Legal Frameworks in the Built Environment - Essay Example

? Legal Frameworks in the built Environment Insert (s) Legal Frameworks in the built Environment Introduction According to the British laws, home owners and real property holders are often entitled to enjoy their properties without any interference from neighbours such as irritating sound and noise, odours and other pollutions that may cross the boundaries into their property. Legally the terms private and public nuisance are traditionally used in the British laws to describe acts or omissions that may cause annoyance and harm to the other people such as environmental pollution, loud noises as well as the other activities that may affect the peaceful enjoyment of the neighbours (Bermingham and Carol, 2008). In this regard, a private nuisance refers to the violation of another person’s quite enjoyment of his/her property while public nuisance is simply any interference with the safety, health, convenience and peace of the members of public. It is however worth noting that according to the British laws, an act of nuisance or trespass can only be dealt with through the civil legal routes such as suing the offending party and can not amount to prosecution. The UK statutes dealing with both private and public nuisances are require evidence of justifiable proof that the nuisances are unreasonable and are affecting the rights of either the private homeowners or the ordinary citizens to enjoy their privileges. This is because both offences are considered as civil offences rather than criminal offences. This paper uses the case of David’s Family and Harrington & Nephew limited to highlight the cases of private nuisance, public nuisance and trespass in their relationship as well as discuss the potential remedies and defences that both parties may have under the British laws. Private nuisance There are a number of events in the scenario between David’s Family and Harrington & Nephew limited (Factory) that may constitute private nuisances. For example various factory operations such as the movement of Wagons are causing unreasonable noise that is affecting David and his family to lose their sleep during the night. On the other hand, the death of Rose tree belonging to Mr. and Mrs. David is directly as a result of the dust coming from the Harrington & Nephew Limited factory premises. According to most of the UK statutes regarding the definitions of private nuisance, all these cases are considered private nuisances to David’s family because they have cause interference with their right to enjoy their property by invading their private lives with undesirable noise and dust. On the other hand, If David’s family decides to sue the factory belonging to Harrington & Nephew Limited for the private nuisance that their operations have caused to their family lives and property, the relevant local authorities handling the case will have to decide whether the interference by the factory operations have resulted in unreasonable damage to property. In this context, any evidence of physical damage such as the death of the Rose plant will make it easier to justify their case against the factory1. With regard to whether the factory operations have interfered with the rights of David’s family to quite enjoyment of their property, the claimant will be required to prove the cases of substantial and unreasonable interference with his family’s enjoyment. For example the fact that David and his family members are suffering from a continual loss of sleep due to the excessive noise from the factory can be used by the claimant to justify that the interference by the factory is unreasonable. The law will however balance between the right of the defendant (Harrington & Nephew Limited) to use their property and the right of David’s family (Claimant) not to be unreasonably inconvenienced. It is also worth noting that not all interference are considered to be nuisances according to the UK laws and sometimes individuals may be required to tolerate a given degree of interference such as noise or smell. In relation to the above scenario, there are a number of elements of nuisance that can be identified in the complaints of David’s family regarding the interferences of the factory’s activities in their private lives. When considering the elements of nuisance in the case between David’s family and Harrington & Nephew Limited, the law will have to look into some factors such as the intention of the defendant, continuity of the nuisance, the nature of the neighbourhood, interest in the land, sensitivity of the claimant as well as any evidence of negligence on the part of the defendant2. The element of continuity of the nuisance is particularly important in the event that the claimant would seek compensation for damages. The law will however not consider the defendant to be liable for the damages if there is reasonable proof that care was taken to reduce the impact of interference on the claimant. In the event of a personal injury such as the case of Aimee’s allergy to dust produced by the factory, the law regarding private nuisance may not consider her claims. She may be considered to be a claimant with an abnormal sensitivity because her claim of allergy is largely due to her personal condition. According to the British laws, there are a number of defences and remedies that can be applied in the case between David’s family and Harrington & Nephew limited. For example, the management of the factory may be considered to be liable to the damages caused by their interference if there is justifiable evidence that they had the knowledge that their operations are causing nuisance but failed to take appropriate measures (Elliott and Francis, 2007). Some of the defences of the defendant may include the case whereby the nuisance was caused by a stranger who does not belong to the company. Alternatively the factory may also be able to defend itself if has been in operation for 20 years and has previously acquired the right to commit nuisance from the local authorities. Finally the available remedies to the claimant under the UK nuisance laws include payments of damages for the loss of property Death of Rose plant in this scenario) as well as the damages for the loss of quiet enjoyment of property. Public nuisance Under the British laws, an act or failure to act is considered to be a public nuisance if it compromises the safety, health and comfort of the members of the public. There are however cases when public nuisance may overlap with private nuisance3 . Consequently some of the factors that amounted to private nuisance in the case between David’s family and Harrington & Nephew limited may also be considered as public nuisances. For example the unreasonable noise from the factory that is causing David’s family to lose their sleep during the night can also be regarded as a public nuisance because the noise endangers the comfort and health of the members of the public such as David. According to Spencer (1989), the tort of noise as a public nuisance is primarily a legal means that is used to protect the members of the public from unreasonable noise caused by private organizations, state or state agents. Another possible case of public nuisance from the above scenario is offensive dust that is produced in the factory belonging to Harrington & Nephew limited company. The law allows David’s family to file a complain regarding the dust from the factory using the tort of public nuisance if there is evidence that they have suffered from the effects of dust more than the other members of the public (Planning Inspectorate UK., 2011). Consequently if there is sufficient evidence that the factory was aware of the effects of the dust that they produced on the members of the public but failed to take any measures, then the case may be regarded as a criminal offense and Aimee way be able to sue the factory for compensation using the tor of public nuisance. For her liability claim using the tort of public nuisance to be successful, Aimee will have to demonstrate that the effects of the dust on her property and life was greater that affects that the dust had on the other members of the public. For example she may cite her use of inhalers everyday as a result of the dust produced by the factory. On the other hand, the case of the damage to Wally’s car by the chemicals emitted from the factory can only be sued under the tort of public nuisance and not private nuisance because the car was parked on the public highway outside their home. If a public nuisance tort is brought against the factory and succeeds, then Wally may also be entitled to compensation for the damages that were caused by the chemical smuts from the chimneys of the factory. Trespass In the case where Wally was so incensed by how the chemical smuts had damaged his car that he decided to storm into the factory manager’s office and caused a scuffle, Wally’s action can be considered under the British law as a trespass offence. As a tort, trespass can be defined as any action that may result in an individual gaining enter into another person’s land without their consent. Trespass can either be intentional or sometimes negligent. Although a mere act of entering into ones premises may not constitute a trespass offense under the British law, the subsequent acts of the individual such as refusing to leave or causing a scuffle may amount to trespass. This is particularly the case in Willy’s action. Even though his storming into the manager’s office without invitation may not necessarily be considered a trespass, his subsequent actions such as being rude and causing a scuffle that resulted in the breaking of the windows can be justified as an act of trespass. An act of trespass is however not considered to be a criminal offense and consequently Willy can only be sued and not prosecuted for the offense he has committed. In the event that Harrington & Nephew limited decides to sue Willy for trespass, the law will not require the factory to prove any damage suffered and the fact that the defendant (Willy) caused a scuffle that resulted in the breaking of windows is likely to amount to damages if the claimant obtains an injunction. Trespass tort requires any person that enters another persons land without their consent and is not legally permitted to do so is liable for trespass charges (Faulk and Gray, 2007).To claim damages, the claimant will however be required to show evidence of damages such as the broken windows that occurred during the scuffle that took place after Willy refuse to leave the premises4. On the other hand, even if no damage was done during the scuffle, Willy’s action will still be considered to be unlawful and liable for damages. There are a number of defenses and remedies regarding trespass that can be applied in the case between Willy and Harrington & Nephew Limited. The best defence for Willy would be if he had initially acquired permission to gain entry into the factory premises. Another potential defence in trespass cases is when the trespasser was justified by the law to enter into the premises/land. All these defences do not apply in Willy’s case. Finally the remedies for cases of trespassing like in the above scenario include liability for damages and injunction. Conclusion In conclusion, the torts regarding private and public nuisance as well as trespassing in the British law are largely designed to minimise the occurrence of activities that may cause unreasonable interference with the rights of both the members of the public and the private land owners. This is achieved through a number of defences and remedies available for the defendants and claimants respectively. References Bermingham, V. & Carol B. 2008. Tort Law. London: Oxford University Press. Cleary, J.,W. 2002. Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work. University of Baltimore Law Review 31, 47-56. Online https://litigationessentials.lexisnexis.com/webcd/app?action. [Accesed 18, April,2012] Elliott, C. & Francis Q. 2007. Tort Law 6th ed. Harlow: Pearson Longman. Faulk R. & Gray, J. 2007. Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation. Online> http://www.nuisancelaw.com/sites/default/files/uploads/Faulk_Gray_citation1.pdf[Accesed 18, April,2012]. Planning Inspectorate UK. 2011. Consistency Guidelines section 5. Online>http://www.planninginspectorate.gov.uk/pins/appeals/rights_of_way/consistency_guidelines_10.htm [Accesed 18, April,2012], Spencer, J.R.1989.,Public Nuisance : A Critical Examination. Cambridge Law Journal. Online>http://www.nuisancelaw.com/sites/default/files/uploads/Cambridge%20Law%20Journal_0.pdf [Accesed 18, April,2012]. Read More