NUISANCE

Question 1

DEFINITION OF NUISANCE

Answer 1

Nuisance is a type of harm – the invasion of either private property rights or public rights. Nuisance takes three forms (private, public and statutory).

Question 2

3

Definition of Public Nuisance

Answer 2

1. A public nuisance is an unreasonable interference with the comfort and convenience of life of a class of the public. A common example of public nuisance is obstruction of the highway.
   2.While an isolated incident can give rise to a claim in public nuisance, the interference must be unreasonable. So, for example, a temporary obstruction of the highway caused by loading or unloading goods may not be unreasonable.
2. The damage covered by public nuisance can include both damage to property and personal injury.

Question 3

2

who can sue under public nuisance

Answer 3

a.Individual
An individual member of the** affected class** can only bring a claim if that person has** suffered particular damage** (special damage) over and above the damage suffered by the class in general.

special damage includes damage to property, personal injury and loss of profits.
b.Attorney General
The attorney general, representing the public, can bring an action on behalf of the class of people afected. The object of such an action would be to seek an injunction to prevent the nuisance from continuing.

Question 4

3

definition of private nuisance

Answer 4

1. Private nuisance is an unlawful interference with the claimant’s use and enjoyment of land
2. .An interference is unlawful when it is substantial and unreasonable
3. Private nuisance requires there to be a **continuing state **of affairs (an isolated event is not suffcient).

Question 5

Damage Required under private nuisance

Answer 5

1. *Physical damage to the land, such as fooding, or damage caused by vibrations;
2. *Amenity damage such as noise, dust and smells; and
3. ***Encroachment onto land **by, for example, overhanging tree branches or by tree roots.

Exam Tip
Keep in mind that intangible damage such as noise or smells is suffcient for an action in the tort of nuisance,but it would not be suffcient for the tort of negligence.
For negligence,** actionable damage** means being phys-ically or economically harmed, so intangible damage such as personal discomfort caused by noise andsmells would not be suffcient to found a claim in negligence. On the other hand, damages for personal injury that could be recovered in a negligence action are not recoverable in a nuisance action, since that actiondeals with interference with rights in land.

Question 6

2

trespass to land vs. nuisance

Answer 6

1 .Trespass to land deals with** intentional and direct interference** with the claimant’s possession of land.

2. In contrast, the tort of nuisance covers damage which is indirect. For example, planting a tree on someone else’s land would be trespass, but gradual encroachment by tree roots would be nuisance.

Question 7

4

who can be sued under private nuisance

Answer 7

1. Creator of the Nuisance
   The person who creates the nuisance can be sued. So, a per-son who creates a nuisance on land neighbouring that of the claimant can be sued,** even if they are no longer in occupation of that land**
2. Occupier of Land Where Nuisance Exists
   A nuisance affecting the claimant’s land that emanates from neighbouring land may have been created by the occupier of the land, who would therefore be liable as the creator.
3. However, the occupier is also liable for nuisances created on their land by employees and others under the occupier’s control, and for nuisances created by independent contractors when the activities with which the contractor is engaged carry a special danger of causing a nuisance.
4. The occupier of land can even be liable for a nuisance created there by a trespasser or by a natural event, if the occupier adopts or continues such nuisance.

Question 8

adopt a nuisance

Answer 8

*The occupier adopts a nuisance if they make use of the
thing that constitutes the nuisance for their own use.

Question 9

continue a nuisance

Answer 9

*The occupier continues a nuisance if, once they know or
ought to have known about it, they fail to take reasonable
steps to deal with it.

Question 10

who can sue under privae nuisance

Answer 10

the claimant must have a proprietary interest in the land affected. This covers freehold owners, tenants and persons in exclusive possession. Persons who are present on the land but do not have an
interest in the land, such as family members, lodgers, or employees, cannot bring a claim.

Question 11

5

what is reasonable for private nuisance

Answer 11

1. a.Intensity and Duration
   The greater the intensity of the interference and the longer it lasts, the more likely it is to be judged unreasonable. The time of day (or night) at which the alleged nuisance occurs will also be relevant.
2. Character of Neighbourhood
   When the alleged nuisance is amenity damage such as noise, dust, and smells, the court will have regard to the character of the neighbourhood in deciding whether the interference is unreasonable. For example, the occupier of a house located on a main city street may be expected to tolerate a higher level of noise interference than the occupier of a house in a quiet country village.
   Where the alleged nuisance is
3. physical damage to the land or encroachment onto the land, **the character **of the neighbourhood is not taken into account in determining whether the interference is unreasonable. For example, if plants in the claimant’s garden are being killed by poisonous fumes emitted from the defendant’s factory, the fact that the claimant’s garden is located in a heavily industrial area does not prevent the interference from being judged unreasonable.
4. Abnormal Sensitivity
   As noted above, in assessing whether an interference amounts to a nuisance, the court has to consider what is reasonable according to how people can be expected to live together in society. This means that behaviour complained of may not amount to a nuisance if it only interferes with the claimant’s use of land** because of the claimant’s abnormal sensitivity**.
5. Malice
6. Reasonable Care?
   In assessing whether there has been an unreasonable interference with the claimant’s use and enjoyment of land, the court is concerned with** the reasonableness of the interference, rather than with the reasonableness of the defendant’s conduct.** This means that a defendant who is responsible for an unreasonable interference can be liable in nuisance despite having taken reasonable care.

Question 12

Remoteness of Damage – Reasonable
Foreseeability

Answer 12

The extent of a defendant’s liability in nuisance is limited by
the requirement that damage must be reasonably foresee-
able.

Question 13

2

Defences to Nuisance and Non-Defences

Answer 13

a.Prescription
b.Statutory Authority

Question 14

d

prescription (Defense)

Answer 14

The defendant may obtain a prescriptive right to carry on
an activity that constitutes a private nuisance. The nuisance
must have been continuously carried on for at least 20 years. Throughout that time, it must have been actionable as a private nuisance but **no action was undertaken to stop it. **This defence requires someone in occupation of nearby land who was affected by the nuisance.

Question 15

2

not a defense

Answer 15

1. planning permission
2. Coming to a Nuisance Not a Defence
   The claimant may come to a nuisance by purchasing land
   next to an already existing nuisance. The fact that the nuisance was already in existence before the claimant came to it is not a defence.

Question 16

3

remedies for nuisance

Answer 16

1.damages
2.injunction
The claimant does not have an automatic right to an injunction. An injunction is a discretionary remedy. The court will determine whether the grant of an injunction is appropriate in the circumstances.

3.abatement
Abatement is a** self-help remedy** in which the claimant takes steps to stop the nuisance. The claimant must do no more than is necessary to abate the nuisance. Where it is necessary for the claimant to enter onto the defendant’s land to abate the nuisance, the claimant must fIrst give notice and allow time for the necessary remedial action to be taken. (otherwise trespass)

Question 17

THE RULE IN RYLANDS V FLETCHER

Answer 17

The rule in Rylands v Fletcher imposes strict liability when there is an escape of a dangerous thing from the defendant’s land in the course of a non-natural use of the land. Rylands v Fletcher is diferent from nuisance in that there is no requirement for a continuing state of afFairs. An isolated escape is suffcient.

Question 18

3

elements of R v F

Answer 18

*The defendant brings onto their land something likely to cause harm if it escapes;
*The defendant was engaged in a non-natural use of the land; and
*The thing gathered on the land does escape and causes damage.

Question 19

Something Likely to Cause Harm (R v F)

Answer 19

It is not necessary for the thing to be dangerous in itself, simply that it will be dangerous if it escapes. (ep. water)

Question 20

Non-Natural Use of the Land (R v F)

Answer 20

The defendant must be engaged in a special use of the land which carries an increased risk of danger to others.

extraodinary or abnormal use.

Question 21

Thing Escapes and Causes Damage (R v F)

Answer 21

As with the tort of nuisance, personal injury damage is not recoverable under Rylands v Fletcher.

Question 22

Strict Liability (R v F)

Answer 22

It is no defence that the defendant was not at fault. So also, it is no defence that the escape of the substance from the land was not reasonably foreseeable.

Question 23

remoteness of damage (R v F)

Answer 23

The damage suffered by the claimant must be of a kind that was reasonably foreseeable as a consequence of the escape.

Question 24

5

DEFENSES OF R v F

Answer 24

a.Unforeseeable Act of Stranger
b.Act of God
c.Consent
A claimant will not have a successful claim if they have
consented, expressly or impliedly, to the accumulation of the substance in question.
d.Contributory Negligence
The defence of contributory negligence is applicable.
e.Statutory Authority
Statutory authority may provide a defence to a claim in the
same way as for nuisance.

Question 25

definition of nuisance

Answer 25

unlawful interference with public or private property rights

Question 26

what is unlawful interference

Answer 26

unlawful= substantial and unreasonable

Question 27

5

factors considered in determining whether an act is substantial and unreasaonale in private nuisance

Answer 27

1. utility (weight the benefits against the interference)
2. locality (residential area or industrial area?)
3. duration
4. abnormal sensitivity (usually not relevant)
5. malice
6. forseeability of damage

court wil also consider these factors when determinig the remedy (whether to grant injunction)

Question 28

3

defense-statutory authority

Answer 28

1. Where an actionable nuisance arises from activity permitted by statute（such as statute authorizing the construction and operation of a power plant）
2. statutory authority can be express or implied.
3. the statute must be interpreted by the courts to ascertain whether the nuisance itself has been authorised and what, if any, remedy is available.