2B.4.1 Private nuisance Flashcards

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1
Q

Private nuisance

A

Private nuisance is defined as “The unreasonable use of man of his land to the detriment of his neighbour” in the case of Miller v Jackson (1977).

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2
Q

In private nuisance is the interference direct or indirect?

A

In most cases the interference will be indirect, because any interference with use or enjoyment is likely to be caused by noise, smell or smoke. However, an action for nuisance by direct interference would be possible if, for example, the roots of trees encroached from one property into the neighbouring property, perhaps causing damage to foundations.

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3
Q

When is it deemed that private nuisance has occured?

A

When the behaviour on an individual’s own property, affects a neighbour’s ability to enjoy their land, and when this is deemed to be ‘unreasonable’, it amounts to nuisance.

What is reasonable depends on whether the interference caused by any form of action is sufficient to give rise to legal action.

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4
Q

The claimant

A

The claimant must have an interest in the land.

This will include being an owner or a tenant but not a member of the owner’s family (with the exception of spouse), such as a child or lodger – who has no legal interest in the property.

Case: Hunter v Canary Wharf

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5
Q

Hunter v Canary Wharf

A

The claimants were a number of people living in the Docklands area of East London when Canary Wharf was being built. They claimed that the building affected their television reception.

It was held:
* The interference with the television reception was not sufficient to amount to a private nuisance.
* Only those claimants with an interest in the land, and not members of families, were able to bring a claim.

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6
Q

The defendant

A

Who may be sued?
* The person who causes the nuisance who have allowed the nuisance to occur.

  • The person who is causing, or allowing, the nuisance can be sued. For example, in the case of Tetley v Chitty (1986), a local authority which allowed go-kart racing on its land was held liable for a nuisance.
  • Where the occupier is not responsible for creating the nuisance, they might still be liable as a result of ‘adopting the nuisance’ – in other words, failing to deal with the problem, even if it was caused by a previous owner or a trespasser. This was seen in the case of Sedleigh Denfield v O’Callaghan (1940).
  • The occupier can be sued as long as they are aware of the nuisance on land under their control – as seen in Anthony v The Coal Authority (2005).
  • The occupier can be sued, even if the nuisance occurred naturally but they didn’t take steps to prevent it. This was seen in the case of Leakey v National Trust (2005).
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7
Q

What amounts to a nuisance?

A

The claimant will have to show an unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

In most cases the interference will be because of an indirect interference.

Mere interference on its own is not enough for a claim. The claimant must prove that the defendant’s activity amounts to an ‘unlawful’ use of land.

‘Unlawful’ here does not mean illegal, but that the court accepts that the defendant’s use of the land is unreasonable in the way that it affects the claimant.

A variety of activities have been held to amount to private nuisance, including:
* Cricket balls (Miller v Jackson (1977))
* Noise (Coventry v Lawrence (2015))
* Known risk of flooding (Sedleigh-Denfield v O’Callaghan (1940))
* Slippage of earth (Leakley v National Trust (1980))
* Fire
* Smell

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8
Q

Unreasonable use of the land

A

The tort is about balancing competing interests of the claimant and the defendant. The court will take into account various factors to decide whether or not the use of neighbouring land is reasonable.

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9
Q

Five elements that the courts must consider

A

1) Character of neighbourhood
2) Sensitivity of the claimant
3) Duration of the nuisance
4) Public benefit
5) Malice of D

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10
Q

Character of neighbourhood

A

Nuisance relates to the use of land in the area where it is situated, so the character of the neighbourhood has to be considered. The court will consider whether the area:
- Is purely residential
- Is partly residential and partly commercial or industrial
- Is situated in the town or country
- Has changed in character over time

In the case of Sturges v Bridgman, the judge said “What is nuisance in Belgrave Square would not necessarily be nuisance in Bermondsey”.

This does not need to be considered if physical property damage is caused.

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11
Q

Sensitivity of the claimant

A

If it can be shown that the claimant is particularly sensitive, then the activity may not be a private nuisance. This was seen in the case of Robinson v Kilvert.

The law on nuisance is moving away now from the idea of ‘abnormal sensitivity’ to a general test of foreseeability, as shown in the case of Network Rail v Morris.

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12
Q

[Case - sensitivity of the claimant]

Network Rail v Morris (2004)

A

The claimant ran a recording studio near the main London to Brighton railway line. New track circuits were installed beside the railway which interfered with the amplification of electric guitars, causing the claimant to lose business.

Held: the use of amplified guitars was abnormally sensitive. As the nuisance was not foreseeable, the defendants were not liable for private nuisance.

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13
Q

[Case - sensitivity of the claimant]

Robinson v Kilvert (1889)

A

The claimant stored heat sensitive paper on the ground floor of a shared building, while the defendant stored paper boxes in the basement. The defendant needed the conditions to be hot and dry. The heat from the basement caused the paper to dry out and the C sued for the loss in value.

It was decided that the paper was particularly sensitive and the heat from the basement would not have dried out normal paper, so there was no nuisance.

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14
Q

Duration of the nuisance

A

To be actionable, the interference is likely to be continuous and at unreasonable hours of the day or night.

In this way, regular, noisy, late-night parties are likely to amount to a nuisance, but a one-off party to celebrate a special occasion might not. However the case of Crown River Cruises Ltd was an exception to this.

The fact that the interference is only temporary is not a sufficient reason to avoid a claim if it is an unreasonable interference with the claimant’s use or enjoyment of the land.

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15
Q

[Case - duration of nuisance]

Crown River Cruises Ltd (1996)

A

A river barge was set alight by flammable debris coming from a firework display lasting 20 mins. It was held that the display amounted to private nuisance.

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16
Q

Public benefit

A

If it is considered that the defendant is providing a benefit to the community, the court may consider the actions reasonable.

The greater the public benefit the less likely nuisance will be actionable. As seen in the case of Miller v Jackson.

However, the opposite view was taken in Adams v Ursell (1913).

17
Q

[Case - Public benefit]

Miller v Jackson

A

The claimants complained that their use of their garden was disrupted by cricket balls being hit into it from the adjoining cricket club. The club erected high fencing along the boundary and instructed batsmen to hit the ball on the ground. Despite the attempts to compromise, the claimants continued their action.

The court decided the public benefit outweighed the private benefit and no private nuisance was being caused.

18
Q

[Case - Public benefit]

Adams v Ursell (1913)

A

In this case, a well-used fish and chip shop was found to be causing a nuisance to local residents due to the smell coming from it, and it was forced to close.

  • Today, in a case like this, the court could make a positive order for the premises to fit extractor fans to remove excessive smells, rather than to order an outright ban.
19
Q

Malice of D

A

A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance.

Case:
- Christie v Davey)
- Hollywood Silver Fox Ltd v Emmett

20
Q

[Case - Malice of D]

Christie v Davey (1893)

A

The claimant was a music teacher who held musical parties and lessons in his house. The defendant became annoyed by the noise and responded by banging on the walls with his hands and with trays, blowing whistles and shouting. An injunction was granted against him due to his deliberate and malicious behaviour.

21
Q

[Case - Malice of D]

Hollywood Silver Fox Ltd v Emmett (1936)

A

The defendant fired a shotgun on their own land to stop the next-door fox breeding business from devaluing his land. Held: Firing shotgun on own land was reasonable use of land but not reasonable if its purpose is to disrupt lawful activities of neighbour

22
Q

Remedies awarded for private nuisance

A
  • Injunction
  • Abatement
  • Damages
23
Q

[Remedy for private nuisance]

Abatement

A

Where a defendant removes the nuisance.

For example, in Lemmon v Webb (1894), a claimant could chop down overhanging branches from his own land and return them to the neighbour’s land.

24
Q

[Remedy for private nuisance]

Damages

A

Damages should only be awarded instead of an injunction when:
* The injury to the claimant’s right was small
* The claimant can be compensated by a small amount of money
* It would be unfair on the defendant to grant an injunction.

In Coventry v Lawrence (2014), the Supreme Court gave guidance to reduce the number of injunctions gven out in nuisance claims, and instead be prepared to award more damages instead.

25
Q

[Remedy for private nuisance]

Damages

A

Until the case of Coventry v Lawrence (2014), the most common remedy for a nuisance claim, and the whole point of bringing an action, was an injunction. This would generally be prohibitory, ordering the defendant to stop causing the nuisance.

For example in Kennaway v Thompson (1981), an injunction was granted to limit the use of a lake, close to the claimant’s house, for the racing of motor boats.

An injunction could also be positive in nature – for example, to order the defendant to install a filter to prevent the escape of smells. The injunction could be linked to the award of damages where a loss has occurred.

26
Q

Defences to private nuisance

A
  • Prescription
  • Moving the nuisance
  • Statutory authority
27
Q

[Defence to private nuisance]

Statutory authority

A

As many of the activities that can amount to a nuisance are now regulated or licensed by environmental or other laws, statutory authority is one of the most effective defences.

If a statute provides the only possible remedy an action in nuisance may not be possible as an alternative.

Case: Allen v Gulf Oil Refining (1981)

28
Q

[Defence of statutory authority]

Allen v Gulf Oil Refining (1981)

A

The defendants operated an oil refinery. Local residents brought an action in nuisance. The defendants have been given statutory authority to acquire the site and build a refinery, but there was no express provision to operate it.

The court said it must have been Parliament’s intention when it gave permission for the building of the refinery for the owners to operate itAs the nuisance was the inevitable consequence of operating the authorised refinery, a defence of statutory authority applied.

29
Q

[Defence to private nuisance]

Moving the nuisance

A

The defendant may argue that the claimant is only suffering the nuisance as they have moved closer to the alleged problem (as in Sturges v Bridgeman), or moved into the area (Miller v Jackson) and that there was no issue previously. This does not amount to a defence.

30
Q

[Defence to private nuisance]

Prescription

A

This is a defence that is specific to nuisance. If the action has been carried on for at least 20 years, and there has been no complaint between the parties in that time, then the defendant has a prescriptive right to continue.

It was first noted in the case of Sturges in Bridgman.

It was also considered in the case of Coventry v Lawrence.

31
Q

[Defence of prescription]

Sturges v Bridgman

A

The claimant (a doctor) had lived and worked next to the defendant’s confectionary factory. The claimant built a consulting room on the boundary of his garden next to the factory. He then complained of feeling vibrations in the consulting room which came from the factory, and this amounted to nuisance.

The defendant argued he had a prescriptive right to continue as he had been using the factory for over 20 years without complaint. The court decided that the defence failed as the nuisance only began when the consulting room was built.