Wednesday, January 24, 2007


Tuesday 23 January 2007

We began the evening by mopping up what was left on trespass to land.

TRESPASS BY REMAINING ON LAND. A person commits trespass if he remains on land when his right of entry has ceased. A reasonable time must be granted to the licensee to remove himself and his property from the land. If the licence is contractual, for example to enter a cinema and watch the showing of a film, then it is irrevocable until the purpose for which it was granted and paid for is achieved, unless the licensee breaks the terms of the contract.

TRESPASS BY PLACING OBJECTS ON LAND. It is a trespass to place any chattel on the claimants land. Trespass is continuing so long as the offending article remains on the land. Successive actions will lie from day to day until the article is removed. In Holmes v Wilson (1839) the defendants erected buttresses to support a sinking road, necessitating trespass onto the claimant’s land. The claimant sued & recovered damages, and the defendants failed to remove the buttresses so the claimant sued again!

POSSESSION. Only the person in possession of the land can bring the action. Possession includes entitlement to immediate and exclusive possession. A landlord cannot therefore sue for trespass (as the tenant is the person in possession) unless he can prove that actual harm has been caused to the property which has damaged the value of his reversionary interest.


1. Licence - entering with express or implied permission. Any member of the public has an implied licence to approach premises with a legitimate enquiry, even if that enquiry has nothing to do with the occupier’s business or interests. In this respect a police officer without a search warrant is in the same position as a member of the public. This defence exists unless the defendant has exceeded the terms of the licence or the claimant has legally revoked the licence. Certain notices (Keep Out) or clear words used by the occupier will indicate that the licence has been revoked.
2. Justification by law. Acts which would otherwise be trespass are not so when justification is provided by law. For example, the police have powers under THE POLICE AND CRIMINAL EVIDENCE ACT 1984 to enter premises and search them.
3. Necessity. It is a defence to show that it was necessary for the defendant to enter the claimants land. In Rigby v Chief Constable Of Northampton (1985) it was held that necessity was a defence provided that there was no negligence on the part of the defendant in contributing to the state of necessity, thus the action for trespass failed. The defendants had fired CS gas into the claimants shop and burnt the shop out. The defence of necessity failed in the negligence action as the police had been negligent in not having any fire fighting equipment standing by at the particular time when they chose to use the CS gas.


1. Re-entry and self-help. The person entitled to possession can enter or re-enter the premises. He must do so in a peaceful manner, otherwise he may commit a criminal offence under s6 CRIMINAL LAW ACT 1977 - use/threat of violence to secure entry.

2. Ejectment. A person who has been dispossessed may bring an action for ejectment where he can establish an immediate right to possession. The defendant need only assert his possession, leaving the claimant to show that his title is better than the defendant’s.

3. Mesne (pronounced “mean”) profits. An action lies for the damage which the claimant has suffered through being out of possession of land. This includes profits taken by the defendant during his occupation and damages for deterioration and the reasonable costs of getting possession. In Inverugie Investments Ltd v Hackett (1995) the Privy Council was called upon to calculate mesne profits in unusual circumstances. The claimant had been unlawfully kept out of his property in the Bahamas for a period of 15 ½ years. He was entitled to a reasonable rental value for that period based upon the published rates at which tour operators made “wholesale” arrangements to use holiday accommodation.

4. Distress damage feasant. Where a chattel is unlawfully on the claimants land and has caused actual damage, then the claimant may retain the chattel until the damage has been paid for. A football kicked through a window may be retained until the damaged window is paid for.

5. Injunction. In cases of threatened trespass or where the trespass is of a continuing nature the claimant may seek an injunction. The claimant is prima facie entitled to an injunction, but will be refused where the interference is trivial. In Llandudno UDC v Woods (1889) the council sought an injunction to prevent a clergyman holding services on the seashore. This was refused on the grounds of triviality.

6. Damages. If the trespass is trivial the damages will be nominal. If damage is done to the land, then the measure of damages is usually the diminution in value of the land. The cost of reinstatement, for example rebuilding, will sometimes be the correct measure, because there is less flexibility in the market in land and buildings than in second-hand chattels, such as cars. Exemplary damages have been awarded in an appropriate case.

We then turned to an examiner’s favourite: THE TORT OF NUISANCE.

There are two types of nuisance:

Private nuisance - a tort which protects a person’s use and enjoyment of land.
Public nuisance - a crime, and also a tort in appropriate circumstances (see below).

It is important to emphasise that for an action in private nuisance the claimant must have an interest in land. No such interest is required for an action in public nuisance.

Every public nuisance is a crime but a person who suffers special damage as a result may bring a civil action for damages in tort. Public nuisance was defined in A-G v PYA Quarries Ltd (1957) as “one which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”. Well worth learning.

As for private nuisance, it is not possible to list what a public nuisance is, but think of someone who keeps a brothel in your street or the deafening noise from a rock festival.

Special damage is damage over and above that suffered by the class of persons affected, i.e. different in nature or extent. It has been held to occur when a golf ball driven over a highway caused injuries to the claimant motorist. The siting of the tee amounted to a nuisance. The class affected were highway users. The claimant suffered damage over and above that suffered by other members of the class: Castle v St Augustine’s Links (1922).

In Wandsworth LBC v Railtrack plc [2001] The council brought an action for, among other things, nuisance against the owner of a railway bridge, claiming that it had allowed pigeons to roost under its bridge and was liable for the state of affairs which had arisen due to pigeon droppings affecting pedestrians passing under the bridge and the pavement beneath the bridge. The QBD held, giving judgment for the council, that the pigeon infestation and the fouling caused by it amounted to a nuisance; that the defendant had made no unnatural or unreasonable use of its land; that although the nuisance had occurred without the defendants act or default the defendant had omitted to remedy it within a reasonable time or at all; that the fact that the pigeons were feral did not exempt the defendant from liability, having regard to the way the legal principles of nuisance have developed. The Court of Appeal agreed with the judgment.

PRIVATE NUISANCE is an unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it. A nuisance may interfere with a right in land. An idea of private nuisance can be given by looking at the parties to the action.

The tort of private nuisance is concerned with the regulation of land usage between neighbours. Normally, to sue in private nuisance, a person must have an interest in the affected land: Malone v Laskey (1907). This case was doomed to fail where the wife of the tenant was injured when the lavatory cistern fell on her head, caused by vibrations of the defendant. She failed, she had no interest in the land.

Two separate issues arose in consolidated appeals to the House of Lords in Hunter v Canary Wharf and Hunter v Docklands Development Corp. (1997):

1. sought to establish that the interference with television reception caused by the construction of the Docklands tower block was actionable as a private nuisance. The Law Lords held that the mere presence of a large building which interfered with television reception was not actionable as a private nuisance and more would be required to establish a nuisance, for example jamming the signal received by nearby residents.
2. an assertion that the damage caused by dust affecting premises over a considerable period of extensive building work in the Docklands area was actionable even by those residents who lacked any proprietary interest in the land affected. By a majority of four to one, their lordships overruled Khorasandjian v Bush (1993) and confirmed Malone v Laskey (above) to the effect that entitlement to the use and enjoyment of land remains a necessary characteristic of a claimant in a private nuisance action in English law.

A potential defendant in an action for private nuisance may be:

  1. The CREATOR of the nuisance - will always be liable, whether or not he is still in occupation of the land from which the nuisance originates.

  2. OCCUPIERS - most usual

  3. LANDLORDS - not usually liable as he has parted with control of the land.

Historically an occupier was not liable for nuisances created by trespassers, acts of nature or acts of third parties. This is no longer so. In Sedleigh Denfield v O’Callaghan (1940) a trespasser laid a drainage pipe on the defendant’s land. A mesh on the pipe became blocked with debris. The defendants were aware of this fact. When water came into the pipe it flooded the claimant’s land because of the blockage. The defendants were held liable in private nuisance for continuing and adopting the nuisance created by a trespasser.

In Goldman v Hargrave (1967), lightning struck a red gum tree in Western Australia. The tree caught fire and the defendant cut it down and left the fire to burn out. Days later a strong wind kindled the fire which spread to the claimant’s land. The defendant was held liable for the fire damage.

In Leakey v National Trust (1980), due to natural weathering, parts of a mound owned by the National Trust fell onto the claimant’s land. The Trust was held liable for the nuisance.

In such cases the occupier is placed under a duty to abate a nuisance on his land which was created by a trespasser or act of nature and of which he is aware or should have been aware. The court will look at the cost of abatement and the resources, both financial and physical, of the occupier.

The case of Leakey illustrates the potential responsibility in nuisance of an “uphill” land owner to one below, but what about the “downhill” owner? The case of Holbeck Hall Ltd v Scarborough BC (1997) gave rise to a discussion of the reverse situation, i.e. one in which the “downhill” owner had allegedly failed to take care for the support of the higher property. As the coastal area eroded, the claimants hotel premises and thriving business collapsed onto the beach below and the judge found that the local authority had taken insufficient care to protect the claimants property from foreseeable damage. The decision certainly seemed odd, given the amount of coastline and potential claims, and the decision was revered by the Court of Appeal in 2000. They stated that this was an issue of negligence only, and as it was not reasonably foreseeable that the hotel would fall into the sea there was no liability.

This tells us that the owner of the uphill may be liable in nuisance for damage caused to the land of the downhill owner, but not the other way around.

The interference with use and enjoyment of a person’s land is a balancing act between two conflicting interests, the rights of the claimant and the defendant to enjoy the use of their land. The interference may take many forms, e.g. smell, noise, vibrations, dust etc. It is not possible to provide a definitive list of what is or is not a nuisance, and so other factors are considered. These include:

A vital case in private nuisance is St Helens Smelting Co. v Tipping (1865). The claimant had purchased an estate in a heavily industrialised area. Fumes from the defendant’s copper works caused physical damage to the claimants garden and generally interfered with his use and enjoyment of the land. The House of Lords upheld the claimants claim and granted an injunction. A distinction was drawn between nuisances causing material damage to property and those causing personal discomfort. Lord Westbury LC commented: “With regard to . . . the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs”. He continued that neighbours were under no obligation to submit to a degree of interference “the immediate result of which is sensible injury to the value of property”.

The case provided that a person who, by his activities, causes material damage to the claimants land will be liable in nuisance, unless the claimant is shown to be over-sensitive or one of the defences to nuisance apply. The difficulty with this test is determining what is meant by material damage. Most nuisances will diminish the value of property but unless the land is damaged it will not be classified as material damage.

In the case of nuisances causing personal discomfort the court will have greater regard to the circumstances surrounding the interference. One or more of a number of factors will be taken into account in determining the reasonableness of the defendant’s user of his land.

The character of the neighbourhood. It has been said that “what would be a nuisance in Belgravia would not necessarily be so in Bermondsey”: Sturges v Bridgman (1879). The effect of this rule is to make it very difficult to succeed in an action for discomfort in an industrial area.

Abnormal sensitivity of the claimant, means no nuisance is committed. In Robinson v Kilvert (1889) the heat created by the defendant’s manufacturing process damaged the claimants brown paper which was stored in the upper rooms of the building. The damage was held to be due more to the sensitivity of the paper than to the defendant’s activities.

Importantly, if the defendant’s activities would have caused damage to non-sensitive property, the claimant may recover for the full extent of his loss, including sensitive property. In McKinnon Industries Ltd v Walker (1951) sulphur dioxide emitted from the defendant’s factory damaged the claimants commercially grown orchids. The claim was successful because the emissions were also damaging to other vegetation and not just to the sensitive plants grown by the claimant.

We will continue with this next week.

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