A2 Law, Unit 5.

Question 3 of the January 2004 paper.

(a) Consider what rights and remedies the owners of the cottages, including Irene, may have in connection with the noise and other problems caused by the leisure activities and the oil spillage.

The cottage owners and Irene would have rights in the law concerning nuisance. There are three elements that need to be proven before a the cottage owners could successfully claim against Highlife Sports within the law for private nuisance.

The first is that there must be some indirect interference with the enjoyment or use of the claimant’s land. Indirect means things like noise, smells or vibrations. It should be interference towards the land, or interference with a right to the C’s land, known as a servitude (Hunter v. Canary Warf). In this case, the cottage owners finding it hard to get to and from their property’s due to Highlife’s customer’s is the interference. There is also the matter of the noise.

Next there must be some damage to the claimant, though not necessarily tangible damage. By this, I mean that it just be the occupier’s usage of the land that is affected. For instance, if someone can’t go into their garden because of a horrible smell from a near by house, that would be the damage. The above application also applies here since it shows the damage the occupiers of the cottages have been inflicted with.

Next is a policy question of unreasonable interference, and whether the interference was a legal one. Individual facts from the case are looked into here. The time of the interference is a large part in deciding if it was unreasonable; the level of noise allowed at 4pm in the day will be completely different to the level of noise acceptable at midnight. In this case, the time is during the weekend. It could be argued that the cottage dwellers want to relax after a week of hard work during the weekend and so the level of noise is unacceptable. It may be argued by the defence that the weekend is the time that’s most expected to have parties and such, so noise should be expected. The duration is also a factor; a short period of hammering once a year or so will be acceptable since everyone needs to use a hammer every once in a while, but hammering every day could be a nuisance. If Highlife only had one of these events a month it would be considered less of a nuisance than them doing it each weekend. Locality; it’s expected that factories will be making noise most of the time on an industrial estate, as described in Sturges v. Bridgeman, however a lone factory on a quiet area wouldn’t be permitted to make as much noise. In this case, I imagined the scenario to be set in a quiet, country-side like area. If that’s the case, then Highlife would be expected to make minimal noise, especially during the night and weekends.

There are rules on who can sue: the claimant must first have an interest in the land. The creator of the nuisance can be sued regardless of their interest in the affected land, this means that the defendant didn’t even have to know that they were causing a problem (in practise though, the C would have to have tried other forms of resolution to the problem before they could have filed for court, so the defendant would know they were causing a problem).

If the interference affects an individuals enjoyment of land, it is private nuisance. However, where the interference is affecting a group of people it is known as a public nuisance. Public nuisance is described in Att-Gen v. PYA Quarries LTD as “any nuisance which materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”. Technically, a public nuisance is criminally punishable, however a claimant can file a tort case to get compensation if they were subject to more damage than others.

Public nuisance must first prove all the elements listed for private nuisance, and then a further two.

The first is that it must be a “class of her Majesty’s servant”, or a group of people. This is because public nuisance is a nuisance affecting society.

There must be special damage by which the claimant has suffered more than others.

If Highlife had been doing these events for more than twenty years, they may have a defence of prescription, meaning they have a right to be doing what they are because they’ve always done it.

Irene can get damages through the law set out in Rylands v. Fletcher, a very contraversial law since it’s rarely used and few people see it’s point (for instance, in this case it would have been far better to criminally charge Highlife with property damage). Rylands consists of a five part test to check for liability. First the D must have brough something on to their land, in this case it is Highlife bringing oil onto their land. Next, the thing must be likely to cause damage if it escapes, Att-Gen v. Corke. Next, it must be bought onto the land with the intent of a non-natural use. Here, oil is not found naturally in the land, so this step is confirmed. Last, the thing must escape from the area it is in (Hale v. Jennings Brothers). It does in this case, since it escapes from it’s container, and from the D’s land.

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