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TORTS RELATING TO LAND - Coggle Diagram
TORTS RELATING TO LAND
PRIVATE NUISANCE
Any continuous activity / state of affairs causing a substantial and unreasonable interference with a claimant’s land / use / enjoyment of that landPreliminaries1. Who can sue in private nuisance?
- Claimant must have a legal interest in land (possessionary or proprietary interest) > Mere permission to use / occupy land is insufficient
2. Who can be sued in private nuisance?
- Creator of the nuisance even if cannot end nuisance / be occupier of land
- Occupier of land from where nuisance has come = liable for nuisances created by themselves / Independent Contractors / trespassers / visitors / predecessors in title / Naturally occurring nuisances unless fair precautions taken
- Owner = if actively participated in it OR by leasing knowing it would result in nuisance being created
There are 4 elements of private nuisance courts will consider when deciding if defendant's interference with claimant’s land is unreasonable/unlawful
1. Indirect interference
Indirect interference with use / enjoyment of claimant’s land (sound / smell / fumes)
Nuisance can start on defendant’s land + causes damage to claimant’s use / enjoyment of their land.
Indirect interference can include a failure to act which results in loss
2. Recognised damage (Loss)
claimant must establish that they suffered some damage that is reasonably foreseeable + can recover for any consequential losses flowing from recoverable damage
Types of damage recoverable:
1. Physical damage to property
2. Sensible personal discomfort (SPD) = senses of claimant are affected in such a way that they cannot enjoy their land
CANNOT claim for personal injury given that private nuisance is a tort against land not the person
3. Continuous act
Nuisance must be continuous = one-off event is not actionable in private nuisance
EXCEPT FOR:
Exception 1: underlying state of affairs = single incident caused by underlying state of affairs
Exception 2: state of affairs creating risk of escape of physically dangerous or damaging material = activity creates a state of affairs which gives rise to risk of escape of physically dangerous or damaging material
4. Unlawful interferenceMust constitute unlawful interference with claimant’s land / use / enjoyment of the land considering:1. Time and duration = longer > more likely it will be deemed unreasonable
- Locality = only relevant where loss is SPD, NOT property damage > reasonable in residential area is different to industrial/commercial area > planning permission may alter character of area, so what was a nuisance no longer BUT granting of planning permission does not authorise a nuisance
3. Abnormal sensitivity = claimant who is unusually sensitive cannot claim activities that would not interfere with ordinary occupier are a nuisance (now is foreseeability)4. Malice = balancing defendant’s right to do as they wish against claimant’s right to enjoy their land > if no justification it is nuisance5. Defendant’s lack of care = likely to count in the claimant’s favour6. Excessive behaviour = if defendant has behaved in excessive manner > they are being unreasonable
Defences
1. 20 Years’ Prescription
If defendant’s activity has been actionable nuisance for 20 years or more but no action has been taken
2. Statutory authority
IF defendant’s activity is carried out on basis of statutory authority > escape liability if they have exercised due care
3. Consent
IF claimant specifically agrees to defendant causing nuisance (by word or deed) > no liability
4. Contributory negligence
Usual rules apply
5. Act of third party
IF created by third party for whom defendant bears no responsibility > not liable unless they adopt or continue the nuisance
6. Act of God
IF created by act of God > not liable unless they adopt or continue the nuisance
7. Necessity
Usual rules apply
Remedies1. Injunction
- can be full (ie banning activity altogether) or partial (ie regulating activity on certain conditions) if of public benefit2. Damages
- IF nuisance causes actual physical damage, cost of repair / renewal can be claimed, whichever is lower
- Damages also awarded for consequential economic loss
- Awarded in lieu of injunction where the loss is SPD if defendant puts forward arguments as to why an injunction should not be granted > court will then weigh up all the competing factors (public interest = injunction)
3. Abatement
- ‘Self-help’ remedy where claimant acts to stop nuisance by entering onto land + giving notice + take reasonable steps to prevent nuisance continuing
PUBLIC NUISANCE
Acts or omissions of defendant affect reasonable comfort of section / community as a whole
Preliminaries1. Who can sue in public nuisance?
- Local Authority = if authority suffered damage > may sue on its own behalf OR in its name to protect inhabitants of its area
- Attorney General = where a class of people are affected by public nuisance + no individual action is possible > may bring claim on class’s behalf in their name
- An individual = if they have suffered special damage > over + above rest of class
2. Who can be sued in public nuisance?
- creator of the nuisance / any person who is ‘responsible’ for the nuisance
There are 4 elements of public nuisance
1. Act or omission
Liability can exist for omissions + acts, advantageous to sue in public nuisance rather than negligence where omissions are NOT actionable.
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3. Class of His Majesty’s subjects
Effect of the nuisance must be sufficiently widespread (number will depend upon the facts of the case )
4. Materially affects comfort and convenience
Damage recoverable includes property damage / consequential economic loss / personal injury / pure economic loss
type of loss must also be reasonably foreseeable
Defences
1. Statutory authority
IF defendant’s activity is carried out on basis of statutory authority > escape liability if they have exercised due care
2. Consent
IF claimant specifically agrees to defendant causing nuisance (by word or deed) > no liability
3. Contributory negligence
Usual rules apply
4. Act of third party
IF created by third party for whom defendant bears no responsibility > not liable unless they adopt or continue the nuisance
5. Act of God
IF created by act of God > not liable unless they adopt or continue the nuisance
6. Necessity
Usual rules apply
Remedies1. Injunction
- can be full (ie banning activity altogether) or partial (ie regulating activity on certain conditions) if of public benefit2. Damages
- IF nuisance causes actual physical damage, cost of repair / renewal can be claimed, whichever is lower
- Damages also awarded for consequential economic loss
If the claim is brought by local authority / Attorney General = ONLY INJUNCTION
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