Nuisance Flashcards
What are the requirements of nuisance?
- Claimant has an ‘interest in land’
- The defendant is the person allowing the nuisance
- There is an unlawful interference with the claimants use and enjoyment of their property
- The use of land by the Defendant is unreasonable
Claimant has an interest in land - what does this mean, who does it apply to, use cases
Hunter v Canary Wharf
Anyone with a legal interest - can be owners or tenants, but not children, family, or friends
Defendant is the person allowing the nuisance - what does this mean - what are some cases with rules
Defendant has to be the one causing or allowing the nuisance.
Adopting the nuisance -(O’Callaghan)
Tetley v Chitty - D can be landlord allowing nuisance to take place on land
The case of Leakey also shows this can be someone who owns the land where the nuisance is naturally occurring
Unlawful interference with the Claimant’s use and enjoyment of property (part 1) - what does this mean and what is included
Unlawful doesn’t mean illegal, it just has be unreasonable in the way it affects the Claimant.
Fumes and factory noise / smell (Halsey)
Smells (Adams)
Noise (Thompson)
Vibrations from a factory (Sturges)
Hot air (Kilvert)
Unlawful interference with the Claimant’s use and enjoyment of property (part 2) - what is included, what isn’t.
Included:
Tree branches/roots (Webb)
Cricket/golf balls (Miller)
Flood ( Leakey)
Emotional distress caused by offence (Costaki)
Not Included:
Right to view countryside (Aldreds Case 1610)
Right to light
Right to TV reception (Hunter)
Unreasonable use of Land by the Defendant - what does this mean, and what are some factors that can be considered?
This is about balancing the interests of both parties
Factors:
Locality - Sturges
Duration - typically needs to be a one off and not continuous - Kimbolton Fireworks, Spicer Brothers
Sensitivity of the Claimant - If C is being particularly sensitive and damage is not foreseeable to the Defendant - Kilvert, Morris
Malice - If actions are deliberately harmful they will usually be classed as unreasonable - Emmett, Davey
Social Benefit - If D’s actions have a social benefit to the community, they will generally not be unreasonable - Jackson, Ursell
Defences - there are five - what are they called?
- Consent
- Prescription
- Acts of a Stranger
- Planning Permission
- Statutory Authority
Consent - what are the requirements, with cases
- C must have precise knowledge of the risk
- C must exercise free choice
- C must voluntarily accept the risk
Nettleship, Baker
Prescription - what is it, with a case
This is a defence that is unique to nuisance. Prescription may be a defence to a nuisance action – if the action had been carried on for at least 20 years, and there has been no complaint between the parties in that time. In this case the defendant could be said to have a prescriptive right to continue.
Coventry
Acts of a Stranger - what does this mean, with a case
This means a defendant can avoid liability if the action was done by a third party or a stranger. Whilst a Defendant may not always be liable for acts of a stranger or third party which have created a nuisance, they may find themselves liable if they are seen to have “continued” or “adopted” the nuisance.
O’Callaghan
Planning Permission - what is it, what does it have to do, include a case
It can sometimes work – but only when the permission is for a development which has changed the character of the neighbourhood.
Gillingham Borough Council
Where planning permission is given for a development which changes the character of the neighbourhood, any claim in nuisance is decided based on what is reasonable in that new type of neighbourhood
However, if the planning permission does not change the character of the neighbourhood, it will not operate as a defence.
Statutory Authority - what is it, use a case
This means that there is an Act of Parliament which gives the Defendant permission to be carrying out the activity causing the nuisance.
Allen
