Chapter 43- Private nuisance

Question 1

Define private nuisance

Answer 1

The unreasonable indirect interference with the claimants land or with their enjoyment of their land

Question 2

To prove private nuisance, what are the 3 elements:

Answer 2

• The indirect interference
• The interference must be unreasonable
• The interference must have caused damage

Question 3

Describe indirect interference

Answer 3

• The claimant must prove that the defendant has caused an intereference with the claimants use of their land.
• It MUST be indirect and the result of the continuning state of affairs, rather than a one-off
• It may involve physical invasion, such as water flooding onto land or it can be something intangible such as noise

Question 4

Describe how interference can be Unreasonable

Answer 4

• This is when it goes beyond the normal bounds of acceptable behaviour

Question 5

Describe how the Interference causes damage

Answer 5

• This interference must have caused material damage.
• This can be enjoyment of land or physical damage
• The court will concentrate on the damage to the land itself rather than the landowner. This means the landowner has to show how their land has been affected by the unreasonable activity

Question 6

Who can sue

Answer 6

• Tenant
• Owner
• Landowner

Question 7

What are the 3 categories of the people who can be sued

Answer 7

1- The creator of the nuisance: this can apply even when they no longer occupy the land. They will not be liable for trespassers or independent contractors
2- The person who authorises the nuisance
3- Anyone who adopts the nuisance

Question 8

List the factors that affect whether or not an activity is considered reasonable or not

Answer 8

• Locality
• Duration
• Sensitivity
• Malie

Question 9

LOCALITY:

Answer 9

• A specific land use may be reasonable in one area but not another. However, this rule does not apply in cases where the interference causes physical damage to property
• The character of a locality can also be changed when planning permission is granted. This means activity that might have been considered unreasonable before the change occurred is now considered reasonable.

Question 10

DURATION:

Answer 10

• The longer the interference continues the more likely it is to be a nuisance.
• However, there can still be liability for a short interference if it causes substantial harm.

Question 11

SENSITIVITY:

Answer 11

• The law cannot take into account abnormal sensitivity. As a result, the defendant will not be responsible for damage caused to another that occurred only because of being unusually sensitive.
• The claimant cannot win if they cannot prove that those affected are also ordinary, healthy people

Question 12

MALICE:

Answer 12

• Behaviour that is motivated by malice may make an otherwise reasonable act into a nuisance.

Question 13

What are the 2 main defences to a claim of nuisance

Answer 13

> Prescription
Statutory authority

Question 14

Describe the defence of prescription

Answer 14

• It can be considered a defence when the defendant shows that the nuisance has been actionable for 20 years and the claimant was aware. If the activity has continued for 20 years, this will legalise any potential nuisance.

Question 15

Describe the defence of statutory authority

Answer 15

• If an Act of parliament authorises the defendant’s activity, the defendant will not be liable.
• Usually, the activity will be inevitable due to the fact that it cannot be avoided