Land Torts - Private Nuisance

Question 1

What is the underlying objective of Land Torts?

Answer 1

They seek to protect an individual’s ability to use and enjoy their land freely without unwanted and unwarranted interference from others.

Question 2

What is the Land Tort of Private Nuisance?

Answer 2

Percy Winfield - ‘any unlawful interference with a person’s use or enjoyment of land or some right over it’.

Question 3

What is the objective of Private Nuisance?

Answer 3

It seeks to regulate the relationship between neighbours, defining their mutual rights and obligations with respect to their use of their property.

Question 4

What key distinction is there within the Land Tort of Private Nuisance?

Answer 4

Since St Helen’s Smelting Co v Tipping a distinction is drawn between damage to property and interference with use and enjoyment; most nuisance cases concern the latter.

Question 5

What does Private Nuisance concern?

Answer 5

It concerns indirect interferences and is only actionable with proof of damage.

Question 6

Which case saw the delineation of three specific categories within Private Nuisance?

Answer 6

Lord Lloyd in Hunter v Canary Wharf identified three distinct categories of Private Nuisance.

Question 7

What are the three delineated categories of Private Nuisance laid down in Hunter v Canary Wharf?

Answer 7

‘Private nuisances are of three kinds. They are (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land’

Question 8

What are the four hurdles to claims in Private Nuisance?

Answer 8

1. Standing
2. Emanation
3. Showing defendant is an unreasonable user (many things to weigh up – the ‘matrix of factors’)
4. Potential Defences for the Defendant

Question 9

What is needed to establish legal standing?

Answer 9

An individual seeking to make a claim under Private Nuisance must have some interest in the land that has been unreasonably interfered with.

Question 10

Which cases illustrates the standing requirement for private nuisance claims?

Answer 10

Malone v Laskey - Woman hit on head after vibrations from neighbour’s generator caused it to fall off the wall. It was held she had insufficient standing to sue.

Question 11

Who can be sued under Private Nuisance?

Answer 11

Under Private Nuisance a suit can be made against the creator or adopter of a nuisance. The key question is who has possession and control?

Question 12

Which case demonstrates who can be sued under Private Nuisance?

Answer 12

Cocking v Eacott

Question 13

What are the details and findings of the Cocking v Eacott case?

Answer 13

W owned a house and allowed her daughter E to live there. E created a nuisance by shouting and allowing her dog to bark. It was held that both W & E were jointly liable. E as she had possession and control. W was in control of the property even though not occupying it.

Question 14

What can a person be sued for under Private Nuisance?

Answer 14

1. To get them to stop doing what they’re doing on their land (injunction – partial or full)
   and/or;
2. Damages to compensate for either property damage (if this has occurred) or lost enjoyment of land (lost amenity)

Question 15

What is the slight restriction on what can be sued for under private nuisance?

Answer 15

Individuals can only claim for harm done to the land (though this can include harm to its ‘amenity’).

Question 16

What is the potential difficulty when suing for damages as a result of private nuisance?

Answer 16

If loss has been suffered because of a nuisance then damages will be available. Where the loss is damage to property, quantification is straightforward, but damages for interference with amenity and personal ‘discomfort’ are more problematic.

Question 17

Which case illustrates a successful actions under Private Nuisance?

Answer 17

Bone v Seale - Neighbours successfully sued for loss of amenity caused by smells from local pig farm.

Question 18

Is there a requirement of reasonable foreseeability for successful actions under Private Nuisance?

Answer 18

Seemingly yes, as with negligence, it seems that liability in nuisance will only arise where the damage caused to the claimant’s land is reasonably foreseeable.

Question 19

What reinforces the notion that there is a reasonable foreseeability requirement for successful action under Private Nuisance?

Answer 19

Lord Goff’s words in the Cambridge Water Case, effectively he said that foreseeability should be required in claims for damages to land and private nuisance as this is a requirement in many personal injury cases (e.g. negligence cases).

Question 20

What is the emanation requirement under Private Nuisance?

Answer 20

It was established in the case of Hunter v Canary Wharf that, for a Private Nuisance claim to have any chance of success, there must be an emanation - something (for example a smell, smoke, or noise) must move from one neighbour’s onto another’s.

Question 21

What is the unreasonable use by the defendant requirement?

Answer 21

This centres around the question of whether there was an unreasonable interference with the claimant’s use and enjoyment of land?

Question 22

What is the purpose of the unreasonable use by the defendant requirement?

Answer 22

This hurdle is designed to distinguish between interferences that can and can’t ground claims for Private Nuisance - not every interference with a person’s use and enjoyment of land can amount to a private nuisance.

Question 23

What are the three categories of factors the courts can take into account when determining whether a defendant has exercised unreasonable use?

Answer 23

1. Factors that are always considered
2. A factor that is sometimes considered, dependant on the type of claim
3. Other factors that are sometimes considered, if relevant to the claim

Question 24

What are the factors that are always considered by the courts?

Answer 24

Intensity – including duration, frequency and timing of the interference.

Question 25

What is the factor that is sometimes considered depending on the type of claim?

Answer 25

The nature of the locality.

Question 26

What are the other factors that are sometimes considered if relevant to the claim?

Answer 26

Sensitivity of the claimant and bad intentions of the defendant.

Question 27

What is the purpose of the intensity consideration?

Answer 27

The intensity consideration is designed to act as a tool to find a balance between those interferences that are unreasonable and those that should be put up with.

Question 28

What was said regarding the balancing act carried out by the intensity consideration?

Answer 28

The case of Kennaway v Thompson identified the position that actions for Private Nuisance may only arise where ‘the irritating noise causes inconvenience beyond what other occupiers in the neighbourhood can be expected to bear’ indeed, ‘there must be a measure of give and take’ - the intensity consideration performs this distinguishing role.

Question 29

How may the nature of the locality play a part in the courts judgement upon ‘unreasonable’ land use?

Answer 29

The reasonableness of the use of land can depend on, alongside other considerations, the character or nature of the area of land it is in – its ‘locality’.

Question 30

What was said regarding the potential influence of the nature of the locality by LJ Thesiger in Sturges v Bridgman?

Answer 30

It was said that - “What would be a nuisance is Belgrave Square would not necessarily be so in Bermondsey”

Question 31

What distinction is there in regard to consideration of the nature of the locality?

Answer 31

The case of St Helens Smelting Co v Tipping established that in cases of interference with amenity interests (use and enjoyment of land) the ‘locality’ consideration will be taken into account, but in cases of actual physical damage the nature of the ‘locality’ is irrelevant.

Question 32

Which two case illustrates an instance in which the nature of the locality was considered by the courts when judging on the reasonableness of land use?

Answer 32

Coventry v Lawrence - the claimants moved into a house less than a kilometre from a pre-existing motor vehicle racetrack. They sued for an injunction claiming the noise was a nuisance. It was held that the speedway was inconsistent with nature of locality and a nuisance.

Question 33

Can the nature of a locality change over time?

Answer 33

Yes, case law illustrates that it is possible for the nature of a locality to alter or develop over time.

Question 34

Which case illustrated that the nature of a locality may change?

Answer 34

Gillingham Borough Council v Medway (Chatham) Dock Co Ltd.

Question 35

What were the details and findings of the Gillingham Borough Council Case?

Answer 35

A Navel dockyard in Gillingham closed and the council had granted planning permission for a commercial port to be opened. It was held that the planning permission had changed the locality and so there was no nuisance.

Question 36

Will the granting of planning permission always change the nature of the locality (as in the case of Gillingham Borough Council)?

Answer 36

No;
Coventry v Lawrence showed that planning permission is only indicative not determinative.
Wheeler v JJ Saunders Ltd saw it held that planning permission had not changed the nature of the locality.

Question 37

How may consideration of the sensitivity of the claimant play a role in the courts reasoning on what constitutes reasonable land use?

Answer 37

Generally, if a use is interfered with by the defendant only because of its unusual sensitivity, the interference will not amount to a nuisance.

Question 38

What further reinforced the courts position in regards to the sensitivity of claimants?

Answer 38

In the case of Walter v Selfe, it was said that in order for an interference to be actionable it must be ‘[an] inconvenience materially interfering with the ordinary comfort … of human existence’.

Question 39

Which case illustrated the courts consideration of the sensitivity of the claimant when judging upon the reasonableness of land use?

Answer 39

Robinson v Kilvert

Question 40

What were the details and findings of the Robinson v Klivert Case?

Answer 40

Defendants manufactured boxes in the cellar under the warehouse where the claimants were making and storing paper and twine. Warm dry air from defendant’s cellar damaged some of the claimant’s specialist brown paper. It was held that there was no liability as heat would only have harmed “an exceptionally delicate trade.”

Question 41

What was the significance of the Network Rail Infrastructure Ltd v Morris in regards to the sensitivity and foreseeability considerations?

Answer 41

Network Rail installed a new signalling system near a recording studio. It emanated electro magnetic waves which interfered with electric guitars. The HoL held the test was whether it “was foreseeable that specific damage would be caused to a specific claimant[‘s use of land].’”

Question 42

How may consideration of the bad intentions of the defendant play a role in the courts reasoning on what constitutes reasonable land use?

Answer 42

In assessing whether the defendant’s is a reasonable user of their land, their motive may be taken into account. This is really only an issue where actions by the defendant are undertaken in bad faith, or with malice towards the claimant.

Question 43

Which case illustrated the courts consideration of the bad intention of the defendant when judging reasonable land use?

Answer 43

Christie v Davey

Question 44

What are the details and findings of the Christie v Davey case?

Answer 44

A Music teacher’s work disturbed her neighbour, the neighbour responded by creating a cacophony. The teacher sued the neighbour and the neighbour counter claimed. It was held that the use of property “only for the purpose of annoyance…[is] not a legitimate use of the defendant’s house.”

Question 45

What are the potential defences to private nuisance?

Answer 45

1. Volenti non fit injuria (Voluntary Assumption of Risk)
2. Contributory Negligence
   (these are the general defences)
3. Statutory Authority
4. 20 years prescription
5. Public benefit or utility of the defendants activity
   (these are the defences specific to private nuisance)

Question 46

Which case illustrated the application of a defence of statutory authority?

Answer 46

Allen v Gulf Oil Refining Ltd

Question 47

What are the details and findings of the Allen Case?

Answer 47

Gulf Oil Co. had been authorised by the Gulf Oil Refining Act 1965 to build an oil refinery in South Wales. Local residents brought a case arguing the statute only authorised building, not operation. Gulf Oil were not liable, their actions had been endorsed by statutory authority.

Question 48

What is the 20 years prescription defence to private nuisance?

Answer 48

If a user of land can show that they have been using their land in the way complained of for more than 20 years in which the claimant had been able to claim, this will act as a defence to public nuisance claims.

Question 49

Which case illustrates the application of the 20 years prescription defence to private nuisance?

Answer 49

Sturges v Bridgman

Question 50

What were the details and findings of the Sturges v Bridgman Case?

Answer 50

The claimant lived next to the defendant sweet maker for over 20 years. Sweet making became an annoyance to him when he extended his premises to build a consulting room at the back. It was held that the 20 years run only from the point at which the activity became a nuisance.

Question 51

Is ‘coming to the nuisance’ a defence for private nuisance?

Answer 51

No, it isn’t - this was established in the case Miller v Jackson.

Question 52

What are the details and findings of the Miller v Jackson Case?

Answer 52

Houses were built next to a cricket ground that had been in operation for 70 years. The occupiers argued that balls hit onto their property were a nuisance. It was held that the balls were a nuisance. But no injunction was awarded.

Question 53

What is the public benefit or ‘utility’ of the defendant’s activity as a defence to private nuisance?

Answer 53

Generally this defence is not actually taken into consideration when establishing reasonableness of use of land – but rather is taken into account when considering what remedy to grant.

Question 54

What is the position of the courts regarding the public benefit of the defendant’s activity?

Answer 54

The courts have been reluctant to accept that, just because there is a public benefit to D’s actions, that by itself this will mean that no nuisance is caused. The question is rather, after compensation has been paid, is the activity acceptable?

Question 55

Which case illustrates practical consideration of the public benefit of the defendant’ activity?

Answer 55

Dennis v Ministry of Defence

Question 56

What are the details and findings of the Dennis v Ministry of Defence case?

Answer 56

Claimant’s property was disturbed by RAF jets from local air field, causing loss in property value and loss of amenity. There was held to be a nuisance, but an injunction was refused - because of the public benefit of the defendant’s activity.

Question 57

What are the two main remedies in nuisance?

Answer 57

1. Injunctions

2. Damages

Question 58

On a basic level, what are injunctions and damages?

Answer 58

1. Injunctions - seek to prevent or stop a nuisance

2. Damages - compensation

Question 59

Which case provided guidance on when damages are a more appropriate remedy than an injunction?

Answer 59

Shelfer v City of London Electric Lighting Co

Question 60

What were the details and findings of the Shelfer v City of London Electric Lighting Co Case?

Answer 60

The claimant’s argued vibrations and noise from an electricity station were a nuisance. An injunction was awarded and 4 factors for consideration when determining when damages should be awarded instead of injunctions were laid out.

Question 61

What are the four considerations for awarding damages instead of an injunction laid out in the Shelfer v City of London Electric Lighting Co Case?

Answer 61

(a) If the injury to the claimant’s legal right is small.
(b) And is one which is capable of being estimated in money,
(c) And is one which can be adequately compensated by a small money payment,
(d) And the case is one in which it would be oppressive to the defendant to grant an injunction.

Question 62

Which case refined or clarified the 4 factors laid down in the Shelfer v City of London Electric Lighting Co Case?

Answer 62

Coventry v Lawrence - here it was said that the 4 factors should be treated as guidelines, not a mathematical formula.

Question 63

Which case illustrates the awarding of damages in place of an injunction?

Answer 63

Dennis v Ministry of Defence (see other card(s) for details)

Question 64

What is the third, additional, possible remedy following a successful action for private nuisance?

Answer 64

Abatement - this allows/involves the claimant to take action into their own hands, directly ending the nuisance - e.g. by trimming back a hedge.