Legal Framework in the Built Environment - Essay Example

Legal framework in the built environment Introduction Coexistence of people in a society involves interactions that lead actions at personal levels or interpersonal initiatives. Such acts often lead to interference with other members of the society. Law, defined as a set of rules that governs relationship between members of a community therefore regulates behaviours of people for a peaceful coexistence. The rule of law defines rights and obligation of each member of the society and provides for penalties for breach of obligations. This paper seeks to discuss elements of trespass and nuisance under the law of tort. The paper, based on a case will explore applicable legal principles and case laws with the aim of advising a party on its rights, liabilities, possible defences, and remedies based on the case. Facts David’s family house is opposite Harrington & Nephew factory The factory that manufactures concrete and operates throughout day and night The factory’s operation emits noise, dust, and chemicals that reaches David’s compound The family’s night sleep is disturbed as a result David’s wife, Aimee, has as a result of the dust, been dependent on inhalers The family’s wedding tree gift has withered due to the factory’s impacts on soil Paintings to Wally’s car has also been damaged by chemical emissions from the factory Wally goes to the factory to confront the manager, refuses to leave when asked to leading to breakage of a window in the company’s premises Issues The issues to be determined in the case are whether any of the counts amount to trespass or nuisance. Rule of law Trespass to land The rules of law that are applicable to the case involve principles that relates to both trespass and nuisance. The general definition of tort, as a wrongful act, in breach of an agreement or an expected responsibility and which attracts damages, institute rights, and obligations over use of land. The scope of trespass includes unlawful entry into a person’s property, illegal stay within the property or interference with a person’s rights to enjoy rights in his or her property. Trespass can relate either to land, person or property. The legal definition of trespass to land involves “entering upon land, remaining upon land, or placing or projecting any object” on the piece of land without legal justification or authority from the owner of the land. Some of the elements that constitute trespass to land therefore include entry into the plaintiff’s land or any other property in land such as house or office without consent or legal authority, continuing to remain in the property without justification, and performing an act that interferes with the plaintiff’s possession and enjoyment of the piece of land. Throwing objects into a person’s piece of land or using an accorded right of entry into a person’s piece of land for any other reason apart from the grounds for which entry is granted also constitutes trespass to land. The core element of trespass to land, that also identifies it from other torts is its direct impacts on the plaintiff’s rights. Based on the definition of land that includes the earth’s surface, and the space above and below the ground, trespass can arise from interference of a person’s right of enjoyment of resources on the surface of the piece of land, above the surface and below the surface (Harpwood, 2008, p. 232). Legal liability over trespass to land through entry includes even the slightest entrance that involves contact with any property that is in the plaintiff’s piece of land as was held in the case of Gregory v Piper.1 In the case, the courts held that even leaning on a person’s wall constitutes trespass to land. Similarly, authority to enter and remain in a person’s piece of land may be withdrawn upon which the entry or stay amounts to trespass. The invitee will therefore have an obligation to vacate the property or remove any rejections on the property whenever the owner of the property revokes initially granted rights. Liability due to trespass however begins at the time upon which the right of entry or stay is withdrawn. As a result, any actions committed before withdrawal of right of entry or stay does not amount to trespass (Harpwood, 2008, p. 235). Another fundamental principle in trespass tort is the voluntary action of the trespasser that makes the tort actionable without the plaintiff’s need to prove that a legal damage has been suffered. Based on the case of Willcox v Kettle [1937] 1 All ER 2222, interference with the space above a person’s piece of land such as infiltration with foreign materials also constitutes trespass to land. A person can however only institute actions for trespass to land if the person was in possession of the piece of land at the time of tress pass. Acts of trespass committed before property is vested on a person cannot therefore be enforced upon acquisition of property. This was held in the case of Hegan v Carolan [1916] 2 IR 273 in which implied conditions were used to determine possession before upholding the defendants liability over trespass to land (Ward, 2010, p. 186). The doctrine of strict liability is also applicable in trespass to land. With trespass to land including interference in the airspace above a person’s land, such interference involving dangerous substances such as chemicals induces strict liability on the defendant. The doctrine of strict liability does not rely on the defendant’s illegal action but on the contrary considers involvement in an occurrence that leads to injury (Adamson and Morrison, 2011, p. 95). The doctrine of strict liability was for example held in the case of Rylands v Fletcher4 in which the courts held that a defendant is liable for loss caused by any naturally harmful materials that the defendant keeps within its premises, and upon escape of such harmful things (Steele, 2007, p. 679). There are however defences that can be raised against suit on trespass to land. The defendant my claim legal authority as a ground for the trespass or the plaintiff’s consent to the act that constitute the trespass. Adverse possession that includes about 12 years standing of the subject act without the plaintiff’s objection as well as necessity and ‘self-defence’ are also applicable defence in trespass to land case. In event that the defendant is found guilty of trespass to land, the plaintiff is entitled to remedies that include liquidated damages, injunction, and expulsion of person or object causing trespass as well as detention of the object for redress (Harpwood, 2008, p. 25- 28). Nuisance Harpwood defines nuisance as the “continuous, unlawful, and indirect interference” with a person’s right to property in land. An act therefore amounts to nuisance if it extends over a long period as was held in the case of Delaware v Westminster cc (1999)5. A temporary act that interferes with a person’s right in land can however constitute a tort of nuisance if the impacts of such acts are very significant to the plaintiff as was held in the case of De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914)6. In the case, the defendant was undertaking a construction and resulted in noise from equipments that were used in the construction. The noise at night that was experienced by the plaintiff during the period of construction was held to constitute nuisance. Further, the act must be unlawful to an extent of infringing the plaintiff’s rights. Elements such as the defendant’s behaviour, ill intentions, and nature of the plaintiff’s property forms ground for unlawful consideration into nuisance. A land owner therefore has an obligation to prevent any possible harm to another person’s land if such harm is caused by the status of the person’s piece of land as was held in the case of Leakey v National trust7. Elements of interference into nuisance also include movement of substances, whether solid, liquid or gas, from one person’s piece of land to an adjoining land. Emissions such as smoke, exhausts gases, and dusts therefore contribute to nuisance upon escape into another person’s land as was held in the case of St Helen’s Smelting Co v Tipping (1865)8 and the case of Bliss v Hall (1836). The impacts of such interference causing harm to another landowner’s property therefore institute a liability of nuisance on the person whose land emitted the substances as was held in the case of Crown River Cruises Ltd v Kimbolton Ltd and another9. A plaintiff’s barge, damaged due to interference from the defendants, was held to constitute nuisance (Harpwood, 2000, p. 236- 244). While public nuisance, characterized by interference of an entire society’s enjoyment of land, is a criminal offence unless a person is adversely affected than others, private nuisance is identified with an individual’s right to the affected piece of land and constitutes a civil case. Remedies for private nuisance include “damages or an injunction” (Edwards, Edwards and Well, 2008, p. 294). Damages aim at compensating the plaintiff for the suffered loss while injunction stops the actions that lead to the nuisance. Possible defences in a nuisance case include prescription, statutory authority, “contributory negligence, and assumption of risks” (Edwards, Edwards and Well, 2008, p. 294). The doctrine of strict liability is also applicable in nuisance (Steele, 2007, p. 679). Application The two pieces of land, belonging to David and Harrington, are detached and are separately owned. Any unjustified activity by a landowner that interferes with the other’s right therefore forms ground for a tort. The noise caused by activities in Harrington at night, that deprived David and his family of sleep satisfies the requirements for private nuisance case. The noise was continuous, on a daily basis, infringed the family’s freedom, and interfered with their sleep. Based on the facts of the case and the court ruling in the case of De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd10, David’s family can successfully sue for nuisance. Similarly, the continuous emission of dust from the factory has infringed Aimee’s right to life by putting her life in danger. Having suffered adverse personal effects and based in the decision of the case of De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd11, Aimee is likely to win a private nuisance suite. Similarly, Wally’s car was damaged because of chemicals and dust from the factory, and meets the requirements of a private nuisance suit as was held in the case of St Helen’s Smelting Co v Tipping12 and the case of Crown River Cruises Ltd v Kimbolton Ltd and another13. Further, the escape of dust and chemicals from the factory induces strict liability on the factory subject to Rylands v Fletcher’s14 case. Wally’s uninvited visit to the factory’s premises on the other hand constitutes trespass to land especially after he had been asked to leave the property. Both his refusal to leave the property after his visit was unwelcomed and being involved in breakage of a window interfered with the factory’s right over their piece of land to constitute trespass as was held in the case of Gregory v Piper. Conclusion: Advice to the Harrington & Nephew Based on the facts of the case and the explored legal principles, Harrington & Nephew is guilty of nuisance due to noise, dust, and chemical emissions. The factory lacks any defence in the case since David’s family has not lived in the premise long enough to warrant prescription besides strict liability. The factory is therefore likely to face an injunction order together with damages to the family. The factory however has a valid trespass to land case against Wally who may cite defence of property in a proceeding. While expelling Wally from the premises would be an immediate remedy, seeking an order of injunction and damages are also likely to succeed. The legal scope of the cases however induces more liability on Harrington & Nephew than its infringed rights by Wally. The possible consequences of injunction as well as damages may run down the factory. Harrington & Nephew is therefore advised to seek an informal settlement with the family. Reference list Adamson, J. and Morrison, A. (2011). Law for Business and Personal Use. 19th Ed. Mason, OH: Cengage Learning Edwards, J., Edwards, L. and Well, P. (2008). Tort Law for Legal Assistants. 4th Ed. New York, NY : Cengage Learning Harpwood, V. (2000). Principles of Tort Law. 4th Ed. London, UK: Routledge Harpwood, V. (2008). Modern Tort Law. 7th Ed. New York, NY: Taylor & Francis Steele, J. (2007). Tort Law: Text, Cases, and Materials. Oxford, UK: Oxford University Press Ward, P. (2010). Iel Tort Law in Ireland. Alphen, Netherlands: Kluwer Law International Read More