2.5 Nuisance

Question 1

What is meant by private nuisance?

Answer 1

Private nuisance is concerned with interference that affects the use and enjoyment of land - it is the law between neighbours.

Question 2

What are some examples of action for private nuisance?

Answer 2

• encroachment on a neighbour’s land (for example, by an overhanging tree)
• direct physical injury to a neighbour’s land (for example, by flooding), and
• interference with a neighbour’s quiet enjoyment of their land.

Question 3

What are the 3 elements to make up the tort of private nuisance?

Answer 3

• [Interference with land enjoyment] an interference with the claimant’s enjoyment of their land
• [unreasonable] the unreasonableness of the interference, and
• [damage] the interference caused damage to the claimant’s enjoyment

Question 4

What are some examples of things that constitute ‘interference with the claimant’s enjoyment of their land’?

Answer 4

• smells
• noise
• a land slip
• overflow water
• Japanese knotweed, and
• tree roots.

However, being overlooked is not an actionable interference. Nor is constructing a building that hinders television reception at the claimant’s property, because in that case there is no emanation from the defendant’s property.

Question 5

What constitutes ‘unlawful interference’?

Answer 5

Interference only becomes unlawful if it is both substantial and unreasonable. To be substantial and unreasonable, the nuisance must materially interfere with the ordinary comfort physically of human existence.

This does not extend to interference with a type of elegant lifestyle. If the interference causes physical damage, it is more likely to meet the threshold of being a substantial and unreasonable interference.

Question 6

What are some factors that will make a nuisance unreasonable?

Answer 6

Interference must be unreasonable based on considerations of:

• locality
• duration
• sensitivity
• malice, and
• type of damage caused

Question 7

Who can make a claim for private nuisance?

Answer 7

A person must have a proprietary interest in the land affected by the nuisance to be able to sue.

Question 8

Who can be held liable for private nuisance?

Answer 8

The category of persons who can be held liable for nuisance is broader than those who can sue. It includes the owner of the land, the occupier of the land or the creator of the nuisance.

Question 9

What are some defences available for private nuisance claims?

Answer 9

General defences:

contributory negligence, volenti non fit injuria

Specific defences:

• statutory authority: if the defendant’s activities have been authorised under statute, there will be no liability because the statute will be treated as authorising the nuisance, and
• prescription: if a user of land has been using their land in the way that causes the nuisance for more than 20 years, they have a defence. However, the time only starts to run from the point where the claimant becomes aware of the nuisance.

Question 10

What are some remedies available for private nuisance?

Answer 10

The remedies mainly available for nuisance are an injunction and/or damages, although abatement and remedies under the Human Rights Act 1998 may also be pursued.

Question 11

Explain how an injunction can work as a remedy for private nuisance?

Answer 11

With an injunction, the claimant is asking the court to stop the parts of the activity that are causing the nuisance. Although an injunction is a discretionary remedy, it will usually be granted in a claim for private nuisance where the nuisance is continuing. An injunction may be temporary or partial.

Question 12

Explain how damages can work as a remedy for private nuisance?

Answer 12

Damages may be awarded in lieu of an injunction… but note below:

It is NOT possible to claim damages for personal injury in private nuisance, because the aim is to compensate for injury to land.

Note, however, that there is a subtle difference between personal injury and personal discomfort, and it is possible to recover for lost enjoyment.

Question 13

Explain how abatement can work as a remedy for private nuisance?

Answer 13

Abatement is a self-help remedy where the claimant takes steps to end the nuisance. For example, the claimant may trim overhanging branches from trees on the defendant’s property. Whatever action the claimant takes, if they need to enter the defendant’s property, they must ask permission or they will become a trespasser.

Question 14

Explain how the Human Rights Act 1998 can work as a remedy for private nuisance?

Answer 14

If a claimant does not have a right of action under the common law of private nuisance, the Human Rights Act 1998 has provided a remedy for nuisance interfering with the right to respect for private and family life. Note that this could only be used against a public authority.

Question 15

What is meant by public nuisance?

Answer 15

Public nuisance is a particular type of liability arising from antisocial activity, but those who are eligible to claim public nuisance have to show that they have experienced special damage.

Question 16

Which court of law if public nuisance dealt under?

Answer 16

Public nuisance is both a tort and a crime and is generally dealt with under the criminal law. Note also that public nuisance is different to private nuisance and protects different interests.

Question 17

What is the criteria for establishing public nuisance?

Answer 17

One that materially affects the reasonable comfort and convenience of life of a class of His Majesty’s subjects.

Question 18

What are some examples of public nuisance?

Answer 18

• obstruction of a highway
• quarry blasting
• a badly organised festival, and
• blocking a canal.

Question 19

How can an individual bring a private claim for public nuisance?

Answer 19

It is possible for an individual to bring a private claim for public nuisance if they can show special damage compared to the rest of the community.

Question 20

What are the defences available for public nuisance?

Answer 20

General defences as well as any statutory authority authorising the defendant’s acts

Question 21

What remedies are available to combat public nuisance?

Answer 21

Both injunctions and damages are available as remedies. At present, it is possible to claim damages for personal injury.

Question 22

What is the rule in Rylands v Fletcher?

Answer 22

The rule in Rylands v Fletcher is concerned with the escape of dangerous things resulting from a non-natural use of land rather than interference with the land.

Question 23

How is liability determined in Rylands v Fletcher?

Answer 23

Liability is strict but not absolute.

Question 24

What are the elements for a claim to succeed for the rule in Rylands v Fletcher?

Answer 24

Four requirements must be established:

[D brings thing voluntarily] the defendant must have brought something onto the land likely to do mischief, if it escapes
[thing escapes] the dangerous thing must escape
[non-natural land usage] the use of the land by the defendant must have been non-natural, and
[damage] there must have been damage as a result of the escape.

Question 25

Explain the first requirement in Rylands v Fletcher: ‘D must have brought a thing onto the land likely to do mischief if it escapes’

Answer 25

1) D should have brought the thing onto the land voluntarily

N/B: If somethings escapes from the land that has grown naturally, this will NOT fit the Rylands v Fletcher definition

Question 26

What are examples of the ‘thing’ that is brought into the land voluntarily by D?

Answer 26

• water
• a fairground ride
• a flagpole
• electricity
• gas
• noxious fumes, and
• chemicals.

Question 27

Explain the second rule in Rylands v Fletcher: ‘the dangerous thing must escape’

Answer 27

The rule in Rylands v Fletcher deals with isolated escapes of things, and it must be shown that the thing has actually left the defendant’s land. If it does not escape, the claim will fail.

Question 28

How is the term ‘non-natural’ defined in terms of use of land?

Answer 28

‘Non-natural use’ - closer to non-ordinary than non-natural.

Question 29

Who can sue under the rule in Rylands v Fletcher?

Answer 29

You must be a party who either owns, or has exclusive possession of, the land onto which the thing escapes.

Question 30

What is the remedy under Rylands v Fletcher?

Answer 30

Damages

Question 31

What defences are available under Rylands v Fletcher? (5)

Answer 31

• volenti non fit injuria: it will be a defence if consent has been given to the dangerous thing being on the land
• contributory negligence: if the claimant contributes to the escape of the dangerous thing, then their damages will be reduced. It is possible for a further defence to arise – “default of the claimant” – owing to some abnormal sensitivity on the claimant’s property
• act of God: if the escape of the thing is caused purely by natural forces, the defendant will not be liable; for example, an exceptionally heavy thunderstorm causing unusually extensive flooding
• statutory authority: it will be a defence if a statute authorises the acts of the defendant, and
• act of a stranger: if the escape happens owing to the act of a third party, the defendant will not be liable unless it was reasonably foreseeable.