Law
Nuisance Tort
A nuisance tort refers to a legal claim that arises when one person's use or enjoyment of their property is unreasonably interfered with by another party. This interference can be in the form of noise, odors, or other disturbances. Nuisance torts can be categorized as either private (affecting an individual or small group) or public (affecting the community at large).
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10 Key excerpts on "Nuisance Tort"
eBook - PDF- Donal Nolan, Andrew Robertson(Authors)
- 2011(Publication Date)
- Hart Publishing(Publisher)
21 A Mullis and K Oliphant, Torts , 4th edn (Basingstoke, Palgrave Macmillan, 2011) 247. See also M Lee, ‘What Is Private Nuisance?’ (2003) 119 Law Quarterly Review 298, 298 (the ‘difficulty, if not impossibility, of reconciling the decisions on private nuisance need not be emphasised’). ‘A Tort Against Land’: Private Nuisance as a Property Tort 463 III. DEFINING PRIVATE NUISANCE Although it has been said that the word ‘nuisance’ is difficult to define, 22 no such difficulty attaches to the tort of private nuisance, which can be defined as an unlawful non-trespassory interference with the private use and enjoyment of land . It is worth taking a closer look at the elements of this definition. Some can be explained briefly. The word ‘private’, for example, excludes interference with a right over land which is held by members of the public generally, such as obstruction of a highway, which is not a private nuisance, but may be a public nuisance. As for the word ‘unlawful’, it encapsulates two important limits on the operation of the tort, both of which are explored below. One is that not all types of interference with the private use and enjoyment of land are actionable in private nuisance, but only interferences with ‘natural’ and ‘acquired’ rights. The other is that even in the case of natural or acquired rights, only a substantial interference with the right amounts to a private nuisance. Finally, the cumbersome word ‘non-trespassory’ expresses the fact that the torts of trespass to land and private nuisance are mutually exclusive; the precise dividing line between the two is explored below. 23 More complexity attaches to the phrase ‘interference with … use and enjoyment’ and the word ‘land’. Taking the latter first, many definitions of private nuisance refer to an interference with a person’s use and enjoy-ment of land ‘or some right over, or in connection with [land]’.
eBook - PDF- Jonathan Morgan(Author)
- 2022(Publication Date)
- Hart Publishing(Publisher)
PART III Nuisance 262 1 Prosser and Keeton on Torts 5th edn (St Paul, MN, West, 1984) 616. 2 Khorasandjian v Bush [1993] QB 727. 3 Fearn v Tate Gallery [2020] Ch 621. 4 [1997] AC 655. 10 Private Nuisance and Property Rights Prosser famously described nuisance as an ‘impenetrable jungle’. 1 Some have attempted to harness its ‘protean’ or shape-shifting qualities to fill gaps in tort law such as the (former) absence of a harassment tort, 2 or the lack of an over- arching tort of invasion of privacy. 3 These attempts have failed. Private nuisance can only coherently be understood as an action for protection of property rights. That ‘restatement’ of nuisance is considered in the first debate. How should the courts go about protecting property through nuisance law? Should they prioritise the defendant’s use of their land, or the claimant’s peaceful enjoy- ment (with which the defendant’s use interferes)? Allan Beever argues that they must identify the ‘most fundamental’ land-use, from a purely rights-based perspective. Others maintain that public interest considerations also need to be considered in nuisance. The public interest plays an important, irreplaceable role in defining the limits of ‘rights to the use and enjoyment of land’. This is examined in the second debate. Finally, the chapter’s third debate examines in detail the ‘balancing’ process at the heart of nuisance doctrine (and exceptions to it). Does an exclusive focus on protection of property rights best explain the tort’s structure? Debate Is Nuisance a Tort for Protecting Property Rights? Should private nuisance be understood exclusively as an action protecting right in property? That is arguably the best explanation for the tort’s overall purpose and for the shape of many of its constituent doctrines. The modern dominance of the view can be traced to the House of Lords’ restatement of nuisance in Hunter v Canary Wharf Ltd.
eBook - ePub- V.H. Harpwood(Author)
- 2009(Publication Date)
- Routledge-Cavendish(Publisher)
Khorasandjian v Bush [1993] QB 727, though more recently doubts have been cast on that decision. Harassment is now treated as a statutory tort created by s 3 of the Protection from Harassment Act 1997. The new statutory tort affords protection to victims of stalkers and other forms of harassment regardless of the mental state of the defendant. The claimant must prove ‘a course of conduct’ on the part of the defendant, and may be awarded damages and/or an injunction.11.10.1 Outline definition
A working definition of private nuisance is as follows: private nuisance consists of continuous, unlawful and indirect interference with the use or enjoyment of land, or of some right over or in connection with it. Proof of damage is usually necessary.Each element of this definition will be discussed and clarified, and a useful approach to dealing with problem-type questions on the topic is to memorise the definition and to work through it systematically, applying it to the facts of the problem.11.10.2 Continuous interference
Claims for private nuisance arise when there has been continuous interference over a period of time with the claimant’s use or enjoyment of land. In Delaware Mansions and Fleckson Ltd v Westminster CC [2001] UKHL 55, the House of Lords held that a local authority had a duty to abate a nuisance caused by tree roots undermining the foundations of a block of flats. That duty was not nullified simply because the damage had occurred before the freehold interest was obtained.There was a continuous nuisance in this case which could have been remedied at very little cost if immediate action had been taken. There is no set period of time over which the events must occur to amount to a private nuisance. Much depends upon the neighbourhood and the other surrounding circumstances but the common law imposes a fair and just duty as between neighbours. A situation that may not have been a nuisance in the past can become a nuisance later. In Bybrook Barn Garden Centre Ltd v Kent CC [2001] BLR 55, it was held that a culvert had not been a nuisance when it was created, but became a nuisance later when the volume of water passing through it greatly increased. However, a different approach may be taken in cases involving landlords and tenants in which case the maxim caveat lessee may apply. In Jackson v JH Watson Property Investment Ltd
eBook - PDF- Paul Bates(Author)
- 2021(Publication Date)
- Goodfellow Publishers(Publisher)
Nuisance: There are two types of these – private and public nuisance. An example of private nuisance might be you playing the Rolling Stones at full volume every night for eight hours at a time, disturbing the old lady who lives in the flat above you. This is a tort. A public nuisance is where you disturb a great many people all in one go. An example might be where you hire a sound stage on Wimbledon Common and turn up all 40 of your amplifiers to distortion level and the noise you make can be heard in Belgium. This is a tort and a criminal offence. Particularly criminal if you are playing anything by Barry Manilow. Defamation: Saying/writing/publishing some untrue information which is intended to injure the reputation of this person. Luckily for us, in business law, we only have to look closely at three torts. Namely: negligence (this has two aspects – negligent acts causing physical harm and negligent statements causing financial loss to others) and occupier’s liability . We do come across the idea of tort again, in passing, in employment Getting Started in Business Law 102 law with something called vicarious liability . But for now, as an explanation of what a tort is, we’ll have a quick look at trespass to land. This should give you an idea of what the law of tort is all about. Trespass to land – a quick example Trespass is probably the oldest and most wide ranging of torts. As such it provides a good background to the torts we do have to cover. Trespass to land is based on a person intruding onto the property rights of another person. Trespass actually covers interference , not only to land, but also interference physically to another person (bodily interference) and interference with another person’s property. The tort of trespass to land is particularly easy to understand and the concept will be familiar to all of us. For example, let’s suggest that someone starts to walk across your garden every day because it’s a quick way to get to the local shops.
eBook - PDFArchitect's Legal Handbook
The Law for Architects
- Anthony Speaight, Gregory Stone(Authors)
- 2014(Publication Date)
- Butterworth-Heinemann(Publisher)
The categories of situation for which redress may or may not be available are never closed and can change very rapidly. Accordingly all one can do is to know the basics and keep abreast of the developments and in the light of that knowledge analyse every factual situation separately. 1.04 There is one further matter about which the reader may like to think. In the majority of cases the law of tort is concerned purely with allocating risk and, by that allocation, determining who should pay for damage. The aim is that the person suffering the loss should be fully recompensed and any person at fault should pay. In recent years a system of insurance has evolved which effectively takes the liability to pay away from the person at fault. There are many forms of this insurance: the welfare state, mutual clubs, commercial insurance, and it should be asked how much further the system should be developed. Is the law of tort the most effective way of giving recompense or would some global scheme of no fault insurance provide a better solution? From the general concepts attention is now focused on particular aspects of the law of tort. 2 Nuisance 2.01 Nuisance is traditionally concerned with the protection of the environment, although in today's parlance that phrase would limit it to 'green' issues rather than traditional nuisances. It is perhaps better to say that it relates to the protection of the environment and the protection of a man's use of his own land and land over which there is a public right of way. Nuisance is concerned with such matters as pollution by oil, noxious fumes, interference with leisure activities and interference with support of adjoining land. It is based entirely on the principles of the common law; that is to say, nuisance itself is not governed by statute but has been developed by the courts over the years.
eBook - PDF- John Lowry, Rod Edmunds, John Lowry, Rod Edmunds(Authors)
- 2000(Publication Date)
- Hart Publishing(Publisher)
On this perspective, then, there is no guarantee that we will be able to generate a theory of the law of nuisance which will fit precisely into a general framework for the law of torts, or which, for example, provides satisfying connections on all relevant matters with the law of negligence. This is not to say, not at all, that theorising about the law of nui-sance is pointless or harmful for our understanding. That, after all, is what I shall do in the following. It is rather to say that in elaborating the sense of this branch of law we must be very wary of assuming that the goal of such theoris-ing should be, or that the result will be, a fitting of nuisance law into a well-worked out theory of tort law or environmental law. Hence what I will do here will be to try to elaborate what appears to be the moral significance of those situations we appear able to cognise and classify as nuisances, without, at least initially, having in mind or indeed seeking a broader connection of nuisance law with the law of tort or environmental law. I shall then examine several recent cases from this perspective, and conclude by suggesting how this analysis sheds light on the place of nuisance in modern environmental law. THE CHARACTER OF NUISANCE LAW It might fairly be said that while nuisance may be very difficult to define, one can say of an instance of nuisance “I know it when I see it” in a clear range of para-digmatic cases: where the defendant causes noise, emits noxious fumes, or scat-ters dust in the environs of the plaintiff’s land which, in some material way, makes it unliveable on, i.e. constantly filthy, impossible for sleep, conversation, or breathing, and so on. Furthermore, this appreciation of the tort sits comfort-ably with Newark’s three-fold classification of interference with rights over land: disseisin, trespass, and nuisance.
eBook - ePubCompensating Landowners in the Vicinity of Airports
A Comparative Study of the Neighbour Conflict
- Magdalena Habdas(Author)
- 2023(Publication Date)
- Routledge(Publisher)
Principles of Tort Law, Cavendish Publishing Ltd.: London, Sydney, 2000, 255–256.225 Green, Gardner (2021), 227.226 (1895) 1 Ch. 287, at 322–323.227 Card, Murdoch, Schofield (1994), 422.Apart from the injunction, the aggrieved landowner may also seek damages based on an action in nuisance. In such situations, damages may be awarded not in lieu of an injunction but in addition to it (compensatory damages). In typical, neighbour disputes not involving parties of diverging economic strength, the court’s decision to award damages for each day the interference continues can be remarkably effective in eliminating the nuisance.228 To lawyers accustomed to nuisance as a violation regulated by property law, it may be surprising why damages are sought through an action in nuisance, which to them is actionable per se and, as a rule, cannot encompass any matters related to loss suffered and its reparation,229 except possibly for situations, in which damages are awarded in lieu of an injunction. An example of this is §906 BGB II which, as explained in Sections 1.2 and 1.3, excludes the availability of the injunction if interferences are caused by a customary in a given area use of the neighbouring property, which cannot be prevented by measures that are economically reasonable. Since the landowner is obliged to tolerate the interference, s/he may claim compensation in money if the interference impairs, beyond a reasonable extent, a customary use of his/her property or the income it produces.228 Doskow, Guillen (2020), 41.229 Cameron (2005a), 237–238.In common law, nuisance is qualified as a tort directed against land, or more precisely against ownership or an interest in land. As a result, it is emphasized that the action protects the utility of the land and not the comfort of those who use it.230 This distinction is somewhat problematic and difficult to apply consistently. It is essentially synonymous with the use and enjoyment of land and this always relates to persons. In fact, utility and use are always considered in relation to persons who utilize a given object. Consequently, the protection offered by nuisance does refer to persons and not land itself, which is an inanimate object.231 Perhaps a better explanation is to indicate that nuisance is a tort protecting a real property right,232 which would mean that common law and civilian jurisdictions do have an important similarity in the reason for attaching legal relevance to nuisance and that is the protection of an absolute right from a particular type of interference.233
eBook - PDF- Douglas Wood, Paul Chynoweth, Julie Adshead, Jim Mason(Authors)
- 2021(Publication Date)
- Wiley-Blackwell(Publisher)
The court took the view that a change in the character of the area would be found if there had been a ‘ strategic ’ planning decision affected by considerations of public interest. 3.7.2 Public nuisance Public nuisance is primarily a criminal offence. It arises where a nuisance-like activity affects a section of the public or where there is an interference with the exercise of public rights. A single act may be suf fi cient to incur liability. Public nuisance is concerned with interferences with the lives and activities of a com-munity although a private individual may bring an action in tort if they can prove so called ‘ special damage ’ . There is no requirement for the public nuisance to have any connection with the actual use of the land. It is not possible to indicate how many people need to be affected before an action can be brought as this is an issue of fact in each case depending upon how any representative cross-section of the population in the particular locality is affected 208 . It may well be that a particular set of circumstances gives rise to claims both in private and public nuisance 209 . (A) Examples Public nuisance covers a diverse set of activities. By far the most common situation where it arises is in connection with the highway. A temporary obstruction of the highway is unlikely to be actionable unless it can be proved that it is unreasonable. In Trevett v Lee 210 the defendant was required to use a hosepipe to connect his premises to the water supply as there was no mains connection. The claimant, who suffered personal injury when tripping over the pipe, failed in his claim as the defendant ’ s conduct was considered to be reasonable. Other highway examples include picketing on the road 211 , positioning a tee on a golf course in such a position that golfers hit balls onto a nearby highway 212 , and organising a pop festival in such a way that it causes traf fi c congestion, noise and general incon-venience to the public at large 213 .
eBook - PDFUnited States Water Law
An Introduction
- John W. Johnson(Author)
- 2008(Publication Date)
- CRC Press(Publisher)
See also §§ 4.5, 6.12. Nuisance and Tort Law 89 Torts is a document written by the American Law Institute to help guide the devel-opment of tort law in America. It is frequently cited but is not binding on courts unless adopted by the legislature of a given state. To date, no state has adopted the Restatement in its entirety, with regard to water issues, but the document remains a valuable reference that can aid the reader in understanding the law and policy, since it’s influence has tended to be quite significant.* 11.6 LIABILITY OF WATER PROVIDER IF SERVICE FAILS RESULTING IN LOSS BY FIRE A large number of cases hold that the provider is not liable.† The reasoning seems to be that the defendants were not undertaking the extinguishing of fires by providing water.‡ 11.7 LIABILITY FOR CONTAMINATED WATER This seems to be an easy question, and courts routinely find liability for misfeasance in cases where contaminated water is supplied.§ * The relevant sections of the Restatement include: §§ 821B (public nuisance), 826 (trespass), 850 (ripar-ian uses), 850A (reasonable use determination), 855 (reasonableness not affected by classification of rights as riparian or not), and 856 (riparian not liable for harming use by nonriparian with exceptions: grant from another riparian right created by government, and public rights), 858 (reasonable use for groundwater. See § 8.3). The Restatement uses a balancing test in § 826 to determine reasonableness of conduct (i.e., whether gravity of harm is greater than actor ’ s utility). § 850 discusses harm by one riparian against another and uses reasonable use as the determiner.
eBook - PDF- Rachael Mulheron(Author)
- 2020(Publication Date)
- Cambridge University Press(Publisher)
However, their basis and quantum in private nuisance has been controversial, given that damages in nuisance are purportedly for an injury to C’s land and not to C’s person. Personal discomfort, in this context, may entail, say, not being able to sit out in the garden, invite friends over, leave windows and doors open, or leave washing and other chattels in the yard, for fear of contamination. According to the House of Lords in Hunter v Canary Wharf Ltd , 323 damages in nuisance are for injury to the land – but where the land’s utility has been diminished by the nuisance, then ‘it is for the diminution in such utility that [C] is entitled to compensation’. Five key principles governing damages for loss of amenity are principally derived from Dobson v Thames Water Utilities Ltd , 324 Network Rail v Williams , 325 and Hunter : i. Where the nuisance arises from intangible (rather than from physical) interferences, physical damage to C’s land is not necessary to establish – nor is it necessary (or sufficient) to prove any diminution in the market value of the land in order to prove the requisite damage for the cause of action. In some cases of physical encroachment nuisances, there is no physical damage caused to C’s land either. However, in both types of nuisance, damages may be awarded for loss of the land’s intangible amenity value (per Network Rail 326 ). In Network Rail v Williams , a large stand of Japanese knotweed grew on D’s land, adjacent to Mr Williams and Mr Waistell’s properties. The weed had been present on D’s land for at least fifty years and was drawn to D’s attention as being a hazard on or about 2013. The roots (or rhizomes) of the weed had encroached into the soil of C’s properties, but had not (according to expert evidence) actually yet caused physical damage to any structures on those properties.
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