Tort Law - Land
N.B. a third possible claim for land-related issues is usually available under
negligence. Do negligence afterwards (if it’s unclear) and apply the rules from the
Negligence document.
N.B. Negligence claims always relate to past nuisances, so there is no scope for
an injunction, only damages.
CHOOSE RELEVANT ROUTE BTW PRIVATE NUISANCE AND TRESPASS TO
LAND BELOW
Private Nuisance
STEP 1: heading – the claimant v defendant
C v D - Private nuisance
STEP 2: Intro claim
[INSERT C] can consider suing [INSERT D] in the tort of private nuisance for [INSERT
TYPE OF HARM].
Private nuisance is ‘an unlawful interference with a person’s use or enjoyment of land,
or some right over, or in connection with it’ (Winfield & Jolowicz on Tort, used in Read v
Lyons & Co Ltd).
STEP 3: consider what the claimant has to prove
Can the claimant make a claim?
The claimant must have a proprietary interest in the land – freeholders and tenants and
occupier in exclusive possession e.g. not licensees (Hunter v Canary Wharf).
- Neither children nor the spouse of the owner/occupier of land can sue in private
nuisance (Malone v Laskey).
Has there been an actionable interference with the claimant’s land?
There are 3 types of nuisance (Hunter v Canary Wharf):
, a. Encroachment on neighbour’s land (must be permanent) – e.g. branch
overhanging on neighbour’s land;
b. Direct physical injury to land; and
c. Interference with quiet enjoyment of the land, aka. Loss of amenity (inc. smells,
dust, vibration, noise).
This is [INSERT TYPE OF NUISANCE].
Examples of non-actionable interferences:
- Disruption to TV reception (Hunter v Canary Wharf);
- interferences with ‘elegant or dainty modes of living’ (Walter v Selfe);
- Must be something that materially interferes with ‘ordinary conduct’
(Walter v Selfe).
- right to view is not actionable (Aldred’s Case).
Is this interference ‘unlawful’?
Unlawful means ‘substantial and unreasonable’ (Sedleigh-Denfield v O’Callaghan). The
state test for unlawfulness is ‘what is reasonable according to the ordinary usages of
mankind living in… a particular society;’.
Factors the court will consider are:
[PICK RELEVANT ONES AND APPLY TO FACTS UNDER HEADINGS]
- Frequency and duration
- Excessiveness of conduct/extent of harm
- Abnormal sensitivity
- Character of neighbourhood
- Public benefit
- Malice on part of the defendant
Frequency and duration
- The longer the duration and frequency of the interference, the more likely the
court will consider it to be unreasonable (Miller v Jackson – cricket ball case).
- An isolated event will be unlawful, only if it emanates from a continuous state of
affairs on the defendant’s property (Spicer v Smee).
Excessiveness of conduct/extent of harm
N.B. a third possible claim for land-related issues is usually available under
negligence. Do negligence afterwards (if it’s unclear) and apply the rules from the
Negligence document.
N.B. Negligence claims always relate to past nuisances, so there is no scope for
an injunction, only damages.
CHOOSE RELEVANT ROUTE BTW PRIVATE NUISANCE AND TRESPASS TO
LAND BELOW
Private Nuisance
STEP 1: heading – the claimant v defendant
C v D - Private nuisance
STEP 2: Intro claim
[INSERT C] can consider suing [INSERT D] in the tort of private nuisance for [INSERT
TYPE OF HARM].
Private nuisance is ‘an unlawful interference with a person’s use or enjoyment of land,
or some right over, or in connection with it’ (Winfield & Jolowicz on Tort, used in Read v
Lyons & Co Ltd).
STEP 3: consider what the claimant has to prove
Can the claimant make a claim?
The claimant must have a proprietary interest in the land – freeholders and tenants and
occupier in exclusive possession e.g. not licensees (Hunter v Canary Wharf).
- Neither children nor the spouse of the owner/occupier of land can sue in private
nuisance (Malone v Laskey).
Has there been an actionable interference with the claimant’s land?
There are 3 types of nuisance (Hunter v Canary Wharf):
, a. Encroachment on neighbour’s land (must be permanent) – e.g. branch
overhanging on neighbour’s land;
b. Direct physical injury to land; and
c. Interference with quiet enjoyment of the land, aka. Loss of amenity (inc. smells,
dust, vibration, noise).
This is [INSERT TYPE OF NUISANCE].
Examples of non-actionable interferences:
- Disruption to TV reception (Hunter v Canary Wharf);
- interferences with ‘elegant or dainty modes of living’ (Walter v Selfe);
- Must be something that materially interferes with ‘ordinary conduct’
(Walter v Selfe).
- right to view is not actionable (Aldred’s Case).
Is this interference ‘unlawful’?
Unlawful means ‘substantial and unreasonable’ (Sedleigh-Denfield v O’Callaghan). The
state test for unlawfulness is ‘what is reasonable according to the ordinary usages of
mankind living in… a particular society;’.
Factors the court will consider are:
[PICK RELEVANT ONES AND APPLY TO FACTS UNDER HEADINGS]
- Frequency and duration
- Excessiveness of conduct/extent of harm
- Abnormal sensitivity
- Character of neighbourhood
- Public benefit
- Malice on part of the defendant
Frequency and duration
- The longer the duration and frequency of the interference, the more likely the
court will consider it to be unreasonable (Miller v Jackson – cricket ball case).
- An isolated event will be unlawful, only if it emanates from a continuous state of
affairs on the defendant’s property (Spicer v Smee).
Excessiveness of conduct/extent of harm
