Torts Connected to Land

Private nuisance is a tort that protects a person’s right to use and enjoy their land without unreasonable interference. It occurs when the defendant’s use of their land causes a substantial and unreasonable interference with the claimant’s use or enjoyment of their own land.

Basic Elements of Private Nuisance

Unlawful Interference: The interference must be unreasonable or unlawful, not necessarily illegal, but beyond what is accepted as normal in the locality.

Indirect Interference: Nuisance usually involves indirect interference, such as noise, smell, smoke, or vibrations, rather than direct trespass.

Damage: The claimant must prove actual damage to their property or substantial interference with enjoyment.

Who Can Claim?

Only those with a legal interest in the affected land (such as an owner or tenant) can bring a claim in private nuisance. A mere licensee or visitor does not have standing to sue.

What Amounts to a Nuisance?

Physical Damage: E.g., damage to buildings, plants, or land.

Loss of Amenity: E.g., excessive noise, foul smells, or smoke that makes life uncomfortable, even if there is no physical damage.

What Amounts to an Unreasonable Interference?

The courts consider several factors to decide if the interference is unreasonable:

• Sensitivity of Claimant: Is the claimant abnormally sensitive? If so, there may be no nuisance.
• Locality: The character of the neighbourhood is important – what is reasonable in an industrial area may not be in a residential one.
• Duration and Timing: How long and at what times does the interference occur? Continuous and long-lasting issues are more likely to be considered a nuisance.
• Malice: If the defendant acts out of spite, the courts are more likely to find nuisance (e.g., Christie v Davey).
• Utility: Even if the defendant’s activity is useful, it may still be a nuisance if it unreasonably interferes with others.

Who May Be Sued?

• Creator of the Nuisance: Anyone who creates the nuisance can be liable, even if they are not the occupier of the land.
• Occupier of the Land: Usually the defendant, especially if they have allowed the nuisance to continue.
• Landlords: Generally not liable unless they authorised or continued the nuisance.

Defences to Private Nuisance

• Prescription: If the nuisance has continued for 20 years without interruption, the defendant may acquire a right to continue (an easement).
• Statutory Authority: If the activity is authorised by statute, it may be a complete defence.
• Consent: If the claimant consented to the nuisance, they cannot later complain.

Note: "Coming to the nuisance" (i.e., moving to the area after the nuisance started) is not a defence.

Remedies

• Injunction: Court order to stop or limit the nuisance.
• Damages: Monetary compensation for harm suffered.
• Abatement: The claimant takes steps to stop the nuisance themselves, e.g., trimming overhanging branches (must be done carefully and lawfully).

Rylands v Fletcher

Definition of the Tort

The case of Rylands v Fletcher (1868) established a form of strict liability for certain hazardous activities on land. Where a person brings onto their land something likely to do mischief if it escapes, they are liable for any damage caused by its escape, even without proof of negligence.

Requirements to Bring a Claim under Rylands v Fletcher

Bringing onto the Land: The defendant must bring something onto their land that would not naturally be there.

Non-Natural Use: The use of the land must be non-natural (i.e., extraordinary or unusual).

Likely to Do Mischief: The thing brought must be likely to cause harm if it escapes.

Escape: There must be an escape from the defendant’s land to the claimant’s land.

Damage: The escape must cause foreseeable damage to the claimant’s property.

Defences to Rylands v Fletcher

Act of God: An unforeseeable natural event, such as exceptional rainfall, that causes the escape.

Act of a Stranger: If a third party, for whom the defendant is not responsible, causes the escape.

Consent of the Claimant: If the claimant consented to the accumulation.

Statutory Authority: Activities authorised by statute may provide a defence.

Default of the Claimant: If the claimant contributed to the escape or damage.

Remedies under Rylands v Fletcher

Damages: Compensation for loss or damage caused by the escape.

Injunction: May be available to prevent further escapes in appropriate cases.

Summary Table