Tort

• Hunter v Canary Wharf


  Large building was built in London, blocking many people's TV signals- it was held that this was not a private nuisance as this usually requires something to emanate from the land (this is not a requirement for all cases). However, due to the protean nature of private nuisance, this may have since become a private nuisance action as this was not ruled out by the House of Lords
• Fearn and others v Board of Trustees of the Tate Gallery

  Tate gallery had a viewing point allowing for panoramic views of London, but also for people to stare into and take photos of flats with floor to ceiling windows. It was held staring can be a private nuisance. Having a viewing point was not in itself unreasonable, but in applying the test in Bamford v Turnley, the way it was being used was not an ordinary and common use of the land.
• Relevant Factors for Private Nuisance

  (1) Locality Principle

  (2) Oversensitivity

  (3) Cost of preventing the nuisance

  (4) Extent of the nuisance

  (5) Social Utility

  (6) Defendant's motive

  (7) Role of Fault
• (1) St Helen's Smelting Co v Tipping


  Vapours were being emitted from smelting works causing physical damage to vegetation of claimant- it was held that for physical damage cases, the locality principle was not relevant (only for amenity cases)
• (1) Pwllbach Colliery Co Ltd v Woodman


  The locality of an area may be relevant in determining if there was a private nuisance
• (1) Polsue & Alfieri Limited v Rushmer


  Noisy printing press was held to be a private nuisance despite there being many printing businesses in the area- shows that locality is not a decisive factor in a case, rather one factor to be considered
• (1) Sturges v Bridgman


  Doctor moved his practice to the bottom of his garden and the loudness of the mortar and pestle of his confectioner neighbour bothered him- held this was a private nuisance on considering the locality and the fact that the noise created a substantial interference
• (1) Coventry v Lawrence


  Defendant's conduct will only be considered as a part of the locality if it's not a private nuisance- if it is a private nuisance, then he could justify the action by saying it has become a part of the locality- this should be prevented
• Locality Principle Considerations


  - Need to take the bad in order to get the good (social utility)

  - Cost of preventing the nuisance

  - Consent- when the claimant moved in, the nuisance may not have been present- it may not always be an option to move away and the locality may have changed over time

  - Can help people plan their lives; factory owner will want to build factory in industrial area and family will want to live in residential area- locality is usually not likely to change

  - Need to consider what's normal in the locality in the opinion of the claimant and defendant
• (2) Walter v Selfe


  The law will only protect general, ordinary uses of land and not those which are overly sensitive or extravagant
• (2) Robinson v Kilvert


  Man was making paper in his flat which was ruined when the people in the downstairs flat turned their heating on- it was held this was an overly sensitive use of land as the defendants heated their house to a normal extent
• (3) Cost of preventing nuisance

  Where costs to prevent/mitigate the nuisance are low, the case is more likely to succeed
• (4) Extent of the interference


  The longer an interference last and the more extreme it's impact on the claimant's life, the more likely a successful claim is
• (5) Social Utility


  Fearn and others v Board of Trustees of the Tate Gallery: The viewing platform had social utility, but the way it was being used was not a common and ordinary use (Bamford v Turnley); St Helen's Smelting Co v Tipping (social utility of smelting- need to consider if the social utility is so high that it outweighs the complaint)
• (6) Christie v Davey

  A family who liked to play instruments received a letter telling them to stop from their neighbour- they didn't stop and their neighbour started making noise whenever they'd play by e.g. banging pots and pans- it was held that the person creating the private nuisance in the case was the defendant as he was only making noise out of malice rather than a love for music
• (6) Hollywood Silver Fox Farm Ltd v Emmett


  Neighbour (defendant) shot gun in order to prevent claimant's foxes mating- it was held that this was a private nuisance and maliciousness was one of the factors
• (6) Bradford Corporation v Pickles


  Claimant had water running underground to his land from the defendant's land which he stopped when he found out and told the claimant he can get access back if he bought the defendant's land- it was held that this was not a private nuisance since the claimant didn't have a right to the water, rather this was a privilege- the defendant wasn't being malicious, rather enterprising
• (7) Role of fault

  (1) Where claiming for past interference, need to show that the damage was reasonably foreseeable

  (2) Negligence is not a requirement but will help the case
• (7) Rushmer v Polsue & Alfieri Limited


  Negligence was not needed for the noisy printer to be a private nuisance- the defendant may be doing their best to prevent the nuisance or what a reasonable person would do, but this still doesn't prevent an action
• (7) Goldman v Hargrave


  Tree was struck by lightning and lit on fire- the defendant cut it down but didn't douse it in water- the fire was re-lit and spread to the land of the claimant. The case succeeded in occupiers' liability- strange as usually cases are not about something the defendant fails to do. The case could have been brought in negligence since there is negligence present. Judged using objective standard- what reasonable man would have done in the circumstances
• (7) Leaky v National Trust

  Mound of dirt on defendant's land collapsed due to natural movement onto claimant's land- it was held that this was a private nuisance since the defendant hadn't done everything a reasonable man would
• (7) Sedleigh-Denfield v O'Callaghan


  Act of a 3rd party may make defendant liable- a pipe which was installed on the defendant's land by the council was blocked by leaves and resulted in flooding to the claimant's land- it was held that this was a private nuisance as the defendant should have known about the pipe
• Private Nuisance Defences


  (1) Statutory Authority

  (2) Prescription

  (3) Claimant's Consent

  (4) Contributory Negligence

  (5) Moving to the nuisance is not a sufficient defence
• (1) Statutory Authority


  Where the nuisance comes unavoidably from statute, this may be a defence
• (2) Prescription: Sturges v Bridgman

  - Prescription period is 20 years and starts from the time that the interference becomes a nuisance to the specific claimant

  - Confectioner argued he'd been making sweets the same way for 20+ years- the defence was not valid as the interference for the claimant only started when he moved his office down to the bottom of his garden
• (3) Claimant's Consent: Kiddle v City Business Properties Ltd


  - Claimant can consent explicitly/implicitly to the interference but the defence is hard to make out

  - Defence made out- arcade with several shops where the same pipe was used by the defendant and claimant which was chocked up with litter and caused flooding to the claimant's land. It was held that as the defendant had rented the property knowing about the pipe, there was consent to the interference- person rents with their eyes open
• (4) Contributory Negligence


  Held in an obiter statement this may be relevant
• (5) Moving to the nuisance is not an adequate defence: Coventry v Lawrence


  - Can't argue that the claimant moved to the nuisance and therefore they consented to it

  - However, the defence could be possibly made out where the reason for the interference is that the claimant changed their land use, e.g. where they convert their farm to a residential property and argue the defendant's farm is a nuisance, the defence may be accepted
• Who can sue?- Hunter v Canary Wharf


  - Owner

  - Tenant

  - Person in exclusive possession (no ownership right but this has not been challenged)

  - This is because: (1) Public nuisance is centered around making claims for property (couldn't make a claim for the interferences under a different nuisance); (2) The claim has less requirements than e.g. negligence therefore need to limit amount of people who can bring a claim; (3) This may encourage outside of court settlements
• Who can't sue?


  Mere licensees (those with no proprietary interest in land), e.g. children of owners of land
• Who may be sued?- Private Nuisance


  (1) Person creating the nuisance

  (2) Person who allows the nuisance:

  - Tetley v Chitty: Landlord allowed tenants to build go kart track on their property also allowed the noise this would inherently produce

  - Restrictions on this: Hussain v Lancaster City Council: The tenants were behaving antisocially- held that the landlord is entitled to extent a certain standard of behaviour from tenants

  (3) Those who adopt/continue the nuisance

  - Sedleigh-Denfield v O'Callaghan: Nuisance was continued by the fact that nothing was done to clean out the pipe and adopted by the claimant continuing to use it

  - Cocking v Eacott: Defendant's daughter owned dogs which would make a lot of noise- it was held the mother could be held accountable as she did nothing to make the dogs quiet/didn't get her daughter to make the dogs quiet
• Why interference was unreasonable in Fearn and others v Board of Trustees of the Tate Gallery


  (1) Extent of the interference- there would be lots of people on the viewing platform and it would be almost constant interferences

  (2) The use of the viewing platform was not an ordinary and common use of the land

  (3) Claimant was not using their land in an oversensitive manner by having floor to ceiling windows

  (4) Fact viewing platform may have been reasonable for its social utility was irrelevant
• Remedies


  - Interdict (prevents/restricts the defendant continuing the interference e.g. for the Tate gallery, could implement that only a certain number of people are allowed on the viewing platform at certain times)

  - Damages: Monetary compensation for past interferences

  - Damages in lieu of an interdict: Monetary compensation for future interferences- this is awarded in cases where an interdict is not suitable

  - Abatement: Self-help remedy, e.g. where the branches of the trees on the defendant's property are hanging onto the claimants, the claimant cuts them. This usually doesn't require the court but the court may order that it's for the defendant to fix the problem instead
• Classic test for refusing an interdict: Shelfer v City of London Electric Lighting Company


  (1) The damage is small

  (2) The damage can be estimated in money

  (3) A small monetary compensation would be adequate

  (4) It would be oppressive to the defendant for an interdict to be granted
• Modern approach to refusing an injunction: Coventry v Lawrence


  The requirements established in Shelfer v City of London Electric Lighting Company are no longer necessary, but can still be considered- an injunction will be made unless the defendant can provide an adequate reason for the court not to do this
• Cooke v Forbes


  Injunction refused as the activity (use of harsh chemicals) was only occasional
• Damages for Past Interference: Hunter v Canary Wharf


  Where damages are awarded to a household with more than one person with proprietary rights, the award will be divided between them instead of being multiplied
• Andrea v Selfridge & Co


  Possible to claim for business damages/loss of sales as damages- there is no compensation for pure economic loss, therefore must also have a valid amenity claim/damage claim and the damages for loss caused to income will be added onto this damage sum
• Williams v Network Rail Infrastructure


  Japanese knotweed from the defendant's land interfered with claimant's ability to develop his land- the case was an amenity claim as there was no physical damage done to the land by the weeds
• Relevance of planning permissions

  Coventry v Lawrence: Mere fact there's planning permission doesn't mean that the case will not be successful, but it can make success harder

  Planning permission can help determine early if a case will succeed, e.g. where club planning permission states they can only play music loudly until a certain time but they play music loudly after this time, the case is more likely to succeed

  Hunter v Canary Wharf: There was no planning permission needed for buildings in the area as this was an enterprise zone- this made the claim harder as the area was meant to be getting renovated

  Consideration of social utility when a planning permission is granted