Land-based torts (nuisance, RvF, trespass) Flashcards

Question

How can time and duration make interference unreasonable? How does property damage change this?

Answer 1

* Where interference is frequent or for long periods of time; longer it lasts = more likely unreasonable * If property damage = may find nuisance in termporary/short-lived activity

Answer 2

SDP (not property damage)

Answer 3

What is reasonable in residential area is different to what would be unreasonable in an industrial/commercial area et.c ## Footnote Sturges - Dr complained surgery distrubed by noise/vibrations from D's premises used for manufacturing confectionary - D's business held to be a nuisance in a residential area

Answer 4

* Mere granting of planning permission cannot authorise nuisance and does not give D a defence (would mean depriving rights of residents) * **But** precise terms of the planning permission may have bearing on existence of nuisance (e.g. can limit noise-making to certaim time period, decibel) ## Footnote Coventry - D's speedway stadium built 40 years ago with planning permission in a very rural area with village being 15 miles from C's house who was claiming nuisance - SC confirmed planning permission did not authorise nuidance and noise amounted to nuisance given area was overwhelmingly rural - **planning permission of no assistance to D in private nuisance claims, as it would deprive property-owner of a right to object what would otherwise be a nuisance**

Answer 5

Has been held to, especially where it benefits the community | But still does not authorise! ## Footnote Gillingham - predominantly residential area became commercial port following plannign permission and Cs complained of interrupted sleep and general disturbance - claim failed as planning permission had changed nature of locality to wholly commercial area which benefitted community

Answer 6

* Where C/C's property is unusually sensitive, they cannot claim that activities that would not interfere with ordinary occupier are a nuisance * Courts have doubted - if someone is abnormally sensitive then loss is not foreseeable to D - **better to see in terms of foreseeability** ## Footnote Robinson - C operated business involving heat sensitive paper above D's manufacturing buisiness; heat emitted damaged C's paper - court held that C's paper abnormally sensitive and ordinary paper would not have been affected so use of D's land was reasonable

Answer 7

If D can point to no real justification for their actions and aim is solely to annoy C, this will normally constitute nuisance | Certain amount of conflict inevitable ## Footnote Christie - C music teacher's music pervaded D's house throughout day - D responded by banging walls and shouting when music playing - D's noise held to be excessive and unreasonably as it was made deliberately and maliciously for purposes of upsetting C (granted injunction)

Answer 8

* If D has a lack of care - e.g. worked until someone complained, own convenience prevails above others - this is likely to benefit C * Excessive behaviour - how far removed behaviour is from 'normal' - can indicate that they are being unreasonable and creating a nuisance (where C owns 100s of pheasants)

Answer 9

1. 20 years' prescription - D has earned right to commit nuisance 2. Statutory authority 3. Consent 4. Contributory negligence 5. Act of third party 6. Acts of God 7. Necessity - usual principles apply

Answer 10

* Must have been an **actionable** nuisance for 20 years or more (C has had grounds to bring claim for this period) * Need not be continuous, length of time is important here ## Footnote Coventry - stadium constructed in 1975 and C moved in in 2006; D could not rely on prescription as it could not show that they had created a nuisance for 20 years or more, was only first complained about in 1992 (16 years before C brought proceedings)

Answer 11

Where they have exercised all due care and nuisance is inevitable consequence of activity

Answer 12

The activity causing the nuisance

Answer 13

Where D has not continued or adopted nuisance ## Footnote Nichols - D's artificial pools flooded and damaged C;s property; flooding caused by very unusual amount of wholly unexpected rainfall = complete defence

Answer 14

The fact C moved to nuisance is not a defence for D | Does not justify commission of nuisance ## Footnote Miller - housing estate built in area next to 70 y/o cricket ground where balls were hit in for years - amounted to a nuisance even though Cs recently moved to nuisance

Answer 15

1. Injunction (full or partial) 2. Damages 3. Abatement | Injunction is primary remedy

Answer 16

A compromise; limiting time and frequentcy of activity rather than full ban Where D's activities are for **public benefit** e.g. Kennaway - popular power-boat racing which could take place few places else was restricted to planned timetable

Answer 17

Whichever lower | Consequential economic loss can also be awarded for

Answer 18

Where the loss is SPD and D puts forward arguments as to why an injunction should not be granted | Injunction is primary remedy

Answer 19

Public interest (national defence/lawful enjoyment) * e.g. Dennis - RAF flying 70 jets a day was nuisance but in public interest - awarded £95,000 for depreciation in house * e.g. Miller - cricket ground liable as balls flying in garden limited garden-enjoying time - damages awarded as public interest outweighed Miller's Planning permission * Suggests that planning authority had been reasonably influenced by benefit of activity (even if it caused nuisance)

Answer 20

Based on the **reduction in the value of a C's property**

Answer 21

'Self-help remedy'; C acts to stop the nuisance * Can enter land of another and take reasonable steps to prevent nuisance continuing * Anything belonging to D must be left on property * Notice to be given by C of intention but not if emergency * Can be a defence for trespass to land | E.g. can cut down branches overhanging land

Answer 22

* Where the effect of an act/omission is sufficiently widespread - '*materially affect the reasonable comfort and convenience of life of a class of her Majesty's subjects*' * A crime but can occasionally be a tort where harm suffered by community ## Footnote PYA Quarries - dust and vibrations from D's quarry involved over 30 households within local area - held to be sufficiently widespread in effect for it to be a public nuisance

Answer 23

* Many areas of public nuisance - noise, pollution, public health - now regulated by state * Tort of public nuisance is a residual method of dealing with certain interferences which cannot be dealt with by other means/where individual wishes to claim common law damages

Answer 24

1. **A local authority** - on its own behalf or to protect inhabitants of area 2. **Attorney General** - where class of people affected and no individual action possible/forthcoming - brought on their behalf 3. **An individual**

Answer 25

* Only where they can prove they have suffered **special damage** = suffered over and above the rest of the class in a way that is different in kind from that suffered by rest * Do not need an interest in the land | So must actually be a class in first place ## Footnote Lyons - D caused queue outside C's cafe twice a day - inconenience to public (highway obstruction) and C suffered speical damage as cafe severely disrupted as a result (pure economic loss)

Answer 26

The creator of nuisance of any person who is 'responsible (e.g. owner/occupier) | Little judicial debate as so rare

Answer 27

1. Act or omission 2. One-off event or continuous 3. Class of her Majesty's subjects; and 4. Materially affects comfort and convenience

Answer 28

Public nuisance can a one-off/isolated event (unlike private)

Answer 29

A representative cross-section of the public that has been affected by a common injury (more or less same time/location) * No exact number of affected to constitute class * Not necessary for every member to have been affected | 'People across the country' cannot be a class as required by public nui ## Footnote Rimmington - sent racially offensive items to people across the country; these people were not a 'class' in the way required by public nuisance

Answer 30

* Property damages, pure and consequential economic loss * Personal injury * Incovenience (annoyance/irritation) that is material (more than trivial) but no need for actual damage ## Footnote Benjamin - C ran coffee house in Covent Garden - D auctioneers next door created obstruction and inconvenience to C; loading and unloading vans restricted access to coffee house and made it uncomfortable - interference direct and substantial

Answer 31

Personal injury

Answer 32

Same as for private nuisance **except prescription** Main defence for public nuisance is statutory authority

Answer 33

* Injunction and/or damages as available for private nuisance * **Only** injunction if brought by local authority or AG ## Footnote Wandsworth - D's bridge had pigeons roosting under it which were pooing on people; D had to 'pidgeon-proof' bridge as a prevention measure

Answer 34

Yes; class of persons affected are highway users and they can suffer special damage

Answer 35

Protects against interference due to an **isolated escape** from D's land ## Footnote **In R v F:** water escaped D's land (builders had failed to bock off number of disused mineshafts when constructing resevoir) and flooded C's adjoining mine - no evidence of negligence by D (had not known of mineshafts) but was held liable

Answer 36

A man who for his own purposes brings and keeps something on his land that is likely to do mischief if it escape must keep it in at his peril - if he does not do so he is prima facie answerable for all the damage that is the natural consequences of the escape | Is a sub-species of private nuisance

Answer 37

C must have propietary interest in land to **sue** D who can **be sued** is * person who brings, collects and keeps 'thing' onto the land; and/or * person who has control over it (owner/occupier)

Answer 38

Property damage and consequential economic loss

Answer 39

1. D brings onto land and accumulates there 2. For their own purposes, anything likely to do mischief if it escapes 3. Escape 4. Escape caused foreseeable harm 5. Non-natural use of land - a use of the land that is not ordinary (depends upon the type of area/context)

Answer 40

* Must have voluntarily have brought something on to land * Cannot be spread of things that naturally grow (e.g. spread of thistles)

Answer 41

No - only capable of causing damage if it escapes e.g. water, acid, explosives

Answer 42

RvF - capable Later cases - **exceptionally high risk** I.e. thing that escapes has to be recognised as having exceptionally high risk of causing danger if it were to escape ## Footnote Transco - pipe carrying water to flats owned by D leaked and caused embankment on D;s land to collapse, leaving a gas pipe exposed by C unsupported and C had to spend £94,000 to stop pipe fracturing - high threshold of exceptionally high risk if it escapes was not met

Answer 43

* Escape = thing brought on to land escapes from land over which D has control to land where they do not have control * Can be quickly or happen over period of time

Answer 44

No - must be the 'thing' (tyre) that escapes, the fie was not the thing 'brought' onto land - potential exceptions include... * If fire started deliberately, the fire **was** the thing brought on to land * If fuel is the 'thing' brought onto land and fuel starts fire, the fuel can be seen as escaping with the fire

Answer 45

No - only thing that ought reasonably to be foreseen is the **damage if it escaped** ## Footnote Note - **Cam Water Co** - chemical seeped into soil and travelled to C's borehole 1.3 miles away - not foreseeable (i.e. if it escaped it would not be a problem because it is not foreseeable that it not reach a borehole 1.3 miles away - so even though it did claim failed) MCQ example - farmer uses special type of milk to grow plant which could be toxic to animals - milk released on to vet's land: kills horses, damages roses and changes soil's PH balance = liability of farmer limited to death of horse as this was foreseeable (but damages to roses and slil not recoverable as this damage was unforeseeable)

Answer 46

Yes if they fulfil requirements for operation of rule; strict liability applies

Answer 47

'Non-ordinary' use of land depending on time, place, context and use of land * **Transco** - piping water for domestic use to a block of flats not unusual * **Colour Quest** - large quantity of oil kept on industrial land was non-natural * **Cambridge Water** - storage of substantial quantities of chemicals on industrial premises was 'classic case' of non-natural use | Interpreted widely so as to allow flexibility in finding liability

Answer 48

1. **Common benefit** 2. **Act or default of C** - no liability if escape caused wholly by C's actions (Dunn - digging under D's canal causing it to flood) 3. **Statutory authority** (Green - statutory obligation to maintain high pressure in water main even though escape can cause inevitable damage) 4. **Act of third party** 5. **Act of God** 6. **Contributory negligence** 7. **Consent**

Answer 49

Yes for both: * TP - escape arose due to unforeseeable act of stranger (e.g. leaves tap running leading to C's property flooding) * God - escape caused by natural occurrence that could not reasonably be foreseen (e.g. weather, disaster)

Answer 50

* Common benefit if C agreed to accumulation of material by D * Consent **implied** if substance accumulated for common benefit ## Footnote Pters - C leased shop from D (owner of theatre next door) - C's shop flooded when sprinkler system burst, but D not liable as sprinkler system was equally for benefit of C and C deemed to have consented to use since it was installed prior to lease

Answer 51

Same as private nuisance; **damages and injunctions** Damages most common given that types of loss are property damage and consequential economic loss in RvFs

Answer 52

Unlawful presence on somebody else's land - interference must be intentional and direct

Answer 53

C must have legal interest in land i.e. own land or otherwise be in possession ## Footnote If trespasser possesses demised land, C would be the tenant or licensee in possession rather than landowner

Answer 54

No - is actionable per se; no actual damage needed The harm compensated is the unjustifiable interference with C's land by D

Answer 55

1. Direct and physical interference 2. Intention

Answer 56

Direct and physical interference could be... * **Entering C's land** e.g. walking across private garden * **Remaining on C's land when premission revoked** e.g. tenant staying in rented property after lease expires * **Doing something not permitted on C's land** e.g. entering 'staff only' * **Placing objects on C's land without permission** e.g. parking car on neighbour's driveway, advertisement projected into airpsace above premises | Land = anything under, built on, or on airspace above land

Answer 57

D must intend direct action that results in trespass (not intend trespass itself) | walking over private field voluntarily = trespassing even if accident

Answer 58

Where D knows there is a real risk of trespass ## Footnote League Against Cruel Sports - C owned unfenced areas of Exmoor on which there were wild deer sanctuaris, on several occasions hunting dogs strayed onto C's land but no actual intention by D to allow them onto land - implied intention to trespass because D knew there was a real risk of dogs entering C's land; by persistently hunting close to land it amounted to intention to respass

Answer 59

1. **Permission/consent** - D cannot exceed boundaries of express/implied permission 2. **Legal authority** - police entering premises to arrest (becomes trespass if they commit wrongful act) 3. **Necessity** - to protect public/private interest ## Footnote * Dewey - firemen destroyed C's chimney to prevent spread of fire to further properties (public interest) * Esso - ship's captain discharged oil into sea polluting shoreline (necessity to save lives of crew)

Answer 60

1. **Damages** - cover cost of harm already suffered by direct interference 2. **Injunction** - where there is continuing trespass or where trespasser threatens to repeat (trespass must be serious in nature)

Answer 61

1. **Re-entry** - reasonable force used by owner/occupier who has been excluded from land 2. **Recovery of land** - court order for D to be removed 3. **Mesne profits**

Answer 62

Claim money from D who wrongfully occupied land and made profit/saved expenditure by doing so *e.g. tenant fails to leave at end of tenancy and stops paying rent*

Answer 63

Must be brought within 6 years from date on which cause of action accrued

Answer 64

Not if it is flown at a reasonable height (Lord Bernstein - D used light aircraft to take aerial photos of C's property - height above as necessary for ordinary use/enjoyment of land) ## Footnote Example of interfering with airspace **Laiqat** - D installed extractor fan on property that projected into C's garden at 4.5m - did not interfere with C's use of garden - but constituted a trespass even though it did interfere with normal activity conduted in C's garden (interference with airspace above another person's land)!! Kelsen - D had advertisement sign that projected 8 inches into airspace above C's shop - injunction successful; invasion of airspace above C's shop by sign amounted to trespass to land (was over boundary line)

Answer 65

* By law can access 300m or lower automatically * **Bocardo** (before law enacted) - must reach point of absurdity before the strata does not belong to somebody

Land-based torts (nuisance, RvF, trespass) Flashcards

(93 cards)