Nuisance Flashcards
Private nuisance
Unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it.
Requires the claimant to show:
* that there is an interference with the claimant’s use and enjoyment of land or some rights
they enjoy over it; and
* that the interference is unlawful.
Private nuisance - interferences
3 types:
(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.
Interference must be unlawful/unreasonable.
Private nuisance - interferences - unlawful - relevant factors
- Duration and frequency
- Excessiveness of conduct/ extent of the harm
- Character of the neighbourhood
- Public benefit
- Malice
- Ignore any abnormal sensitivity
Private nuisance - who can sue?
Only a person
with the right to exclusive possession of land can sue.
Includes both owner-occupiers and tenants.
Children of the owner- occupier do not have a right to exclusive possession and cannot
therefore bring a claim.
Private nuisance - who is liable?
- The creator of the nuisance.
- The occupier of the land from which the nuisance originates (whether or not the occupier
also created it). - The landlord.
Private nuisance - damage
Physical damage to land or buildings is clearly
recoverable. (Crops/ plants growing in the land are treated as part of the ‘land’.)
Not for personal injury.
Private nuisance - effective defences - prescription
If the defendant can show that they have been continuing
the nuisance for a period of at least 20 years against the claimant.
The effect of prescription
is that the defendant has ‘acquired’ the right to commit the nuisance.
The defence is rarely available, however, as the interference must have been actionable by
the particular claimant for at least 20 years
Private nuisance - effective defences - statutory authority
Defence of statutory authority if it can show that the nuisance was an inevitable result of doing what the statute authorised.
Some statutes permit nuisance.
Private nuisance - effective defences - necessity
2 elements needed:
* a situation of necessity exists because of an imminent danger to life and limb (or, in very
limited circumstances, a threat to property); and
* that the defendant’s actions were reasonable in all the circumstances.
The defence cannot be used if the circumstances giving rise to necessity were of the defendant’s own making.
Private nuisance - other effective defences
Contributory negligence
Consent
Act of God or nature - defendant will not be liable in nuisance unless they adopt or continue the nuisance.
Private nuisance - ineffective defences
- Claimant ‘came to the nuisance’
- Public benefit
- Contributory actions of others
- A defendant cannot argue that their act alone would not constitute an actionable nuisance.
- Planning permission
Private nuisance - 2 principal remedies
- Damages
(a) Physical damage to the claimant’s land
(b) Personal discomfort - Injuction
(a) Prohibitory injunction
(b) Mandatory injunction
postitive action to rectify
(c) A ‘quia timet ’ injunction
Grant one of the above injections in anticipation of a tort.
Claimant will have to show:
* they are almost certain to incur damage without the injunction; and
* such damage is imminent; and
* the defendant will not stop their course of conduct without the order of the court.
Private nuisance - 2 principal remedies - injunctions - when courts will refuse them
The court may exercise its discretion to refuse an injunction and grant damages
instead where:
* the harm suffered by the applicant is:
- small; and
- capable of being quantified in financial terms; and
- capable of adequate compensation by damages; and
* it would be oppressive to the defendant to grant the injunction.
Private nuisance - third remedy - Abatement (self- help)
The removal of the interference by the victim. The victim must, however,
normally give prior notice to the wrongdoer, except in an emergency or where the nuisance
can be abated (removed) without entering the wrongdoer’s land.
The rule in Rylands v Fletche
Elements of the tort are:
*The defendant brings onto their land for their own purposes something likely to do mischief
* which represents a non- natural use of land
* if it escapes
* it causes foreseeable damage of the relevant type.
The rule in Rylands v Fletcher - non- natural use of land
Test was that the use
of land must be extraordinary or unusual according to the standards of the day.
Use of land for normal industrial purposes is not generally a ‘non- natural use’.
The rule in Rylands v Fletcher - defences
- Escape caused by the unforeseeable act of a stranger
- Escape caused by an ‘act of God’ which could not have been reasonably foreseen
- Statutory authority
- Consent (voluntary assumption of risk)
- Contributory negligence
Public nuisance - definition
An act or an omission that endangers the life, health, property or comfort of the public, or obstructs the public in the exercise or enjoyment of rights common to all Her Majesty’s
subjects.
Public nuisance - elements
- conduct that materially affects the reasonable comfort and convenience of a ‘class of Her
Majesty’s subjects’; and - the claimant has suffered particular harm.
Public nuisance - elements - class of Her Majesty’s subjects
The number of people in a locality required to be affected by the nuisance, so as to constitute a class of the public, is a question of fact in each case.
It is not necessary that
every member of the class is affected but a representative cross- section must have been
affected.
Public nuisance - elements - suffered particular harm
Must have suffered
‘particular’ damage over and above that suffered by the public at large.
This can include property damage and loss of profit.
