Torts connected to land

• Trespass to land


  The unjustifiable interference with land which is in the immediate and exclusive possession of another
• Trespass


  • Requires direct interference with land such as physical entry, throwing something onto the land, or remaining on the land when the right has been withdrawn
  • Overhanging tree is indirect interference and more likely to be a private nuisance
  • Throwing branches into neighbour's garden is direct interference and likely to be trespass
• Southport Corporation v Esso Petroleum [1954]


  • Oil discharged into estuary and drifted onto claimant's land - held not trespass as it was not direct interference
• Voluntary interference


  Trespass can only occur if the person has voluntarily entered the land
• Innocent trespass is still a trespass, mistake is no defence
• Trespass to land is actionable per se


  There is no need for the defendant to have caused the claimant any damage or loss
• Cuius est solum, eius est usque ad coelum et ad inferos


  Who owns the land, owns to the heavens and down to hell - principle that land ownership includes the air above and what is below the ground
• Bernstein v Skyviews and General Ltd [1977]

  • Aerial photography over claimant's land - held not trespass as claimant did not have unlimited right to airspace
• Public nuisance


  A nuisance "which materially affects the reasonable comfort and convenience of life of a class of His Majesty's subjects."
• Private nuisance


  A nuisance that affects a representative cross-section of a class of society in a neighbourhood
• Star Energy Weald Basin Limited v Bocardo SA [2010]

  • Vertical drilling 244-853 metres below claimant's land - held trespass, but now exempted under Infrastructure Act 2015
• A public nuisance is a crime and is triable either way, under s17(1) and s1 Magistrates' Courts Act 1980
• A private nuisance is a civil action
• Fault element for public nuisance

  No requirement of intention or recklessness, the fault element is one of foreseeability of the risk of the type of nuisance
• Trespass ab initio


  Trespass that occurs when a person enters land with authority given by law rather than permission, and then commits an act that is an abuse of that authority
• The defendant is liable if they knew or ought to have known of the risk of the type or kind of nuisance that in fact occurred
• Foreseeability of damage


  • An essential element of liability in actions of nuisance and claims based on the rule in Rylands v Fletcher (1868)
  • The same type of foreseeability applies to claims based in negligence
• Trespass ab initio is now of little relevance in English and Welsh law
• R v Goldstein [2006]


  • The defendant enclosed salt in an envelope as a joke, it leaked and caused an anthrax scare. No public nuisance found as the defendant did not know or reasonably should have known the salt would escape and cause a nuisance
• Defences to trespass


  • Licence/consent
  • Necessity (private or public)
• Wagon Mound (No. 1) (1961)

  • The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, whether or not the extent of damage was foreseeable
• Attorney-General v PYA Quarries Ltd [1958]

  • An injunction was granted to prevent the defendant from releasing quantities of stones, splinters dust and vibration from their quarry which was disturbing the local residents
• Licence/consent can be withdrawn, making the person a trespasser
• Class of people affected

  It is not necessary to prove every member of the class has been affected, it is sufficient to show a representative cross-section of the class has been affected
• R v Ruffell (1991)


  • The class of people affected were the local residents due to an "acid house" party
• Rigby v Chief Constable of Northamptonshire [1985]


  • Police used CS gas to force out a dangerous psychopath, causing a fire - held defence of necessity available for trespass
• R v Ong [2001]


  • The class of people affected would have been the football spectators due to a plan to interfere with floodlights
• R v Lowrie [2004]


  • The class of people affected were those in genuine need of help from emergency services, diverted by hoax calls
• R v Rimmington [2006] held that sending racially offensive materials to individual people did not constitute a nuisance affecting a class of people
• Trespass has been criminalised in recent years, with offences such as aggravated trespass and squatting
• Private nuisance


  An interference with a person's enjoyment and use of his land
• R v Johnson [1997] held that making obscene telephone calls to a number of women in a geographic area was a public nuisance, but R v Rimmington [2006] indicated such behaviour is unlikely to amount to a public nuisance
• The Law Commission's 2015 report stated prosecutions for public nuisance were still occurring despite relevant statutory provisions, and some nuisance telephone call cases were still being prosecuted as public nuisance
• Civil actions for public nuisance

  Can be brought in three ways, with remedies of damages and prohibitory injunctions
• Private nuisance


  • It is a civil action
  • When the courts and law reports refer to a 'nuisance', they are usually referring to a private nuisance and not a public nuisance
  • When statute law refers to a 'nuisance' it usually means both public and private nuisance unless otherwise stated
• Relator actions for public nuisance

  Very rare, often the Attorney General receives no applications in a year
• NOT ALL ANNOYANCES ARE ACTIONABLE
• Defences to public nuisance

  • Statutory authority is the main specific defence, prescription cannot be used
  • The main civil remedies are damages and injunctions
• Just because something is an annoyance does not mean it is actionable in private nuisance. For example, interference with television signals by a building is an annoyance but is not actionable as a private nuisance.
• The Law Commission's 2015 report provided insight into public nuisance and suggested areas for reform