Private Nuisance (and the rule in Ryland v Fletcher)

Question 1

Define private nuisance

Answer 1

• unlawful conduct that materially affects the comfort and convenience of a class of her majesty’s subjects

Question 2

what actions can encompass a private nuisance and what cases

Answer 2

• Primarily a crime of great breadth (swimming without clothes) - R v Crunden
• Physical damage to C’s land - Wringe v Cohen
• Interference with Comfort and Convenience (Amenity) such as Intangible damage (noise, smells, dust) - Sedleigh-Denfield v O’Callaghan.

Question 3

why does harassment not count for PN?

Answer 3

• Khorasandjian - C lacked a proprietary interest

- Protection from Harassment Act 1997.

Question 4

what are the 2 requirement for PN in St Helen’s Smelting Co v Tipping: per Lord Westbury and what does it say about remedies

Answer 4

• material damage
• interference with comfort and convenience (or amenity).
• Where damage is material/physical, courts are likely to grant C a remedy.
• Where C’s claim concerns comfort and convenience, courts engage in a balancing exercise

Question 5

what is Lord Westbury’s Distinction with Reasonableness for PN?

Answer 5

• ‘Reasonableness’ refers to the outcome of D’s conduct.

- Has C suffered harm (interference)?

Question 6

what does Exceeding reasonable limits mean with PN?

Answer 6

• most of the activities that discomfort or inconvenience an occupier are, in themselves, perfectly lawful and only become unlawful if they are carried on in such a way as to exceed reasonable limits

Question 7

how are interferences meant to be assessed + case?

Answer 7

• objectively

- Walter v Selfe

Question 8

what factors should be considered for Locality for PN?

Answer 8

• The nature of the locality may change: Medway (Chatham) Dock Ltd
• Planning and Regulatory Approval (Barr v Biffa Waste Management Services)

Question 9

what is the test in Barr v Biffa Waste Management Services

Answer 9

would a normal person have found it reasonable to put up with the effects of D’s activities?

Question 10

what factors should be considered for Interference with Comfort and Convenience and Balancing for PN? (5)

Answer 10

• Abnormal sensitivity
• Level of interference (The duration and intensity)
• Public benefit (associated with D’s activity).
• Malice
• Multifactorial balancing exercise → strong judicial discretion → fact-sensitive responses to claims.

Question 11

what is the case for abnormal sensitivity?

Answer 11

• Robinson v Kilvert

Question 12

what are consideration for Abnormal Sensitivity and Television and cases?

Answer 12

• Nor-Video Services: watching television is a form of ordinary enjoyment.
• Hunter: interference with television reception caused by tall building was not identified as actionable nuisance.

Question 13

what case concerns the intensity of the nuisance and what did they say?

Answer 13

• Matania v National Provincial Bank Ltd.

- a temporary interference may, if substantial, constitute an actionable nuisance

Question 14

can an isolated occurrence give rise to an actionable private nuisance + case?

Answer 14

• yes
• SCM v W.J Whittall : the nuisance must arise from the condition of D’s land or from activities carried out on the land.

Question 15

what does Miller v Jackson concern for PN?

Answer 15

• public benefit

Question 16

what case concerns malice for public nuisance?

Answer 16

• Christie v Davey

Question 17

can their be a duty of care for PN? why? and case?

Answer 17

• yes
• D took inadequate steps to alleviate the risk.
• Goldman v Hargrave

Question 18

what are the control requirements in Rigby v Chief Constable of Northamptonshire?

Answer 18

• D need not have a proprietary interest in the land from which the escape (of something dangerous) occurs
• But D must have control of the source of danger

Question 19

what is the remoteness test in Cambridge Water Co v Eastern Counties Leather plc

Answer 19

‘foreseeability of damage of the relevant type should be regarded as a prerequisite of liability … under the rule’.

Question 20

what is Blackburn J’s Judgment in Rylands v Fletcher?

Answer 20

• ‘[T]he 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 which is the natural and probable consequence of its escape’.

Question 21

what is the decision procedure for ryland v fletcher?

Answer 21

1. Accumulation
2. non-natural use. (An interpretative battleground.)
3. Escape
4. Damage
5. Remoteness
6. Defences

Question 22

what is needed for accumulation

Answer 22

• The thing that (later) escapes must be brought onto D’s land.
• accumulation must be voluntary.
• Where D is instrumental in causing things naturally on the land to escape

Question 23

what’s is non natural use + case

Answer 23

• Rickards v Lothian (Privy Council)

- ‘It must be some special use bringing with it increased danger to others’.

Question 24

what should Non-natural uses must be distinguished from

Answer 24

(a) ‘ordinary use of the land or
(b) such use as is proper for the general benefit of the community’. if the risk serves the general benefit of the community, that could be ok – utilitarian view

Question 25

what does Lord Moulton’s claim about ‘general benefit’?

Answer 25

Lord Moulton’s claims concerning ‘general benefit’ to the community have been rejected.

Question 26

what is the question for non natural use?

Answer 26

- whether the particular object can be dangerous’.

Question 27

who decides whether a use is natural or non natural?

Answer 27

- whether a use is ‘natural’ or ‘non-natural’ is ‘a question of fact subject to a ruling of the judge’

Question 28

what are three considerations for non natural uses and cases?

Answer 28

- increase danger to others (Rickards v Lothian) - danger (Read v Lyons) - extraordinary and unusual (Transco v Stockport MBC)

Question 29

what are some examples of non natural uses? (5)

Answer 29

- Domestic water supplies - Household fires - Electric wiring in houses and shops - The ordinary working of mines - Keeping trees and shrubs – unless, perhaps, poisonous (Crowhurst)

Question 30

what are 3 relevant considerations when determining there is an abnormal risk of the non natural use in Mason v Levy Auto Parts

Answer 30

- quantity of material - the way it was stored - the character of the neighbourhood.

Question 31

what are 6 scenarios where R+F could apply + cases?

Answer 31

1. Jones v Festiniog Railway Co, per Blackburn J: fire. Sparks from a train set fire to a haystack. 2. Batchellor v Tunbridge Wells Gas Co : gas likely to pollute water supplies. 3. Miles v Forest Rock Granite: explosions (rocks blasted in quarrying operations). 4. National Telephone Co v Baker: electricity. 5. Smith v Great Western Railway: oil. 6. West v Bristol Tramways: noxious fumes.

Question 32

what are the 6 defences for R+F and what are the cases

Answer 32

- Act of God: Nichols v Marsland - Unforeseeable act of third party: Rickards v Lothian. - Consent (volenti non fit injuria): Attorney- General v Cory Brothers. - necessity (Rigby v Chief Constable of Northamptonshire) - statutory authority - default of the claimant (Dunn)

Question 33

What is the rule about Rylands v Fletcher and fire?

Answer 33

- The Court of Appeal’s approach in Stannard reduced to a ‘rule’: the fire must be brought onto D’s land and, later, escape.

Question 34

what is the defence of prescription and what case?

Answer 34

- Where a private nuisance continues for 20 years, D may be entitled to claim a prescriptive right to engage in the relevant interference. - Sturges v Bridgman

Question 35

how can prescription fail as a defence

Answer 35

- The nuisance began when C’s new building was erected.

Question 36

what is needed for the defence of prescription?

Answer 36

- D must show that: (i) The interference amounted to a private nuisance throughout the twenty-year period; and – (ii) The interference must have been engaged in as of right: i.e., not secretly, forcibly, or without permission.

Question 37

what must D show for the Defence of Statutory Authority + case?

Answer 37

- D must show that interference with C’s rights is permitted either by (a) express wording in the statute or by (b) necessary implication. - Metropolitan Asylum District Managers v Hill

Question 38

how does D give the defence of consent + case?

Answer 38

- Consent may be pleaded as a defence to private nuisance claims. - Available where C, knowing of the danger to his or her property, has (by word or deed) shown willingness to accept the relevant risk(s). - Leakey v National Trust.

Question 39

what is the case the Partial Defence of Contributory Negligence

Answer 39

- Trevett v Lee

Question 40

does and act of a trespasser does not yield a defence + case?

Answer 40

- Act of a trespasser does not yield a defence where D knowingly or negligently continues the nuisance - Sedleigh-Denfield v O’Callaghan

Question 41

what is not a defence

Answer 41

- coming to the nuisance (Miller v Jackson) - Public Benefit (Adams v Ursell) - More than one person contributes to the harm (Thorpe v Brumfitt) -

Question 42

what does Gillingham BC v Medway (Chatham) Dock state about planning permission

Answer 42

- A planning authority can, through its development plans and decisions, alter the character of a neighbourhood.

Question 43

what does Wheeler v Saunders state about planning permission?

Answer 43

- Planning permission need not preclude the possibility of bringing a private nuisance claim where only the interests of C and D are involved. - Planning permission: grants of planning permission may preclude a claim where the public interest is being served.

Question 44

what are the 3 remedies

Answer 44

- Injunction - stop any kind of threat now - Damages in lieu of an injunction - give the claimants compensatory sum and allow the interference to continue. - 1 & 2 may be coupled with damages for past harm

Question 45

what human rights article can be in conflict with PN

Answer 45

Article 8

Question 46

what did Coventry v Lawrence state about Remedies

Answer 46

- Lords Neuberger and Carnwath agreed that planning permission can influence the remedy C is able to obtain and that the existence of a planning permission could justify the refusal of an injunction and the award of damages in lieu