Land Torts Flashcards
(20 cards)
What is private nuisance?
Indirect interference which is continuous that substantially and unreasonably interferes with C’s use or enjoyment of land
Who can sue in private nuisance?
C must have the right to exclusive possession of land
- owner / occupier
- tenant or licensee with exclusive possession
NOT hotel guest / child
Who can be sued in private nuisance?
- Creator (even if no longer occupies)
- Occupier for: employee, contractors, visitors / trespassers / predecessors / act of god if continues (aware + no reasonable steps) or adopts (makes use)
- NOT LL unless express or implied authorisation / new at start of letting / obliged to repair and does not do so
Elements of private nuisance
C must show there was indirect interference that caused recognisable damage which is continous and unlawful
Indirect Interference: must come from D’s land
- encroachment (branch): automatically unlawful
- Direct physical injury: more than trivial damage is unawful
- Quiet enjoyment: must materially interfere with ordinary comfort
Recognised damage: NOT personal injury or PEL (property damage or sensible personal discomfort or consequental loss)
Continuous: Not one off unless due to underlying state of affairs
Unlawful: means substantial and unreasonable - D’s use unreasonably interferes with C’s reasonable use of land
- Frequency and duration
- extent of harm: far removed from normal behaviour + impacts C
- Character of neighbourhood
- Malice
- No abnormal sensitivity
- NOT public benefit
Effective private nuisance defences
Prescription: 20 years and actionable by same C
Consent: C specifically agrees to activity knowing danger to property
Act of God: subsidence or act of god and D does not adopt or continue (does not make use and does not know (should not reasonably know)
Ineffective private nuisance defences
Planning Permission
C came to nuisance
Others
Remedies for private nuisance
Damages:
- Property damage
- Personal Discomfort: loss of amenity (difference between land value with and without nuisance)
Injunction
Damages in lieu of injunction if quantifiable, public benefit, small harm, oppressive to D
Rylands v Fletcher rule
Isolated escape of something dangerous arising from non-natural use of land
Who can sue under Rylands v Fletcher
Exclusive possession of land
Who can be sued Rylands v Fletcher
Creator
Occupier (employee, contractor, visitor, trespasser or predecessor or act of god if adopt or continue)
NOT LL unless express or implied authorisation, existed at start of letting or cov to repair and fails to make repairs
Recoverable damage - Rylands v Fletcher
Anything NOT personal injury or PEL
Elements to prove - Rylands v Fletcher
D brings onto their land and accumulated there: VOLUNTARILY
Something dangerous (exceptionally high risk of causing harm if it were to escape)
Escapes (moves from D’s land to area outside their control)
Causes foreseeable harm (D must have known or foreseen that if the thing escaped it coudl cause the damage complained of)
Non-natural use of land (unusual according to standard of the day)
Defences - Rylands v Fletcher
Common benefit: C agreed to accumulation (presumed if benefitted C)
Act of C if wholly caused escape
Act of 3rd party is wholly caused escape and not reasonably foreseeable
Public Nuisance requirements
Act or omission which materially interferes with teh comfort of a class of people
Who can sue - public nuisance
Individual if suffered special damage
- harm above that of class
- different type of harm
Local Authority
Attorney-General
Who can be sued - public nusiance
Creator
Owner / Occupier
Elements of public nuisance
Act or omission (one off or continuing)
Materially interferes with comfort and convenience
Class - representative cross section of public (same time and location)
Recoverable damage - public nusiance
EVERYTHING including Personal INjury and PEL / Material Discomfort
Defences - public nuisance
Same as private nuisance but not prescription
Remedies - public nuisance
Individual: private nuisance
PA: injunction only
