Introduction to torts relating to land

The torts to be considered under this general heading are:

1. Private Nuisance;
2. Public Nuisance; and
3. The Rule in Rylands v Fletcher.

Even though there are some recurring themes in this area, it is important to consider how
each of these torts differ in their application and who and what they protect. You will find
that questions in this area often require you to compare and contrast the operation and
usefulness of each of these land-based torts.
Introduction to private nuisance

Private nuisance is the most significant land-based tort. The basis of a private nuisance
claim is the use of one’s land that causes an interference with the use or enjoyment of
another’s land. The tort is not actionable per se, so the claimant must prove damage.
A number of basic definitions and themes we consider in relation to private nuisance will
also be relevant when we look at Rylands v Fletcher. However, public nuisance is very
different from the other two torts.

Key definition: private nuisance

Any continuous activity or state of affairs causing a substantial and
unreasonable interference with a claimant’s land or his use or enjoyment
of that land.
Private nuisance preliminaries

Prior to learning about the elements that make up private nuisance, two preliminaries
must be considered first:

1. Who can sue in private nuisance?

2. Who can be sued in private nuisance?
Who can sue in private nuisance?

In order to bring an action in private nuisance, the claimant must have a legal interest in
the land, namely a possessionary or proprietary interest (e.g. freehold or leasehold).
Mere permission to use or occupy land is insufficient. The logical basis for this
requirement is that a claim in nuisance arises from interference with one’s land.

Key case: Malone v Laskey (1907) 2 KB 141, CA

The land was occupied by a manager, who worked for the tenant, and his
wife (the manager and his wife were licensees). Vibrations emanating from
the electricity generator on the defendant’s property dislodged a toilet cistern
and it fell on the wife causing her injury. The wife could not bring a claim in
private nuisance as she did not have any legal interest in the land and so had
no right to sue.
This fundamental requirement (that the claimant must have a legal interest in the land
affected) was confirmed in the below key case.

Key case: Hunter and Others v Canary Wharf Ltd [1997] AC 655
Around 700 claimants' TV reception had been interfered with as a result of
a tower constructed in Canary Wharf. Several of the claimants’ claims in
private nuisance failed at the first hurdle as they had no legal interest in the
land affected; for example, they were family members living with the
homeowner. The court confirmed that an action in private nuisance can only
be brought by a person with a legal interest in the land affected i.e. the
owner, tenant in possession, grantees of an easement or licensee with
exclusive possession. The claims of those who did have a legal interest in
the land affected also failed on the grounds that there was nothing
emanating from the defendant’s land. The tower was simply stopping
something going onto the property of its neighbours.
Who can be sued in private nuisance?

The following can be sued in the tort of private nuisance:

1. Creator of the nuisance;

2. Occupier of the land; and
3. Owner of the land.

1. Creator
The creator of the nuisance can be sued even though they may not be in a position to
end the nuisance and even though they may not be the occupier of the land (Thomas v
NUM [1986] 2 All ER 1 (this was a public nuisance case but the same principle applies)).
2. Occupier

The usual defendant is the occupier of the land from where the nuisance has come. They
can be liable for nuisances created by themselves as well as those created by others.
The occupier’s responsibility derives from the fact that they have control over the land
and occurrences upon it.
In Leakey v National Trust [1980] 1 All ER 17, the National Trust as occupier and owner
was liable for a large mound of earth that it had accumulated on its land, which then
collapsed onto the claimant’s neighbouring land damaging two houses. Although aware
of the hazard, the National Trust took no steps to prevent the harm from happening.
An occupier will not normally be liable for nuisances caused by others, e.g. third parties
on their land, but may be held liable in exceptional circumstances. The table on the next
slide summarises circumstances in which occupiers might be liable for nuisances created
by others.
Type of third party Case authority
Independent Matania v National Provincial Bank [1936] 2 All ER 633: an occupier was
Contractors liable for the foreseeable excessive noise and dust caused by contractors
altering his property. Matania is unusual in that building work does not
normally form the basis of a private nuisance claim. People are expected
to put up with a certain amount of ‘give and take’ in their daily living
(Bamford v Turnley (1862) 3 B&S 66). However, in Matania the temporary
interference (three months) had serious consequences for the claimant, a
music teacher, who could not earn his living whilst the contractors altered
the property. If an occupier asks an independent contractor onto their land
to perform certain tasks and those tasks cause a reasonably foreseeable
or inevitable nuisance, then there will be liability. This is rare.

Trespassers If the nuisance was created by a trespasser, the occupier will be liable if
they continued or adopted the nuisance. In Sedleigh-Denfield v
O’Callaghan [1940] AC 880 a water pipe had been unlawfully put under
the defendant’s land by the local authority. The pipe got blocked and water
flooded the claimant’s land. The defendant had used the poorly
maintained pipe and given that the problem would have been easy to
rectify, the defendant was liable.
As with trespassers, where the nuisance was created by the occupier’s predecessor in
title and existed before the occupier obtained the land, the occupier would only be liable if
they continued or adopted the nuisance.

An occupier may also be liable for naturally occurring nuisances. In the Australian
case of Goldman v Hargrave [1967] 1 AC 645 the Privy Council held an occupier liable
for a naturally occurring nuisance where they knew or ought to have known of a
danger and failed to take reasonable steps to abate the nuisance. Lightning struck a
tree on the defendant’s land, starting a fire. The defendant extinguished the fire but did
not douse the embers. The wind reignited the fire causing damage to the claimant’s land.
The defendant was liable; he had the physical and financial ability to spray water over the
embers and therefore should have taken these reasonable steps to abate the nuisance.
However, a duty to abate a naturally occurring nuisance is subject to the means of the
occupier who will not be expected to bankrupt themselves in the process of averting the
nuisance. In Holbeck Hall Hotel v Scarborough BC [2000] 2 All ER 705, the Council were
not liable for a land slip which caused the claimant’s land to collapse. The court will
consider what steps it is fair and reasonable to expect the defendant to take considering
the resources available to both the defendant and the claimant and must take into
account the competing demands on and public purpose of the funds of public authority
defendants.
Challenge yourself: to see how the English courts have built on Goldman v Hargrave,
look at Leakey v National Trust. Contrast this case with Holbeck Hall Hotel v
Scarborough BC and identify the reason for the latter case being decided differently.
3. Owner

A landlord will not usually be liable for a private nuisance unless they either: (1) created
it; or (2) authorised it, by actively and directly participating in it, or by leasing the property
in circumstances where there was a very high degree of probability that leasing the land
would result in that nuisance being created.

Read alongside:
On the next slide is a summary of Coventry v Lawrence but this should be
read alongside the full judgment for a full understanding of the decision.
This case discussed a number of important elements in relation to private
nuisance, beyond when a landlord can be liable.
Key case: Coventry v Lawrence [2014] UKSC 46
FACTS: the claimants moved in 2006 into a bungalow less than 1
kilometre from the defendant’s noisy motor-sports stadium and track.
The claimants sued the occupier and landlord.
HELD: the landlord was not liable. A landlord could only be liable for
their tenant’s nuisance if they authorised it, by actively and directly
participating in it, or by leasing the property in circumstances
where there was a very high degree of probability that leasing the
land would result in that nuisance being created.
On the facts, the nuisance (the noise) had not been inevitable or a
virtual certainty of renting the premises. It was not enough that the
landlord knew how the tenants would use the premises as the premises
could have been used in that way without creating the nuisance.
Equally, the landlord had not actively and directly participated in the
nuisance. Whether a landlord has participated in a nuisance is a
question of fact, mainly dependent on events taking place after the
granting of the lease. The fact that the landlord was aware of the
nuisance and had not done anything to stop or discourage it was not
enough to establish liability.
Summary

• Private nuisance, public nuisance and the rule in Rylands v Fletcher are land-based
torts.
• Private nuisance is any continuous activity or state of affairs causing a substantial and
unreasonable interference with a claimant’s land or his use or enjoyment of that land.
• In order to bring a claim in private nuisance, the claimant must have suffered damage.
• The claimant must have a legal interest in the land affected in order to bring a claim in
private nuisance.
• The claimant can sue the creator of the nuisance, the occupier of the land from where
the nuisance emanates and/or the owner of the land from where the nuisance
emanates (including, under certain conditions, the landlord).
• An occupier may be liable for nuisances created by third parties, including, under
certain conditions, independent contractors, predecessors in title, trespassers and for
naturally occurring nuisances.