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Land-based torts, Defences, important elements to consider, definition -…

- - - - a claimant must have a possessionary or proprietary interest in the land
        
        Mere permission to use
        or occupy land is insufficient to bring an action in private nuisance. An action in private nuisance could only be brought by those with a legal interest in the land affected ie the owner, tenant in possession, grantees of an easement or licensee with exclusive possession.
        Hunter and Others v Canary Wharf Ltd [1997].
        Facts: TV reception interfered.
    - - 1/Creator of the nuisance
      - 2/Occupier of the land from which the nuisance originates
        
        where occupiers are liable for nuisances created by themselves
        
        where occupiers are liable for nuisances created by others
        
        Independent contractors
        
        If an occupier asks an independent contractor onto their land to perform certain tasks and those tasks cause an inevitable nuisance, there will be liability (Matania v National Provincial Bank [1936])
        the neighbour was a music teacher.
        
        Trespassers/ visitors/ predecessors in title
        
        The occupier will be liable if they continued or adopted the nuisance. Occupiers continue a nuisance if they knew or ought reasonably to know of its existence and fail to take reasonable steps to end it. Occupiers adopt a nuisance if they make use of the thing causing the nuisance (Sedleigh-Denfield v O’Callaghan [1940] ).
        Facts: defendant using a water pipe created unlawfully by trespass.
        
        Naturally occurring nuisances
        
        occupiers are liable for a naturally occurring nuisance where they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance ie continued the nuisance. However, a duty to abate a naturally occurring nuisance is subject to the means of the occupier(Goldman v Hargrave [1967])
        Facts: Lightning struck a tree - fire- defendant extinguished the fire but did not douse the embers - claimants house was burned - he had financial and physical means to douse the embers.
      - 3/Owner of the land
        
        general rule is that landlord cannot be sued for a private nuisance
        
        exception
        
        A landlord could only be liable for their tenant’s nuisance if they
        authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created. It was not enough that the landlord knew how the tenants would use the premises; the premises could have been used in that way without creating the nuisance. (Coventry v Lawrence [2014])
  - - - intangible/indirect interference with the use or enjoyment of the claimant’s land
      - as opposed to direct interference like trespass
    - - definition
        
        The claimant must establish that they have suffered some damage 'St Helen’s Smelting Co v William Tipping (1865)) and the of damage must have been reasonably foreseeable.
        he claimant can recover for any consequential losses flowing from recoverable damage
      - types of damage recoverable in private nuisance (St Helen’s Smelting Co v William Tipping (1865))
        
        Physical damage to property -
        EX: vegetation of the land of the claimant in the St Helen
        Any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery [1886])
        
        Sensible personal discomfort (SPD) (amenity damage) -
        Bad smell of the copper smelting plant in St Helen.
        Any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851))
        
        limits:
        
        A claimant cannot claim for personal injury given that private nuisance is a tort against land not the person (Hunter).
    - - general rule
        
        A one-off isolated event is not normally actionable in private nuisance
      - exception to the general rule
        
        A single incident caused by an underlying state of affairs
        
        British Celanese v AH Hunt Ltd [1969]: strips blown from the defendant’s factory came into contact with an electricity sub-station, causing a power failure which stopped the claimant’s machines. the defendant had received a notice three years ago about this danger and yet storing the metal strips outside of the factory (state of affairs).
        
        An activity which creates a state of affairs which gives rise to the risk of escape of
        physically dangerous or damaging material.
        
        Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996]: The court suggested that where an activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material, such as water, gas or fire, then private nuisance is available, even if the state of affairs is brief in duration.
        Facts: fireworks !
        remember that this case is before Ryfield case. if it was after Ryfield, it was not in private nuisance.
    - - definition
        
        is the use of land reasonable? (Cambridge Water Company v Eastern Counties Leather [1994])
        
        if the use is unreasonable, the defendant will be liable, even if they exercised reasonable care and skill to avoid it.
        
        when there is damage to the property, it is easier to show that the claimant is prevented from enjoying their land (even if the act is reasonable)
      - factors to consider (on a balance)
        
        a/Time and duration
        
        Kennaway v Thompson [1981]: when the alleged nuisance takes place, how long it continues and how frequently it is repeated. note that where the loss is property damage only, the court might find a nuisance even if caused by a temporary or short-lived activity.
        
        b/Locality
        
        relevant factor only where the loss is SPD
        
        key case: Sturges v Bridgman (1879): The defendant’s business (manufacturing confectionery) was held to be a nuisance in a residential area.
        
        other examples
        
        Adams v Ursell [1913]: Just because a fish and chip shop was a nuisance in one place, does not mean it would be in another place.
        
        change in the nature of the locality (Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993]): Residents complained of interrupted sleep and general disturbance failed because the predominately residential area became a commercial port following planning permission which was benefiting the community.
        
        distinction > Wheeler v JJ Saunders Ltd [1996]: Despite the planning permission, the Court of Appeal held the defendant liable in private nuisance. The planning permission had not changed the nature of the locality (it simply allowed the already existing pig farm to become bigger).
        Facts: pig sheds next to the claimants holiday cottage - strong smell
        
        applicable law today: Coventry v Lawrence [2014]
        
        the court confirmed Wheeler + the precise terms of the planning permission may have a bearing on whether a nuisance exists.
        
        c/Abnormal sensitivity
        
        Robinson v Kilvert (1889): The court held that the claimant’s paper was abnormally sensitive and ordinary paper would have been unaffected. There was no nuisance and the defendant’s use of the land was reasonable.
        
        distinction >> "thin skull" rule. McKinnon Industries v Walker [1951]: if the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation, even though these are increased by their sensitivity
        Facts: commercial florist - gas emissions from defendant's factory - causing flowers to die - ordinary flowers were also affected and that is why the claimant received damages for sensetive flowers like Orchids
        
        applicable law today with a little distinction with Robinson (replacing abnormal sensitivity with foreseeability) > Network Rail Infrastructure Ltd v CJ Morris [2004]: If something or someone is abnormally sensitive, then arguably the loss is not foreseeable to the defendant.
        Facts: electronic guitars - it was not reasonable to expect the defendant to foresee the interference caused to the electric guitars. The defendant was not liable.
        
        d/Malice
        
        Christie v Davey [1893]: Mrs Christie was granted an injunction, restraining the defendant from creating any sounds in his house with the purpose of annoying the claimant.
        Facts: the claimant (Mrs Christie) was a music teacher and her neighbour was tired of her having classes all day and started to making sounds just to irritate Mrs Christie.
        
        e/Defendant’s lack of care
        
        Andreae v Selfridge and Co Ltd [1938]: the defendant had not exercised reasonable care; its own convenience prevailed over the neighbours’ convenience.
        Facts: defendant was undertaking extensive building work and this resulted in the neighbour hotel lose its clients because of dust and noise.
        Facts: the contractors were actively day and night working and the owner of the land (selfridge) were sued because they had promoted this behaviour.
        
        f/Excessive behaviour
        
        Farrer v Nelson (1885): how far removed is the behaviour from ‘normal’?
        Facts: the defendant owned hundreds of pheasants. The pheasants were able to access the claimant’s farm causing damage to his grain and other crops.
        how much and to what quantity you are carrying out your nuisance?
  - - - definition
        
        If the defendant’s activity has been an actionable nuisance for 20 years or more but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance.
        the question to ask is for how long the nuisance has been a actionable nuisance ? Like if a factory is working over 30 years and in the recent 6 month, they have changed sth that irritates the claimant then the nisance has been actionable for 6 month. Also, actionable nuisance is cumulative from different claimants.
      - example
        
        In Sturges the confectionery had been in existence for over 20 years, but it had only become a nuisance when the claimant doctor’s consulting rooms had been built near the nuisance (the noise and vibrations of the confectioner’s factory). Consequently, the defence of prescription was not available.
        
        In Coventry, the stadium was constructed in 1975 and the claimant moved into the nearby house in 2006. (the 20 years does not have to be continuous.)
    - - Allen v Gulf Oil Refining Ltd [1981]: a private Act of Parliament provided for the expansion of an oil refinery in part of Wales. A majority in the House of Lords held that the refinery’s operations were authorised by statute and the nuisance was inevitable.
      - (a full defence)
    - - Pwllbach Colliery v Woodman [1915]: the claimant consented to colliery activity but not to the specific disruption caused by the coal dust. The claimant must have specifically consented to the activity causing the nuisance.
      - The defence may be available where the claimant, knowing of the danger to their property, has (by word or deed) shown willingness to accept the risks.
    - - Trevett v Lee [1955]
        
        ?
        
        just because the claimant saw the pipe, but failed to step over it, it could be a contributory negligence?
    - - Where the nuisance has been created by a third party for whom the defendant bears no responsibility, the defendant will not be liable, unless they adopt or continue the nuisance (Sedleigh-Denfield).
    - - Nichols v Marsland (1876): the defendant’s artificial pools flooded and damaged the claimant’s property. The flooding was caused by a very unusual amount of rainfall which was wholly unexpected, so the defendant had a complete defence.
    - - The usual principles apply which are considered in the section ‘Necessity’ in the chapter on defences.
    - - Miller and Another v Jackson and Others [1977]: The defendant may try to argue that the claimant should not be able to complain about a nuisance which was present when the claimant moved to their property.
      - Miller and Another was confirmed in Coventry with a distinction: a defendant might be able to argue that the claimant’s claim should fail if the defendant’s activity only became a nuisance because of the claimant’s change of use or building.
  - - - partial
        
        The court may award a partial injunction where the defendant’s activities are of public benefit.
        
        Kennaway: power-boat racing was very popular with the public. The court therefore awarded a partial injunction, requiring the defendant to stick to a planned timetable.
      - full
    - - in an actual physical damage
        
        the cost of repair or renewal
        
        +any consequential economic loss
      - in SPD
        
        prima facie remedy is an injunction
        
        The defendant then needs to put forward the arguments as to why an injunction should not be granted. the court will balance factors.
        
        because of public interest
        
        because of planning permissions (Coventry)
        
        how it is calculated
        
        reduction in the value of the claimant’s property
        
        Dennis v Ministry of Defence [2003]: Public benefit (defence of the nation) outweighed the claimants’ rights. The claimants were awarded £950,000, which was the amount by which the value of their home had been depreciated by the aircraft noise.
        
        Miller v Jackson [1977]: The cricket club were liable in nuisance but the claimants were awarded damages in lieu of an injunction. public have the right to engage in lawful pastimes and this outweighed the Millers’ rights.
    - - where the claimant acts to stop the nuisance.
        
        he claimant must do no more than is necessary to abate the nuisance
        
        Notice must usually be given by the claimant of their intention but need not be given if it is an emergency.
        
        Validly exercising a right to abate a nuisance will be a defence to any proceedings for trespass to land.
- - - - the claimant must have a proprietary interest in the land affected (Hunter).
    - - The person who brings, collects and keeps the ‘thing’ onto the land (the creator of the
        nuisance) and/or any person who has control over the land (owner/occupier).
    - - only recoverable damages are property damage and consequential economic loss.
  - - - they must do this voluntarily
        
        Giles v Walker (1890): there was no liability for the spread of thistles from the defendant’s land as they grew there naturally and had not been brought onto the land
    - - like water, acid or explosive
      - Transco v Stockport Metroplitan Borough Council [2003]: A pipe carrying water to flats owned by the defendant leaked caused collapses of an embankment and left unsupported a gas pipe owned by the claimant. the court held that the thing that escapes has to be reasonably recognised as having an exceptionally high risk of causing a danger if it were to escape. which was not satisfied in this case.
    - - Cambridge Water Co. v Eastern Counties Leather plc [1994]: the escape should not be foreseeable but the dangerous harm that it wouls cause if it escapes must be foreseeable.
        Held: The claim failed: pollution to water in a borehole 1.3 miles away was not reasonably foreseeable. It was not foreseeable that chemicals spilt on a concrete floor could cause damage to the claimant’s water.
    - - Cambridge Water Co. v Eastern Counties Leather plc [1994] : escape from the defendant's land to the claimant's land. it can be slow and over a period of time
      - Key case: Stannard v Gore [2012]
        Facts: tyres stored on the defendant's land - they catch fire - the fire escapes to the claimant's land - claim fails as the fire escaped the defendant's land and not the tyres itself.
        
        DISTINCTION >> Colour Quest Ltd v Total Downstream UK Plc [2010]: where fuel is the ‘dangerous thing’ brought onto the defendant’s land and the fuel starts the fire/causes an explosion, the fuel could be seen as escaping with the fire
    - - Transco: Piping water for domestic use to a block of flats was not an extraordinary and unusual use of land
      - ordinary use of the land depending upon the time
      - Colour Quest: the use of land was not natural because of the quantity of the oil kept on the land even if the nature of the land was for industrial.
      - Cambridge Water: storage of substantial quantities of chemicals on industrial premises was an ‘almost classic case’ of non-natural use
  - - - Peters v Prince of Wales Theatre [1943]: If the claimant agreed to the accumulation of the material by the defendant, there will be no liability. Consent can be implied if the substance has been accumulated for the common benefit of the claimant and defendant.
        Facts: the sprinkler system from the neighbour theatre caused a flood to the claimant.
        Held: the defendant was not liable because the system was for the benefit of both and claimant was deemed to have consented to the use of system since it had been installed prior to him obtaining the lease.
    - - Dunn v Birmingham Canal Co (1872): the escape must have been caused wholly by the defendant's actions
    - - Green v Chelsea Waterworks Co (1894): statutory powers authorised the laying down of a water pipe (which burst). The defendant was under a statutory obligation to maintain high pressure in the water main, meaning any escape would inevitably cause damage. The defendant could therefore rely upon this defence.
    - - Rickards v Lothian: The defendant will not be liable if they can show that the escape arose through the unforeseeable act of a stranger over whom they had no control
        the question is that whether it was foreseeable that a third party could make the dangerous thing escape?
    - - Nichols v Marsland (1876): The defendant was not liable for such an extraordinary act of nature which could not have been foresee.
        Facts: Due to extraordinarily high rainfall, the banks broke and four of the claimant’s bridges were swept away.
    - - The usual rules of contributory negligence and consent apply.
- - - - the cliamant must have a possessionary or proprietary interest
    - - no, the trespass to land is actionable per se meaning that there is no need of actual damage.
  - - - note that Land in this context includes anything under the land, built on the land and the airspace above it.
      - 4 categories
        
        1/Entering the claimant’s land
        
        Walking across someone’s private garden without permission.
        
        2/Remaining on the claimant’s land when permission has been revoked
        
        Tenant staying in rented property after the lease has expired.
        
        3/Doing something that is not permitted on the claimant’s land
        
        Entering an area which says ‘staff only’ when you are not staff;
        
        4/Placing objects on the claimant’s land without permission
        
        Fly-tipping
    - - if you voluntarily walk over a private field, you have trespassed, even if you did so accidentally.
      - League Against Cruel Sports v Scott [1986]: the intention can be implied because the defendant knew that there was a real risk of the dogs entering the claimant’s land and because he insisted on hunting close to prohibited land
        Facts: wild deer sanctuaries and hunting dog frequently entering the land even if the was no actual intention by the owner of the dog to let the dogs enter the land.
  - - - where the owner/occupier has been excluded from the land
    - - claim profit from a defendant who wrongfully occupied the land and made a profit or saved expenditure in doing so
    - - the owner/occupier can seek a court order for the defendant to be removed
  - - - Kelsen v Imperial Tobacco Co [1957]
        
        The invasion of the airspace above the claimant’s shop by the advertisement sign (by 8 inches!) amounted to trespass to land as it was over the boundary line of the properties.
      - Laiqat v Majid [2005]
        
        he fan was a permanent intrusion into the claimant’s airspace and constituted a trespass. It did not matter that it did not interfere with any normal activity conducted on the claimant’s garden. The law was clear that interference with airspace above another person’s land was trespass.
      - Bernstein v Skyviews and General Ltd [1978]: The activity took place above the height as is necessary for the ordinary use and enjoyment of the claimant’s land and the structures upon it. s76 Civil Aviation Act 1982 also applies.
        Facts: aerial photographs of the claimant’s property.
    - - Bocardo SA v Star Energy UK Onshore Ltd [2010]: the defendant drilled wells under the claimant’s land at depths of between 800ft to 2,900ft. The wells constituted a trespass even if he had a licence but the wells in this case were far from being so deep as to reach the point of absurdity
        
        HOWEVER, Infrastructure Act 2015 allows oil, gas and geothermal companies an automatic right of access to land 300 m or lower for the purposes of exploiting petroleum or deep geothermal energy and the surface landowners are unable to object.
- - - - 2/A local authority
        
        on the class’s behalf in their name
      - 3/Attorney General
      - 1/An individual
        
        the individuals must be able to show that they have suffered ‘special damage’ (Ricket v Metropolitan Railway (1867)) - special damage means over and above the rest of the class and in different kind with them
        
        ‘special damage’ must be direct and substantial (Colour Quest Ltd v Total Downstream UK Plc [2010])
        
        Lyons Sons & Co v Gulliver [1914]: defendant caused a queue outside the claimant’s café twice a day > his café trade was severely disrupted as a result (pure economic loss).
    - - creator of the nuisance or any person who is ‘responsible’ for the nuisance
  - - - R v Rimmington [2005]: a ‘class’ referred to a ‘section of the public’ or ‘the community’ or ‘a significant section of the community’. A class had to suffer a ‘common injury’, ie be affected at more or less the same time and in the same location.
        Facts: sending racially offensive items across the country.
        outcome: no class was identified.
      - It is not necessary that every member of the class has been affected, just that a representative cross-section has been (PYA Quarries).
      - There is no exact number of people, It depends upon the facts of the case (PYA Quarries)
    - - no need for there to be actual damage but inconvenience must be ‘material’ - Annoyance or irritation will be sufficient, as long as this is ‘material’. (an de Nul (UK) Ltd v Royale Belge SA [2002])
      - property damage and consequential economic loss are recoverable
      - personal injury and pure economic loss are recoverable (as opposed to Private nuisance and Rylands.
      - EX: The defendant auctioneers next door restricted access to the coffee house and made the coffee house uncomfortable). This interference was direct and substantial (Benjamin v Storr (1873-74))
      - The type of loss must also be reasonably foreseeable (Wagon Mound (No. 2) [1967]
  - - - If the claim is brought by the local authority or Attorney General, the only remedy available is an
        injunction.