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Tutorial 3 Week 5

The document discusses legal methods for property owners, specifically Tom, to prevent neighbors from blocking sunlight and manage water drainage issues. It outlines concepts such as easements of light, nuisance, and negligence claims, as well as potential steps Tom can take, including negotiation and legal action. Additionally, it addresses airspace, subsurface rights, and the ownership of riverbeds and foreshore areas in Fiji and Samoa, highlighting the role of government regulations in these matters.

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Christina Kaukare
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5 views

Tutorial 3 Week 5

The document discusses legal methods for property owners, specifically Tom, to prevent neighbors from blocking sunlight and manage water drainage issues. It outlines concepts such as easements of light, nuisance, and negligence claims, as well as potential steps Tom can take, including negotiation and legal action. Additionally, it addresses airspace, subsurface rights, and the ownership of riverbeds and foreshore areas in Fiji and Samoa, highlighting the role of government regulations in these matters.

Uploaded by

Christina Kaukare
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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LW301 Tutorial 3 Week 5 S2 2024

Question 1:

a) Preventing the Neighbor from Blocking Sunlight


 Easement of Light: In common law, there is a concept known as an "easement of light."
This is a right that a property owner can acquire to ensure that their property receives a
certain amount of natural light. However, this easement typically needs to be
established over time (usually 20 years) and is not automatically granted.
 Fiji's s49 Land Transfer Act mandates that an easement be authorized through a written
document- the specified format (Form 8). The document creating an easement needs to
be officially recorded. It must be recorded on the title deed of the land involved in the
donation, as well as the property taking advantage of the grant provided by section 49
of the Land Transfer Act, Chapter 131.
 Case Law: One of the landmark cases in this area is Colls v. Home & Colonial Stores Ltd1,
where the House of Lords held that a property owner could claim an easement of light if
the obstruction substantially interferes with the light necessary for the ordinary
purposes of inhabitation or business. Another case law is the case of Allen v
Greenwood,2 that was recognized under the common law to allow for someone to take
an easement to stop or prevent a neighbor for constructing a structure that blocks
sunlight.
 Planning Regulations: In some jurisdictions, local planning regulations may also provide
protection against structures that block sunlight. Tom should check with local planning
authorities in Fiji to see if there are any such regulations. Fiji: unauthorized building
intrusion due to lack of intention and negligence: section 109 of the Physical Planning
Act (Fiji); section 129 PLA(NZ) permits building structures along the edges of rivers and
streams that are capable of being navigated up to 20 feet inland, and section 3 Rivers
and Streams Act (F).

Steps Tom Can Take:

1
Colls v. Home & Colonial Stores Ltd [1904] AC 179.
2
Allen v Greenwood [1980] Ch 119.
 Negotiate with the Neighbor: Tom can try to negotiate a covenant with his neighbor,
where the neighbor agrees not to build any structure that blocks sunlight.
 Seek an Injunction: If the neighbor plans to build a structure that will block sunlight,
Tom can seek an injunction from the court to prevent the construction.
 Establish an Easement: If Tom has enjoyed uninterrupted sunlight for a significant
period, he may be able to claim an easement of light through prescription.

b). Ensuring the Neighbor Digs a Deep Drain

Legal Methods:

 Nuisance: Under common law, if water from the neighbor’s land causes flooding on
Tom’s land, it may be considered a private nuisance. Tom can bring a claim for nuisance
if the water flow is causing substantial and unreasonable interference with his use and
enjoyment of his property.
 Negligence: If the neighbor’s actions (or lack thereof) in managing water flow are
negligent and cause damage to Tom’s property, Tom may have a claim in negligence.
 Easement for Drainage: Tom can negotiate an easement with the upper neighbor,
granting Tom the right to have a drain on the neighbor's land via the case of Schwann v
Cotton,3 which guarantees for an easement to be taken for obstructing access to an
artificial channel for water. This easement would need to be registered to be
enforceable.
 Statutory Remedies: There may be local statutes or regulations in Fiji that govern water
drainage and land use. Tom should consult these to see if there are any specific
provisions that require the neighbor to manage water flow. Fiji: unauthorized building
intrusion due to lack of intention and negligence: section 109 of the Physical Planning
Act (Fiji); section 129 PLA(NZ) permits building structures along the edges of rivers and
streams that are capable of being navigated up to 20 feet inland, and section 3 Rivers
and Streams Act (F).
Steps Tom Can Take:

3
Schwann v Cotton [1916] 2 Ch 459.
 Negotiate with the Neighbor: Tom can discuss the issue with his neighbor and request
that they dig a deep drain to manage water flow.
 Mediation: If direct negotiation fails, Tom can consider mediation as a way to resolve
the dispute amicably.
 Legal Action: If the neighbor refuses to cooperate, Tom can seek legal advice and
potentially file a lawsuit for nuisance or negligence. He can request the court to order
the neighbor to take necessary measures to prevent water from flooding his land.

Conclusion

Tom has several legal avenues to address his concerns. For blocking sunlight, he can explore
easements of light, negotiate covenants, or seek injunctions. For water drainage, he can rely on
nuisance or negligence claims, negotiate with the neighbor, or use mediation.

B. In terms of airspace, the owner of a freehold estate has rights to the space above their
land, but only to the extent needed for typical land use. In the case Bernstein of Leigh
(Baron) v Skyviews & General Ltd [1978],4 it was determined that a landowner's rights
to airspace do not include the altitudes utilized by aircraft.

Subsurface rights are typically included in the ownership of a freehold estate unless specifically
reserved by the Crown or a previous owner. Nevertheless, these rights can be restricted by laws
and restrictions, especially regarding valuable minerals and resources.

C. Roadway: Usually, the ground of a public road is owned by the state or local
government, not the neighboring property owner. Nevertheless, the homeowner might
possess specific entitlements, like entry.

4
Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978].
Ownership of riverbeds may differ. The state typically owns the beds of navigable rivers in most
areas, whereas adjacent landowners often own the beds of non-navigable rivers.

The area known as the foreshore, situated between high and low water marks, is usually under
state ownership. Neighboring landowners could possess specific privileges like fishing or access
rights, but not property ownership.

Fiji is governed by the Land Transfer Act and the State Lands Act, which regulate land
ownership and rights in the country. These actions could change traditional legal rights,
especially in relation to the government's ownership of specific lands and resources.

In Samoa, land ownership is regulated by the Land Titles Registration Act and the Lands,
Surveys, and Environment Act. These actions also alter traditional legal rights, especially
regarding ancestral land and government ownership of specific properties and resources.

Conclusion:

Both countries may have laws that address ownership and use of roads, riverbeds, and
foreshore areas, typically allocating them to the government or controlling their use to
safeguard public interests and environmental values.

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