Torts Relating to Land
March 20, 2023
1 Three Modes of Interference
• Firstly, the defendant could actually move on to the land themselves and
take possession of it (or part of it) such that they have dispossessed the
claimant who was originally on the land.
• Here, the claimant who has been dispossessed needs to bring an action in
court to recover possession of the land.
• An action to recover land is part of the tort of trespass to land.
• Secondly, the defendant might interfere directly with the claimant’s land.
• The claimant needs to bring a court action to stop the interference, such
as an injunction or a declaration of their rights, that is, that they are the
owner of the land and the defendant has no right to use it.
• The claimant might also seek compensation for any damage caused.
• Thirdly, the defendant might interfere indirectly with the claimant’s land.
• The claimant needs to bring an action to stop the interference, such as
an injunction or a declaration, and obtain compensation for any damage
caused.
• In cases of indirect interference, the tort to provide a remedy for it is
private nuisance.
2 Private Nuisance
• As stated, where the interference is indirect rather than direct (trespass to
land will be relevant for the latter kind of interference), the most important
of these torts is private nuisance.
• A judicially approved definition of private nuisance can be found in ‘Win-
field & Jolowicz on Tort,’ (18th edn), p 712, where ‘nuisance’ is defined
as an ‘... unlawful interference with a person’s use or enjoyment of land,
or some right over, or in connection with it.’
1
, • This definition has been adopted by many cases, such as by Scott LJ in
Read v Lyons & Co Ltd [1945] KB 216.
• The claimant, to establish private nuisance, needs to show that:
• (a) There is an interference with the claimant’s use and enjoyment of land
or some rights they enjoy over it; and,
• (b) The interference is unlawful.
3 Private Nuisance and ‘Interference.’
• In In Hunter v Canary Wharf [1997] AC 655, Lord Lloyd said that there
were three types of interferences within private nuisance:
• ‘(1) Nuisance by encroachment on a neighbour’s land;
• (2) Nuisance by direct physical injury to a neighbour’s land; and,
• (3) Nuisance by interference with a neighbour’s quiet enjoyment of his
land.’
• This last type of interference is very broad; however, the courts are unwill-
ing to find actionabale nuisances based on discomfort than where actual
damage has occurred.
• Indeed, in Walter v Selfe (1851) 4 De G & Sm 315, Sir Knight-Bruce
VC said that, to be actionable in nuisance, the interference had to be
something that materially interfered with ‘ordinary comfort,’ not ‘elegant
or dainty modes . . . of living.’
• It has been held, following this, that loss of prospect (a view) from your
home is not an actionable interference (see Aldred’s Case (1610) 9 Co Rep
57b).
• Moreover, in Canary Wharf, the court held that disruption to TV recep-
tion caused by a new building was not an actionable interference in private
nuisance.
• Note that dust is treated as an issue relating to private nuisance and not
encroachment.
4 Private Nuisance and ‘Unlawful Interference’
• Clearly, not all interferences constitute actionable ones.
• Indeed, it is only unlawful interferences that are actionable.
2
, • To say that an interference is ‘unlawful’ is to say that it is ‘substantial
and unreasonable.’
• Lawfullness and reasonableness, then, go hand in hand.
• However, notice that unlike in Negligence, a defendant can still be liable
in private nuisance even if the defendant has exercised reasonable care
because the question at hand is whether the defendant’s use of land is
reasonable.
• As confirmed by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] 3
All ER 349, when determining whether an interference is ‘unlawful,’ the
courts will balance the defendant’s right to liberty with the claimant’s
right to enjoy their land free from interference.
• Note that the courts find encroachment onto a neighbour’s land (such as
by overhanging tree branches) to be unlawful without any further consid-
eration.
• The court will consider a number of factors in determining whether an
interference is unlawful.
• (a) Duration and Frequency.
• The longer the nuisance has gone on for, the more the courts are likely to
find it to be unlawful.
• Thus, nuisances which either constitute isolated events or have not gone
on for too long will usually not be found to be unlawful.
• However, that said, there are circumstances where an isolated event can
constitute an unlawful nuisance.
• In Spicer v Smee [1946] 1 All ER 489, the court held that an isolated
event will constitute an actionable private nuisance if it emanates from
some continuing state of affairs on the defendant’s property.
• So, in sum, for an interference to be unlawful, the claimant must be able
to point to some level of continuity.
• And isolated events will only be actionable in private nuisance if they
emanated from a continuous state of affairs.
• (b) Excessiveness of Conduct / Extent of Harm.
• In considering whether conduct is ‘excessive,’ the courts will consider how
far removed it is from normal conduct.
• In Matania v National Provincial Bank Ltd [1936] 2 All ER 633, the
noise caused by substantial renovation work carried out on behalf of the
defendant, which lasted from 8am to 5pm each day, was found to be
excessive.
3
March 20, 2023
1 Three Modes of Interference
• Firstly, the defendant could actually move on to the land themselves and
take possession of it (or part of it) such that they have dispossessed the
claimant who was originally on the land.
• Here, the claimant who has been dispossessed needs to bring an action in
court to recover possession of the land.
• An action to recover land is part of the tort of trespass to land.
• Secondly, the defendant might interfere directly with the claimant’s land.
• The claimant needs to bring a court action to stop the interference, such
as an injunction or a declaration of their rights, that is, that they are the
owner of the land and the defendant has no right to use it.
• The claimant might also seek compensation for any damage caused.
• Thirdly, the defendant might interfere indirectly with the claimant’s land.
• The claimant needs to bring an action to stop the interference, such as
an injunction or a declaration, and obtain compensation for any damage
caused.
• In cases of indirect interference, the tort to provide a remedy for it is
private nuisance.
2 Private Nuisance
• As stated, where the interference is indirect rather than direct (trespass to
land will be relevant for the latter kind of interference), the most important
of these torts is private nuisance.
• A judicially approved definition of private nuisance can be found in ‘Win-
field & Jolowicz on Tort,’ (18th edn), p 712, where ‘nuisance’ is defined
as an ‘... unlawful interference with a person’s use or enjoyment of land,
or some right over, or in connection with it.’
1
, • This definition has been adopted by many cases, such as by Scott LJ in
Read v Lyons & Co Ltd [1945] KB 216.
• The claimant, to establish private nuisance, needs to show that:
• (a) There is an interference with the claimant’s use and enjoyment of land
or some rights they enjoy over it; and,
• (b) The interference is unlawful.
3 Private Nuisance and ‘Interference.’
• In In Hunter v Canary Wharf [1997] AC 655, Lord Lloyd said that there
were three types of interferences within private nuisance:
• ‘(1) Nuisance by encroachment on a neighbour’s land;
• (2) Nuisance by direct physical injury to a neighbour’s land; and,
• (3) Nuisance by interference with a neighbour’s quiet enjoyment of his
land.’
• This last type of interference is very broad; however, the courts are unwill-
ing to find actionabale nuisances based on discomfort than where actual
damage has occurred.
• Indeed, in Walter v Selfe (1851) 4 De G & Sm 315, Sir Knight-Bruce
VC said that, to be actionable in nuisance, the interference had to be
something that materially interfered with ‘ordinary comfort,’ not ‘elegant
or dainty modes . . . of living.’
• It has been held, following this, that loss of prospect (a view) from your
home is not an actionable interference (see Aldred’s Case (1610) 9 Co Rep
57b).
• Moreover, in Canary Wharf, the court held that disruption to TV recep-
tion caused by a new building was not an actionable interference in private
nuisance.
• Note that dust is treated as an issue relating to private nuisance and not
encroachment.
4 Private Nuisance and ‘Unlawful Interference’
• Clearly, not all interferences constitute actionable ones.
• Indeed, it is only unlawful interferences that are actionable.
2
, • To say that an interference is ‘unlawful’ is to say that it is ‘substantial
and unreasonable.’
• Lawfullness and reasonableness, then, go hand in hand.
• However, notice that unlike in Negligence, a defendant can still be liable
in private nuisance even if the defendant has exercised reasonable care
because the question at hand is whether the defendant’s use of land is
reasonable.
• As confirmed by Lord Wright in Sedleigh-Denfield v O’Callaghan [1940] 3
All ER 349, when determining whether an interference is ‘unlawful,’ the
courts will balance the defendant’s right to liberty with the claimant’s
right to enjoy their land free from interference.
• Note that the courts find encroachment onto a neighbour’s land (such as
by overhanging tree branches) to be unlawful without any further consid-
eration.
• The court will consider a number of factors in determining whether an
interference is unlawful.
• (a) Duration and Frequency.
• The longer the nuisance has gone on for, the more the courts are likely to
find it to be unlawful.
• Thus, nuisances which either constitute isolated events or have not gone
on for too long will usually not be found to be unlawful.
• However, that said, there are circumstances where an isolated event can
constitute an unlawful nuisance.
• In Spicer v Smee [1946] 1 All ER 489, the court held that an isolated
event will constitute an actionable private nuisance if it emanates from
some continuing state of affairs on the defendant’s property.
• So, in sum, for an interference to be unlawful, the claimant must be able
to point to some level of continuity.
• And isolated events will only be actionable in private nuisance if they
emanated from a continuous state of affairs.
• (b) Excessiveness of Conduct / Extent of Harm.
• In considering whether conduct is ‘excessive,’ the courts will consider how
far removed it is from normal conduct.
• In Matania v National Provincial Bank Ltd [1936] 2 All ER 633, the
noise caused by substantial renovation work carried out on behalf of the
defendant, which lasted from 8am to 5pm each day, was found to be
excessive.
3
