not under common law. ⇒ In public nuisance anyone who has suffered special damage can sue, irrespective of interest in land

Answer 42

⇒ Creator of the nuisance (whether or not the nuisance was created by the use of defendant’s land) o Hussain v Lancaster CC held that the Ds weren’t liable because they didn’t have any interest in the land, but principally this is unnecessary and would inconveniently insulate from liability people like independent contractors – CoA in LE Jones v Portsmouth CC later said that there was no authority for the proposition that D has to have legal interest in the land. ⇒ Occupier of the premises where the nuisance exists (for creating, continuing or adopting the nuisance) o Nuisance created by those lawfully on the premises: ♣ Servants – occupier liable vicariously ♣ Independent contractors – ordinarily not liable vicariously, but may owe a non-delegable duty of care ♣ Licensees – probably not liable unless occupier had knowledge or means of knowledge of the nuisance and failed to take steps to control the licensee o Nuisance created by a trespasser/act of nature: ♣ Occupier may be liable for adopting or continuing (after becoming aware of the nuisance he doesn't take steps to abate it) the nuisance: Sedleigh-Denfield v O’Callaghan (trespassers) and Goldman v Hargrave (acts of nature) ♣ In assessing standard of care the court must take into account the circumstances of the occupier – can’t impose obligations on occupiers, whose own interest may be modest or immaterial, to excessive expenditures or efforts of which they are not capable; “the standard ought to be to require of the occupier what is reasonable to expect of him in his individual circumstances”: Lord Wilberforce, Goldman v Hargrave. ♣ Scope of liability – only liable for damage that is reasonably foreseeable: Holveck Hall Hotel v Scarborough BC, reaffirmed in Lambert v Barratt Homes ⇒ Landlord (for authorizing/knowing about/ought to have known about nuisance created by tenants) o Authorizing: a landlord is deemed to have authorized a nuisance if he let the premises to tortfeasors to carry out an activity in the way that it constituted a nuisance: Southwark v Mills. However, merely providing him with the means of perpetrating a nuisance is insufficient (failure to remove tenants, or even letting for a purpose without direction as to the manner of carrying it out, is insufficient) o Knowing/ought to have known of the nuisance before letting: previously landlord could escape liability if he signed a covenant to repair with the tenant though he foresaw that the tenant would likely perpetrate a nuisance: this was rejected in Brew Bros v Snax

Answer 43

⇒ Coming to a nuisance o Qualified by the principle that for sensible personal discomfort the nature of the locality is important ⇒ Usefulness to people generally o Relevant to determining whether a nuisance has occurred but is no defence once nuisance is proved (Adams v Ursell) ⇒ Nuisance due to many (D is liable even though his action alone wouldn’t have constituted an actionable nuisance – rationale is that whether something is a nuisance is assessed with reference to surrounding circumstances)

Answer 44

⇒ Conduct permitted by statute (usually public authority) o Must be intra vires: substantial interference will not normally be intra vires unless it is inevitable consequence (onus on D to prove inevitability) o Subject to HRA ⇒ Prescription (20 years’ continuance will legalize a private nuisance but not a public one) o Period commences when the nuisance is known the C to exist: Sturges v Bridgman ⇒ Consent of the claimant ⇒ Contributory negligence

Answer 45

⇒ For past nuisance: damages ⇒ For future nuisance: injunction, or damages in lieu of injunction o Injunction is the prima facie position, subject to Shelfer test as approved by Lord Neuberger: ♣ Damages in lieu may be given where 1) injury is small, 2) estimable in money, 3) adequately compensable with small money payment and 4) oppressive to D to grant an injunction o After Coventry public interest is a much stronger factor and planning permission is allowed greater influence: ♣ Lord Neuberger – planning permission should have “real force in cases where it was clear that the planning authority had been reasonably and fairly influenced y the public benefit of the activity” ♣ Lord Sumption – “it may well be that an injunction should as a matter of principle NOT be granted in a case where a use of land to which objection is taken requires and has received planning permission”

Answer 46

o Blackburn J, Rylands v Fletcher (Court of Exchequer): “the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape” o Lord Cairns (HL) said that liability resulted from “non-natural use” of D’s land, but agreed with Blackburn J and said that his reasoning came to essentially the same conclusion o However subsequent cases appear to treat the two statements as separate requirements

Answer 47

o Blackburn J drew from nuisance cases for authority o Winfield: Rylands laid down a new principle governing “exceptional” or “unusual” risks o US: case led to creation of a category of liability for damage caused by ultra-hazardous/abnormally dangerous activity that present an unavoidable risk even when due care is taken (though English law has declined to do the same – an ‘escape’ is required) o Many connections with nuisance: ♣ There must be an escape (only applicable to damage occurring outside place where dangerous thing is kept) ♣ Probably inapplicable to personal injuries o Newark: Rylands merely applies a general rule of strict liability in nuisance to situations of single escapes and not ongoing state of affairs – merely single escape cases place into focus the strictness of liability because in ongoing state of affairs cases the nuisance was usually noticeable so the question of liability without knowledge is punishable is avoided (accepted by HL in Cambridge Water: rule should be regarded as an “extension of the law of nuisance to isolated escapes from land”)

Answer 48

o Cambridge Water: though it might be economically/morally/socially justifiable, it is for Parliament and not the courts to impose strict liability for exceptional risk, because Parliament can identify the relevant activities and people can “know where they stand” o This approach can be objected to because it leaves without redress those suffering injury from activities not subject to legislation, whether because of commercial/political pressure, mere inaction, lack of foresight etc. o On the other hand modifying it would greatly undermine certainty and conflict with the ‘fault’ concept

Answer 49

⇒ D must be owner/occupier of land o Interest in land unnecessary (can be mere licensee): facts of Rylands v Fletcher o D can have a mere statutory right (eg. to lay pipes or cables: Charing Cross v Hydraulic Power Co) o Anyone who collects the dangerous thing and has control of it at the time of escape may be liable: Rainham v Belvedere, even if the thing escapes from the highway: Powell v Fall o Landowner not in occupation probably only liable if authorized the accumulation: Rainham v Belvedere ⇒ Keep/collect an exceptionally dangerous/mischievous thing on the land o Dangerous thing o Wide variety of things: fire, gas, blasting and munitions, electricity, oil and petrol, noxious fumes, rusty wire from a decayed fence, poisonous vegetation, flag pole, noxious persons o Thus no point in characterizing a “Rylands v Fletcher object” but rather assess the degree of risk presented, assessed with ‘non natural use’ of land (one box of matches won’t be enough, but a thousand boxes maybe) ⇒ Recognized/ought reasonably to have recognized (judged by the standards appropriate at the relevant place and time) that there is an exceptionally high risk of danger if the thing should escape (however unlikely an escape may be) o Camridge Water – no liability unless it can be foreseen that the relevant type of damage would occur (no liability if damage is scientifically unknown at the time of escape) ⇒ Use of land must (having regard to all circumstances of time and place) be extraordinary and unusual o It must be a use of land i.e. positive action (permitting a spontaneous accumulation of eg. rain, vegetation, birds doesn't count: Giles v Walker; inducing such an accumulation as an undesired by-product of normal working of land also doesn’t count: Wilson v Waddell) o Definition of non-natural use: ♣ Lord Moulton, Rickards v Lothian: “it must be some special use bringing with it increased danger to others and must not merely be the ordinary use of land or such a use as is proper for the general benefit of the community” ♣ Lord Porter, Read v Lyons: “all the circumstances of time and practice of mankind must be taken into consideration so that what may be regarded as dangerous or non0natural may vary according to the circumstances” o Relevance of public benefit ♣ Early caselaw suggests its relevance: Rainham said that the manufacture of military explosives during WWI was non-natural, but Read v Lyons said that this might no be so during WWII because of the urgent public necessity for munitions ♣ However Cambridge Waters rejects this – the rule would not be excluded merely because it generates employment and is therefore worthy of encouragement (also: storing large quantities of chemicals on industrial premises is “an almost classic case of non-natural use” even if it would be common or ordinary in the industry in question) ⇒ Thing must escape from D’s property onto the property of another o Requirement firmly entrenched by HL in Read v Lyons, defined as “escape from a place where D has occupation or control over land to a place … outside his occupation or control” o Probably inapplicable to deliberate release of harmful substance (though this would be trespass) ⇒ Escape must cause damage of a relevant kind to the rights and enjoyment of C’s land o C must have an interest in land because RvF is a subspecies of nuisance (so earlier cases suggesting otherwise appear to be wrongly decided on this basis) ⇒ Damages for death/personal injury are NOT recoverable o Decisively established in Transco, because of connection with nuisance ⇒ NOT necessary to establish D’s negligence, but there are defences

Answer 50

⇒ Consent of claimant (express or implied) – volenti non fit injuria ⇒ Common benefit of claimant and defendant (this category is probably redundant as it can be subsumed within consent – and to hold that it applies to common provision of services would be inconsistent with what was decided in Cambridge Water) ⇒ Act of stranger o Wholly unforeseeable act of stranger: no liability o Foreseeable act of stranger: liability in negligence (onus on D to show that he wasn’t negligent in failing to foresee the act) o Act of employee or independent contractor: liable unless the act is wholly collateral ⇒ Statutory authority: question of proper construction of statute whether RvF was excluded ⇒ Vis major o Extraordinary act of nature without human intervention in “circumstances which no human foresight can provide against and of which human prudence is not bound to recognize the possibility” – Lord Westbury, Tennent v Earl of Glasgow, as adopted by Blackburn J in Rylands v Fletcher ⇒ Default of the claimant (damage caused solely by the act of claimant) o Conflicting dicta as to whether hypersensitivity can negative liability, though this dicta was all before Transco so arguably it would negative liability

Answer 51

⇒ D only liable for damage that is the “natural consequence of its escape” (Blackburn J, RvF) ⇒ Though Wagon Mound I said that remoteness analysis should not be applied to RvF, Cambridge Water did analyse it in terms of remoteness, with reasonable foreseeability being the test

Answer 52

- Protects interests in land (noise, pollution, blockage of right of way) - Definition: A created, authorized, adopted or continued a state of affairs on land other than land in which B has sufficient interest and this unreasonably interfered with the use and enjoyment of B’s land or some right of B’s associated with it

Answer 53

- Many ways because: o Different ways where D can be responsible for state of affairs affecting C’s land (creating, authorizing, adopting/continuing) o Different ways where state of affairs can have an effect on C’s land (emanation (smoke, smells, noise), encroachment (branches, roots, leaning walls), obstruction (light, water, TV signals), affront (prostitution, drug dealing near C’s land)) o Different kinds of effects on C’s land that are regarded as harmful for the purposes of the tort of private nuisance (violation of boundaries, physical damage, reduction of amenity value, interference with rights associated with the land)

Answer 54

o Amenity value is different from price; injunction stopping the practice makes the price go back up but C can nevertheless claim damages for amenity loss suffered o St Helen’s Smelting v Tipping: Lord Westbury referred to emanations producing “sensible personal discomfort” rather than reducing amenity. IAO shouldn’t use this: ♣ Though emanations often cause discomfort they can reduce usefulness in other ways (eg. electromagnetic waves interrupting mobile signal) ♣ Damages doesn’t depend on how many people suffer discomfort o Hunter v Canary Wharf: Lord Hoffmann said that though measure of damages may be affected by size, commodiousness and value of property, it cannot be increased merely because more people are in occupation and therefore suffer more collective discomfort o Question: can C argue reduction of amenity value even if she uses the land in a way that she is not inconvenienced? IAO yes – no consequential loss may affect the measure of damages, but if C were to seek injunction, D won’t be able to rely on the fact that C is not personally inconvenienced o C can still claim even if he doesn’t personally use the land but allows others to Andreae v Selfridge: D’s building operations unreasonably interfered with amenity value of land used by C as hotel; C didn’t have to prove she was personally disturbed

Answer 55

o Definition: land under goes a physical change which renders it less useful or valuable (including damage to things attached to the land) o Examples: debris breaking roof tiles, acid smuts killing trees, emanations resting on C’s land or intermingling with it) o Hunter v Canary Wharf: CoA held that deposit of excessive dust on a carpet could amount to physical damage (deposit of mud or oil on paved area probably will be treated the same way) o Blue Circles v Ministry of Defence: CoA held intermingling of plutonium with soil so that it couldn’t be removed amounted to property damage o Probably can’t argue physical damage if movables (cars, animals, clothes) on the land are damaged (eg. if C uses land for dog breeding and neighboring factory emits a sound too high pitched for humans to hear but that drives the dogs crazy, C would probably have to claim loss of amenity (making land less useful for breeding dogs) and not physical damage)

Answer 56

o Hunter v Canary Wharf: C cannot sue in private nuisance for physical injury to the person as a result of emanation (eg. acid smoke blinding C in her garden so that she can’t do any more gardening or enjoy the view – here D didn’t make the land any less useful, just C’s ability to use the land) o Advantages: ♣ Holding otherwise would produce anomalies (easier for C to sue if injured in her garden than at work or on the street (no need to prove D acted carelessly); only people with interest in the land would be able to claim in private nuisance, so two people injured maybe only one can claim) ♣ Hunter v Canary Wharf rejected allowing people without interest to sue because it is inconsistent with the function of the tort (protect interest in land) o Disadvantages: ♣ Creates anomaly (if foul smelling acid smoke drifts into C’s yard, he would find it easier to sue for the smell which reduces amenity than for any injuries that he suffers (would have to prove carelessness)) ♣ Seems to protect land against being made less useful than protecting people’s welfare

Answer 57

♣ For an interference to be actionable it must materially interfere with the ordinary comfort of human existence, not merely according to elegant or dainty modes of living • Robinson v Kilvert: C complained that brown paper he had been storing had been damaged by D’s over-heating below. Court held against liability because such interference could only have a detrimental effect on an “exceptionally delicate trade” • McKinnon Industries v Walker: PC held that C could obtain remedy for noxious fumes emanated from D’s factory that would have damaged any reasonably robust neighboring trade, so it didn’t matter that C’s trade was a delicate trade of growing orchids ♣ Nature of locality important when interference causes reduction in amenity • St Helens v Tipping: Suggested that where there was interference with personal sensibilities (noise/smell) question of reasonableness must take into account nature of locality, though this is irrelevant in cases of physical damage • Problems with the case: o Unclear whether “material injury to property” or “sensible injury to the value of property” makes locality irrelevant; if the latter then distinction disappears, therefore former preferred. Hunter v Canary Wharf refers to the distinction as between “material injury to the property” and “sensible personal discomfort” o How we should identify and classify localities when necessary. Byles J observed that swine-style might not be a nuisance in Bethnal Green but would be in Grosvenor Square (this doesn’t help) ♣ Gaunt v Fynney: broad brush categorization – eg. Leek as a “manufacturing town” ♣ Adams v Ursell: finer distinctions – eg. districts of a lower/higher character within a town ♣ Lawrence v Coventry: Neuberger: Sometimes it may be difficult to identify the precise extent of the locality for the purpose of assessment, but any attempt at guidance is likely to make it worse. Carnwath: problem is that areas where conflicts may arise don’t usually conform to a homogeneous identity but consist of varied patterns of uses that co-exist (this case was difficult because it concerned a long established practice of motor-car racing in a locality of otherwise rural nature – disregarding the long-standing status of the practice is unfair for D but ruling that it is reasonable just because it has been going on for years is unfair on C ♣ Conaghan and Mansell: setting different standards for localities is concealed judicial prejudice and is a class-based device

Answer 58

♣ Southwark London BC v Tanner: C were tenants in a house with inadequate soundproofing so they could hear everything their neighbours did. HL held that though the interference was “intolerable” and substantial, it wasn’t actionable because it wasn’t unreasonable for neighbours to make noise in cooking, cleaning, quarrelling, love-making etc. ♣ “Common and ordinary use” is weaker than necessity – babies and television are not necessary for occupation but still fine ♣ “Conveniently done” is an important qualification because if D could put the washing machine elsewhere but chose to put it where the wall is thinnest, it could be actionable

Answer 59

o Ignore amplification of the degree of interference caused by C’s hypersensitivity o In assessing whether interference reduces amenity value: ♣ Consider character of locality * Sometimes refer to planning authorities, but planning permission cannot authorize a private nuisance because parliament didn’t give authorities the power to remove private rights) * Wheeler v Saunders: case involved huge swine-styles built with planning permission 11 metres away from C’s holiday home. Court held that it would be wrong to acquiesce to extinction of private rights as a result of administrative decisions that cannot be appealed and are difficult to challenge * Hunter v Canary Wharf: third party private rights shouldn’t be taken away simply because of planning permission * Coventry v Lawrence: Neuberger – the mere fact that an activity has planning permission normally won’t relieve D of liability (‘normally’ because in exceptional circumstances planning decisions set a ‘benchmark’ and sometimes evidence of planning process might be relevant) * However: Gillingham BC v Medway: The council claimant himself had authorized the activity at issue. Held that though council couldn’t directly authorize a nuisance it could through decisions alter the character of a neighbourhood rendering innocent activities that were once actionable. Subsequent cases sought to confine the principle; majority in Hunter sought to reject the principle and treat planning permission relevant only in determining what damages to award * Is this position defensible or ought Courts to recognize that planning authorities are more expert and democratically legitimate when choosing between competing uses of land? * The latter would lead to planning permission being able to take away private rights; Parliament didn’t intend this. Also, planning decisions are made without all parties being present and are difficult for private individuals to challenge

Answer 60

* Rushmer v Polsue: Asked Court to close down printing press at night (unreasonableness of interfering with sleep) * Metropolitan Properties v Jones: electric motor that starts at 8am is a nuisance because people can reasonably stay in bed * However Vanderpant v Mayfair: judge only granted injunction between 10pm and 8am

Answer 61

* Christie v Davey: C was a musical family that annoyed D so D responded by shrieking, banging etc. and held that this was not a reasonable use of D’s house and ordered an injunction * Hollywood v Emmett: C bred silver foxes and advertised it with a sign; D was building bungalows and knew that it was less likely that people would buy if they knew it was next to a fox breeder so when C refused to remove the sign D carried out a threat to shoot with black powder to scare the foxes. Held liable because of malice, though otherwise fox breeding may be hypersensitive, leading to suggestion that malice alone is enough to establish unreasonableness * However Bradford v Pickles: D interfered with groundwater because he wanted to force C, who used the water, to buy his land for an inflated price. Held that malice was irrelevant – Watson: “no use of property, which would be legal if due to a proper motive, can become illegal because it is prompted by a motive which is improper or even malicious” * The two cases may be distinguishable because the latter is an obstruction case and such a claim can only succeed if C can prove that he has the right to receive the benefit obstructed (here C couldn’t prove he had the right to the water) while the former is an emanation cases

Answer 62

- All encroachments violating boundaries of C’s land automatically amount to unreasonable interference - However C will also need to show that D is responsible for the interference - Lemmon v Webb: C allowed to cut off protruding branches etc. but can only sue if further damage is caused by the encroachment

Answer 63

``` Obstruction cases - C can only sue if obstruction is related to some right over the land; otherwise can’t sue even if the obstruction reduces C’s use and enjoyment/causes physical damage - Bradford v Pickles: (D stopped water that was percolating under his land from continuing onto C’s reservoirs out of malice/to persuade C to buy his land/pay him fee) Claim failed because C couldn’t prove that he had the right to the water. - Hunter v Canary Wharf: Building of Canary Wharf tower blocked Cs’ access to television signal. Though in Bridlington v Yorkshire Electricity Board it was held that such interference wasn’t nuisance because it constituted a purely recreational facility and not health/physical comfort, HL in Hunter disputed the validity of this reasoning in light of growing social importance of television. However HL held that C had no right to television signals coming from neighbor’s land just like he has no right to a view of neighbor’s unobstructed field - When will C be able to prove he has a right: o Light – prescription (from having enjoyed the light for sufficient period of time) may give rise to freedom from future obstruction; right to a view can only be negotiated for a restrictive covenant that the other party not build on their land ♣ US law draws distinction between obstructing a view and creating an ugly sight which is treated like an emanation, but English law doesn’t o Air – no general right to receive air/wind that but for obstruction would have come onto C’s land, but where air flows to a defined aperture (eg. ventilator) he may have an easement o Water – right to receive water from adjacent stream subject to reasonable use by people upstream (can claim if upstream diverts most of flow/pollutes the water); no right to water like in Bradford v Pickles - Must C show that obstruction is unreasonable? o Any right of C will often mean interference is by definition unreasonable o Different where purpose is to establish whether C has the right claimed, and if it is to obtain compensation for an interference with the right (where court will disregard trivial interferences) - However two views in Hunter v Canary Wharf contradict assertion that C must prove violation of right: o Cooke: real reason why C wasn’t entitled to TV signal was ‘give and take’ and that neighbors are expected to deal with such interference (however malicious erections for purpose of blocking neighbour’s TV signal is actionable like Christie v Davey) o Hope (support?): The tower wasn’t maliciously constructed in order to interfere with C’s reception - Suggests that maliciousness is an alternative for proving rights, however, majority of HL didn’t agree and it contradicts Bradford v Pickles ```

Answer 64

- Principally used against brothels, pornographic cinemas and sex shops - Laws v Florinplace: residents sought injunction to close down “Victoria Sex and Video Centre”. Held that even if D changed its name knowledge of its trade was enough to amount to interference with use and enjoyment of C’s land - IAO these claims are rare because C must prove interference was unreasonably judged from POV of ordinary resident (thus most lawful businesses will be fine even if they cause people to feel uncomfortable) - Sometimes dangerous factories (eg. gunpowder) were held to be affront cases before they caused any damage (from fear and anxiety), but this conflicts with principle that C can obtain an injunction to restrain an anticipated tort only when it is highly probable and imminent - Birmingham Development v Tyler: CoA held no tort where D’s wall was in a state that C was advised to stop work on his land because it might collapse, because fear of imminent collapse must be “well-founded”.

Answer 65

o Where: Can’t be on C’s land (otherwise would be trespass to land), but also sometimes claimed that D must be C’s neighbour (i.e. owner of nearby land) and must use his land to create the state of affairs. o Hussain v Lancaster CC: CoA thought that D must use his own land to cause the nuisance so ruled that serious acts of harassment carried out in the streets and open ground over which they had no rights, were not private nuisance o However this is not orthodoxy or sensible IAO – there are a lot of cases suggesting otherwise, and there is no principled reason why C’s degree of protection should turn on D’s legal position with regards to the land where the tort is committed (landowner deserves protection from fire regardless of who lit it; D who plays his stereo loudly at home will be guilty so why won’t a D who plays it in his car) o Also: D will be liable even if he doesn’t create it personally – Coventry v Lawrence D held liable for noise caused by car racing though he didn’t personally drive the cars Also: can be liable for side effects of activity – R v Moore D gunmaker possessed land where he encouraged customers to shoot at pigeons and other people gathered outside to shoot the strays, causing nuisance. Held liable even though he didn’t invite the strays.

Answer 66

o Hussain v Lancaster CC: C bought a shop where they were subject to racist attacks by residents of Lancaster whom the Council were able to evict. Court determined liability of CC with reference to the ordinary liability of landlords for tenants’ activities – that landlord must have authorized it o London BC v Tanner: Millett – knowing about a problem and taking no steps to solve it is insufficient for authorizing, confirmed in Coventry v Lawrence at [22] (failure to act cannot on its own amount to authorization) o Possible distinction: doing nothing is different from the positive action of granting a lease for a purpose that will inevitably lead to nuisance (obviously authorization). But what if landlord only knew tenant was very likely to create a nuisance? ♣ Smith v Scott: Pennycuick VC – may be enough if nuisance is “virtually certain” ♣ Lawrence v Coventry: Carnwath - no liability where nuisance was only “likely” or “foreseeable”

Answer 67

o Lippiatt v South Gloucestershire CC: travelors used Council’s land as launching pad for invasions of neighboring farmer’s property. Held that it was arguable that CC was liable for nuisance resulting from state of affairs on its land (distinguished from Hussain because this case didn’t concern tenants to CC still occupied the land). o Occupier of land responsible for state of affairs that he didn’t create goes beyond what he authorizes – extends to what he continues (with knowledge/presumed knowledge of existence of nuisance, fails to take reasonable means to bring it to an end though he had ample time to do so) or adopts (makes use of the erection that constitutes the nuisance) o On facts found that D both continued and adopted the nuisance o Other judges didn’t differentiate so much between adopting and continuing, but sometimes this has led to Ds being liable for “failing to prevent”: o Sedleigh-Denfield: potential for interference with C’s land could have been easily and cheaply prevented by D putting a grid in front of a pipe and D could have obtained the costs from the City Council. Ds held liable for failure to prevent. o More difficult when prevention is costly/not recoverable from third party, or wen potential for nuisance caused by unidentified malefactor/natural forces o Leakey v National Trust: Ds owned and occupied a hill beneath which C lived. A hot summer followed by wet fall caused a crack that made the hill likely to collapse onto C’s house. Stabilizing the hill was costly so D argued that they weren’t liable. CoA held them liable as occupiers of the land – Megaw LJ held that Sedleigh-Denfield principle applied to potential nuisances caused by nature, and if D knew/ought to have known of the potential, he was obliged to take reasonable steps to eliminate the problem. o CoA also held that ability of D to find money is relevant in assessing reasonableness, including C’s ability to shield himself by erecting a barrier, or providing funds. Wealth of parties however is irrelevant o Holbeck Hall Hotel v Scarborough BC: D occupied a cliff and a major slip destroyed a hotel on neighbouring land. D could only have foreseen minor slips destroying a rose garden, not the hotel. CoA held that D was only liable to the extent of the damage foreseeable. Also, suggested that where potential for nuisance is caused by natural forces and D would have gained little from preserving his own land against it, reasonableness only requires informing C of the risk. o Marcic v Thames Water Utilities: Public authorities are liable for flooding incidents caused by inadequate capacity of sewers. CoA held that Ds were in no more favourable position than a landowner on whose property a hazard accumulates by act of trespasser/nature and that they ought to have known about the hazard and therefore Sedleigh-Denfield and Leakey principles apply. o Expansion of rule led to tension between tort and land law – eg. in land someone whose land is subject to an easement is not obliged to undertake repairs to facilitate continued enjoyment of the easement (but beneficiary has right to enter land and undertake repairs). However where failure to repair will lead to physical damage to C’s land this rule in land law can no longer stand. o Has been suggested that since rule considers whether D has fulfilled a measured duty of care, these cases belong to negligence. Author rejects this as it would be difficult to bring an action where D had failed to deal with a state of affairs leading to reduction of amenity value (negligence imposes duty to take reasonable care not to cause physical damage only) o LE Jones v Portsmouth CC: On whether anyone other than occupier might be liable for private nuisance (here damage was caused by a tree on highway on land vested in highway authority but D council agreed to maintain) – Dyson LJ says test is not occupation as such but whether by virtue of his occupation the occupier has in his power to take steps to prevent nuisance. Thus focuses on control over hazard not occupation of land – this can catch independent contractors, public officials etc. and landlords might be liable for more than what they authorize. IAO courts will be cautious in extending this rule.

Answer 68

- (if D carried on the nuisance for 20 years he has acquired a prescription) o Coventry v Lawrence: SC accepted that D could acquire right against a neighboring landowner to continue making as much noise as would otherwise be a private nuisance but it hasn’t been established that Ds had been making noise at levels requisite for private nuisance for the requisite period

Answer 69

o Coventry v Lawrence: Lord Neuberger draws distinction between A moving to pre-existing house next to B’s noisy workshop (no defence) and A converting a warehouse next to B’s workshop into a house (C cannot complain) ♣ IAO this requires more discussion – if B’s warehouse emanated fumes and neighbouring land was vacant so caused no problems but the area was largely residential, B should be liable if A moves in and builds a house on the vacant land

Answer 70

o Southport v Esso: tanker got into difficulties and fearing for the ship and safety of crew captain discharged cargo of oil to lighten the tanker. Oil polluted C’s beach. ♣ First instance Devlin J suggested obiter that it would be defence to create a nuisance in order to save human life but not to save his own property without providing compensation for C’s property. ♣ CoA split – Singleton LJ said there was a defence of necessity and D can rely on it unless he was negligent in causing the necessity. Denning LJ said there was a defence but D has to prove the necessity was unavoidable. ♣ HL – Lord Radcliffe obiter there was a defence, unless D’s carelessness brought about the necessity o Reason for divergence is which of two innocent parties should bear the cost: if D’s ship caught in freak weather which causes the oil to spill, D would not be held to have created the nuisance. Should it be different if D in freak weather (not at fault) was forced to act? o Andreae v Selfridge: Court will not countenance the development of a wide defence of necessity: Bennett J dismissed a plea that it was necessary for builders to create severe disturbance to complete work swiftly.

Answer 71

- if nuisance caused by wholly unpredictable act of trespasser – however if act doesn’t cause nuisance immediately but may in future or causes interference over long period then D may be held to have continued the act) o Smith v Littlewoods: Lord Mackay said landowner would have a duty to take reasonable steps to prevent trespasser acting in some way if it was reasonably foreseeable that failure to prevent would likely cause damage to C (with regards to both probability of trespass and that the trespass would lead to damage). However Lord Goff said such duty would only be owed if 1) landowner assumed responsibility to neighbor, 2) landowner was responsible for controlling the trespasser, 3) landowner negligently caused/permitted source of danger that trespasser reasonably foreseeable to set off, or 4) landowner knew/ought to know trespasser had created a fire risk o Mitchell v Glasgow CC: Lord Hope and Roger both agreed with Goff’s approach - Act of God (caused by wholly unpredictable and uncontrollable natural force) o Sedleigh-Denfield: Lord Maugham – can’t argue that rainfall leading to flood was so heavy as to give rise to defence, except if it is “so exceptional in amount that no reasonable man could have anticipated it”

Answer 72

per Hunter v Canary Wharf C can only sue if he has sufficient interest in land) Four questions:

Answer 73

♣ Distinction between interest in land (binds third parties – eg. fee simple in Green Acres) and personal interests (eg. ticket to visit Green Acres for guided tour) ♣ Hunter v Canary Wharf: Lord Goff summarizes who can sue (only those with right to exclusive possession): • Freeholder • Tenant in possession • Licensee with exclusive possession • Someone in actual possession who has no right to be there ♣ Means that sometimes two people can sue (if noise is loud then tenant can sue, but if it is so loud that it damages window, then landowner can sue for his own interest) ♣ Licensees are difficult (those with exclusive possession can sue but IAO this is due to the de facto rule) as are family members (who cannot sue)

Answer 74

♣ Someone who in fact enjoys exclusive possession won’t need to prove he has a right to possession ♣ D only allowed to rely on absence of C’s right to possess if D has right to possess or D created the nuisance with authority of the person with right to possess

Answer 75

♣ Now Cs in Khorasandjian v Bush can sue under Protection from Harassment Act 1997 but there are cases where Cs have no other protection: ♣ Dobson v Thames Water: Alleged that sewage treatment led to odour and proliferation of mosquitoes; those without interest in land (children) suffered just as much and sought damages under HRA 1998, but if D were a private company then there would be no right to sue. ♣ Is it right that owner-occupier can sue for sewage stench while children cannot unless he establishes personal injury and negligence? ♣ Hunter v Canary Wharf: HL argued that - • Function of private nuisance was protect interest in land while negligence protects safety of people. Allowing those without interest in land to sue in private nuisance turns it into a tort to the person and blurs the line between the two areas of law. • Such a change would also affect measure of damages for past harms (Lloyd, Hoffmann and Hope insist that measure is equivalent to diminution in amenity value, not how many people live on it) • Goff: Cs often reach compromises with Ds to allow Ds to carry out a nuisance for payment; utility will be undermined if Ds also have to deal with other potential Cs • Goff: extension would mean impossible to identify a class – lodgers, au pairs, resident nurses, employees difficult • Cooke rejected the rule: no logical reason why those who enjoyed the amenities should be unable to sue. Preferred justice and utility over symmetry/tidiness. Discounted Goff’s worry about au pairs and sensible compromises: occupation of the property as a home is an acceptable criterion consistent with sanctity of family life. • IAO Cooke was unfair to portray debate as between “tidiness” and “justice” as majority were concerned about clarity which is also important for settling disputes and for those who want to negotiate permission in advance of any dispute. Also many private nuisance claims don’t deal with homes but with land for business purposes • However: majority’s treatment of homes as investments in property fails to reflect the way society values homes. The debate is really one between desire to allow people to plan around the law and need to weigh each case on its merits o NOTE: It’s up to the law and not the Courts to draw a distinction between homes and merely investments in property. Should the Courts really account for the difference in treatment of homes in an area of the law that concerns land and not people? Then again, is the inflexible nature of legal interest, designed for largely commercial purposes, really an acceptable standard to measure people’s connection to land for this purpose?

Answer 76

♣ Art 6 ECHR obliges Courts to develop common law in line with ECHR and this supports argument that courts should extend private nuisance to all residents in a ‘home’. Problems: • ECtHR hasn’t established that failure to create private law actions for children/non-owners to bring against polluters is incompatible with Art 8 • Dobson v Thames suggests that when parents received damages then no need to allow child to claim further damages o NOTE: However Ramsey J also said that damages must reflect “damages for inconvenience, mental distress and physical suffering” (at [226]) • Extension would provide children with far more protection than Art 8 requires (private nuisance protects from odor of frying fish, unlikely a concern for ECtHR to rule this as violation of child’s human rights)

Answer 77

o Prima facie entitlement. o Types: prohibitory injunction (most common), mandatory injunction (to order D to prevent a state of affairs from causing damage if it is on the verge of causing actionable damage – uncommon), quia timet injunction (if C can establish that D is about to commit the tort in relation to him) and interim injunction (before any trial of C’s claim)

Answer 78

o Property damage: either cost of repair or diminution in value o Loss of amenity: reflect usefulness of land, degree it was rendered less useful, time for which it was rendered less useful (measure reflects value of land not distress of inhabitants) o Cs who don’t suffer interference (eg. neighbour makes loud noises but C not disturbed because she never stays in her flat and never leases it out but owns it for investment purposes only): if damages focus on loss of amenity value and not disturbance, then shouldn’t C be entitled compensation for past interference? ♣ IAO NO but not because damages reflect distress but because you can only claim for usefulness of land if you’re actually using the land for that purpose

Answer 79

♣ Wagon Mound II: purports to make foreseeability necessary in all cases of nuisance ♣ Cambridge Water v Eastern Counties Leather: endorses Wagon Mound

Answer 80

ordinary tort rule applies that if C establishes he was victim of a tort he can recover damages for any consequential loss that is not too remote, and not the wrong kind of loss ♣ Hunter v Canary Wharf: if C’s house is flooded by D’s land then he can claim also for chattels (suggests that property damage can be claimed provided it is a consequence of land itself being reduced in amenity value)

Answer 81

not available.

Answer 82

- if injunction is requested but denied, Court can offer damages to compensate for future interference) o Until recently this was thought to be very exceptional as it amounts to a forced sale of the right to be free from private nuisance: ♣ Shelfer v City of London Electric Lighting: if injury to C’s legal rights is 1) small, 2) estimable in money, 3) can be adequately compensated with small money payment, damages in lieu of injunction is possible o BUT Coventry v Lawrence: SC signalled a move away from Shelfer and said courts should be more ready to award damages in lieu and choice requires “a classic exercise of discretion”. Objected to Shelfer as disregarding whether awarding injunction will be contrary to public policy/have serious consequences or third parties (D’s employees) ♣ Shelfer: That wrongdoer is a public benefactor (gas/water company) is insufficient for refusing to protect an individual’s right from being constantly infringed. Thus granted an injunction against power station ♣ Coventry: Lord Sumption - This is ‘unduly moralistic’ – support the view that 1) ordinarily damages are adequate and 2) injunction shouldn’t be given if it is likely that conflicting interests are engaged other than the parties’ ♣ However majority of SC didn’t endorse either proposition. Lord Mance – right to enjoy one’s home without disturbance is one that most people won’t exchange for money o Effect of this is D still allowed to keep committing nuisance, but it will be wrong o Assessment of damages – two ways: ♣ Estimated loss of value of C’s land ♣ Reasonable price for allowing D to keep committing the tort (Neuberger and Clarke support this way while Carwath opposed it in Coventry) o Move away from Shelfer will allow courts to more readily invoke public interest and Ds can more easily establish that injunction shouldn’t be granted because damage it will do outweighs the benefit it will secure for C

Answer 83

Facts: C brought an action against damage caused by D’s copper smelting works on neighbouring land, though at the time C moved there copper smelting was already a well-established activity and C had full knowledge of D’s plans (also suggested that purchase price was affected by construction of smelting works). Held: Where claim concerns physical damage to property, locality is irrelevant. It is not a defence that C came to the nuisance. Lord Westbury 1. Distinction should be drawn between physical damage to property and productive of sensible personal discomfort. 2. In the latter case claim must depend on the characteristics of the locality: if a man chooses to live in a town, he cannot complain if his neighbour opens up a shop next door and exercises it reasonably 3. However just because the neighbourhood is devoted to manufacturing purposes of a similar kind to D’s doesn’t mean that it may be carried on with impunity resulting in “utter destruction or considerable diminution” of value of C’s property

Answer 84

Fact: D’s excavations on his land interfered with percolating water under his land resulting in C’s water supply being diminished. D did this because he wanted to coerce C into buying his property at exorbitant prices. Held: Injunction refused because D had the right to act this way. Lord Halsbury: “if it was a lawful act, however ill the motive might be, he had a right to do it” Lord Macnaghten: Could be stated that D’s objective was to compel C to buy his property at a price that suited him (suggests that common law didn’t regard his motive as improper)  Suggests that either this case is authority for the fact that malice doesn't matter as long as D’s action is lawful, or malice is still relevant but common law has a much narrower of improper motive than conventionally. “He prefers his own interests to the public good. He may be churlish, selfish and grasping. His conduct may seem shocking to a moral philosopher. But where is the malice?” But then he goes on to say “It is the act, not the motive for the act, however reprehensible it may be, that must be regarded.”  Surely the two statements are irreconcileable – he suggests that malice will be relevant, but that reprehensible motives do not necessarily amount to malice (which requires “spite” and “ill-will”) so will malice be relevant?

Answer 85

Facts: C engaged in breeding silver foxes and D wanted C to take down a sign advertising this but C refused so D fired a gun for three evenings at the boundary of C’s property in order to scare the foxes. Held (Lord MacNaghten): Pickles doesn’t govern the case and intention is relevant. Held for the claimant. Awarded damages and issued an injunction against shooting guns during foxes’ breeding season  It seems that this is another example, like in Rylands v Fletcher type liability, where D is held liable without C having to prove a legal wrong; here the motive establishes the legal wrong, whereas in RvF liability the dangerousness of the substance establishes the wrong.  This is significant: now D won’t be able to engage in the activity no matter the motive, though it does not, in itself, amount to a nuisance. As has been suggested, an alternate explanation for firing the guns was to scare/kill rabbits, so D won’t be able to do it for this purpose either. If malice is what makes what is otherwise not a nuisance, a nuisance, then shouldn’t the injunction be against shooting guns with the intention of scaring the foxes? This is obviously unenforceable, highlighting yet another problem with the case. Reasoning seems to be that nuisance is concerned with balancing the interests of neighbouring landowners, so to be actionable in nuisance requires an ‘unreasonable’ use of land by D (thus purpose behind creation of ‘nuisance’ is relevant so that presence of malice may mean what would otherwise not be nuisance will be nuisance)  Surely this cannot be right! Improper motive doesn’t make something that is legal illegal. If the law does not take account of ‘hypersensitivity’ of claimants, then why should it take account of the fact that a particular claimant is disturbed by a level of noise that is acceptable and doesn't amount to nuisance, just because the defendant has an improper motive? NB two cases can be reconciled because landowner has absolutely no right to percolating water beneath his land (entirely unprotected by law of nuisance) whereas noise is protected.

Answer 86

Facts: Ds who operated oil distributing depot near C’s house were held liable for: 1. Damage caused by acid smuts escaping from depot onto laundry hung out to dry (nuisance and Rylands v Fletcher) 2. Damage to C’s car on the highway (whether or not there is a claim in private nuisance, there is a claim in Rylands v Fletcher and public nuisance) 3. Nuisance caused by nauseating smell 4. Nuisance at night caused by noise of plant 5. Nuisance at night from tankers arriving and leaving (night shift) Locality was relevant to smell and noise only.

Answer 87

Owner is allowed to build on his land as he wishes (subject to planning control) and is not generally liable (subject to easements/agreements) for interference with neighbours’ enjoyment of their land. Facts: Residents of London Docklands area sued that the building of the Canary Wharf tower (erected pursuant with planning permission) blocked their access to TV signals. Held: C’s appeal dismissed – owner was entitled to build on his land as he wished subject to planning control and wasn’t generally liable (subject to easements/agreements) for interference with neighbours’ enjoyment of their land.

Answer 88

- On whether interference with TV signals can give rise to action in private nuisance: o First considered in Bridlington Relay v Yorkshire Electricity Board where Buckley J held that it did not because it was interference with recreational facility as opposed with health/physical comfort, but didn’t rule out that TV might one day become so important that interference should become a legal nuisance o This might be such a time; it has already been recognized in Canada in Nor-Video Services v Ontario Hydro - However there is a more formidable obstacle: it rests on D’s building on his land that causes the interference (much smaller building could have caused same interference; since it is no defence that C came to the nuisance, same complaint could result from simple existence of building) o Thus this case distinguishable from Bridlington Relay because that case was caused by electrical interference not presence of building - General rule: owner can build on his land (now subject to planning control) even interfering with neighbour’s use and enjoyment: o Allowed to spoil neighbour’s view, restrict flow of air onto neighbour’s land, take away light from neighbour’s window etc. and neighbour cannot complain even if it seriously detracts from enjoyment of his own land - Thus in the absence of easement more is required than simple presence of building (emanation etc) o Bank of NZ v Greenwood: (NZ case) owner held liable because his glass veranda reflected sunlight at such an angle that it was thrown straight into neighbouring building. Distinguishable from present case because that case wasn’t merely due to the presence of the building reflecting the light but because of the manner in which it did so ♣ But are the cases truly distinguishable? Or is it because NZ treats light as an ‘emanation’? Surely here the manner in which TV signal is deflected matters as well in the present case - Same conclusion as present case reached in Germany: G v City of Hamburg where C, family home owner, sued municipality for erecting multi-storey hospital that blocked certain programs. Failed. (Conclusion: UK not alone in so holding) - In case of larger buildings it is open to residents to raise possibility of TV interference with planning authority at application stage - Counter: such problems may not be appreciated until afterwards; also, the zone was designated an enterprise zone for which permission was deemed to be granted for any development and no further application was needed - However: the problem has an easy fix – rapid spread of cable TV will alleviate the problem, availability of satellite TV etc.

Answer 89

- Agrees with CoA decision that interference with TV reception is incapable of constituting an actionable private nuisance - Law doesn’t protect every nuisance, no matter how great. This would be an example of damnum absque injuria: loss that house owner undoubtedly suffered by that gives rise to no infringement of his legal rights - Dalton v Angus: Blackburn – right to light should be protected because it imposes a burden on very near houses only, but burdens that have the potential to reach a very large and indefinite area should not be allowed to be created except by agreement A-G v Doughty: Building so as to stop another’s prospect is not a nuisance; otherwise there can be no great towns and must grant injunctions to all new buildings in this town

Answer 90

- Bridlington v Yorkshire Electricity Board didn’t lay down a general rule that interference with TV can never be an actionable nuisance; in an appropriate case it should - This case is not actionable because it is an erection of a building (which cannot as a matter of law constitute an actionable nuisance) not because it’s got to do with TV - Limits of the principle explored in Dalton v Angus (by that time people could prescribe for a right of light – Prescription Act 1832 fixed time at 20 years) HL decided that similarly owner of building could prescribe for an easement of support from neighbouring land, but not for an uninterrupted view or flow of air (because otherwise would impose burden on large and indefinite area, per Lord Blackburn) - In this case no easement of television by prescription - Should this rule be modified? o Common law freedom to build curtailed by Town and Country Planning Act 1947 (planning permission necessary and provides mechanism of control) o Grant of planning permission shouldn’t be a defence to an actionable nuisance (wrong to allow private rights to be taken away by planning authority) o No: departing from common law rule of freedom to construct tall buildings which interfere with TV reception will expose developers to legal action by indeterminate number of Cs each claiming for modest amount (defending them would be costly and compensation/legal fees would form an unpredictable additional cost of building) o No: C could have made complaints at planning stage o No: solution to the TV reception problem is easy and doesn’t necessitate a change in the law

Answer 91

- Agrees with Lord Goff that TV has become a significant and indispensible part of life and in the appropriate case it can be actionable - What defeats this case is the principle of give and take

Answer 92

1. Before Hunter it was assumed (eg Malone v Laskey) that personal injuries were recoverable: rejected by Lord Hoffmann (Lord Hope agreeing) in Hunter but supported by Lord Cooke (dissenting) in pointing out that damages are recoverable for personal injury in public nuisance. This difference was confirmed in Corby Group Litigation v Corby BC but other differences between the torts exist 2. Dobson v Thames Water Utilities considered the issue of Art 8 ECHR and Ramsey J held that where damages are recovered in nuisance by householder, they must be taken into account in a claim by family member and that where courts award damages to those with legal interest it’ll usually suffice for just satisfaction to partners/children. However damages awarded to proprietor for breach of Art 8 must include damages for inconvenience, mental distress and physical suffering (in contrast to Hunter). However at [234] also said that since nuisance damages are assessed “on principles that are sufficiently flexible to do justice as between the parties” it was “unlikely” that further damages would be necessary to give “just satisfaction under the HRA” a. NOTE: Really? I thought nuisance damages only compensated for cost of repair/diminution of amenity value, and courts specifically exclude damages for inconvenience, distress, physical suffering etc. So how can the two statements be reconciled?

Answer 93

Facts: D who let the ground floor of a warehouse to C, started making paper boxes for which heat and dry air were necessary; heat passed into C’s room and dried out his stock of brown paper (which was sold by weight so it caused a loss of profit). Held: Since the heat wouldn’t have dried out normal paper or caused any discomfort, C’s case failed. If something won’t ordinarily amount to a nuisance but affects the hypersensitivity of the particular claimant, it will not be a nuisance. However, if it would ordinarily be a nuisance, it will continue to be so even if C’s trade is hypersensitive. NB in Network Rail v Morris Buxton LJ considered this case and held that a broad and unstructured balancing test based on ‘reasonableness’ of D’s activity has come to replace the detailed and particular rules in earlier cases like Robinson. He said that this development is similar to development in negligence where Donoghue v Stevenson replaced the earlier categories of dangerous chattels etc. However Hepple and Matthews submit that hypersensitivity will still be relevant when assessing D’s reasonableness (even when the hypersensitivity is foreseeable by Delaware Mansions v Westminster CC) the change will have little effect in practice.

Answer 94

Facts: C owned a house at the base of a hill owned by D and D knew that the hill presented a threat to the properties below because there could be mud slides. There was a large mudslide and Cs brought proceedings. Held (CoA): for the claimants. Affirmed Goldman v Hargrave that occupier of land owes positive duties to a neighbour in respect of a nuisance arising on his land through natural forces. Megaw LJ: 1. D’s case was that damage solely resulting from natural causes does not make D liable (thus Goldman v Hargrave is wrong) and even if it is right that case is a liability in negligence and not in nuisance 2. Goldman v Hargrave: D’s land had a tall tree that was struck by lightning and caused a fire; D cleared the land around the tree and cut the tree into sections, but allowed it to keep burning rather than dousing it with water. There was a strong wind and the fire spread into C’s land. Held (Lord Wilberforce) that not only are you liable if you create the danger, you’re also liable when you are “faced with a hazard accidentally arising on his land, fails to act with reasonable prudence so as to remove the hazard” 3. His Lordship agrees with this statement and states that there is no distinction between causing and continuing 4. By extension in Sedleigh-Denfield a duty exists to take reasonable steps to prevent harm to one’s neighbours. However this is not strict liability like Rylands v Fletcher but depends on foreseeability. This case marks a turning point in the law that can be viewed as part of the change in the law of tort achieved in Donoghue v Stevenson, but not recognized until much later.

Answer 95

Facts: Ds pursuant to planning permission constructed a stadium for motor sports in 1975 and in 1992 obtained permission to construct a track behind it. In 2006 C bought a house near the stadium and brought proceedings in nuisance after filing complaints in vain. Judge held: 1. Planning permission doesn’t change what amounts to a nuisance 2. No prescription defence is available at law for carrying on noise for 20 years CoA allowed appeal: 1. Though planning permission couldn’t authorize a nuisance it could change the character of the locality so what constitutes at nuisance thereafter is determined by reference to it 2. Following the implementation of the permissions the noise from the stadium were an established part of the locality’s character so nuisance claims is to be dismissed HL allowed appeal: 1. Possible to acquire prescription easement for noise provided that sufficient level of noise had been emitted for 20 years 2. No defence that C moved to the nuisance, though possible to raise defence in case of post-acquisition change of use of C’s property 3. In determining whether particular activity caused nuisance by noise, court must assess level of noise which an objective person would find reasonable to have to put up with given established patterns of use – the following are relevant: a. D’s own law activity on his land as part of established pattern of use b. Implementation of planning permission relevant to evaluation of established pattern c. However D cannot rely on planning permission permitting the very noise that was alleged to cause a nuisance as making that noise an established character of locality (Lord Carnwath dissenting) even where the grant related to a major strategic development 4. Prima facie remedy for nuisance is injunction but Court can grant damages in lieu and in making the choice court has power to take account of planning permission and other public policy matters (eg. effect of injunction of viability of D’s business/public enjoyment of activities) but also the effect on persons other than C who would remain badly affected by nuisance

Answer 96

1. D’s activity hasn’t been carried out for sufficient time to establish right by prescription 2. CoA was wrong to treat planning permission as determinative 3. Injunction order restored but Ds can seek to have the order discharged and damages awarded in lieu

Answer 97

1. This is a case of private nuisance 2. Per Lord Goff in Hunter v Canary Wharf term ‘nuisance’ applies only to interference with enjoyment of rights in land (limits extent that nuisance claim can be based on activities offending senses of occupiers) 3. Sturges v Bridgman: whether something is a nuisance depends not merely on abstract consideration of thing itself but also on circumstances (locality) 4. Endorses Cambridge Water v Eastern Counties Leather: Lord Goff – liability controlled by principle of reasonable user (acts necessary for common and ordinary use and occupation may be conveniently done without being subject to action) 5. Reasonableness assessed objectively 6. Appeal concerns: a. Extent it is open to D to contend establishment of prescriptive right of noise b. Extent it is open to D to invoke actual use of premise complained of by C to assess character of locality c. Extent to which planning permission is relevant to whether a use is a nuisance d. Whether to grant an injunction or damages in lieu, and relevance of planning permission

Answer 98

1. When stadium was in use noise was sometimes sufficient to generate complaints, sometimes not: concluded that it was possible to organize activities at the stadium without producing intrusive noise 2. Acquisition of right to make noise by prescription is unavailable at law; even if this is wrong interruptions to noise-making is fatal to the claim 3. Granted an injunction – noted that D didn’t contend against injunction as correct remedy if found in C’s favour

Answer 99

1. Judge was wrong to hold that actual use of stadium with planning permission over couple of years was irrelevant in assessing character of locality 2. Lewison LJ expressed view that prescriptive acquisition of right to make noise was possible

Answer 100

a. Binding agreement b. Estoppel c. Statutory authorization 2. Easements (right of way, light, support, drainage) can be prescriptively acquired 3. Essential feature of prescription: uninterrupted enjoyment for 20 years 4. It doesn’t matter whether noise is an easement, but IJO it is – it would be an unusual easement in that noise can be heard by many neighbouring properties, but it is to be negotiated with each neighbour affected in turn. Noise can be expressed in terms of conventional easements: “transmit sound waves over” a. NOTE: NB the point about indeterminate liability raised in Hunter v Canary Wharf – would right to block TV signals have been acquired by prescription, allowing builders of existing buildings to escape from liability (though unlikely that these buildings would have stood for 20 years) 5. Three problems of allowing prescriptive acquisition: a. 20 years can only run when noise amounts to nuisance b. Hard to determine extent of easement (varying frequency/intensity over 20 years) c. How much more noise could be emitted pursuant to acquired right than that emitted in the last 20 years 6. IJO these problems shouldn’t stand in the way of availability of prescriptive acquisition a. First two are practical and can make it difficult for D to make out his case but this shouldn't prevent availability b. Third is similar to problems of other easements (discharge polluted water) 7. Such acquisition necessitates emission of sufficient intensity to constitute nuisance for 20 years, unlike CoA’s suggestion that simply emission of noise is enough a. This is a positive easement, which requires doing something wrong against servient owner b. This is supported by CoA in Sturges in that time doesn’t run for purpose of prescription unless activity can be objected to by servient owner

Answer 101

1. Long accepted not to be a defence 2. D suggest that earlier authorities suggest law was different in earlier times: Leeds v Shakerley but that can be explained as a single act of diverting waterway rather than continuous loss of watercourse 3. Restraining defence consistent with principle that nuisance is a property-based tort so right of action should run with the land 4. Also, D shouldn’t escape liability because identity of neighbour had changed though use of adjacent land remained the same 5. “Much more room for argument” if C changes the use of the property after D started using the land for purpose a. Sturges and Miller appear to conflict with this suggestion: in both cases D’s activity predated C’s construction only as a result of which did D’s activity present a nuisance. However both those cases concerned physical encroachment and potential physical damage so can be distinguished 6. Suggestion: if C builds on/changes the use of land, it might be wrong to hold D’s pre-existing activity as a nuisance if: a. It affects the senses and not physical damage/encroachment b. Not a nuisance before change/building c. It has been a reasonable and otherwise lawful use of D’s land d. Carried out in reasonable way e. Causes no greater nuisance than when C first carried out building/change NOTE: Can this not be attributed to hypersensitivity rather than a separate doctrine necessitating the creation of a new defence? His lordship cites Kennaway v Thompson (D had motorboats operating at ordinary level of noise; C moved in; not nuisance until D got bigger boats that made lots more noise. This is not authority for his lordship’s proposition – simply that a tort that wasn’t a tort was still not a tort when C moved in because it was an acceptable level of noise.

Answer 102

1. Assessment of character of locality is “a classic issue of fact and judgement” 2. “Character” can be too monolithic: can be better to focus on “established pattern of use” 3. We start with proposition that D’s activities are to be taken into account, because character must be assessed by reference to position “as it is as a matter of fact” save from extent that departure should be made as matter of logic/legal requirement 4. IJO to the extent that those activities are a nuisance to C, they should be left out of the account 5. Thus D’s lawful activities at stadium/track are relevant to assessment of character, but unlawful activities, particularly those very activities that are a nuisance to C, are disregarded. 6. However if activities are held to be a nuisance but Court didn’t order injunction (damages in lieu) then they are relevant 7. Acknowledges that it is circular in assessing character, one has to ignore D’s actions to the extent that they constitute a nuisance (because the point of the assessment is to decide whether it constitutes a nuisance) but IJO this doesn’t give rise to concern

Answer 103

Lord Mance 1. A change in the intensity of a previous activity may as much as introduction of a new activity give rise to a nuisance Lord Carnwath 1. Test for “reasonable user” is Lord Goff’s test in Cambridge Water: “reasonable user – the principle of give and take” as qualified in Barr v Biffa: reasonableness not from POV of D or C, a normal person 2. In assessing characteristic of locality, D’s existing activity can be taken into account if it is part of the established pattern of use, so D’s activity at ‘previous level’ was part of characteristic until new intrusive element was introduced

Answer 104

1. Relevant in two ways: a. Where terms and conditions of planning permission permit the very noise complained of, question is to what extent planning permission can be relied on as a defence b. Where planning permission permits locality to be used for a certain purpose, to what extent can it be relied on as changing the character of locality 2. Judge circumvented issue by holding planning permission irrelevant 3. On second point: Implementation of planning permission can give rise to a change but no different from any other building work that doesn’t require planning permission. Thus, it can’t change the character of locality except: a. It changed the character in a way as not to amount to a nuisance b. D can show a prescriptive right c. Court decided to award C damages rather than injunction 4. On first point: Jackson LJ’s analysis (CoA) that where permission is granted for a use that inevitably results in/specifically permits that level of noise, the use is to be treated as part of the character of the locality if the permission relates to a large area and not a small area a. Contrasting outcomes in Gillingham/Hirose and Wheeler/Watson suggest that where permission relates to a “strategic” or “major” development it defeats claim of nuisance, but not if it is for a small area 5. This is unsatisfactory: a. Whether planning permission is decisive/relevant/irrelevant should not depend on size of area for permission b. Paradoxical that the greater the likely disagreeable impact of a change of use permitted by planning permission, the harder it is for C to establish a claim for nuisance c. Grant of planning permission doesn’t make development lawful; it just means that the bar to the use imposed by planning law is removed d. Wrong to hold that planning authorities can deprive a property owner of a right without providing compensation; noting in legislation to grant this right e. No satisfactory difference between “strategic planning decision affected by considerations of public interest” and other planning decisions – all decisions take account of public interest and “strategic” vs other is uncertain 6. Therefore mere fact that activity has benefit of planning permission gives no aid to D 7. Planning authority in deciding has to take into account a multitude of factors, and is allowed to assume that a neighbour whose private rights might be infringed by that use can enforce these rights in nuisance so is not expected to take on the role of deciding neighbour’s common law rights 8. However some terms of permission might be relevant, eg. where noise limited to X decibel is acceptable after Xam in a particular locality. 9. “Very dubious” that it is safe to assume that the reasons listed on a permission are the actual reasons the authorities had in mind – naïve to assume that they didn’t have other reasons or agreed with all the reasons a. NOTE: Should this be transposed onto the courts as a reflection of the fact that judges don’t always give the actual reasons they had in mind when deciding a case, but rather give the reasons based on established legal principles? Can a parallel be drawn between planning permission, which gives the reasons that the public would want to hear, and the Courts, in giving reasons acceptable to the democratic institutions of the country?

Answer 105

 Says that planning authorities are much better placed at weighing up the relative interests and where best to place student accommodation buildings/waste dumps and there will always be conflicts and the court doesn’t know where best to place these things but planning authorities are much better at it. Opponents say that you can’t extinguish people’s rights: you have to both show respect for neighbours AND show public value NOT show public value and therefore it is respectful of neighbours’ rights. With regards to internalization of costs holding the latter would mean people can pursue publicly beneficial projects “on the cheap” without respect for individuals’ rights (which is quite circular). 1. Relevance of planning permission and what remedies are available are highly related: both raise broader issue of legal policy – how to reconcile public and private law in the domain of land use 2. Agrees with Neuberger that planning permission is little relevant to whether use constitutes private nuisance, as planning authorities are concerned with public interest and not with private rights 3. What could save Courts from anomaly is discretion as to remedies: injunction has significant side effects beyond the parties because any restraint is between not D and C but between D and the whole world yet planning system is concerned with the benefit to the ‘whole world’ 4. Obvious solution is to allow activity to continue but compensate C financially; where planning permission has been granted, there are strong reasons to do this because it is what the law normally provides for when public interests conflict with proprietary right a. NOTE: Art 8 ECHR (respect for family life) is not an absolute right or even a limited right but a qualified right which means, by definition, they must balance the rights of the individual with the needs of a wider community. Thus Art 8 cannot be invoked to justify extension of claims under private nuisance because public interests need to be balanced against these (however this doesn’t explain why people shouldn't be able to get more compensation) 5. Main question is not whether judge should weigh public interest/interests not put before the court in awarding remedies (judge usually not best qualified to do so) but whether current principles governing availability of injunctions are consistent with public interest 6. Ordinary principle: court doesn’t grant an injunction where there is an adequate legal remedy (damages) but court could have defended special treatment of nuisance as a reflection of Equity’s traditional attitude to land as being special (eg. granting specific performance for sale of land) 7. IJO Shelfer is out of date – it was devised when England was less crowded, few people owned property, conservation was only beginning to be a public issue, when there was no planning control 8. Now there is much to be said that damages are usually adequate and injunction shouldn’t be granted where use of land has received planning permission

Answer 106

1. Planning permission protects public interest; nuisance protects private individuals 2. Planning decisions may require individuals to bear burdens for the benefit of others, but it is generally no defence in private nuisance that activity is beneficial to the public a. NOTE: This is an interesting concession – perhaps the intersection between public and private law is that planning permission, while it cannot take away people’s rights without compensation (as argued by Neuberger) maybe it can say, as a matter of public law that people must bear some burdens for the public interest, but with compensation (supporting Lord Sumption’s view that damages should usually be awarded where planning permission was granted 3. On the other hand, should property owner be able to undermine the planning process by bringing a claim leading to an injunction? 4. Separate protection existed since 19C protecting projects authorized by statute from actions in nuisance; Planning Act 2008 adopted same approach to nationally important infrastructure projects (airports, power stations etc.) where S158 provides immunity from liability for private nuisance a. NOTE: If explicit statutory exemptions exist for important projects then should the absence of immunity for other projects be interpreted as an explicit lack of intention to grant immunity just because planning permission has been obtained? Perhaps this is the balance between public/private interest that should be struck – these “nationally significant” projects, however they are classified, will require individuals to sacrifice their private rights for the greater good, but not other projects, which must respect these rights? (Statutory Compensation Schemes whereby projects are exempt from nuisance but in exchange for paying compensation; also if I want to do a big project I can get a private Act of Parliament (eg. HS2) that authorizes this but usually on condition of paying compensation). Argument against this (eg. Sumption’s notion) is that statutory exemptions are not enough – it is expensive to get a private Act but other infrastructure projects can also cause problems that need to be addressed. Either the balance of interests can be left to Council or the Court and the Court is better. 5. However this is a historical account and subject to criticism that it is “too simplistic” for present purposes 6. In Gillingham BC v Medway (where the same Council that granted permission to construct dock in the first place sued in public nuisance) Judge rejected claim and said that while planning permission is not a license to commit nuisance and planning authorities had no jurisdiction to authorize a nuisance, they can “through its development plans and decisions alter the character of a neighbourhood” and thereby “render innocent activities which prior to the change would have been an actionable nuisance” a. That was an exceptional case: Council shouldn’t be able to bring public nuisance proceedings in respect of project that itself had granted on public interest grounds; also there was an alternative available in that Council could order discontinuance and pay compensation NOTE: Perhaps this can be regarded as a case decided on policy grounds (Council shouldn’t sue on same ground that it authorized; there was the alternative of providing compensation) that nevertheless could have had a much bigger impact on substantive law had the courts not been vigilant in conscientiously disapplying it on the facts of each. The fact that no court has sought to overrule it suggests that it was a good decision on its facts, and that the Court accepts the need to deviate from substantive legal principles in the relevant case in the interest of justice. 7. Gillingham considered in Wheeler v Saunders: D ran a pig farm for number of years and then with planning permission constructed two new buildings to house his 800 pigs, next to C’s cottage. Held that Gillingham didn’t apply on the facts because it shouldn’t apply to every planning decision (Gibson LJ: “The court should be slow to acquiesce in the extinction of private rights without compensation as a result of administrative decisions which cannot be appealed and are difficult to challenge”) a. NOTE: NB here the key is without compensation – what about damages? (Considering this totally outside the context of Gillingham which it is safe to say is considered generally as an anomaly on its facts. 8. After considering later cases concluded that planning permission could be relevant where: a. Provide evidence of relative importance of permitted activity as part of pattern of use in area b. Where it includes detailed and carefully considered framework of conditions governing acceptable noise levels, it can provide useful “starting point or benchmark” for consideration of same issues 9. Jackson LJ in CoA relied on Gillingham to find that planning permission could change character of locality etc. and thus held that appeal should be allowed. IJO Gillingham is irrelevant to the present case;

Answer 107

Public authorities are liable for flooding incidents caused by inadequate capacity of sewers. CoA held that Ds were in no more favourable position than a landowner on whose property a hazard accumulates by act of trespasser/nature and that they ought to have known about the hazard and therefore Sedleigh-Denfield and Leakey principles apply. The Court of Appeal’s decision is surprising because: 1. Court proposed that burden of proving that duty was discharged lay on defendant though ordinarily it is for C to show that duty had been breached (CoA suggested that reasonable steps was a defence to an action in nuisance, though ordinarily it is relevant to whether a duty is breached not whether a defence is made out) a. NOTE: Doesn’t this suggest that liability for nuisance is strict upon C proving that C’s land was harmed by D’s land? This is surely not right because D has to create/continue/adopt, but if continue can be failure to take steps… (However strict liability means regardless of fault – here there must be fault in not taking reasonable steps) 2. Flooding could only be alleviated by acquiring land and building more sewers; holding that the positive Leaky duty applies would compel D to take these steps and it is a far more onerous duty than any that has previously been applied to the ‘measured duty of care’ HL (reversing CoA’s decision) Lord Nicholls: 1. There is no duty on sewage undertakers to install new sewers; they are liable not in nuisance but under statute, the duties which impose on them is enough to be Convention compliant (there was also possibility to sue under Art 8 ECHR because it interfered with enjoyment of the home) 2. Thames Water maintained its sewers satisfactorily, and had no control of the volume of water flowing into it (every house had the absolute right to connect and it couldn’t refuse connection). It could build more sewers, but obliging it to do so ignores the statutory limitations on the enforcement of sewage undertakers’ drainage obligations.

Answer 108

The principle can be partly justified by the different costs of avoiding an interference which different localities create. However, if the principle is to be justified in its entirety, a further justification is necessary. This is because the cost explanation is limited in scope – it explains why permissible levels of interference with amenity can legitimately vary from sparsely populated areas compared to densely populated areas, but doesn’t explain why the standard varies between two equally densely populated areas where one is an industrial area whereas the other is residential – the relevant cost of avoidance may be the same in both areas, but by landowners receive different protections. The article considers further justifications based on social rules, autonomy, cost minimisation, the idea of a system of equal right and an analogy to the rules on hypersensitive claimants. It largely rejects these explanations and concludes that, to the extent the locality principle requires individuals to bear substantial burdens that they would not have to bear were collective interests set aside, without compensation, it is difficult to justify.

Answer 109

Facts: Residents of London Docklands area sued that the building of the Canary Wharf tower (erected pursuant with planning permission) blocked their access to TV signals. Held: D’s appeal allowed – only people with an interest in the land can sue in private nuisance.

Answer 110

- Judge Harvey held that right to sue was limited to those with right to exclusive possession of the property, but CoA reversed it: substantial link between person and the land is essential but occupation of property confers upon occupant a capacity to sue in private nuisance - Newark, “The Boundaries of Nuisance” o Essence of nuisance is that it is a tort to land, so that a sulphurous chimney in residential area is a nuisance not because it makes householders cough but because it prevents them from enjoying their gardens. Thus C must show title. o Four theses, of which: Term ‘nuisance’ is only properly applied to such actionable user of land as interferes with enjoyment by C of rights in land - Foster v Warblington UDC: Someone in exclusive possession of land may sue even if he cannot prove title to it, because the doctrine of jus tertii doesn’t apply and the battle wouldn’t be between him and an owner. Decision followed in Paxhaven v A-G: jus tertii is excluded and de facto possession is sufficient. - Subject to this exception someone without rights cannot sue in private nuisance (Malone v Laskey) - Khorasandjian v Bush: CoA departed from this reasoning o Facts: C, young girl, formed a friendship with D, male, 28. Friendship broke down and thereafter C complained of assault, threats of violence, pestering at parents’ home where she lived. D spent time in prison and injunction was granted. CoA’s question was whether Court has power to grant such injunction because C, as mere licensee of parents’ house, arguably couldn’t invoke the tort of private nuisance with respect to unwanted phone calls. Submission rejected by majority relying on: o Motherwell v Motherwell (Alberta SC): Owner’s wife (no interest in house) could obtain injunction on ground of private nuisance to restrain harassment by unwanted telephone calls. This was based on: o Foster v Warblington UDC (above), which Clement JA (Motherwell) understood to establish distinction between one who is “merely present” and “occupancy of substantial nature” o IJO Foster doesn’t provide that kind of authority (that mere licensee is entitled to sue) and misunderstanding undermines Motherwell and therefore Bush - Must go further: gravamen of complaint in Bush was that the harassment was as much abuse if she were at home, with friends, or in her car, so the decision essentially exploited the law of private nuisance by creating by the ‘back door’ a tort of harassment that is only partially effective (artificially limited to harassment that takes place in her home). This is unsatisfactory, conflicts with Malone v Laskey, and no longer needed with statutory recognition of tort of harassment. - Thus Bush offers no assistance - Corollary: Ordinarily only those with exclusive possession can sue (freeholder, tenant in possession, licensee with exclusive possession), but exceptionally as in Foster, someone in actual possession without rights, can also sue. - Should we depart? o No: though in the past damages for personal injury had been recoverable in private nuisance, it is now more suited to the fully developed law of negligence so should be altogether excluded from domain of nuisance o Suggested by Gearty that physical damage to land should also be excluded, but in any event typical cases are interference with enjoyment of land, generally actionable by people with rights in the land o No: departing creates difficulty of defining who can sue – “sufficient link” includes children and wives, but au pairs or resident nurses? o Argued that at least spouses (by virtue of Matrimonial Homes Act 1983) should be able to sue, but IJO no difference between wife and other co-habitants.

Answer 111

- Private nuisance are three kinds: encroachment, physical damage, interference with neighbour’s quiet enjoyment of land - Basis of first two kinds is direct physical damage, but the third category should give rise to right of action for all who occupy the property as their home - This approach has a ‘superficial logic’: if smoke goes to two houses, one occupied by one person and the other by husband, wife and two kids, the second house should get 4X damage. - However: if occupier suffers personal injury as a result of inhaling the smoke, he may have cause of action in negligence, but none in nuisance – thus, quantum of damages should be the same and the only person allowed to sue is owner (for loss of amenity in the land) - Argued that not extending may bring inconvenience (eg. owner unwilling to sue because he is less sensitive to smoke) – IJO this won’t happen in practice and doesn’t justify departure

Answer 112

- Both people with right to possession based on title and de facto occupation can sue (in both cases person in possession is entitled to sue in trespass and in nuisance) - Even a possession that is wrongful against the true owner can found an action for trespass or nuisance - Dillon J in Bush: ridiculous if in the present age action for deliberate harassing and pestering phone calls hinges upon C happening to have the freehold/leasehold interest in the premises - Decision in Bush founded on a fundamental mistake about the remedy that nuisance provides through a misapplication of distinction drawn in St Helen’s v Tipping between “material injury to property” and “sensible personal discomfort”. No doubt that in first category remedy (whether injunction or damages) compensates damage to land, but if the second compensates discomfort/personal injury, then interest in land becomes no more than a “springboard” that entitles C to sue for injury to himself - On this analysis need for C to have interest in land is difficult to justify, and Dillon J would be right, but the premise is mistaken – in actions for nuisance “productive of sensible personal discomfort” remedy is not for the injury but for the injury to the land. - Should the rule be abandoned? If nuisance escapes the bounds of being a tort against land, then no need for ‘compromise limitations’ like CoA’s in this case (confining cause of action to those residing on land as his home) - Bush should be seen as a case of intentional harassment not nuisance; personal injury claims should all be dealt with in negligence

Answer 113

- Law of nuisance developed before age of TV and radio, motor transport and aviation, town and country planning but it is still relevant because it can take many forms and covers a wide range of tortious acts many of which negligence is not required - Flexibility and versatility made nuisance such a potent instrument of justice (Bank of NZ v Greenwood) - As it applies to material damage damages must not be increased by subdivision of interests, but since St Helens a different category of nuisance is at issue when it pertains to sensible personal discomfort. If a distinction is thus made it would make perfect sense to also distinguish on who can sue - Ruxley recognized damages for partial failure to provide a promised amenity; thus tort should be seen as a “loss of amenity” and can parallel the ability of promisee to recover damages – who should recover in tort? - Seems unlikely that Clement JA in Motherwell misread the plain meaning of the passage from Foster, because he read the case only as authority that de facto occupation may be enough. His reason for holding that wife had standing was not based on Foster but on wider considerations regarding the family home - Malone v Laskey is about personal injury not interference with amenities, so is not relevant - Agrees with Bush that wife has standing, and though children are more problematic the UN Convention on the Rights of the Child acknowledge children as fully-fledged beneficiaries of human rights - Agrees with Bush that if wife is allowed to sue so should children, because “the persistent ringing of the telephone may be a nuisance in fact to all occupants of the home” - American law also supports this conclusion - This will lead to borderline cases: de facto partners and lodges on particular facts can be included, but non-resident employees in commercial premises are not (employer responsible for their welfare)

Answer 114

- Though ‘nuisance’ is difficult to define it concerns the invasion of C’s interest in possession and enjoyment of land - Negligence deals with the relationship between neighbours - Therefore nuisance claims must be accompanied by interest in land Important Points: 1. Majority affirmed that nuisance was a tort against land and refused to ‘modernize’ it by developing it to protect personal interests 2. This resolves question of who can sue but has implications for how damages are assessed in amenity nuisance cases and for range of injuries that can be claimed 3. Lord Goff’s refusal to make a special case for the ‘home’ is objectionable especially since HRA 1998 and Art 8 ECHR, as well as Lord Cooke’s broader point about the status of children

Answer 115

Facts: Pipe was laid on D’s land without their knowledge by a trespasser in order to drain D’s land, but D found out about it and installed grating at its opening but it wasn’t enough to prevent blockage. In a heavy rainstorm the pipe blocked and caused water to overflow onto C’s land. Held: Liable. Lord Maugham: 1. “Continues” means with knowledge/presumed knowledge of its existence he fails to take reasonable steps to bring it to an end, though he had ample time to do so 2. “Adopts” means to make use of the erection 3. D here both continued and adopted the nuisance; 3 years lapsed and they didn’t take the simple step of putting a grid there (continued); in the meantime they made use of the pipe by allowing it to drain their land (adopted) Lord Atkin 1. D is not an insurer – there must be something more than harm done, though it doesn’t need to amount to deliberate act/negligence, but “some degree of personal responsibility” 2. “Continues” means D is aware of the nuisance, able to prevent it and fails to prevent it

Answer 116

Facts: D owned a cliff next to which C had a hotel; there had been minor landslips and then one big landslip where C’s hotel was destroyed. Held that Leakey/Sedleigh-Denfield applied and question was to what extent the “measured duty of care” reached. Held: Since D couldn’t have foreseen the magnitude of the danger posed, and could not have known the risks except through further investigation by experts, they are not liable. Stuart-Smith LJ: 1. There is a distinction between patent dangers (duty arises when defect is known and danger to C’s land is reasonably foreseeable) and latent dangers; in respect of the latter, there is no duty to conduct investigations 2. There is a distinction between “measured duty of care” and most cases of physical damage (where extent of damage usually doesn’t matter – type of damage establishes liability for whatever extent) because in the former cases extent of damage does matter.

Answer 117

``` Their Lordships had to consider, though there is no doubt that D’s carelessness in causing the oil leak created a public nuisance, whether the special damage to C caused by the fire and not by the oil (fire was unforeseeable) was actionable in nuisance – thus, the question was whether foreseeability had any role in nuisance. Lord Reid: 1. D argued that in negligence foreseeability is essential in determining liability and therefore also in determining the amount of damages; the same cannot be said of nuisance so foreseeability shouldn’t come into play at all 2. Indeed nuisance doesn’t always depend on foreseeability 3. However in the class of nuisance of creating a danger to persons or property in navigable waters (equivalent to highways) foreseeability is relevant (Per Denning in Morton v Wheeler: determining whether a state of affairs on/near highway is a danger depends on whether injury can reasonably be foreseen) 4. It would be wrong to say foreseeability is only applicable to determining damages to those cases of nuisance where it is relevant; thus it is relevant to all cases. Therefore, it is not enough that harm is the “direct result” of nuisance – it must also be unforeseeable ```

Answer 118

Facts: Cs alleged that sewage treatment led to odour and proliferation of mosquitoes; those without interest in land (children) suffered just as much and sought damages under HRA 1998.  Bringing human rights into cases of mosquito proliferation is inappropriate considering how many people in the world live in mosquito infested areas. Other Art 8 claims included a C living in a stately home who claimed that military aircraft noise interfered with his ability to use the home as a wedding location (judge allowed the claim). Argument that Art 8 is a qualified right can be rebutted by D having to prove necessity (no other way of achieving public benefit without interfering with C’s land (eg. training elsewhere)) Held: Art 8 ECHR had been breached, but concluded that since damages had already been awarded to homeowners, no further damages were necessary to give children just satisfaction for breach of their human rights. They only issued a declaration that Art 8 had been breached.  In cases like this it is highly unlikely that what the children sought was a declaration that their human rights had been breached. The danger in invoking the HRA for cases where C just wants compensation rather than to enforce a right is dangerous because it allows declarations to be issued trivially thus diluting their significance, without providing justice in cases like these because the claimants clearly just wanted compensation. Considered the issue of Art 8 ECHR and Ramsey J held that where damages are recovered in nuisance by householder, they must be taken into account in a claim by family member and that where courts award damages to those with legal interest it’ll usually suffice for just satisfaction to partners/children. However damages awarded to proprietor for breach of Art 8 must include damages for inconvenience, mental distress and physical suffering (in contrast to Hunter). However at [234] also said that since nuisance damages are assessed “on principles that are sufficiently flexible to do justice as between the parties” it was “unlikely” that further damages would be necessary to give “just satisfaction under the HRA”  Tricky because 1) how can payment to me ever give just satisfaction to my son’s infringement of human rights? One view is sufficient acknowledgement of the wrong (either by declaration or conveyance of a large sum of money to owner of the home as a symbol of the home not having been sufficiently protected). This suggests that HRA claims are not analogous to tort claims in that instead of compensation you get a more indirect acknowledgement that what the state is doing is wrong. NB HRA provides some protection but it

Answer 119

1. Prima facie remedy is damages 2. Since Lord Cairns’ Act 1858 Court can award damages instead of an injunction – in such a case damages are based on reduction in value of C’s property as a result of the continuation of the nuisance 3. What principles govern Court’s ability to award damages instead of injunction? Shelfer is leading case but necessary also to consider subsequent cases which leads to problems: a. Conflict/inconsistency between two lines of cases: i. Slack, Miller, Kennaway, Regan, Watson support Shelfer and it requires an exceptional case before damages should be awarded ii. Colls, Kine, Fishenden support a more “open-minded approach taking into account the conduct of the parties” b. Unsatisfactory way in which public interest is to be taken into account 4. Shelfer: A L Smith LJ said: someone committing a wrongful act is not entitled to ask the court to sanction the wrong by purchasing his neighbour’s rights. In exceptional cases the rule may be relaxed, if the case satisfies four principles: a. Injury to C’s rights is small b. Estimable in money c. Can be adequately compensated by small sum of money d. Would be oppressive to D to grant an injunction 5. As to first conflict (tension in lines of cases): a much more flexible approach is to be taken than in Regan (2007) and Watson (2009); a mechanical application of Smith LJ’s rule and only awarding damages in “exceptional cases” are both unsatisfactory 6. This power is a “classic exercise of discretion” that should not be fettered. Approves of Lord Millett’s observation in Jaggard: reported cases are only examples of circumstances where courts have exercised the discretion. They stand as authority for proposition that in similar cases discretion can also be exercised, not for proposition that in other cases it cannot 7. However the court can lay down rules as to what circumstances should and shouldn’t be taken into consideration in exercising this discretion 8. As to second conflict (public interest): it is almost always relevant – planning permission is also relevant here in that it provides support for contention that activity is of public benefit and injunction shouldn’t be granted 9. As to measure of damages, where injunction is available as of right but taken away by Court, arguable that damages should exceed diminution of value and also include loss of right to enforce a. NOTE: Court held that loss of right to enforce a remedy available as of right is a separate cause of action than the loss of monetary value caused by the loss of right to enforce, and can lead to substantial damages. Court stresses that this is not double recovery. 10. However damages should not be assessed with reference to D’s benefit in no injunction being granted

Answer 120

1. Relevance of planning permission and what remedies are available are highly related: both raise broader issue of legal policy – how to reconcile public and private law in the domain of land use 2. Agrees with Neuberger that planning permission is little relevant to whether use constitutes private nuisance, as planning authorities are concerned with public interest and not with private rights 3. What could save Courts from anomaly is discretion as to remedies: injunction has significant side effects beyond the parties because any restraint is between not D and C but between D and the whole world yet planning system is concerned with the benefit to the ‘whole world’ 4. Obvious solution is to allow activity to continue but compensate C financially; where planning permission has been granted, there are strong reasons to do this because it is what the law normally provides for when public interests conflict with proprietary right 5. Main question is not whether judge should weigh public interest/interests not put before the court in awarding remedies (judge usually not best qualified to do so) but whether current principles governing availability of injunctions are consistent with public interest 6. Ordinary principle: court doesn’t grant an injunction where there is an adequate legal remedy (damages) but court could have defended special treatment of nuisance as a reflection of Equity’s traditional attitude to land as being special (eg. granting specific performance for sale of land) 7. IJO Shelfer is out of date – it was devised when England was less crowded, few people owned property, conservation was only beginning to be a public issue, when there was no planning control 8. Now there is much to be said that damages are usually adequate and injunction shouldn’t be granted where use of land has received planning permission

Answer 121

1. Planning permission should not give rise to presumption that injunctions shouldn't be given; most people value right to enjoy one’s home independently of money, therefore, damages are not ordinarily an adequate remedy for nuisance a. NOTE: However – again, Art 8 ECHR is a qualified right that must be balanced against public interest. If the value of the home should be given such importance, it wouldn’t be a qualified right (on the other hand freedom of religion/expression are also qualified – and yet they are still granted in circumstances where most people think it is appropriate). Also in many cases where the law forces C to take damages instead of specific performance C would much rather have specific performance – it doesn’t mean that the law shouldn’t impose a “forced sale of rights” like the “forced sale of the restrictive covenant” in Wrotham Park

Answer 122

1. As to remedies agrees with Lord Millett’s dissent in Argyl Stores that equitable relief will only be granted where appropriate, and where damages are enough it will not be granted (but reserves judgment on principle to be applied) a. NOTE: Does not address Lord Mance’s point and it is unclear whether he agrees with Lord Sumption in saying that Shelfer is out of date (stated) only or also his approach in saying tat injunction shouldn’t ordinarily be granted if planning permission was 2. Might be appropriate to award gain-based damages in lieu of injunction (eg. include award of reasonable price for a license to commit the nuisance) a. NOTE: Like Wrotham Park damages – this might be a good compromise in that it’s still an equitable remedy but allows public interest to be fulfilled

Answer 123

1. More flexible approaches than Shelfer have been adopted in Canada and the United States: a. Canada Paper v Brown: “an injunction will not be granted where to grant it would be unjust” and disparity between C’s benefit and D’s and others’ disadvantage in granting it might be sufficient ground for refusal 2. Disagrees with Lord Sumption’s claim that planning permission should give rise to presumption of damages rather than injunction (circumstances in which permission may be granted differ so much as to make it unwise to lay down any general propositions) 3. Disagrees with Lord Clarke in awarding benefit-based damages: Lord Neuberger refers to Jaggard v Sawyer but that is about trespass/breach of restrictive covenant, and has not been extended even to interference with rights of light (Forsyth-Grant v Allen). i. NOTE: Thus Lord Carnwath distinguishes between breach of restrictive covenant (Wrotham Park) and the present case – but why? For the sole reason that the Court hasn’t extended it? b. Interference with defined property right cannot readily be negotiated for a hypothetical ‘price’ and assessment of this price will be difficult i. NOTE: Why is it more difficult than trespass/breach of restrictive covenant? It is established law that people can agree for D to commit what would otherwise amount to a nuisance by paying C a price. Why can’t this be used to assess? Maybe because it will affect a large number of people – but if noise can be the subject of an easement and it will have to be negotiated with each affected party in turn, then why can the same not be said here? c. This will be a radical departure from the normal basis of the remedy regarded as fair and just i. NOTE: Injunctions are just as radical, when considered in respect of damages as the usual remedy awarded.

Answer 124

Facts: C was occupier of land where she carried on business as hotel; rest of site acquired by D where they rebuilt and C complained of noise and dust interfering with reasonable and comfortable enjoyment of his premises. Held (CoA): 1. No cause of action arises in respect of operations (including demolition/building) reasonably carried out (in the appropriate case new inventions/methods may be reasonable) 2. Damages only available in respect of matters in which D crossed the permissible line (no damages for acts D legitimately could carry out) Sir Wilfred Greene MR: - With regards to temporary works everyone must put up with a certain level of discomfort because such operations can’t be carried out without noise - Rule with regards to interference must be read in respect of this qualification and if operations are reasonably carried out to ensure no undue inconvenience there is no cause of action - Burton J (first instance) effectively said that the qualification didn’t apply because D’s work was “unusual” (people don’t usually demolish all houses or excavate 60 feet to build) and therefore the whole operation was actionable not just the parts where D was careless - Disagreed – qualification applies: as time goes new inventions/methods enable land to be more profitably used (eg. by digging deeper or building taller) and whether this is desirable for humanity is another question, but it can be reasonable taking into account developments - D can’t adopt an attitude of “we’ll do what we want until somebody complains” – they owe their neighbour to take all reasonable precautions not to inconvenience them, even if it means extra expense/needing to conduct work slowly. D has not carried out this obligation in the present case – they needed to reduce number of hours, limit amount of a particular type of work done in an area, using proper scientific means of avoiding inconvenience etc.

Answer 125

Factual principles: 1. Bringing a water supply to a block of flats by means of a connecting pipe was not unnatural use of land 2. An escape is necessary for RvF liability – if the damage occurs on own land then there is no escape Legal principles: 1. (Lord Bingham) RvF is a subspecies of nuisance, which means: a. No claim can arise if the events took place wholly on the land of a single occupier: Read v Lyons b. Claim cannot include a claim for death or personal injury: Cambridge Water, Hunter v Canary Wharf (though this conflicts with earlier caselaw) 2. (Lord Bingham) Test for non-ordinary use of land (to replace non-natural use) depends on whether D knew or ought to have known that he did something “quite out of the ordinary in the place and at the time when he does it”; it does not depend on whether the use is for the general benefit of the community

Answer 126

1. Rylands v Fletcher: a. Originally C framed case in terms of negligence, and only when judge ruled that no case was available in negligence that they changed b. Blackburn J thought he was just applying pre-existing law c. Those involved in the case must have been well aware of the potential catastrophic results of reservoir dam bursts 2. Developments since RvF a. C in RvF thought that in the future the rule may be subsumed into negligence, like was done in Australia i. Benefits: 1. Would bring law of England and Wales more in line with Scottish law 2. Law Com described rule as “complex, uncertain and inconsistent in principle” so would be good to bring it under more familiar rules ii. However his Lordship would decline because: 1. There is a category of case where it is just to impose liability irrespective of fault 2. Common law doesn’t exist in a vacuum – statutory interventions have touched on areas that the rule covers 3. Possibility of departing from RvF was raised in Cambridge Water, and rejected 4. Though changing the rule would bring law closer to Scottish law, it would bring it further from German and French law. b. Can increase the scope of strict liability, but this, as was said by Lord Goff in Cambridge Water, should be left to Parliament c. Third option (preferred): retain the rule, but insist upon its “essential nature and purpose” and restate it to achieve as much certainty and clarity as possible, while recognizing that new factual situations are bound to arise posing difficult questions on the boundary of the rule

Answer 127

1. Requirements: a. An escape b. No claim for personal injury or death c. Thing must satisfy the “mischief or danger test” i. Though this is difficult, it should not “be at all easily satisfied” – it msut be shown that D did something that he recognized or should have recognized judged by the standard appropriate at relevant time and place, as giving rise to an “exceptionally high risk of danger or mischief if there should be an escape, however unlikely an escape may have been thought to be” ii. Thus a dam (RvF) satisfies this, but keeping a domestic water supply does not d. Non-natural use of land i. Non-ordinary use is preferable to non-natural use: it must be “some special use bringing with it increased danger to others”, more than the “ordinary use of the land or such a use as is proper for the general benefit of the community” (Lord Moulton, Rickards v Lothian) ii. Rule is not static – a use can be natural at one time or place and non-natural in another (though it should be questioned whether even in wartime, the manufacture of explosives could ever be ordinary) iii. Test of reasonableness is unhelpful – because use can be reasonable but extraordinary: question is whether D recognized or ought to recognize that he did something “quite out of the ordinary in the place and at the time when he does it” – this should not depend on whether the use if proper or for the general benefit of the community Therefore in the present appeal two questions must be asked: did D bring onto their land something likely to do mischief if it escaped (no), and was it an ordinary use of land (yes)? D is not liable.

Answer 128

1) Restrictions on RvF rule: a. Statutory authority – a statute that authorizes construction work such as a reservoir involving risk to others may make express provisions as to extent of liability, but if it doesn’t, then liability is not excluded because the purpose of RvF is to internalize costs and the fact that Parliament legislated for public benefit doesn’t matter because owners shouldn’t suffer “a private loss for the public benefit” b. Acts of God and third parties – an exceptionally heavy rainstorm (Nichols v Marsland per Mellish LJ) and act of vandal who blocked a washbasin and turned on the tap (Rickards v Lothian) are sufficient excuses. However the same acts do not exclude liability under Water Resources Act 1991 for polluting controlled water (Empress Cars) c. Remoteness – D will be liable even if he cannot reasonably foresee an escape (RvF) but he is only liable for the ‘natural’ (i.e. reasonably foreseeable) consequences of the escape d. No escape - if there is no escape, there is no liability (Read v Lyons) e. Personal injury is not claimable

Answer 129

a. It is a remedy for damage to land or interests in land – which means that disputes are likely between insurers since most properties are insured against floods etc b. Doesn’t apply to works authorized by statute, which means that it won’t apply to high risk activities c. Liability isn’t really strict, because it excludes liability for escapes for the most common reason – vandalism and unusual natural events; those that are not caused by these usually give rise to an inference of negligence d. There is a “broad and ill-defined” exception for natural use of land, so that no reported case since WWII had a C succeed under the rule

Answer 130

a. Reasons for: i. Australia dealt away with it and absorbed it into negligence ii. It serves little practical purpose iii. Its application is “unacceptably vague” iv. Strict liability should be left to Parliament, which creates far stricter liability than RvF anyway (eg. Water Industry Act 1991) b. Reasons against: i. Inconsistent with judicial function, because the rule has been part of English law for 150 years However, we should still introduce greater certainty into the concept of natural user a. Regard must be had of whether the property owner should have insured himself against that kind of risk (and in this case people can commonly be expected to insure against damage to property by leaking water

Answer 131

1) HL declined invitation to subsume RvF into negligence: a. Hoffmann: too radical a step incompatible with the judicial function b. Others: still a useful function (eg. Lord Bingham said that there is a category of case where it seems just to impose strict liability) 2) But… Is it only just to impose strict liability for damage to real property interests? a. HL reached this conclusion because RvF is a subspecies of nuisance and Hunter v Canary Wharf gave a really narrow ruling, but it is still surprising because: i. The disasters mentioned to explain the utility of the rule are horrifying because of the loss of life, and not because of its effects on neighbouring property owners ii. Their Lordships relied on statutes imposing strict liability as evidence that Parliament assumed RvF to still exist, but these statutes extend to personal injuries and damage to personal property (Parliament doesn’t think that it’s fair to limit protection to real property) iii. There are obvious reasons for distinguishing RvF from private nuisance – the role of nuisance is to regulate the types of activities permitted in a particular locality, while RvF is not to forbid activities, but to internalize their costs (who pays when things go wrong). So the reason offered in Hunter (to limit the number of potential claimants as to encourage negotiations for disturbing activities) is a reason why it shouldn’t apply in RvF 3) Regarding non-natural use of land (phraseology): a. Bingham: “extraordinary or unusual” b. Walker: adopted Bingham’s view but also asked whether use was “special” c. Hoffmann: “ordinary” is vague and “non-natural” should be preferred d. Scott: coupled “natural” and “ordinary” into a composite 4) Two factors identified as relevant without majority support: a. Hoffmann – whether the damage was something that the occupier can reasonably be expected to have insured himself against (rejected by Hobhouse) b. Hobhouse - principle of give and take can help in problematic cases

Answer 132

The new orthodoxy, since Newark’s commentary and its subsequent adoption in Cambridge Water, is that Rylands v Fletcher is a subspecies of nuisance. 1) Many judges and academics still think that nuisance and RvF are distinct categories: a. Lord Wright – they differ in historical origin, legal character and incidents and applications b. Winfield – they differ in details, and only where these details are immaterial can a case appear to fit into both categories c. West – nuisance is a wrong done to land, while RvF is a wrong arising from land 2) Reasons why the two are distinct: a. Analysis of the case itself provides little support that the two are assimilated b. There are well established distinctions c. Merger is harmful for nuisance d. Version of RvF that the “offshoot theory” gave rise to is unappealing 3) In English law the distinctiveness of RvF was challenged most seriously by nuisance, but it is also challenged with the contention that the gap between it and negligence had narrowed so much that the two are virtually indistinguishable a. This is less ‘invidious’ than the offshoot theory because: i. There is little danger that subsuming RvF would be dangerous to nuisance

Answer 133

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.

Answer 134

* 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.

Answer 135

Public nuisance is a crime for conduct which detrimentally affects the public in general — e.g. obstruction of a highway, large scale environmental disruption. For example:

Answer 136

Cracks. The construction undertaken on your neighbour’s property causes vibrations so strong that they cause the walls of your house to crack. Flood. Your neighbour allows the drainage system on his land to become clogged, so that a flood of water comes washing over from his land onto yours. • Are nuisance because they interfere with your useful enjoyment in your land o ordinarily sufficiently serious o can be a one-off event • Different analysis required o Some people argue we should take the physical damages out for law of nuisance because they are so conceptually distinct

Answer 137

• D were making use of street as prostitutes • Was this a nuisance? • Nothing physical went from one part of the land to the other but Evershed said doesn’t matter o Key question is whether the comfortable and convenient enjoyment of the land been disrupted o Court held yes serious enough (imagine the impact on the young people’s minds)

Answer 138

* Complaint = D opened a shop called sex and cinema club * D said no emanation but high court judge said not so, instant repugnance and embarrassment can constitute nuisance * So not necessary to decide

Answer 139

* Cs complained that thousands of tourists looking into the apartments * Tate said can’t be nuisance because no emanation but Justice Mann said this takes too narrow view, invasion of privacy may affect land as much as noise, making it less useful * So clear, nuisance need not an emanation Therefore, we must consider vague notion of whether nuisance interferes with reasonable enjoyment of the land

Answer 140

• What is the relationship? o (1) nuisance has an application which has separate existence (e.g. paradigmatic cases) o (2) overlap in physical damage to land cases (cracks and damage) so can bring negligence case here ♣ Shows you can take out these cases from nuisance because have a claim in negligence so we don’t need to muddy the waters. o (3) where only negligence applies (examiners will throw this in) ♣ E.g. damage to chattels tremors caused by neighbour which don’t cause damage to property but shake your shelf such that an expensive vase falls off meaning you now have a property damage claim but no nuisance ♣ E.g. personal injury: dust picked up by land construction causes a lung infection – would need a negligence case • General point: o Negligence like thinking has affected nuisance as nuisance imports ideas o E.g. damage to land calls for nuisance rules which take inspiration from negligence o Is law of nuisance fault based or strict? ♣ Classic question

Answer 141

“A private nuisance is an indirect and substantial interference with a person’s use and enjoyment of their land.” * Interests of C, quite vague and all-encompassing * So ‘substantial’ limits this * ‘On their land’ – distinguish private from public nuisance * ‘indirect’ distinguishes it from trespass to land * doesn’t contain anything to distinguish it from negligence or what acts can/cannot give rise to nuisance

Answer 142

“It is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort.” (St Helen’s Smelting, per Lord Westbury) • D running copper smelting works which sent fumes over the land which was irritating but it also caused C’s trees to die • Practical implication: o With regards to sensible personal discomfort cases, whether they may be nuisance depends on circumstances o But where there is material damage to property, then different – Q of whether D must submit to interference not relevant – automatically intolerable • Smith v Inco – damage to land is unlawful interference (Canadian case)

Answer 143

Yes “when an occupation is carried on by one person in the neighbourhood of another result[ing] [in] a material injury to property, then there unquestionably arises a very different consideration. … [T]he submission which is required from persons living in society to [some] discomfort … would not apply” (St Helen’s Smelting, per Lord Westbury) “Where the nuisance is said to have produced physical damage to land, that damage is taken as an unreasonable interference without the balancing of competing factors.” (Smith v Inco) “… a physical change [in the land] which renders [it] less useful.” (Hunter v Canary Wharf (CA), per Pill LJ) • e.g. flood or fire Includes damage to buildings and fixtures on the land, but not chattels. • E.g. trees, but doesn’t include damage to chattels like a vase on the land (but could get it otherwise by personal discomfort but no automatic rule)

Answer 144

Aldred’s Case • Pigsty made, and D sued for smell but he could not sue for the interference with the ‘mere delight’ of obstructing a view • So merely blocking light cannot be a nuisance, but Lord Goff accepts in Hunter that other interferences with light could constitute a nuisance o E.g. Goff cites a new Zealand case where D put up glass on the balcony which reflected onto C’s land which caused discomfort

Answer 145

Chastey v Ackland * Smell came from public street (urine) and C said D blocking the flow of air constituted nuisance * CA said no because didn’t originate on D’s land – no one has a right to prevent neighbour building on own land though it has adverse effects

Answer 146

Hunter v Canary Wharf • Disgruntled residence sued for loss of TV signal because the skyscrapers blocked it • Lord Goff’s judgments (detailed and learned judgments) o Not saying you can never sue for construction of TV signal, but had it been caused by electromagnetic activity of a factory would be a nuisance, but just erecting building can’t be a nuisance • Reason is too restrictive on another’s use of land

Answer 147

• Invasion of privacy can be a nuisance if sufficiently serious but not the case that it can never be a nuisance. • Lord Justice Mann rejected Victoria park racing (Australian case) o And in Fearn he said the invasion of privacy was not sufficiently nuisance

Answer 148

So if not on the list we turn to the open ended inquiry + must learn the requirements and apply them efficiently

Answer 149

• Tiny chink of light from Neuberger’s judgment which might support the argument that someone without a right can sue • Wives and children without title to land tried to sue but now could use Art 8 • Acknowledges Hunter but this was before ECHR but Hunter still good law o I think this is high court case

Answer 150

• Not so much a tort as a crime; many established torts are crimes (i.e. assault and battery) • Elements of public nuisances (satisfy elements of crime and then with added special damage may also have a tort) • Not confined to protecting proprietary interest – civil wrong which is breach of duty to individual but in present case there is no private right which has been breached (so anomalous – spencer) • Protects right to pass along a public highway/river o Therefore, personal injury is recoverable!!

Answer 151

A definition approved in R v Rimmington and Goldstein [2005] UKHL 63 at [36] per Lord Bingham: ‘[An act or omission which] endanger[s] the life, health, property ... or comfort of the public, or … obstruct[s] the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.’

Answer 152

‘If we abolished civil liability for damages for public nuisance the law of tort would be no less fair, and clearer and simpler as a result.’

Answer 153

The right to pass and repass on the highway can be, as the cases indicate, both public in some sense and yet private, and therefore actionable by private individuals. … The right [is] private in two senses. [It is] private in the sense that every subject can enforce th[is] right in their individual capacity and be given damages for [its] infringement (limited by the concept of special damage …). [It is] also private in the sense that these obligations of non-interference with passage … rights are owed by individual subjects to other individual subjects. … [T]he best interpretation of English law is that it conceives of public nuisance as centered on privately actionable rights of passage ….’

Answer 154

‘The essence of the right that is protected by the tort of private nuisance is the right to enjoy one’s property … The essence of the right that is protected by the crime and tort of public nuisance is the right not to be adversely affected by an unlawful act or omission whose effect is to endanger the life, safety, health etc of the public … [T]he two torts are distinct and the rights protected by them are different.’

Answer 155

‘A temporary obstruction to the use of the highway … does not give rise to a legal remedy where such obstruction is reasonable in quantum and duration.’ • The present obstruction was reasonable in quantum and duration (time, for purposes of fixing premises) Romer LJ: ‘No member of the public has an exclusive right to use the highway. He has merely a right to use it subject to the reasonable user of others, and if that reasonable user causes him to be obstructed he has no legal cause of complaint.’

Answer 156

* Smells emanated from D’s factory * Factory in industrial area so not entitled to expect sweet smell * So principle of locality relevant here as well

Answer 157

* Unreasonable interference with land over which C has interest + special damage * E.g. situations which affect public at large like dust can be liable in both

Answer 158

‘[Are] claims in public nuisance and private nuisance … mutually exclusive? This proposition must fail. No suggestion emerges from the authorities that, where a sufficient body of the public has been subjected to the nuisance, the only claim lies in public nuisance and any claim in private nuisance is barred or vice versa … That the causes of action are not mutually exclusive is apparent from a wide range of authority.’

Answer 159

The D created/authorised/adopted/continued a state of affairs which unreasonably interferes with either (a) a public right or (b) the comfort, convenience or safety of the public; (ii) The interference must sufficiently affect the public; (iii) The D knew, or ought to have known that the state of affairs would be the consequence of what he did or omitted to do; (iv) The C suffered special (or particular) damage (ie, has standing to sue).

Answer 160

• Passage along the public highway Trevett v Lee [1955] 1 WLR 113 (CA) 117 per Lord Evershed MR: ‘An obstruction to a highway … mean[s] something which permanently or temporarily removes the whole or part of the highway from public use altogether.’ • E.g. parked car in middle of road, scaffolding Wandsworth LBC v Railtrack plc [2001] EWCA Civ 1236 * Footpath under railway bridge not used because of pigeon droppings * No risks of health but less convenient * This constituted nuisance so doesn’t need to be a physical obstruction • Passage along public rivers Jan de Nul (UK) v AXA Royal Belge [2000] 2 Lloyd’s Rep 700 * D carried out works in Southampton which caused steam blocking the tunnels * Possible to claim for removing the obstruction

Answer 161

R v Rimmington and Goldstein [2005] UKHL 63 * D sent letter to friend with salt in it (joke) * Salt leaked in hands of postal worker (believed it was anthrax) * Raised the alarm and police called * This was nuisance R v Madden [1975] 1 WLR 1379 • If bomb threat affects a large number of people can be public nuisance R v Holme [1984] CLY 2471 • D committed nuisance by: o Purposefully following people and approaching people on highway and school playground o Walking on public highway without regard for safety o Banging on roofs of cars o Behaving in intimidating way on highway o Shouting and screaming o Making dogs bark in the early hours of the morning NB : • If dealing with type (1) case, don’t care how many people have been affected (Denning in PYA) • For type (2) cases, need to look at 2 questions: o (a) how many people have been affected? o (b) is the interference common to those affected?

Answer 162

• Facts: o D quarry owners o Caused dust and vibrations and splinters to fly off to nearby properties o Appeal was fewer than 30 properties affected ♣ Rejected! ♣ Romer’s test: Attorney General v PYA Quarries [1957] 2 QB 169 (CA) 184 per Romer LJ: ‘[A]ny nuisance is “public” which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects. The sphere of the nuisance may be described generally as “the neighbourhood”; but the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case.’ Attorney General v PYA Quarries [1957] 2 QB 169 (CA) 191 per Denning LJ: ‘[A] public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.’

Answer 163

• Other side of the line • Noise affected only 3 lawyers’ offices o But contrast with OYA (where less than 30 is fine!)

Answer 164

R v Rimmington and Goldstein [2005] UKHL 63 o D sent large number of separate packages containing racist materials to several individuals over 10 years o Held it was not nuisance because it was a series of distinct event o Would have been different had he used loudspeaker Not clear that must affect people in the same geographical location

Answer 165

‘[T]he defendant is responsible for a nuisance which he knew, or ought to have known (because the means of knowledge were available to him), would be the consequence of what he did or omitted to do. … [T]he escape of the salt was not a result which Mr Goldstein intended. Nor, plainly was it a result which he knew would occur, since it would have rendered his intended joke entirely futile. It would seem far-fetched to conclude that he should reasonably have known that the salt would escape, at any rate without detailed consideration of the type of envelope used and the care taken in sealing it.’ * Salt in envelope not liable – the escape of the salt was not what was intended, * in fact the escape rendered his joke futile

Answer 166

Benjamin v Storr (1874) LR 9 CP 400 (Court of Common Pleas) 407 per Brett J: ‘[I]n order to entitle a person to maintain an action for damage caused by that which is a public nuisance, the damage must be particular, direct, and substantial.’

Answer 167

Corby Group Litigation Claimants v Corby Borough Council [2008] EWCA Civ 463 * Clearly enough to satisfy special * Of a kind different to what other members of public have suffered * In Corby, Cs suffered deformities because D tried to decontaminate the land which affected Cs when they were in mother’s womb

Answer 168

property damage: Halsey v Esso Petroleum [1961] 1 WLR 683 (QBD) 692–693 per Veale J: ‘[I]f the motorcar was damaged in this way while on the public highway, it is a public nuisance in respect of which he has suffered special damage’. • C lives close to oil factory which releases smells and material built up on car and damaged car Maynell v Saltmarsh (1663) 83 ER 1278 • Ds obstruction prevented C from moving corn which was ruined by the rain

Answer 169

• Pecuniary loss which is greater than interference suffered by public enough

Answer 170

• Road on which C’s bookstore was on closed so he suffered loss of trade which was enough to constitute special damage • Court said injury to public in general was couldn’t walk in that direction but there was ‘peculiar’ and prvaite damage where C lost trade • Not right of his customers’ which was interfered with, not his right! o So Stevens objects to that case because it was the other peoples’ rights which was interfered with o Response bookseller’s right is ability to be reached which is encompassed and good law in Colour Quest

Answer 171

‘[A] claimant can recover damages in public nuisance where access to or from his premises is obstructed so as to occasion a loss of trade attributable to obstruction of his customers’ use of the highway and liberty of access.’

Answer 172

‘[A]ny significant interference with an individual’s commercial operations or the enjoyment of private rights resulting from the obstruction to navigation would … represent damage over and above that suffered by the public at large and would be sufficient to support an action.’

Answer 173

• Additional cost incurred in order to carry goods over land when river blocked recoverable

Answer 174

If I trip over and watch smashes then that is special damage

Answer 175

Winterbottom v Lord Derby (1867) LR 2 Ex 316 * General rule = no recovery for removing an obstruction * Because, anyone could remove an obstruction and claim (floodgates concern) * Better explanation = We don’t want individuals to remove obstructions since they are not well-suited to do so Jan de Nul (UK) v AXA Royal Belge [2000] 2 Lloyd’s Rep 700 * Recoverable where body has statutory power to remove obstructions then can recover * Harbour authority removed obstruction when river blocked and that was recoverable Tate & Lyle Food & Distribution Ltd v GLC [1983] 2 AC 509 * C has already suffered special damage so adding on removing the obstruction * River Thames, C already suffered special damage because particular dimensions could not progress through the channel so then could recover for special damage

Answer 176

Benjamin v Storr (1874) LR 9 CP 400 (Court of Common Pleas) 407 per Brett J: ‘[T]he damage must be particular, direct, and substantial.’ • Direct: o Doesn’t relate to remoteness and doesn’t relate to C’s right so void of content • We said substantial is more than de minimis

Answer 177

(a) Representatives of the public (the Attorney-General agrees to sue on behalf of the public, or confers that right on someone else (ie, a relator action)) (b) Individuals who have suffered special damage

Answer 178

Sedleigh-Denfield v O’Callagan [1940] AC 880 Same as private nuisance

Answer 179

what is says on the tin

Answer 180

Butterfield v Forrester (1809) 11 East 60, 103 ER 926 * C injured when horse crashed into pole * C rode horse too quickly so action failed (before 1945 where apportionment applied) Trevett v Lee [1955] 1 WLR 113 (CA) 122 per Sir Raymond Evershed MR: ‘Having regard to the language of the Law Reform (Contributory Negligence) Act, 1945, s 1 and s 4, it is not open to doubt that in a claim for damages based on nuisance the defendant may set up and rely on a fault consisting of what is commonly called contributory negligence so as to reduce … his own liability’.

Answer 181

R v Cross (1812) 3 Camp 224, 227; 170 ER 1362, 1363 per Lord Ellenborough: ‘It is immaterial how long the practice may have prevailed, for no length of time will legitimate a [public] nuisance’.

Answer 182

Consent by a private individual is not a defence to the crime of public nuisance, but it is likely to affect recoverability of damages by that individual

Answer 183

‘In [Hunter v Canary Wharf Ltd], it was held that a claimant for nuisance had to have an interest in the land affected. In view of the very close relationship between the tort of nuisance and the rule in Rylands v. Fletcher, … it is logically inescapable that … in order for a claim to be brought in Rylands v. Fletcher, the claimant must have an interest in the land which would be sufficient to justify him bringing a claim in nuisance.’ • Originally, didn’t need a property right but the assimilation of the two species of tort meant the rules aligned and R&F now requires property right

Answer 184

• (1) Primary liability attaches to the person who brings the thing onto the land o D does not need to be using their own land; could be simply land occupied o In Rainham, argument that thing brought onto land but not occupied so no claim rejected ♣ Makes sense as you don’t need a connection to the land in private nuisance to be liable • (2) If others accumulate dangerous thing on your land with your permission (i.e. independent contractors asked to build reservoir and they were not liable but occupier who gave permission was (Ryland) • (3) person who authorises accumulation can be liable (Ryland) • (4) person who simply causes the thing to escape but did not bring it onto the land will not be liable under Ryland (see Aldrige)

Answer 185

Possibility of concurrent claims in private nuisance, Rylands v Fletcher and negligence (most likely in a case of physical damage to the land) (b) Advantage of suing in Rylands v Fletcher: no requirement for the escape of the thing to be reasonably foreseeable (cf private nuisance: Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] EWCA Civ 685 at [25]) – Disadvantage of suing in Rylands v Fletcher: need to establish a non-natural use (c) Possibility of suing in negligence and/or public nuisance where the claimant has suffered personal injury or damage to chattels

Answer 186

Laura, having since moved out from Nimbleton, is likely to be seeking damages for the losses she has already suffered from Jorset County Council, as opposed to an injunction. Given that Jorset County Council had created the state of affairs that brings about the alleged unreasonable interferences, it is liable to be sued regardless of whether it has sufficient legal interest in the land that the alleged interferences emanated from. In any event, Jorset County Council has sufficient legal interest and exclusive right of possession in that it is a long-term lessor of the site. Laura, who was a homeowner at the time of the unreasonable interferences, also fulfils the test of sufficient legal interest in Hunter v Canary Wharf and can therefore bring an action of private nuisance against Jorset County Council, although not for unreasonable interferences occurring after she sold her house to Ned. There are a number of unreasonable interferences with the enjoyment of her land that Laura’s claim may rely on, and these will be addressed individually. Firstly, Laura may argue that there has been an unreasonable interference by virtue of the noise emanating from the building work. To establish unreasonableness of the interference it must be proven that the resultant discomfort was ‘in excess of that which an ordinary person could reasonably be expected to put up with’ (Barr v Biffa Waste Services Ltd). In the present circumstances this bar seems highly likely to be met, given that building work went on throughout the night and at weekends. While it may be argued that, since the law of private nuisance is one of ‘give and take’, Laura and other residents of Nimbleton should put up with building work in the day, it can scarcely be the case that an ordinary person should put up with nights of disturbed rest. Such was the dicta in Halsey v Esso Petroleum, with the court holding that noise affecting sleep amounted to an unreasonable interference on the basis that the object of a house is for its occupant to get a good night’s sleep. This is especially so given the locality principle, since Nimbleton is a predominantly rural area and any excessive noise beyond everyday levels will be regarded as unreasonable. Jorset County Council may plead several defences to Laura’s claim. First, it may be argued that the existence of the construction works changed the character of the locality such that it was commonplace for there to be noise. However, this will quickly fail upon an application of Lord Neuberger’s test in Coventry v Lawrence; on Lord Carnwath’s test, such a construction could also not be said to have become established practice. It should be noted that even if we do take into account the construction works in determining the nature of the locality, it would scarcely be possible to argue that the locality of Nimbleton has become one of construction sites. Jorset County Council might then argue that the social utility of the construction warrants any resultant private nuisance, given that Jorset is running short of landfill sites for waste disposal. However, it has been established that social utility and the public interest are negligible in finding liability in private nuisance (Miller v Jackson; Kennaway v Thompson). While it may be possible to rely on Harrison v Southwark and argue that in cases of construction work, no liability should be imposed so long as the construction has been conveniently done, this argument is likely fail on the present facts, given that it would be hard to argue that building work occurring throughout the night is conveniently done. The strongest defence Jorset County Council may plead is one of authorisation, given that they were authorised by a private Act of Parliament to build the plant. It is to be noted that while planning permissions are generally not taken into account when determining liability, as was held in Coventry v Lawrence, the present case involves an Act of Parliament, which is statutory authority. However, such an authorisation will only constitute a defence if the nuisance resulting from the construction of a waste incineration plant was an inevitable consequence (Allen v Gulf Oil). Prima facie, it would seem likely that the resultant noise would be an inevitable consequence of any authorisation of construction works. That being said, Jorset County Council will find it difficult to argue that constant noise through the night and weekends was an inevitable consequence. It could be possible that the Act of Parliament stipulated that works throughout the night were permissible, or perhaps stipulated a tight timeline for the completion of the building work such that overnight construction would have been inevitable, but this turns on the contents and construction of the statute. Secondly, Laura may seek remedies for the private nuisance caused after the plant was up and running, being the foul smell, plumes of dark smoke and debris emanating from the plant. The unreasonable interference test of Barr v Biffa Waste Services is likely to be met in relation to the debris, given that the debris has affected her enjoyment of her property so much so that she has to hose down her patio garden every morning. Whether the foul smell and plumes of dark smell amounts to an unreasonable interference will depend on the facts, particularly whether the extent is something an ordinary person could reasonably be expected to put up with. If it exceeds such a standard, Jorset County Council will be liable for private nuisance, as again in Halsey v Esso Petroleum, where the claimant complained about the smell emanating from the defendant’s plant. Once again, the character of the locality is unlikely to be relevant in establishing whether there is a private nuisance in this case (Coventry v Lawrence); it would seem absurd that due to the plant, Nimbleton has now transformed from a small industrial estate to a waste incineration plan locality. Social utility is also likely to be negligible (Miller v Jackson). With regard to the Act of Parliament, it might at first seem that such a defence does not apply, given that the statutory authority only permits the building of a waste incineration plant and not the operation of it. However, that construction would seem myopic given that the construction and operation of the plant will necessarily go hand in hand. Once again, the question remains if the interferences (i.e. the foul smell, plumes of dark smoke and debris) were inevitable consequences of the authorised act, that being the construction (and operation) of a waste incineration plant. Unlike in the first instance, it seems inevitable that foul smell and plumes of dark smoke would be consequent from the operation of a waste incineration plant. Jorset County Council may therefore not be held liable for private nuisance (STEELE: Though question whether L could argue that, as in Metropolitan Asylum District v Hill, it was not necessary for J to build the plant such that it caused a private nuisance (e.g. if they had located it in a different area)) Having established the likelihood of Laura establishing the existence of a private nuisance, we now turn to the remedies she may be able to obtain. While the starting point for a remedy of private nuisance is an injunction (Coventry v Lawrence), Laura will be wanting damages, since the private nuisances do not affect her any longer. Firstly, for the noise during the building work, it would be impossible for the court to grant an injunction since no such work is currently in existence. As such, the court will grant damages to account for the loss of amenity of the property. Laura is also likely to claim consequential economic loss given her loss of income due to the noise of the construction (Andrea v Selfridge). It is uncertain whether Laura could claim for both the consequential economic loss and the loss of amenity, given that the latter is calculated based on the differential of rental income that could have been collected with and without the nuisance, which is precisely the quantification for the former. While it could be said that Laura’s discomfort is separate from her loss of earnings, any damages awarded will be for the reduced amenity of the land and not for any distress (Hunter v Canary Wharf). Secondly, if it is established that the foul smell, plumes of dark smoke and debris amount to private nuisance, then Laura may claim for damages for the loss of amenity for the house. In this case, it could possibly be that the courts take into account the reduced amount Laura sold the house to Ned for, being a reduction of £100,000. However, it has to first be certain that the reduction was solely due to the unreasonable interferences and not any external factors. Turning to Ned, a current resident of Nimbleton, an injunction concurrent with damages for his losses already incurred would seem most favourable presently. It is to be noted that it is no defence that Ned came to the nuisance (Sturges v Bridgman). As such, Ned may seek an injunction on the grounds mentioned above if the state of affairs has continued to interfere with the enjoyment of his land as it did Laura. However, it is unsure whether he may claim damages for the losses already suffered if Laura succeeds in her claim for loss of amenity based on the reduced sale price, given that Ned had already been duly compensated for the property’s loss of amenity by paying a price £100,000 lower. In addition to the grounds mentioned above, Ned is likely to also seek an injunction and damages with regard to the refuse trucks’ obstruction of the road and the consequential economic losses suffered by him. The obstruction of the road is unlikely to amount to a private nuisance unless the road is a road used only by Ned to get to his house, given that private nuisance relates to the interference with a person’s enjoyment of a proprietary interest. In the present case, since Ned can use another route to exit his property, it cannot be said that the obstruction interferes with the enjoyment of his land itself. Ned will therefore have to argue that there was a public nuisance. However, this turns on whether the obstruction was unreasonable. On this regard it could be argued by Jorset County Council that the refuse trucks using that road is the most reasonable way of reducing any congestion, and that it only occurs when the plant is particularly busy. Another obstacle that Ned might face is whether he may claim for damages due to his loss of customers. A distinction should be drawn between a case where the customer is to go to Ned and the present case where the customer meets Ned elsewhere not affected by the obstruction. It would seem that the former could be claimed for, since the customer was actively put off by the obstruction, but not the latter, since it is Ned’s tardiness that causes his loss of business. It seems unlikely that one could blame the drivers in a traffic accident that causes a jam on a highway for the consequential loss of income. In addition, if the obstruction was a common occurrence, it might even be argued that Ned should have accounted for the potential delay when he planned what time to leave for work. Summarily, it seems that Ned will have an uphill task in establishing any liability or claiming any damages.

Answer 187

Japanese weed encroaches onto C’s land where it does harm to garden and cost of removing it. Q = whether the tort of nuisance has been committed. Significance of case lies in court’s restatement of scope and structure of private nuisance 5 principles that are the core of private nuisance: About violation of real property rights (tort based on land) – C must have sufficient interest in land Categories used to explain the tort are not rigid categories but merely illustrate the scope of the tort Nuisance by encroachment on neighbor’s land Nuisance by direct physical injury to the land Interference with neighbor’s enjoyment of the land Claim of damage must always be an essential element must be treated with considerable caution because notion of damage is highly elastic E.g. a crane overhead is hardly damage! More fluid than it is for tort of negligence Nuisance may be caused by inaction or omission as well as by positive activity. But they are concerned with cases where nuisance is continued i.e. created by third party and you don’t do anything about it! Once you know about the parties and you let them continue, then you may be liable. Broad unifying principle is reasonableness between neighbors.

Answer 188

Issue is interference with enjoyment of the land Looking at another is not actionable in private nuisance. Tate gallery where you can look into the houses of another. Court said no. Essence of complaint about invasion of privacy and that is to be done by statute and not be development of private nuisance.

Nuisance Flashcards

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