Chapter 10: Land-Based Torts

Question 1

1. Introduction to torts relating to land

Answer 1

The torts to be considered under this general heading are:
(a) Private nuisance;
(b) Public nuisance;
(c) The rule in Rylands v Fletcher; and
(d) Trespass to land.

You will find that questions
in this area often require you to compare and contrast the operation and usefulness of each of
these land-based torts.

Question 2

2. Introduction to private nuisance

Answer 2

Private nuisance is the most significant land-based tort. The basis of a private nuisance claim is
the use of one’s land that causes an interference with the use or enjoyment of another’s land.
A number of basic definitions and themes we consider in relation to private nuisance will also be
relevant when we look at Rylands v Fletcher. However, public nuisance and trespass to land are
very different from the other two torts.

Private nuisance: Any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.

Question 3

2.1 Private nuisance preliminaries

Answer 3

Prior to learning about the elements that make up private nuisance, two preliminaries must be
considered first:
(a) Who can sue in private nuisance?
(b) Who can be sued in private nuisance?

Question 4

2.1.1 Who can sue in private nuisance?

Answer 4

In order to bring an action in private nuisance, the claimant must have a legal interest in the land,
namely a possessionary or proprietary interest (eg freehold or leasehold). Mere permission to use or occupy land is insufficient. The logical basis for this requirement is that a claim in nuisance arises from interference with one’s land.

Question 5

Key case: Hunter and Others v Canary Wharf Ltd [1997] AC 655

Answer 5

In Hunter and Others v Canary Wharf Ltd [1997] AC 655, around 700 claimants’ TV reception had
been interfered with as a result of a tower constructed in Canary Wharf. Several of the claimants’
claims in private nuisance failed as they had no legal interest in the land affected; for example, they were family members living with the homeowner. 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

Question 6

2.1.2 Who can be sued in private nuisance?

Answer 6

The following can be sued in the tort of private nuisance:
(a) Creator of the nuisance;
(b) Occupier of the land from which the nuisance originates; and
(c) Owner of the land.

Creator: The creator of the nuisance can be sued even though they may not be in a position to end the
nuisance and even though they may not be the occupier of the land.

Occupier: The usual defendant is the occupier of the land from where the nuisance has come. They can be
liable for nuisances created by themselves as well as those created by others. An occupier will not
normally be liable for nuisances caused by others but may be held liable in the circumstances set
out in the table below.

Question 7

Creator of Nuisance: Independent contractors

Answer 7

In Matania v National Provincial Bank [1936] 2 All ER 63, an
occupier was liable for the foreseeable excessive noise and dust
caused by contractors altering his property. Building work does
not normally form the basis of a private nuisance claim but in
Matania the temporary interference (three months) had serious
consequences for the claimant, a music teacher, who could not
earn his living whilst the contractors altered the property. 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.

Question 8

Creator of Nuisance: Trespassers/ visitors/ predecessors in title

Answer 8

The occupier will be liable if they continued or adopted the
nuisance. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 the
defendant was liable for a nuisance created by a trespasser. A
water pipe had been unlawfully put under the defendant’s land
by the local authority.

The pipe got blocked and water flooded the claimant’s land. The defendant had used the poorly
maintained pipe and was therefore liable. 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.

Question 9

Naturally occurring
nuisances

Answer 9

An occupier may be liable for naturally occurring nuisances. In
the Australian case of Goldman v Hargrave [1967] 1 AC 645 the Privy Council held an occupier 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.

Lightning struck a tree on the defendant’s land, starting a fire.
The defendant extinguished the fire but did not douse the embers.
The wind reignited the fire causing damage to the claimant’s land. The defendant was liable; he had the physical and financial ability to spray water over the embers and therefore should have taken these reasonable steps to abate the nuisance

Question 10

Owner (landlord)

Key case: Coventry v Lawrence [2014] UKSC 46

Answer 10

A landlord will not usually be liable for a private nuisance unless the exception in Coventry applies
(highlighted in bold below).

In Coventry v Lawrence [2014] UKSC 46, the claimants moved into a bungalow less than one kilometre from the defendant’s noisy motor-sports stadium and track. The claimants sued the occupier and landlord.

The landlord was not liable. 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.

The nuisance (the noise) was not an inevitable or virtual certainty of renting the premises. 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. The landlord had not participated in
the nuisance. Whether a landlord has participated in a nuisance is a question of fact, mainly
dependent on events taking place after the granting of the lease.

Question 11

2.2 Summary

Answer 11

• Private nuisance, public nuisance, the rule in Rylands v Fletcher and trespass to land are torts
  relating to land.
• Private nuisance is any continuous activity or state of affairs causing a substantial and unreasonable interference with a claimant’s land or their use or enjoyment of that land.
• The claimant must have a legal interest in the land affected in order to bring a claim in private
  nuisance.
• The claimant can sue the creator of the nuisance, the occupier of the land from where the nuisance emanates and/or the owner of the land from where the nuisance emanates
  (including, under certain conditions, the landlord).
• An occupier may be liable for nuisances created by third parties, including, under certain
  conditions, independent contractors, predecessors in title, trespassers, visitors and for naturally occurring nuisances.

Question 12

3. Private nuisance elements

Answer 12

The purpose of private nuisance is to balance two competing interests (the right of the defendant
to do what they like on their land and the right of the claimant to enjoy their land without being
disturbed by the defendant’s activities): it is a ‘rule of give and take, live and let live’ (Bamford v Turnley (1862) 3 B&S 66).

Once you have considered the two preliminaries, the four elements of the tort of private nuisance
are:

(a) Indirect interference;
(b) Recognised damage;
(c) Continuous act; and
(d) Unlawful interference.

Question 13

3.1 Indirect interference

Answer 13

Private nuisance concerns indirect interference with the use or enjoyment of the claimant’s land in contrast with direct interference which would be classified as trespass to land. Examples of indirect interference include sounds, smells, fumes and vibrations (ie intangible interference).

An indirect interference occurs where the nuisance starts on the defendant’s land but then causes damage to some aspect of the claimant’s use or enjoyment of their land. Indirect interference can include a failure to act which results in loss.

Question 14

3.2 Recognised damage (loss)

Answer 14

The claimant must establish that they have suffered some damage. The types of damage recoverable in private nuisance are (St Helen’s Smelting Co v William Tipping (1865) 11 HL Cas
642):

(a) Physical damage to property (eg overhanging branches causing physical damage);
(b) Sensible personal discomfort (SPD). This is where the senses of the claimant are affected in such a way that the claimant is unable to enjoy their land eg unpleasant odours or noise. It can be defined as amenity damage, ie something which damages the amenity (enjoyment) value of the property, as opposed to its physical value

Question 15

Reasonably Forseeable

Answer 15

The type of damage must have been reasonably foreseeable (Cambridge Water Company v Eastern Counties Leather [1994] 1 All ER 53) and the claimant can recover for any consequential losses flowing from recoverable damage, for example, loss of profits caused by the claimant’s
inability to use their land to make those profits.

A claimant cannot claim for personal injury given that private nuisance is a tort against land not the person (Hunter).

Any physical damage to property must be more than de minimus (trivial) (Mitchell v Darley Main Colliery [1886] App. Cas. 127). Any SPD must be more than fanciful and materially interfere with ordinary human comfort (Walter v Selfe (1851) 64 ER 849).

Question 16

3.3 Continuous act & not a one-off event

Answer 16

The general rule is that the nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance. In such instances claims may be brought in negligence or, if it is possible, by means of an action in public nuisance or under the rule in Rylands v Fletcher.

Question 17

Exceptions to this general rule.

Answer 17

(a) A single incident caused by an underlying state of affairs; and
(b) An activity which creates a state of affairs which gives rise to the risk of escape of
physically dangerous or damaging material.

Question 18

Underlying state of affairs

Answer 18

In British Celanese v AH Hunt Ltd [1969] 1 WLR 959: Metal foil 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 claimant alleged that the defendant knew or ought to have known of the likely consequences of the escape because a similar occurrence had taken place three years ago and the defendant had received a warning from the electricity board. The court held that this isolated incident could create a nuisance, especially as it was not the first occurrence. The persistent habit of storing the metal strips outside of the
factory provided the continuance.

Question 19

State of affairs creating
risk of escape of
physically dangerous or
damaging material

Answer 19

In Crown River Cruises Ltd v Kimbolton Fireworks Ltd [1996] 2
Lloyd’s Rep 533 the court reached a fact-sensitive decision,
when a firework display (and the resulting fire) was held (obiter) to
be a private nuisance (the claim succeeded in negligence). The
fire caused extensive property damage.

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.

Question 20

3.4 Unlawful interference

Answer 20

The nuisance must constitute an unlawful interference with the claimant’s land or use or
enjoyment of the land. The term ‘unlawful’ in this context denotes unreasonableness. The courts
will not look at whether the defendant is at fault in any way but whether the activity that is causing the nuisance amounts to an unreasonable use of land (Cambridge Water Company v
Eastern Counties Leather [1994] 1 All ER 53). If the use of land is reasonable, the defendant will not be liable; but if the use is unreasonable, the defendant will be liable, even if they exercised
reasonable care and skill to avoid it.

Question 21

Sedleigh Denfield v O’Callaghan [1940] AC 880

Answer 21

The purpose of private nuisance is to balance two competing interests: the right of the defendant to do what they like on their land and the right of the claimant to enjoy their land without being disturbed by the defendant’s activities. Where there has been property damage, it will usually be
easily demonstrated that the claimant’s enjoyment of their land has been affected over and above what is reasonable, but not always.

Question 22

Factors to determine whether the defendant’s interference with the claimant’s land is unreasonable/unlawful

Answer 22

The factors considered are:
(a) Time and duration
(b) Locality
(c) Abnormal sensitivity
(d) Malice
(e) defendant’s lack of care
(f) Excessive behaviour

Question 23

3.4.1 Time and duration

Answer 23

Everyone has to put up with some interference from their neighbours at some time. However, if the
interference is frequent or for long periods of time, this may be deemed unreasonable. The longer the interference lasts, the more likely it will be deemed unreasonable.

Question 24

Key case: Kennaway v Thompson [1981] QB 88

Answer 24

In Kennaway v Thompson [1981] QB 88, it was stated that it will be important to see when the alleged nuisance takes place, how long it continues and how frequently it is repeated. These were
important considerations in Kennaway in which a residential neighbour complained of the noise created by the defendant motorboat racing and water-skiing club. However, 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.

Question 25

3.4.2 Locality

Answer 25

The second factor that the courts can consider is locality or character of the neighbourhood. However, this factor is only relevant where the loss is SPD, not where the loss is property damage. Whether use of land is reasonable will depend, in part, on the character of the area.

Question 26

Key case: Sturges v Bridgman (1879) 11 Ch D 852

Answer 26

In Sturges v Bridgman (1879) 11 Ch D 852 a doctor complained that his surgery was disturbed by the noise and vibrations coming from the defendant’s premises used for manufacturing confectionery. The defendant’s business was held to be a nuisance in a residential area. Thesiger LJ made the famous comment that: ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’ ie what is reasonable in a residential area is different to what is reasonable in an industrial/commercial area. Use of land which is acceptable within a city centre may not be so in the surrounding rural area

Question 27

Adams v Ursell [1913] 1 Ch 269

Answer 27

Fumes caused by a fish and chip shop were held to constitute a nuisance in a residential area. The judge, however, remarked that this did not mean the defendant could not carry on their business in another more suitable place. Just because a fish and chip shop was a nuisance in one place, does not mean it would be in another place

Question 28

Planning permission + Community Benefit: In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1993] QB 343

Answer 28

a predominately residential area became a commercial port following planning permission, which resulted in heavy traffic, noise and fumes on residential roads. At one point it was recorded that a lorry passed every 1.5 minutes in the early morning. Residents complained of interrupted sleep and general disturbance. The claim failed as planning permission had changed the nature of the locality to a wholly commercial area which was benefiting the community. The court considered the locality as it was after the planning permission was granted.

Question 29

Wheeler v JJ Saunders Ltd [1996] Ch 18

Answer 29

The defendant had planning permission to build two new pig sheds. One shed was 11 metres from the claimant’s holiday cottages. Strong smells emanated from the farm to the claimant’s property. 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).

Question 30

Key case: Coventry v Lawrence [2014] UKSC 13

Answer 30

Finally on locality and planning permission, this was discussed in the key case of Coventry v Lawrence [2014] UKSC 13. The defendant’s speedway stadium causing the nuisance to the claimants had been built in 1975 with planning permission. The Supreme Court effectively confirmed Wheeler; the planning permission did not authorise the nuisance. The noise from the stadium amounted to a nuisance given that the area was overwhelmingly rural. The court confirmed that planning permission does not determine private rights and therefore planning permission is normally of no assistance to the defendant in private nuisance claims. However, the court went on to say that there will be occasions when the precise terms of the planning permission may have a bearing on whether or not a nuisance exists (ie the terms can provide some evidence of un/reasonableness of the use of land), and it might also have relevance to remedies.

Question 31

3.4.3 Abnormal sensitivity

Answer 31

The third factor the court will consider is abnormal sensitivity. A claimant who is unusually sensitive (or has unusually sensitive property) cannot claim that activities that would not interfere with the ordinary occupier are a nuisance, simply because they are a nuisance to them alone.

Question 32

Key case: Robinson v Kilvert (1889) LR 41 Ch D 88

Answer 32

In Robinson v Kilvert (1889) LR 41 Ch D 88 the claimant operated a business in the same premises as the defendant which involved storing heat sensitive paper. The defendant carried on a manufacturing business in the cellar of the building. The heat emitted from the defendant’s premises damaged the claimant’s paper. 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.

Question 33

Key case: McKinnon Industries v Walker [1951] 3 DLR 577

Answer 33

In McKinnon Industries v Walker [1951] 3 DLR 577 the claimant had a commercial florist and nursery. Part of the claimant’s business involved growing orchids, known for their sensitivity. The claimant sued the defendant in private nuisance as the defendant’s factory was emitting fumes and smuts which deposited over his shrubs, trees, hedges and flowers causing them to die. The claimant recovered costs for replacing the orchids and for lost profits on the damaged orchids.

Question 34

Network Rail Infrastructure Ltd v CJ Morris [2004] EWCA Civ 172.

Answer 34

Whilst Robinson was not overturned, it was disapproved of by the Court of Appeal. The claimant argued that a signalling system installed by the defendant (Network Rail), interfered with electric guitars being used in the claimant’s recording studio. The defendant argued that the use of the studio was abnormally sensitive, in that the claimant was involved in an extraordinary commercial activity.

Question 35

Doubt about abnormal sensitivity

Answer 35

The court doubted whether the concept of abnormal sensitivity still existed, and thought such cases should be viewed in terms of foreseeability instead. If something or someone is abnormally sensitive, then arguably the loss is not foreseeable to the defendant. An activity on land can only be a nuisance if the defendant could reasonably foresee that it might be a nuisance to someone else

Question 36

3.4.4 Malice

Answer 36

A fourth factor the court will consider if relevant is malice. Private nuisance is concerned with balancing the defendant’s right to do as they wish with their land against the claimant’s right to enjoy their land free from interference. A certain amount of conflict is inevitable and if the defendant can show a legitimate reason for what they have been doing, the court will be less inclined to interfere with their activities.

Question 37

Key case: Christie v Davey [1893] 1 Ch 316

Answer 37

In Christie v Davey [1893] 1 Ch 316 the parties lived next door to one another in a semi-detached house. Mrs Christie (the claimant) was a music teacher and throughout the day music pervaded the defendant’s house. This irritated the defendant who responded by making noise himself; beating trays, shouting and hitting the wall when the music was playing.

Question 38

3.4.5 Defendant’s lack of care Key case: Andreae v Selfridge and Co Ltd [1938]

Answer 38

A fifth factor the courts will consider if relevant is where the defendant has shown lack of care; this is likely to count in the claimant’s favour. In Andreae v Selfridge and Co Ltd [1938] Ch 1 (CA), the defendant was undertaking extensive building work next to the claimant’s hotel causing the claimant loss of custom due to noise and dust. The claimant was successful. The court held that there will always be some disturbance when one party is undertaking building works next to another. Provided these works are reasonably carried on and all reasonable steps are taken to ensure that no undue inconvenience is caused to the neighbours, whether from noise, dust or other reasons, the neighbours must put up with it. However, the defendant had not exercised reasonable care; its attitude was to work until someone complained and its own convenience prevailed over the neighbours’ convenience.

Question 39

3.5 Summary

Answer 39

* The four elements that make up private nuisance are indirect interference, recognised damage, a continuous act, and unlawful interference. * Indirect interference is a nuisance which starts on the defendant’s land but causes damage to the claimant’s use/enjoyment of their land. * Physical damage to property and SPD are recognised losses in private nuisance (and any consequential losses flowing from recognised loss). * A nuisance must be a continuous act, although there are two exceptions to this general rule. * Unlawful interference means ‘unreasonable’ interference. * The courts will balance various relevant factors in order to decide whether the defendant’s use of land is reasonable or not. In doing so the courts are balancing the right of the defendant to do what they like with their land against the right of the claimant to enjoy their land. These factors include time and duration, locality, abnormal sensitivity, malice, lack of care and excessive behaviour.

Question 40

4 Private nuisance: Defences and remedies 4.1 Defences

Answer 40

The defendant can attempt to rely on the following defences in private nuisance: (a) 20 years’ prescription; (b) Statutory authority; (c) Consent; (d) Contributory negligence; (e) Act of third party; (f) Act of God; and (g) Necessity

Question 41

20 years’ prescription

Answer 41

4.1.1 20 years’ prescription If the defendant’s activity has been an actionable nuisance for 20 years or more (ie a claimant would have had grounds for bringing a claim against the defendant for that period) but no such action has been taken, the defendant will have earned the right to continue to commit the nuisance. Note it is the length of time that a claimant could have complained that is crucial, not the length of time that the activity has been ongoing.

Question 42

Coventry

Answer 42

The stadium was constructed in 1975 and the claimant moved into the nearby house in 2006. The defendant was unable to rely on the defence of prescription as it was not enough to show that the activity or noise had been carried on for 20 years. They had to establish that the activity had created a nuisance for 20 years or more and they had not done this. The claimant’s predecessor only first formally complained of the defendant’s activities in 1992 (16 years before proceedings were brought by the claimant). Even then the predecessor was described by his wife as over-sensitive to noise and there was no real evidence that the noise had amounted to a nuisance during the 1990s. Note that the 20 years does not have to be continuous.

Question 43

4.1.2 Statutory authority

Answer 43

Where the defendant’s activity is being carried out on the basis of statutory authority (note planning permission is not statutory authority), they will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity.

Question 44

Example: Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353

Answer 44

A private Act of Parliament provided for the expansion of an oil refinery in part of Wales. Residents complained of the noise and vibrations caused by the operation of the refinery. A majority in the House of Lords held that the refinery’s operations were authorised by statute and the nuisance was inevitable. This acted as a full defence.

Question 45

4.1.3 Consent

Answer 45

If the claimant specifically agrees to the defendant causing the nuisance, then that consent will be a defence. 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.

Question 46

Example of Consent by Defense

Answer 46

In Pwllbach Colliery v Woodman [1915] AC 63 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.

Question 47

4.1.4 Contributory negligence Trevett v Lee [1955] I WLR 113

Answer 47

The defendant’s house was not connected with a water main and in times of drought, the defendant would lay a garden hosepipe across the road to enable water to be brought by a water supply on the other side of the road to their premises. The claimant saw the pipe, but failed to step over it, caught her heel in it, fell and injured her back. The court held that there was no nuisance. However, if the court had found a nuisance, they confirmed that the defendant would have been able to argue the defence of contributory negligence. Note that this case concerned public nuisance, but the same principle applies to private nuisance

Question 48

4.1.5 Act of third party

Answer 48

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).

Question 49

4.1.6 Act of God

Answer 49

Where the nuisance results from an act of God, the defendant will not be liable unless they adopt or continue the nuisance. In Nichols v Marsland (1876) 77 LR 2 ExD 1 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.

Question 50

4.1.7 Necessity

Answer 50

The usual principles apply which are considered in the section ‘Necessity’ in the chapter on defences.

Question 51

4.2 Ineffective defence: Moving to the nuisance

Answer 51

‘Moving to the nuisance’ is a factor which defendants have sought to argue, but without success. 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. However, this will not justify the commission of a nuisance.

Question 52

Example Miller and Another v Jackson and Others [1977] QB 966

Answer 52

The defendant cricket club had been playing on its ground for more than 70 years when adjacent land was sold to developers to build a housing estate. Cricket balls were hit into the claimants’ garden. This amounted to a nuisance. The fact that the claimants moved to the nuisance was not a defence.

Question 53

Principle Confirmation by Coventry

Answer 53

This principle was confirmed in Coventry; where the claimant uses the property for the same purpose as their predecessors, the argument of coming to the nuisance fails. In Coventry, the claimant’s property had been used for residential purposes even before the stadium opened. However, the Supreme Court considered obiter that in some circumstances, 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

Question 54

4.3 Remedies

Answer 54

There are three potential remedies that can be awarded to the claimant if they have been successful in proving private nuisance: (a) Injunction; (b) Damages; and (c) Abatement.

Question 55

4.3.1 Injunction

Answer 55

The primary remedy for a continuing nuisance is an injunction. Injunctions can be full (ie banning the activity altogether) or partial (ie regulating the activity on certain conditions). A partial injunction can be seen as a compromise, striking a balance between the two parties by limiting the time and frequency of the activity rather than preventing it completely. Public Benefit: The court may award a partial injunction where the defendant’s activities are of public benefit. For example, in Kennaway, the defendant’s activity (power-boat racing) was very popular with the public and there were few places such activities could take place. An expansive stretch of straight water was required for water-skiing. The court therefore awarded a partial injunction, requiring the defendant to stick to a planned timetable

Question 56

4.3.2 Damages

Answer 56

Where a nuisance causes actual physical damage, the cost of repair or renewal can be claimed, whichever is the lower. Damages can also be awarded for any consequential economic loss. Damages awarded in lieu of injuctions: Damages can be awarded in lieu of (instead of) an injunction where the loss is SPD. However, where a claimant establishes nuisance, prima facie, the remedy awarded should be an injunction, restraining the defendant from committing the nuisance in the future. The defendant needs to put forward the arguments as to why an injunction should not be granted.

Question 57

Weighing competing factors & public interest

Answer 57

The defendant needs to put forward the arguments as to why an injunction should not be granted. The court will then weigh up all the competing factors in the exercise of its unfettered discretion. For example, the court might consider how public interest might be affected by an injunction eg if the public enjoyed the defendant’s activity or if the defendant’s business had to be shut down as a result of an

Question 58

Planning Permission

Answer 58

Planning permission may support an argument that the activity is of public benefit. This would be especially so where it was clear that the planning authority had been reasonably influenced by the public benefit of the activity and the activity could not be carried out without causing the nuisance (Coventry)

Question 59

Dennis v Ministry of Defence [2003] EWHC 793 (QB)

Answer 59

The claimants owned a property about two miles from a RAF training base. The court found the activities of the RAF amounted to a nuisance; flying approximately 70 Harrier jump jets per day causing a considerable amount of noise. The claimants were awarded damages in lieu of an injunction. 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.

Question 60

Miller v Jackson [1977] QB 966

Answer 60

A housing estate was built next to the defendant cricket club, which had been playing cricket at the ground for around 70 years. The claimants purchased and lived in a house on the new housing estate. Cricket balls frequently landed in the claimants’ garden meaning the claimants found it impossible to enjoy or use their garden when cricket was being played. The cricket club were liable in nuisance but the claimants were awarded damages in lieu of an injunction. A balance had to be struck between the right of the claimants to enjoy their property without the threat of damage and on the other hand the right of the public to engage in lawful pastimes. Public interest outweighed the Millers’ rights.

Question 61

4.3.3 Abatement

Answer 61

Abatement represents a ‘self-help’ remedy where the claimant acts to stop the nuisance. A claimant may, in certain circumstances, enter onto the land of another and take reasonable steps to prevent the nuisance continuing. Anything belonging to the defendant must be left on the property. It is this principle that allows a person to cut down branches overhanging their land, although they must be returned to the defendant and the claimant must do no more than is necessary to abate the nuisance!

Question 62

4.4 Summary

Answer 62

* After considering the preliminaries and elements of private nuisance, discuss any relevant defences that the defendant might rely on. * Defences available in private nuisance are: prescription; statutory authority; consent; contributory negligence; act of third party; act of God; and necessity. * After considering relevant defences, discuss any relevant remedies available to the claimant. * Remedies available in private nuisance are: injunctions; damages; and abatement. * Injunctions are the primary remedy and can be full or partial. * Damages are awarded for any physical damage to property. * Damages may be awarded in lieu of an injunction where the loss is SPD. This is often where public interest outweighs the claimant’s interests.

Question 63

5. Introduction to Public nuisance

Answer 63

Public nuisance is a crime. Very occasionally, however, it may also be a tort where the harm suffered is by a section of the community or the community as a whole. Many areas of public nuisance, such as pollution, noise and public health measures, have now become regulated by statute and statutory regulations. As a result, the tort of public nuisance is now a residual method of dealing with certain interferences that cannot be dealt with by other means or where an individual wishes to claim common law damages

Question 64

Definition of Public Nuisance

Answer 64

Public nuisance: ‘[…] acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects.’ This definition comes from Attorney General v PYA Quarries [1957] 2 QB 169 where dust and vibrations from the defendant’s quarry were held to be sufficiently widespread in their effect for them to be a public nuisance. The action involved over 30 households within the local area

Question 65

5.1 Public nuisance preliminaries

Answer 65

As with private nuisance, there are preliminaries to consider before looking at the elements that make up the tort of public nuisance. The preliminaries are: (a) Who can sue in public nuisance? (b) Who can be sued in public nuisance?

Question 66

5.1.1 Who can sue in public nuisance? v

Answer 66

(a) A local authority: If the authority has suffered damage it may sue on its own behalf. It may also sue in its own name to protect the inhabitants of its area. (b) Attorney General: Where a class of people are affected by the public nuisance and no individual action is possible or forthcoming, the Attorney General may bring the claim on the class’s behalf in their name. (c) An individual: Unlike in private nuisance and the rule in Rylands v Fletcher, the claimant need not have an interest in the land affected. However, an individual can only sue in public nuisance in very limited circumstances.

Question 67

Special Damages

Answer 67

They must be able to show that they have suffered ‘special damage’ (Ricket v Metropolitan Railway (1867) LR 2 HL 175). Special damage means that the claimant has suffered over and above the rest of the class (and that there is, therefore, a class in the first place) or in a way that is different in kind from that suffered by the rest of the class. In Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180, the court stated that ‘special damage’ must be direct and substantial.v

Question 68

Example

Answer 68

In Lyons Sons & Co v Gulliver [1914] 1 Ch 631 the defendant caused a queue outside the claimant’s café twice a day. This was an inconvenience to the public (obstruction of the highway), and the claimant suffered special damage as his café trade was severely disrupted as a result (pure economic loss).

Question 69

5.1.2 Who can be sued in public nuisance?

Answer 69

An action in public nuisance is sufficiently rare for there to have been little judicial debate over the issue of who may be sued. The tortfeasor is usually easily identifiable. Case law indicates that the creator of the nuisance or any person who is ‘responsible’ for the nuisance (eg an owner/occupier) may be sued.

Question 70

5.2 Elements of public nuisance

Answer 70

Having discussed the preliminaries, the elements that make up the tort of public nuisance need to be considered: (a) Act or omission; (b) One-off event or continuous; (c) Class of Her Majesty’s subjects; and (d) Materially affects comfort and convenience.

Question 71

5.2.1 Act or omission

Answer 71

Liability can exist for omissions as well as acts, which may mean it is advantageous to sue in public nuisance rather than negligence where omissions are generally not actionable.

Question 72

5.2.2 One-off event or continuous

Answer 72

Unlike private nuisance, a public nuisance can be a one-off or isolated event.

Question 73

5.2.3 Class of Her Majesty’s subjects

Answer 73

The effect of the nuisance must be sufficiently widespread. There is no exact number of people who have to be affected to constitute a ‘class’. It depends upon the facts of the case (PYA Quarries). It is not necessary that every member of the class has been affected, just that a representative cross-section has been (PYA Quarries).

Question 74

R v Rimmington [2005] UKHL 63

Answer 74

The court held that 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. Rimmington sent racially offensive items to people across the country. These people were not a ‘class’ in the way required by public nuisance.

Question 75

5.2.4 ‘Materially affects comfort and convenience’ (the loss)

Answer 75

Damage that is recoverable in public nuisance includes property damage and consequential economic loss as in private nuisance and Rylands v Fletcher. As opposed to private nuisance and Rylands though, damages for personal injury can also be recovered as can damages for pure economic loss

Question 76

Claim for Inconvenience (Material More than Trivial)

Answer 76

The claimant can also claim for inconvenience but this must be ‘material’ ie more than trivial (Jan de Nul (UK) Ltd v Royale Belge SA [2002] EWCA Civ 209). The exact meaning of this is impossible to ascertain since it will vary with the circumstances of each case. There is no need for there to be actual damage. Annoyance or irritation will be sufficient, as long as this is ‘material’.

Question 77

Example

Answer 77

In Benjamin v Storr (1873-74) LR 9 CP 400 the claimant ran a coffee house in Covent Garden. The defendant auctioneers next door created a lot of obstruction and inconvenience to the claimant (constantly loading and unloading vans which restricted access to the coffee house and made the coffee house uncomfortable). This interference was direct and substantial. The type of loss must also be reasonably foreseeable (Wagon Mound (No. 2) [1967] 1 AC 617).

Question 78

5.3 Defences

Answer 78

The same defences apply as for private nuisance except for prescription. The main defence in public nuisance is that of statutory authority.

Question 79

5.4 Remedies

Answer 79

Injunctions and/or damages are available as for private nuisance. If the claim is brought by the local authority or Attorney General, the only remedy available is an injunction.

Question 80

Examples: Public nuisance claims Wandsworth London Borough Council v Railtrack plc [2001] All ER (D) 410

Answer 80

The nuisance was defecating pigeons. Pigeons roosting under a bridge owned by the defendants amounted to a public nuisance and the defendants had to ‘pigeon-proof’ the bridge as a prevention measure.

Question 81

Castle v St Augustine’s Link (1922) 38 TLR 615

Answer 81

The claimant was struck by a golf ball as he drove past the defendant’s golf course. Golf balls were frequently hit onto the road and amounted to a public nuisance. The class of persons affected were highway users and the claimant had suffered special damage.

Question 82

5.5 Summary

Answer 82

* Public nuisance is ‘acts or omissions of the defendant that materially affect the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’ * An individual, local authority or the Attorney General can sue in public nuisance. * An individual can only sue if they have suffered special damage. * The creator, owner or occupier can be sued in the tort of public nuisance. * The elements to consider for public nuisance are: act or omission; one-off event or continuous; a class of people must have been affected; and the loss must materially affect the comfort and convenience of the class (or individual if they have suffered special damage). * The defences in public nuisance are the same as for private nuisance, except for prescription. * The remedies in public nuisance are the same as for private nuisance, but only injunctions can be granted where the claimant is the Attorney General or local authority.

Question 83

6. The rule in Rylands v Fletcher

Answer 83

The rule in Rylands v Fletcher (which comes from the case of the same name) protects against interference due to an isolated escape from the defendant’s land.

Question 84

Key case: Rylands v Fletcher (1868) LR 3 HL 330

Answer 84

In Rylands v Fletcher (1868) LR 3 HL 330 itself, the defendant engaged some independent contractors to construct a reservoir on his land in order to supply water for his mill. The builders failed to block off a number of disused mineshafts and, as a result, when the reservoir was filled, water escaped and flooded the claimant’s adjoining mine. The claimant commenced an action to recover the cost of the flood damage. There was no evidence of negligence by the defendant (as he had not known of the mineshafts).

Question 85

Blackburn J

Answer 85

We think that the true rule of law is that the person who for his own purposes brings on his land 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 that is the natural consequence of the escape.

Question 86

6.1 Preliminaries

Answer 86

Before looking at the elements that make up the tort of Rylands v Fletcher, it is important to consider the following preliminaries: (a) Who can sue in Rylands v Fletcher? The Rylands v Fletcher rule is a sub-species of private nuisance (Transco v Stockport Metropolitan BC [2003] UKHL 61). Therefore, the claimant must have a proprietary interest in the land affected (Hunter). (b) Who can be sued? 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). (c) Loss The claimant must suffer some damage. The only types of loss recoverable under Rylands v Fletcher are property damage and consequential economic loss

Question 87

6.2 Elements of Rylands v Fletcher

Answer 87

Having discussed the preliminaries, the elements that make up this tort must now be considered. The elements are: (a) The defendant brings onto land and accumulates there; (b) For their own purposes, anything likely to do mischief if it escapes; (c) Escape; (d) Escape caused foreseeable harm; and (e) Non-natural use of land. Let’s look at each of these elements in turn.

Question 88

6.2.1 The defendant brings onto land and accumulates there Example

Answer 88

The defendant must have voluntarily brought something onto the land. In Giles v Walker (1890) 24 QBD 656 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.

Question 89

6.2.2 For their own purposes anything likely to do mischief (ie damage) if it escapes

Answer 89

The ‘thing’ brought onto the land must be capable of causing damage (and therefore be dangerous) if it escapes (it need not be dangerous in itself). Examples include water, acid and explosives.

Question 90

Key case: Transco v Stockport Metroplitan Borough Council [2003] UKHL 61

Answer 90

In Transco v Stockport Metroplitan Borough Council [2003] UKHL 61 the wide-ranging effect of the term ‘anything likely to do mischief’ was circumvented. A pipe carrying water to flats owned by the defendant leaked and caused an embankment on the defendant’s land to collapse. This collapse exposed and left unsupported a gas pipe owned by Transco. Transco had to spend £94,000 to stop the pipe fracturing. The House of Lords 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.

Question 91

6.2.3 Escape

Answer 91

The ‘thing’ brought onto the land must escape from land over which the defendant has control to land where they do not have control. The escape can be slow and over a period of time (Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264). Note: It must be the substance that was collected by the defendant that escapes.

Question 92

Key case: Stannard v Gore [2012] EWCA Civ 1248

Answer 92

In Stannard v Gore [2012] EWCA Civ 1248 the defendant stored tyres on his property. The tyres caught fire and the fire spread onto the claimant’s property. The claim failed because it was the fire that escaped, not the tyres (and the fire was not the ‘thing’ brought onto the defendant’s land). However, if the fire was deliberately started by the defendant, it could be argued that the fire was the ‘thing’ brought onto the land.

Question 93

Colour Quest Ltd v Total Downstream UK Plc [2010] EWCA Civ 180

Answer 93

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 (it is a component of the fire/explosion).

Question 94

6.2.4 Escape caused foreseeable harm

Answer 94

The defendant need not have foreseen the escape but must have known or ought reasonably to have foreseen that the ‘dangerous thing’ could, if it escaped, cause damage. Even if the defendant has taken reasonable care to prevent the escape and the damage, the defendant will still be liable if they fulfil the requirements for operation of the rule (so strict liability applies).

Question 95

Key case: Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264

Answer 95

In Cambridge Water Co. v Eastern Counties Leather plc [1994] 2 AC 264 the defendant operated a leather manufacturing business. Over the course of many years, a chemical that the defendant used, seeped through the concrete floor, into the soil below, from where it travelled to the claimant’s borehole 1.3 miles away polluting the water. The claimant was forced to relocate its pumping station costing over £1 million. 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

Question 96

6.2.5 Non-natural use of land

Answer 96

The use of the land must be non-natural. It is perhaps more helpful to define this as ‘non-ordinary use’ of the land and what is ordinary depends upon the time, place and context of the use of land. All the circumstances must be taken into account (eg the type of area).

Question 97

Example

Answer 97

In Transco, the House of Lords held that the defendant’s use of land had to be shown to be extraordinary and unusual according to the standards of the day. Piping water for domestic use to a block of flats was not an extraordinary and unusual use of land. In Colour Quest, the use of the land was non-natural because of the quantity of oil kept on the premises despite the industrial nature of the defendant’s depot. Quantity is therefore relevant when considering non-natural use. Substantial quantities: In Cambridge Water the House of Lords stated (obiter) that storage of substantial quantities of chemicals on industrial premises was an ‘almost classic case’ of non-natural use. Interpreting ‘non-natural’ so widely allows the court flexibility when deciding whether to find liability or not.

Question 98

6.3 Defences

Answer 98

The same defences apply as for public nuisance, with the addition of common benefit (a type of consent) and default of the claimant. (a) Common benefit (b) Act or default of the claimant (c) Statutory authority (d) Act of third party (e) Act of God

Question 99

Common benefit

Answer 99

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. In Peters v Prince of Wales Theatre [1943] 1 AC 521, the claimant leased a shop from the defendant, the owner of the theatre next door. The claimant’s shop flooded when pipes from the theatre’s sprinkler system burst. The defendant was not liable. The sprinkler system was equally for the benefit of the claimant and the claimant was deemed to have consented to the use of the sprinkler system since it had been installed prior to him obtaining the lease.

Question 100

6.3.2 Act or default of the claimant

Answer 100

If the escape has been caused wholly by the claimant’s actions, there will be no liability, eg in Dunn v Birmingham Canal Co (1872) LR 8 QB where the claimant dug under the defendant’s canal causing it to flood his land.

Question 101

6.3.3 Statutory authority

Answer 101

The rules that apply to private nuisance with regard to statutory authority are relevant here. In Green v Chelsea Waterworks Co (1894) 70 LT 547 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.

Question 102

6.3.4 Act of third party

Answer 102

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. In Rickards v Lothian, a third party deliberately blocked the waste pipe and left the tap running which led to flooding of the claimant’s property. The defendant was not liable as they could not reasonably have known of the act so there was nothing that they could have done to prevent the harm.

Question 103

6.3.5 Act of God

Answer 103

Where the escape is caused by a natural occurrence which could not have been reasonably foreseen, the defendant will not be liable, eg high flooding, earthquakes and unusually violent storms. It must not be realistically possible for a human to reasonably guard against or prevent the event by any amount of foresight, pain and care (Transco). In Nichols v Marsland (1876) 2 Ex D 1, the defendant had pools on his land formed by damming a natural stream which flowed through his property. Due to extraordinarily high rainfall, the banks broke and four of the claimant’s bridges were swept away. The defendant was not liable for such an extraordinary act of nature which could not have been foreseen.

Question 104

6.3.6 Contributory negligence and consent

Answer 104

The usual rules of contributory negligence and consent apply.

Question 105

6.4 Remedies

Answer 105

The same remedies are available as for private nuisance, namely damages and injunctions. Damages are the most common remedy given that the types of loss recoverable in Rylands v Fletcher are property damage and consequential economic loss and Rylands v Fletcher covers isolated events.

Question 106

6.5 Summary

Answer 106

* Rylands v Fletcher protects against interference due to an isolated escape from the defendant’s land. * The claimant must have a proprietary interest in the land affected. * The defendant is the person who brought the ‘thing’ onto the land and/or any person who has control over the land (owner/occupier). * Losses recoverable are property damage and consequential economic loss. * The elements to consider for Rylands v Fletcher are: brought onto land; anything likely to do mischief if it escapes; it does escape; the escape caused foreseeable harm; and there is nonnatural use of the land. * The defences in Rylands v Fletcher are the same as for public nuisance, with the addition of common benefit and act/default of the claimant. * The remedies in Rylands v Fletcher are the same as for private nuisance. Damages are the most common remedy given the types of losses recoverable.

Question 107

7. Trespass to land

Answer 107

In this chapter, you have already studied three land-based torts, private and public nuisance, and Rylands v Fletcher. Trespass to land is a fourth, land-based tort, that is also concerned with the protection of property rights. It involves unlawful presence on somebody else’s land. The interference must be intentional and direct, and an action in trespass to land is actionable per se (ie without proof of damage).

Question 108

7.1 Trespass to land preliminaries 7.1.1 Who can sue in trespass to land?

Answer 108

The claimant must have a legal interest in the land, namely a possessionary or proprietary interest ie they must own the land or otherwise be in possession of it. However, in situations where a trespasser possesses demised land, the claimant would be the tenant or licensee in possession, rather than the landowner. The landowner would only have a right to sue in trespass to land, where there would be damage to their interest beyond the term of the lease/licence.

Question 109

7.1.2 Loss or damage?

Answer 109

It is also important to note that unlike the other land-based torts, trespass to land is actionable per se, meaning it does not require any actual damage. In such instances, where there is no actual damage, the harm that will be compensated is the unjustifiable interference with the claimant’s land by the defendant.

Question 110

7.2 Elements of trespass to land

Answer 110

Once it is satisfied that the claimant can sue in trespass to land, there are just two elements to consider: (a) Direct and physical interference (b) Intention We will look at each element in turn.

Question 111

7.2.1 Direct and physical interference

Answer 111

In contrast to private nuisance which was concerned with indirect interference with the claimant’s land, trespass to land is concerned with direct interference with the claimant’s land. Land in this context includes anything under the land, built on the land and the airspace above it. In addition to the interference having to be direct, it must also be physical.

Question 112

Example: Direct physical interference

Answer 112

If I pile a large compost heap on my neighbour’s land because I have run out of space on my land, this would be direct physical interference and classed as trespass. This is a direct action with a physical consequence. Whereas if I pile a large compost heap on my own land and it starts to smell to the extent my neighbour can smell it, this would be indirect interference and could constitute a private nuisance if, over a period of time, it causes damage.

Question 113

Examples of different categories of physical interference

Answer 113

Entering the claimant’s land --> Walking across someone’s private garden without permission. Remaining on the claimant’s land when permission has been revoked --> Tenant staying in rented property after the lease has expired. Doing something that is not permitted on the claimant’s land --> Entering an area which says ‘staff only’ when you are not staff; pulling down or removing anything (ie damaging anything) which is attached to the land without permission. Placing objects on the claimant’s land without permission --> Fly-tipping; deliberately throwing your tree branches onto someone else’s property; parking your car on your neighbour’s driveway without consent.

Question 114

7.2.2 Intention

Answer 114

The defendant must intend the direct action that results in the trespass but need not intend to trespass. For example, if you voluntarily walk over a private field, you have trespassed, even if you did so accidentally. The intention can be implied.

Question 115

Key case: League Against Cruel Sports v Scott [1986] Q.B. 240

Answer 115

Facts: The claimant owned unfenced areas of Exmoor on which there were wild deer sanctuaries. On seven occasions, over 1982 and 1983, hunting dogs (hounds) strayed onto the claimant’s land. There was no actual intention by the defendant to allow the dogs onto the claimant’s land. Held: There was an implied intention to trespass because the defendant knew that there was a real risk of the dogs entering the claimant’s land. By persistently hunting close to prohibited land (where hunting was not allowed) in circumstances where it was impossible to prevent trespass by the dogs, this amounted to an intention to trespass.

Question 116

7.3 Defences

Answer 116

There are three defences to trespass to land: (a) Permission (consent): Where the defendant has express or implied permission (or a licence) to enter or remain on the land. However, to be a valid defence, the defendant must not exceed the boundaries of their permission. (b) Legal authority: For example, under statute the police have authority to enter premises and carry out arrests. However, if they commit a wrongful act on the premises, then their original entry becomes a trespass (known as trespass ab initio). (c) Necessity: Where the trespass was necessary to protect either a public or private interest.

Question 117

Example

Answer 117

For example, in Dewey v White [1827] 2 WLUK 115 the necessity defence was successful where firemen destroyed the claimant’s chimney in order to prevent the spread of fire to further properties (protecting the public interest). In Esso Petroleum Co Ltd v Southport Corp [1956] A.C. 218 the ship’s captain discharged oil into the sea, polluting the shoreline. The defence of necessity was successful as he did this to prevent the ship sinking and to save the lives of the crew.

Question 118

7.4 Remedies

Answer 118

The following remedies are available to a claimant who successfully establishes a claim in trespass to land: (a) Damages cover the costs of harm already suffered by the direct interference. (b) Injunctions may be awarded where there is a continuing trespass or where a trespasser threatens to repeat the trespass, but for the latter, the trespass must be serious in nature.

Question 119

Damages and injunctions are the primary remedies in trespass to land.

Answer 119

(a) Re-entry is a self-help remedy which might be available where the owner/occupier has been excluded from the land. Only reasonable force can be used to re-enter. (b) Recovery of land: As an alternative to re-entry, the owner/occupier can seek a court order for the defendant to be removed (an action for the recovery of land). (c) Mesne profits: The claimant might bring an action for mesne profits to claim money from a defendant who wrongfully occupied the land and made a profit or saved expenditure in doing so, eg where a tenant fails to leave at the end of their tenancy and stops paying rent.

Question 120

7.5 Limitation (6 year limit)

Answer 120

A claim in trespass to land must be brought within six years from the date on which the cause of action accrued (s 2 Limitation Act 1980).

Question 121

7.6 Examples of trespass to land: Squatting

Answer 121

Squatting is probably the most obvious example of trespass to land, but there are plenty of other examples, like the straying dogs in League Against Cruel Sports. Here are some further examples.

Question 122

Kelsen v Imperial Tobacco Co [1957] 2 Q.B. 334

Answer 122

Facts: The claimant rented a shop and sought an injunction requiring the defendant to remove an advertisement sign that projected eight inches into the airspace above his shop. Held: The invasion of the airspace above the claimant’s shop by the advertisement sign amounted to trespass to land as it was over the boundary line of the properties.

Question 123

Laiqat v Majid [2005] EWHC 1305 (QB)

Answer 123

The defendant installed an extractor fan on their property that projected into the claimant’s garden by 750 mm, at a height of 4.5 m. The projection did not interfere with the claimant’s use of her garden. Held: The 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.

Question 124

Section 76 Civil Aviation Act 1982

Answer 124

It is important to note that under s76 Civil Aviation Act 1982, flying an aircraft at a reasonable height above someone’s property, does not constitute a trespass. In Lord Bernstein v Skyviews and General Ltd [1978] QB 479, a claimant’s claim in trespass to land was rejected whereby the defendant used a light aircraft to take aerial photographs of the claimant’s property. 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.

Question 125

Key case: Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35

Answer 125

Facts: Part of an oilfield lay under the claimant’s land. The defendant had a licence from the Crown to obtain petrol from the oilfield on neighbouring land. Without acquiring a licence from the claimant, the defendant drilled wells under the claimant’s land at depths of between 800ft to 2,900ft. The claimant suffered no physical harm to their land nor any interference with their use or enjoyment of the land. The court considered how much of the substrata (land beneath the ground) was owned by the freeholder. Held: The wells constituted a trespass. There had to be some stopping point, where one reached the point at which physical features such as pressure and temperature rendered the concept of the strata belonging to anybody absurd. But the wells in this case were far from being so deep as to reach the point of absurdity; the fact that the strata could be worked upon at the depths in question pointed to the opposite conclusion. The claimant was awarded £1,000 in damages.

Question 126

Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35

Answer 126

However, do note that since Bocardo SA v Star Energy UK Onshore Ltd [2010] UKSC 35, the Infrastructure Act 2015 has been passed. This 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. The companies still have to obtain other permissions, such as planning and environmental permits.

Question 127

7.7 Summary

Answer 127

* To bring a claim in trespass to land, the claimant must own the land or otherwise be in possession of it. Where a trespasser possesses demised land, the tenant or licensee in possession will be the claimant. * Trespass to land is actionable per se. * Interference with the claimant’s land must be direct and physical. * The defendant must intend the direct action that results in the trespass but need not intend to trespass. The intention can be implied. * The defences available in trespass to land are: permission; legal authority; and necessity. * The remedies available in trespass to land are: damages; injunctions; re-entry; recovery of land; and mesne profits. * Examples of trespass to land include intrusion to the airspace above the claimant’s land and intrusion to the claimant’s land beneath the ground.