Please enable JavaScript.

Coggle requires JavaScript to display documents.

Torts: Property Torts (Private Nuisance (Defences (Planning permission a…

- - - - Balancing act
        
        weighing benefit of competing uses of land
      - Evolutionary nature of balancing exercise
        
        interference with TV (just one channel)
        (Bridlington Relay v Yorkshire Board (1965))
        cf
        
        right to obtain TV reception was left open
        (Hunter v Canary Wharf (1997))
      - Nature, frequency and duration of the interference
        
        complaint about noise and dust
        HELD: no nuisance if construction carried out reasonably; what is reasonable may depend on e.g. state of construction / demolition technology and methods; there was some excess dust and noise (e.g. unreasonable hours) but in awarding damages must be careful not to penalise D for legitimate operations e.g. stop at allowing claim for inability to recover lost profits (ppt)
        (Andreae v Selfridge & Co Ltd (1938))
        -
        
        D's oil storage and delivery depot, emission of acid smuts, damaged P's laundry and car
        
        cannot claim for chattel, so claim under unreasonable interference with enjoyment of land
        
        HELD: intensity of smells and timing of noise exceeded what was reasonable
        
        public nuisance: can claim for laundry and car
        (Halsey v Esso Petroleum (1961))
      - Locality
        
        use of residential premises as brothel in residential area
        
        HELD: prostitution less taboo and not unlawful
        
        the fact that prostitution would change the character of neighbourhood
        
        emanation present
        (Thompson-Schwab v Costaki (1956))
        -
        
        sex shop/cinema in mixed residential/commercial area
        
        do not need physical emanation into neighbourhood -> change in character of neighbourhood
        (Laws v Florinplace (1981))
      - Social utility of interference (but generally only in remedy stage)
        
        public interest in cricket prevailed over hardship to individual householders
        
        damages in lieu of injunction
        (Miller v Jackson (1977))
        
        homeowner next to man-made law with motor boat racing club; increase in racing activities esp. at certain times of year with noise
        
        public interest does not prevail to prevent injunctive relief where noise goes beyond what one is expected to bear
        
        restricted injunction instead of blanket injunction
        (Kennaway v Thompson (1981))
      - Defendant's motive
        
        music lessons and private concerts at P's home; D banged on walls and beat metal trays together to retaliate
        
        HELD: P’s actions were not a nuisance; D’s actions which were motivated by malice did constitute a nuisance
        
        injunction
        (Christie v Davey (1893))
        -
        
        D disagreed with silver fox farming on ethical grounds, fired gun in own land; silver fox miscarried/ate young
        
        HELD: constituted nuisance due to malice
        (Hollywood Silver Fox Farm v Emmett (1936))
      - P's sensitivity
        
        P's delicate brown paper, damaged by D's reasonable use of land for manufacturing
        
        Lopes LJ: “A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property”
        (Robinson v Kilvert (1875))
        -
        
        damage to P's rare orchids by D's manufacturing business which caused fumes and smut to be deposited on plants on P's property
        
        nuisance, unreasonable because would have damaged normal plants and flowers
        (McKinnon Industries v Walker (1951))
    - - Fault component
        
        Creation of nuisance
        
        Strict liability for harm created which is reasonable foreseeable type of harm
        
        not whether D took "reasonable care" but whether D should be held liable for damage which is reasonably foreseeable
        (Cambridge Water Co Ltd v Eastern Counties Leather plc (1994))
        -
        
        negligence not essential element
        
        fault necessary (in terms of foreseeability)
        
        (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (“The Wagon Mound”) (No 2) (1966))
        
        Continuation/adoption of nuisance
        
        Objective SOC; liability falls due to continuation/adoption of nuisance even though creation of nuisance was by someone else (overlap with negligence standards)
        
        pipe put in by local council without D's awareness, D realised and used the pipe, pipe flooded and damaged land
        
        continuation: knowledge + fails to take any reasonable means to bring it to an end (objective standard of car)
        
        adopting: making use of it (objective standard of care)
        
        Minority view: reasonable care should have become aware of it, i.e. constructive knowledge ok (Lord Wright); responsibility to prevent (Lord Atkin)
        (Sedleigh-Denfield v O’Callaghan (1940))
        
        Nuisance is not D's responsibility/accident
        
        Subjective SOC; knowledge and foreseeability (overlap with negligence)
        
        tree struck by lightning, on fire, cut down but still had embers; fire spread to P's land
        
        occupier under general duty regarding hazards on land; but scope depends on knowledge and ability to foresee what would occur in circumstances (subjective SOC based on what could be reasonably expected from D's circumstances, e.g. resources)
        (Goldman v Hargrave (1967))
        
        Factors in subjective SOC
        
        general DOC based on what was reasonable in the circumstances; based on what D knew / ought to know; extent of the risk; practicability of preventing / minimising foreseeable injury; time available for doing so; cost of work; relative financial and other resources of the parties (ppt)
        HELD: quantity and cost of work would not have gone beyond D’s financial capacities or greater than necessary for the damage – Ps’ entitled to damages
        (Leakey v National Trust (1980))
      - Personal injury or damage to chattel in negligence only
        (Hunter v Canary Wharf)
        Unless it is consequential to property damage (quantifying extent of loss)
        (OTF Aquarium Farm v Lian Shing Construction (2007))
      - Depreciation of value of property not actionable
        
        over time, D emitted nickel oxide into the air, fall in property value due to health fears (although the nickel oxide in soil found to be not harmful)
        
        damage to property must be “material, actual and readily ascertainable”
        
        policy: indeterminacy due to intangibility
        (Smith v Inco Ltd)
        -> could have been characterised as loss of use and enjoyment of land as trading asset
  - - - Single or continuing act -> remedial impact
        
        single: damages
        
        continuing: injunctive relief
      - Who can sue?
        
        contractual interest insufficient
        
        Need for proprietary interest
        
        D's operated machinery on adjoining premises caused vibrations, toilet tank case loose and injured P
        
        wife had simple right to be on land, no legal right to property
        
        personal injury claim
        (Malone v Laskey (1907))
        
        Relatives of home owners suing for nuisance caused by excessive dust during construction of development
        
        Lord Goff: “Since the tort of nuisance is a tort directed against the plaintiff’s enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land…as the freeholder or tenant of the land…a person who has no right in the land cannot sue in private nuisance”
        (Hunter v Canary Wharf Ltd (1997) UKHL)
      - Who can be sued?
        
        must involve D's use of D's land
        
        Where nuisance is not created by D themselves: emanation problem
        
        P suing owner (council of housing estate) for tenants who are harassing P, breaking windows, vandalism, etc.
        HELD:
        
        no, nuisance must arise from tenant's use of the land, not just tenants doing acts on their land (emanation issue)
        
        council only liable if authorised/adopted acts
        (Hussain v Lancaster City Council (2000))
        
        cf. emanation found
        
        P tenant farmers of land sued local council for gypsies who occupied land owned by council on edge of the main road
        
        HELD:
        
        emanation here (judge doubted emanation idea)
        
        public nuisance, conduct emanated from common area
        
        council allowed gypsies to occupy land notwithstanding complaints and use it as launch pad, even provided facilities
        (Lippiatt v South Gloucestershire Council (2000))
      - Emanation
        (something which comes off D's land onto P's land)
        
        D's building blocked P's TV reception
        HELD: mere presence of building not actionable (Lord Goff); proper remedy in property law or planning permission process (Lord Hoffman)
        (Hunter v Canary Wharf (1997))
        -
        
        glass roof of a balcony deflected sun’s rays onto neighbouring buildings
        HELD: Lord Goff appears to characterise this as emanation-type case versus mere static presence of a building (ppt)
        (Bank of New Zealand v Greenwood)
  - - - Environmental permits
        
        environmental permit (like carbon emission permit) is different from planning permission!
        
        waste management company could be liable for the emission of gross odours even though it complied with local planning regulations
        
        planning permit bears in mind the character of the neighbourhood; environmental permits do not consider this, not considered reasonable user of land in that area
        (Barr v Biffa Waste Services)
      - Planning permits: scope and change in character
        
        planning permission only prevents activity from becoming permission when it scope has changed the character of the region (a interference with enjoyment balancing exercise)
        -
        
        HELD: planning permission for commercial dock changed character of the area from residential to commercial neighbourhood, justified increased traffic
        (Gillingham BC v Medway (Chatham) Dock Co)
        
        cf
        
        HELD: channel for pig excrement was nuisance, planning permission to build pig farm did not change character of neighbourhood (too discrete in scope)
        (Wheeler v JJ Saunders Ltd)
        
        No longer a defence, but a factor used in balancing (for interference of enjoyment)
        
        A more nuanced approach: whether a new use of land
        
        even if the character of the neighbourhood has not changed, has it introduced a new use for the land? is it reasonable upon a balance of factors?
        
        new use of land: e.g. have it introduced a higher level of noise?
        (Lawrence v Fen Tigers Ltd)
  - - - Outlier: right to light
        HELD: injunction to stop property development
        (Regan v Paul Properties DPF No 1 Ltd & Ors )
      - continuing nuisance
      - Scope of injunctive relief calibration of the scope of injunction to strike balance in interference with enjoyment cases (Kennaway, see Halsey)
    - - Damages instead of injunction due to social utility
        (Miller v Jackson)
      - past/single nuisances