Nuisance

Question 1

How is private nuisance defined?

Answer 1

Unlawful interference with a person’s use or enjoyment of land.

Question 2

How can land be interfered with?

Answer 2

by:

encroachment on a neighbour’s land;

direct physical injury to the land; and

interference with quiet enjoyment of the land

Question 3

What is ‘unlawful’ interference?

Answer 3

Interference that is considered unreasonable, a certain level of interference is anticipated.

Question 4

What are relevant factors when considering an ‘unlawful’ interference?

Answer 4

(i) Duration and frequency;

(ii) objectively, how far removed from normality the root behaviour causing the interference was;

(iii) character of the neighbourhood (not considered with physical damage);

(iv) public benefit (rare);

(v) malice;

(vi) abnormal sensitivity

Question 5

Who can sue in private nuisance?

Answer 5

Only a person with a right to exclusive possession (i.e. the one with the proprietary interest) can sue

Question 6

Who is liable in private nuisance?

Answer 6

(i) creator of the nuisance;

(ii) occupier of the land from where the nuisance originates (e.g. may be created by a visitor or employee);

(iii) landlord (only if they authorised the nuisance or the landlord was aware of it)

Question 7

What are the defences to private nuisance?

Answer 7

(a) prescription (specific nuisance occurred for 20 years and the claimant hadn’t complained in that period);

(b) statutory authority (likely to be used by public authorities);

(c) contributory negligence;

(d) consent;

(e) Act of God or nature

(f) Necessity

Question 8

What are the remedies for a private nuisance?

Answer 8

(i) Damages (to be based on loss of property value or loss of amenity);

(ii) Injunctions (unlikely to be given if the act is for the public benefit)

Question 9

What are the elements of a public nuisance?

Answer 9

(i) conduct that materially affects reasonable comfort of a class of people; and

(ii) C has suffered particular harm (e.g. everyone suffered a sprained ankle but C tore their ACL)

Question 10

What are the elements of a Rylands v Fletcher claim?

Answer 10

(i) D brings onto their land something likely to do mischief;

(ii) the actual thing (not a side effect of the thing) escapes;

(iii) this represents non-natural user of the land;

(iv) it causes foreseeable damage of the relevant type.