Law And Contract Resit - Case Study Example

Topic: Law And Contract Resit work English: UK Your August 9, 2008 Answer: Perry Barr and Student of Birmingham City University and The owners of the adjoining public house may bring an action against Bloggs & Co Builder's under private nuisance and public nuisance. Before a claimant can succeed in a nuisance action, they must first be able to prove that they have suffered damage. In this case four issues arise and these are noise and vibrations disturbing Pub's customer, Bloggs & Co Builders used the student car park to the jib of a crane, construction vehicles are constantly blocking the entrance of Public house owner and they work continues on site Saturday and Sunday mornings as a result the pub manager was disturbed. Winfield and Jolowicz defence private nuisance as an unlawful interference with a person's use or enjoyment of land, or some right over, or in connection, with it. This principle is neatly encapsulated in the words of Lord Wright in Sedleigh-Denfield v Callaghan1, where he said that a balance has to be maintained between the right of the occupier to do what he likes with his own and the right of his neighbour not to be interfered with. From it is implicit that as between neighbours, some measure of interference with the use and enjoyment of each other's land is permissible. The test is one of 'reasonable user' balancing the interest of defendants to use their land as legally permitted against the conflicting interest of claimants to have quite enjoyment of their land. It is a not a test of reasonable care. In Rapier v London Tramways Co2 held that it is no defence to prove that the defendant had taken all reasonable care to prevent the nuisance occurring. The Court will look at the result of defendant's conduct. In Cambridge Water v Eastern Counties Leather3, it was held that if the user is reasonable the defendant is not be liable for consequent to his neighbour's enjoyment of his land. In order to be able to sue for a Private nuisance, the claimant must have a proprietary interest in the land affected. In Malone v Laskey4 and Hunter v Canary Wharf Ltd5 it was held that landowners and tenants have right to bring an action but excludes mere licensee. So from the fact of the question it can be said pub owner and owners of public house and Birmingham City University may bring an action under private nuisance. But in question it is not clear whether pub manager was owner, tenant or license of the premises. However the location is an important factor. The locality in which the claimant's premises are situated is a second factor which assists the Courts in determining whether the interference complained of is sufficiently substantial to amount to a nuisance. The expectations of a claimant, in terms of comfort, peace and quiet, will naturally vary according to the location of his house or business. The point was succinctly made in Sturges v Bridgeman6, in which case a physician complained about the noise generated by a neighbouring confectioner who was operating a pestle and motor. Thesinger LJ stated that what would be a nuisance in Belgrave Square would not necessarily be so according to the area in which it occurs. The emission of smoke from a factory would not be considered a nuisance in an industrial estate, but would be likely to be found to be a nuisance in a largely residential area. In Gillingham BC v Medway (Chatham) Dock Co. Ltd7 held that a good example is the transformation of the London docklands from an industrial area to a now exclusive residential development. In this case it was held that planning permission which had been granted to change the use of an old naval dockward into commercial port should be taken into have effective a change in the character of the neighbourhood. The Court held that planning permission is not enough by itself to change the nature of the locality, although this may occur as a matter of fact due to investment in the area. The CA took the view in Wheeler v JJ Saunder Ltd8 that simple permission cannot be taken, ipso facto, to license what would otherwise be nuisance. Pub manager, university and public house owner may bring action to show the duration of time. The general rule is that for interference to be thought unreasonable it has to be of appreciable duration. As Talbot J put it in Cunard v Antifyre Ltd9 it was held that private nuisance has to be substantial level of time by owner4s or occupiers of property with the use or enjoyment of the land. What amounts to 'substantial lenth' is a matter of fact though in Crown River Crusies Ltd v Kimbolton Fireworks Ltd10 a firework display on a moored nearby was deemed capable of giving raise to liability in nuisance. In De Keyser's Royal Hotel Ltd v Spicer Bros Ltd11 held that this is a matter of common sense. The longer and more frequent the interference, the more likely it will be found to be a nuisance. The remedies available in the event of a private nuisance are twofold either damages or an injection. The question asks whether the owners of the pub and the university raves from taking place in the future - this will require an injection which is a discretionary remedy, but which is readily granted where there is a continuing nuisance. In general there are four guiding principles (Shelfer v City of London Electric Lighting Co12). There are that damages will be awarded instead of an injection if the injury to the claimant's legal right is (i) small and (ii) can be estimated in money terms and (iii) can be adequately compensated by the small money payment and (iv) it would be oppressive to grant an injection. But in Miller v Jackson13, the court was refused to issue an injunction against a cricket club at least partially on the grounds that there was a public interest in preserving playing fields for recreation; another factor taken into account was the fact that the claimants were well aware of the proximity of the cricket ground before deciding to move into their house. Whether court issue injection against Bloggs & Co Builders or not, it is courts discretion. Though there are several chances to bring action under private nuisance, there are also scopes to bring action under public nuisance. Public nuisance may be defined as some unlawful act or omission endangering or interfering with the lives, comfort, property or common property rights of the public. Public nuisance is both crime and a tort. It is defined by Romer LJ in Attorney General v P.Y.A. Quarries ltd14 stated that any nuisance is public which materially affects the reasonable comfort and c conveniences of life of a class of her Majesty's subject. They need to show special damages. Special damage consists in excess of that suffered by the public at large. It must be direct and substantial and covers personal injury, property damage, loss of custom or business and it is claimed, delay and inconvenience. Here the noise and vibrations from the machinery are disturbing Perry Barr's their customers to the point that takings over the bar are down on last year's figures. So the pub owners suffer business loss. In this case Attorney General brings an action on behalf of the pub owner. University brings an action under public nuisance to show student's interest. In Attorney General v PYA Quarries Ltd15 it is concerned with 'public rights', but those rights are not clearly defined, although interferences with public health appear to be covered. A class of people has to be affected- the 50 patients and Peter probably will be a sufficiently large group. Private rights are irrelevant, thus there is no need for a claimant to have an interest in the land in order to be able to sue for a public nuisance. This will be important for pub owner. University can show that the student has public right to use car park. In Jacob v London County council Lord Simonds accepted the definition of nuisance on the highway as a wrong full act or omission upon or near a highway, whereby the public are prevented from freely, safely and conveniently passing along the highway. So entrance their house is a public right of owners of the public house. As we have already seen, where the victim of a public nuisance cannot establish a special damage, a relator action for an injunction may be brought by the attorney general on his behalf. Alternatively, an injunction may be sought by a local authority under s. 222 of the Local Government Act 1972. Finally, individual applicants relying on their special damage are equally able to obtain injunctions in public nuisance. There may be the possibility of an action under the rule in Rylands v Fletcher16, but generally this requires the accumulation of something tangible which is likely to do mischief if it escapes. Noise and vibrations do not satisfy this requirement, which means that a Rylands action may not be any use. Bibliography: Murphy J, (2007), Street on Torts, 12th edition, LexisNexisTM: UK, ISBN: 978-0199291663. Deakin S, (2003), Tort Law, 5th edition, Oxford University Press, ISBN: 0-19-935711-6. Oughton D, Marston J, & Harvey B, (2007), Law of Torts 2007-2008: Blackstone's Law Q and A, 4th edition, Oxford University Press, ISBN: 978-0199299485 Yeats I, Giliker P, & Luckham M, (2005), Law of Tort, 7th edition, University of London Press Read More