The essence of nuisance is a condition or activity, which unduly interferes with the use or enjoyment of land. Alternatively, nuisance is the infringement of the Claimant’s interest in property without direct entry by the defendant, and generally actionable only on proof of special damage.
1. Public Nuisance: A person is guilty of a public nuisance, is a criminal offence, who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty’s subjects.
2.Private Nuisance: A private nuisance may be and usually is caused by a person doing, on his land, something which he is lawfully entitled to do. His conduct only becomes a nuisance when the consequences of his act are not confined to his own land but extend to the land of his neighbor by:
- causing an encroachment on his neighbour’s land, when it closely resembles trespass;
- causing physical damage to his neighbour’s land or building or wouks or vegetation upon it; or
- unduly interfering with his neighbour in the comfortable and convenient enjoyment of his land.
Nuisance really seeks to balance two competing policies. The first is the interest of the land owners in using his land as he sees fit and second is the interest of the neighbour in the quiet enjoyment of his land.
Only those who have an interest in land affected can sue in nuisance that is a right to the land greater than that of a mere licensee or occupier. In exceptional cases a person in exclusive possession but unable to prove a title to the land could sue. e.g. tolerated trespasser.
Factors to be considered:
- The duration of the nuisance:
The shorter the duration, the less likely that the use will be found unreasonable. The events must be attributable to a state of affairs before it will constitute a nuisance.
- Abnormal sensitivity: A man cannot increase his neighbour’s liability merely because he puts his land to some special use.
- Character of the neighbourhood:It is not a relevant factor in cases of physical damage to property.
- Utility of the defendant’s conduct:The more reasonable and useful is Defendants conduct the more likely that Claimants action will be unsuccessful.
- Malice:It must be proven that Defendant maliciously interfered with a right of the Claimant.
- Fault:Foreseeability of damage of the relevant kind was an essential ingredient of nuisance. The above list is not exhaustive and none of the factors are conclusive.
Who can be sued:
- The creator of the nuisance:Whether or not the occupier of the land from which the nuisance raised.
- The occupier of the land-Liable for himself or even for acts done by his employees.
Trespassers- if known or ought to be have known that is continued or adopted the nuisance created by trespasser.
Act of God- if knew or ought to have known + foreseeable damage + reasonable steps. (Subjective)
- Landlords– not liable for nuisance committed in demised premises. Exceptions; nuisance existed before the landlord demised the premises or lets premises to a tenant for purposes which are in themselves, a nuisance or expressly or impliedly reserves for himself the right to enter and repair the premises.
- Physical damage to P’s land
- Personal injury (dubious)
- Prescription- 20 years, time only runs when P is aware.
- Statutory authority- express or implied
- Other defences- ignorance such as latent damage, agreement, act of God or trespasser provided the criteria mentioned above not satisfied.
- Coming to the nuisance
- Due to many
- Injunction- nuisance is continuing one.
- Abatement- notice to defendant to remedy the nuisance and no unnecessary damage to the defendant’s property + least cost to defendant’s property.
Notice not required if abated without entering.
- Damages- loss must not be too remote. Damage in lieu of injunction given sparingly. Damage awarded if injury to claimants legal rights is small + capable to estimate in money + adequately compensated by small payment + injunction oppressive to defendant.
Rylands v Fletcher
- Accumulation- applies to things which are brought into the land and not things which are naturally on the land.
- Non natural user- some special use, not merely be the ordinary use (uncertain)
- Dangerous things- there is no longer a separate requirements that the thing that escapes be dangerous. However, the more dangerous the thing is the more likely it is that will be held to constitute a non natural use
- Escape- things must escape from the defendants land.
- Occupation- defendant must be in occupation of the land, cf. Benning v Wong (Australian authority)
- His own purpose
- Foreseeability of damage- an essential ingredient
(i) Act of God; (ii) Default of P; (iii) Consent of P provided D not negligent;(iv) Common benefit; (v) Independent act of third party provided D had knowledge of the risk (i.e. foreseeable) and D had an control over the situation; and (vi) Statutory authority.
(i) An owner of land suffers property damage on his land; (ii) An owner of land suffers property damage but at the time of damage the property was not on his land; (iii) Personal injury suffered by the owner of land (arguable/ questionable point); (iv) personal injury suffered by persons who are not owners of the land (in Perry CA held recoverable but does not reconcile with Cambridge Water (HL)); and (v) Economic loss.
Trespass to Land
Defendant’s unjustifiable interference with the possession of land.
It is actionable per se.
It is concerned with direct interference.
(a) Possession: P’s possession of the land need not amount to possession at law, it can be satisfied by possession in fact.
(b) Interference wit possession: direct and immediate interference, Special cases, trespass on the highway; trespass to the subsoil and trespass to airspace.
Trespass ab initios->authority of the law+ abuse (Chic Fashions; Cinnamond)
(c) Nature of interference: D must have intended to enter P’s land. However in League Against Cruel Sports Ltd v Scott it was held that the offence could be committed negligently.
(i) License: P’s express or implied permission. Revocable of D’s licence depends on the type of licence which D has; After revocation D must be given reasonable time to leave before he/she becomes a trespasser.
(ii) Lawful authority: such as, abate a nuisance, power of a landlord to enter premises to distain for rent etc
(iii) Necessity: provided there was no negligence on the part of D in contributing to the state of necessity.
(i) Damages; (ii) Injunction; (iii) Re-entry; (iv) Mesne profits; (v) Ejection; and (vi) Distress damage feasant.
Trespass to Goods
Any unauthorized interference with the personal property of another, provided that the act constituting the interference is immediate and direct.
It is confined to deliberate, intentional interference. Anyone in possession of the goods at the relevant time can sue in trespass, even if he/she is not the owner of the goods.
(i) Pleading jus tertii, i.e., someone other than C has a better right to the goods than the C;
(ii) Double liability.
(iii) Improvement to goods.
American Cyanamid v Ethicon principles apply
(i) Damages adequate for C
(ii) Damages adequate for D
(iii) Balance of Convenience.
Application may be made without notice (if urgent or in the interest of justice) or with notice (3 clear days to D). Mandatory more difficult than prohibitory.
Contractual licence of land
Such licence will often be granted under the terms of some contract, which restricts licensor’s right to revoke it. Contract can be express or implied. Whether or not a contractual licence is revocable is a question of construction of the contract. A contractual licence does not create an interest in land, excn, and transferee’s conscience was affected, the mere fact that land was conveyed, “subject to a right such as a contractual licence was not sufficient.”
Remedies for improper revocation:
The position at common law was that the licensee’s only remedy was to sue the licensor for damages for breach of contract. However, equity intervened and now the revocation of a licence in breach of contract will generally be restrained by the grant of an injunction. Equity may even order specific performance of a contractual licence that has not yet been entered upon.