Nuisance

Question 1

What are some nuisances?

Answer 1

People have a right to do what they want in their own homes as long as what they do is reasonable.
Unreasonable behaviour could constitute a nuisance.

E.g. playing loud music through the night.
Three types of nuisance:
Private Nuisance;
Public Nuisance; and
Statutory Nuisance.

Question 2

What is direct and indirect interference?

Answer 2

Direct interference will result in an action under Trespass to Land.

Indirect interference will result in a claim under nuisance.

Question 3

What is private nuisance?

Answer 3

Private nuisance deals with claims involving the infringement of private rights:
Usually between neighbours.

Question 4

What is Public nuisance?

Answer 4

Public nuisance deals with claims involving the infringement of public rights.
Where actions of one party affect a class of people.

Question 5

What is Statutory nuisance and give an act?

Answer 5

Statutory nuisance follows Parliament declaring certain activities as being capable of constituting a nuisance.
Environmental Act 1995

Question 6

What is the definition of nuisance?

Answer 6

Judicially approved definition:
“…an (indirect) unlawful interference with a perso

Question 7

What must the interference be?

Answer 7

Interference must be indirect.
Direct interference would fall under a claim in Trespass to Land.

Question 8

What does ‘unlawful’ mean? Are all unlawful?

Answer 8

‘Unlawful’ refers to unreasonable in this context.
Not all interferences are unlawful:
Everyday smells, everyday noises, etc.

Question 9

To being a claim what must a person have have?

Answer 9

To bring a claim under Private Nuisance, the claimant must have a legal interest (Proprietary Interest) in the land.
Freehold or Leasehold possession.

Question 10

Who doesn’t have a claim- categories of people do not have propriety interest in land? Give a case (wife).

Answer 10

Guests at a hotel, person staying at a friend’s address, children.

Malone v Laskey [1907]

Question 11

What did Hunter v Canary Wharf discuss and what was held?

Answer 11

Whether interference with television reception was capable of giving rise to an actionable nuisance
Whether an interest in property was required to bring an action in.
Held:
There is no right of action in nuisance for interference with the television reception.
A proprietary interest in property is required to bring an action in nuisance

Question 12

What did Hunter v Canary Wharf discuss and what was held?

Answer 12

Whether interference with television reception was capable of giving rise to an actionable nuisance
Whether an interest in property was required to bring an action in.
Held:
There is no right of action in nuisance for interference with the television reception.
A proprietary interest in property is required to bring an action in nuisance

Question 13

Who is liable in Private Nuisance?

Answer 13

Those liable do not need to have a proprietary interest in the land.
Usually there are three potential defendants in private nuisance.
These are:
The creator of the nuisance;
The occupier of the land from which the nuisance originates (whether or not the occupier also created it); and
The landlord.

Question 14

Explain the creator of the Nuisance and give a case.

Answer 14

Obvious defendant is the creator of the nuisance.
Defendant does not need to have a proprietary interest in the land, unlike the claimant.
Southport Corporation v Esso Petroleum Co Ltd [1956]

Question 15

Explain the occupier, how else can they be liable?

Answer 15

Occupier is the usual defendant.
Will be responsible for nuisances that emanate from their property.
The occupier can even be liable for the nuisances created by the following:
Independent Contractors;
Trespassers; and
An Act of Nature.

Question 16

Explain independent contractors and give a case?

Answer 16

Occupier will be liable for the work done by an independent contractor if there is a real danger of a nuisance occurring and they have not taken reasonable measures to prevent it.
Matania v National Provincial Bank Ltd [1936]

Held: There is vicarious liability for independent contractors in cases of nuisance, particularly where no steps are taken to avoid the nuisance.

Question 17

Explain trespassers and give a case?

Answer 17

Occupier will be liable for nuisances created by trespassers if the adopt the nuisance or allow the nuisance to continue.
Sedleigh-Denfield v O’ Callaghan [1940]

Question 18

Explain act of nature/god? Give a case.

Answer 18

Occupier will be liable if they were aware, or ought to have been aware of a potential nuisance that could be caused by an Act of Nature/God.

Goldman v Hargrave [1967]
Leakey v National Trust [1980]
Holbeck Hall Hotel Ltd v Scarborough Borough Council [2000]

Question 19

When are landlords liable? Give a case.

Answer 19

Landlords can sometimes be liable for activity which creates a nuisance on their land.
Applicable where the landlords permits the nuisance.

Tetley v Chitty [1986]

Question 20

Failing to deal with a nuisance can also lead the landlord liable, give a case.

Answer 20

Page Motors Ltd v Epsom & Ewell Borough Council (1982)
The council was liable in nuisance for failing to deal with gypsies who camped out on council land and then interfered with the claimant’s business.

Question 21

What are the elements of private nuisance?

Answer 21

The definition of private nuisance is an (indirect) unlawful interference with a person’s use or enjoyment of land or some right over, or in connection with it.

It is clear from the definition that there are three main elements which must be proved:

An unlawful, in the sense of unreasonable, use of land;

Which causes indirect interference;

With another’s land.

Question 22

Will activity complained of is classed as a result of ‘everyday life’ be classed as unlawful.
Case?

Answer 22

If the use of a person’s land unreasonably interferes with the use of another’s land it will be regarded as being unlawful for the purposes of private nuisance.

If the activity complained of is classed as a result of ‘everyday life’ then it will not be classed as unlawful.

Southwark London Borough Council v Mills and Others, Baxter v Camden London Borough Council [1999]

Question 23

If the actions of the defendant are likely to cause a foreseeable nuisance, the defendant will be liable.
The courts will consider the following factors:

Answer 23

Locality;
Duration;
Malice; and
Sensitivity of the claimant.

Question 24

Locality. What is classed as being reasonable will depend on the locality of the potential nuisance.
What did Sturges v Bridgman say?

Answer 24

What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey.”

Question 25

When is locality not relevant?

Answer 25

Where actual physical damage is caused as a result of the activity, the issue of locality is not relevant - St Helen’s Smelting Co. v Tipping (1865).

Question 26

What is locality important?

Answer 26

Where the interference is with a person’s comfort, peace or personal freedom, locality is important.
Laws v Florinplace Ltd [1981]
An injunction was granted to prevent the use of a shop converted into a sex shop and cinema club in a residential area.

Question 27

For an activity to amount to a nuisance it must be, what.

Answer 27

For an activity to amount to a nuisance it must be continuous. Andreae v Selfridge & Co Ltd [1937] –

Question 28

This requirement of being continuous for duration will be satisfied if?

Answer 28

This requirement may be satisfied by an activity which recurs regularly.
De Keyser’s Royal Hotel Ltd v Spicer Bros Ltd (1914

Question 29

Can a ‘one off’ of isolated incident can amount to a nuisance?

Answer 29

A ‘one off’ or isolated incident can also amount to a nuisance.
Spicer v Smee [1946]

Question 30

Explain malice with a case.

Answer 30

The defendant’s motive, if it can be characterised as ill-will or spite, may well result in the court regarding what would otherwise be a reasonable activity as unreasonable and therefore a nuisance.
Christie v Davey [1893]
Hollywood Silver Fox Farm v Emmett [1936]

Question 31

Nuisance only operates to protect the claimant’s reasonable use of their land.
Where the use to which the claimant puts the land is unusually sensitive to things such as heat or fumes the defendant will?

Show a case.

Answer 31

Not be liable. Robinson v Kilvert (1889)

Question 32

If ordinary uses of the land are also interfered with, there will be a …. available for the interference of sensitive use. What case shows this?

Answer 32

McKinnon Industries v Walker [1951]

Question 33

What will the courts look at what test when determing whether a claim for sensitive inference would be permissible. Give a case.

Answer 33

Network Rail v Morris [2004]
A ‘test of foreseeability’.

Question 34

Explain social benefit? Case.

Answer 34

If the courts consider that the defendant is providing a social benefit to the community, the court may consider the actions reasonable.
Miller v Jackson [1977]

Question 35

Look at some examples of indirect inference.

Answer 35

Interference must be indirect.
Examples include:
Fumes drifting over neighbouring land - Bliss v Hall (1838)
Vibrations from industrial machinery - Sturges v Bridgman [1879]
Loud noises, including gunfire - Hollywood Silver Fox Farm v Emmett [1936]
Fire - Spicer v Smee [1946]
Continuous interference from cricket balls - Miller v Jackson [1977]

Question 36

What must a claimant prove that the act of the defendant has caused a (use and enjoy)?

Answer 36

Claimant must prove that the act of the defendant has caused an indirect interference with the use and enjoyment of the land.

Question 37

Is it easier to find physical damage for use or enjoyment of land or non-physical?

Answer 37

Where physical damage has occurred, it is easy to prove.
Non- physical damage – court will ask what effect th

Question 38

The inference must also be SUBSTANTIAL! Case.

Answer 38

Bridlington Relay Ltd v Yorkshire Electricity Board [1965]

Question 39

What are the defences to private nuisance?

Answer 39

Prescription;
Statutory Authority; and
Planning Permission/Consent.
A defendant may also try to defend their claim by arguing that the claimant came to the nuisance or try to blame the acts of others in the nuisance.

Question 40

Are the defences effective?

Answer 40

Whilst these defences seem to be morally justifiable they are, in fact, ineffective.

Question 41

What is prescription? How long must the time gap be?

Answer 41

When a defendant relies upon the defence of prescription they are claiming that they have acquired the right to commit the nuisance.

To rely on this defence, the activity complained of must have been carried on for a period of 20 years.
Throughout that time, the activity must have been causing an actionable as a private nuisance, but nobody has in fact taken action.

It does not matter how long an activity has been carried on for unless, for the last 20 years at least, someone has been in occupation of nearby land and would have been able to establish a nuisance affecting land

Question 41

What is prescription? How long must the time gap be?

Answer 41

When a defendant relies upon the defence of prescription they are claiming that they have acquired the right to commit the nuisance.

To rely on this defence, the activity complained of must have been carried on for a period of 20 years.
Throughout that time, the activity must have been causing an actionable as a private nuisance, but nobody has in fact taken action.

It does not matter how long an activity has been carried on for unless, for the last 20 years at least, someone has been in occupation of nearby land and would have been able to establish a nuisance affecting land

Question 42

Give a case for prescription.

Answer 42

Sturges v Bridgeman (1879)

Held: The use of land prior to the construction of the consulting room was not preventable or actionable and therefore it was not capable of founding a prescription right.

Question 43

What is Statutory Authority? Give an example statute.

Answer 43

An Act of Parliament can allow a defence to nuisance.
If the Act authorises the activity which creates the nuisance.
Civil Aviation Act 1982 – allows aircraft to fly over land.
Many activities that can amount to a nuisance are now regulated or licensed by environmental or other laws.
Statutory Authority is a clear defence in these situations.

Question 44

Give a case for Statutory Authority.

Answer 44

Allen v Gulf Oil Refining [1980]

Marcic v Thames Water Plc [2003]

Question 45

For Statutory Authority if the act provides the only remedy available, the claimant cannot bring an action in…? Give a case.

Answer 45

…in private nuisance – Marcic v Thames Water Plc [2003].

Question 46

Planning permission granted by local authorities can…Give a case.

Answer 46

…negate a nuisance.
Gillingham Borough Council v Medway (Chapham) Dock Co Ltd [1993]

Question 47

When will planning permission not operate as a defence?

Answer 47

If the planning permission does not change the character of the neighbourhood, it will not operate as a defence.

Question 48

Give a case for planning permission linking to does not change the character of the neighbourhood.

Answer 48

Wheeler v JJ Saunders Ltd [1996]
Held: The appeal was dismissed. The granting of planning permission differs from statutory authority and confers no immunity from an action in nuisance. The decision in Gillingham Borough Council merely states that the granting of planning permission may change the neighbourhood which may make it more difficult to establish a nuisance. It does not authorise a nuisance.

Question 49

Is coming to the nuisance a defence.

Answer 49

Moving to a nuisance is not a defence.

Question 50

Give a case for coming to a nuisance.

Answer 50

Bliss v Hall (1838)

Question 51

What is the justification for the rule on coming to a nuisance.

Answer 51

The justification for this rule is as follows:
It would be unreasonable to suspect someone not to purchase land because a neighbour was abusing his or her rights by making an unreasonable use of their land; and

People would dictate to what use they put their land and how unreasonable a use it would be. They would, therefore, be unilaterally deciding to what use the neighbouring land could be put.

Question 52

What is the justification for the rule on coming to a nuisance.

Answer 52

The justification for this rule is as follows:
It would be unreasonable to suspect someone not to purchase land because a neighbour was abusing his or her rights by making an unreasonable use of their land; and

People would dictate to what use they put their land and how unreasonable a use it would be. They would, therefore, be unilaterally deciding to what use the neighbouring land could be put.

Question 53

What does Coventry v Lawrence [2014]?

Answer 53

The rule in Sturges v Bridgeman still applied, in relation to the character of the neighbourhood. The court also provided that if the claimant uses the property for the same purposes as his predecessor, the defendant cannot use the defence of coming to the nuisance (see below); but

Where a claimant builds on is property or changes the use of his property after the defendant has started his use of the activity complained of, then the defence of coming to the nuisance may fail; and

Damages may be considered as a remedy more often in nuisance cases, especially where planning permission has been awarded to the defendant for the use of his land, or where the public interest is involved, such as employees losing their jobs if an injunction is awarded.

Question 54

Can a defendant argue that their activity is of social utility and therefore cannot amount to a nuisance?

Answer 54

The defendant cannot argue that their activity is of social utility and therefore cannot amount to a nuisance.

Question 55

Give a case for social utility.

Answer 55

Adams v Ursell [1913]

Question 56

What will happen if the courts consider the defendant’s activity is providing a public benefit? Give a case. Was it successful?

Answer 56

If the courts consider that the defendant’s activity is providing a public benefit they may consider the actions of the defendant as reasonable.

Still not a defence – Miller v Jackson (tennis balls).