Nuisance

Question 1

(1) Private nuisance

Answer 1

concerned with protecting the claimants right to enjoy his/her land (HUNTER V Canary Wharf)

D commits a nuisance when he/she unlawfully interferes with a persons use or enjoyment of land (ROGERS)

Question 2

(2) Claims in private nuisance - SEDLEIGH TEST

Answer 2

competing interest - you can do as you like on your land so long it is reasonable
there has to be a cereal level of tolerance

Question 3

(3) Reasonable user

Answer 3

interference must be more than trivial (BENJAMIN V STORR)

The law will only intervene when a persons actions on their land in unreasonable (Hunter)

Mere personal discomfort is treated with latitude unless its excessive (Walter v Selfe

Question 4

ST Helens smelting co

Answer 4

estate bought near smelting works - the smell destroyed C crops and trees

LJ Wrestbury - character of the nieghbourhood only relevant in certain circumstances
D’s action caused physical damage to the land - land chareterics not longer mattered

Question 5

(4) Nature of locality

Answer 5

Sturges v Bridgman - context differs from case to case

St helens smetling co - nature of locality matters

Question 6

Planning permission only relevant for 2 reasons

Answer 6

it might permit the nuisance
it might change the nature of the locality

• Coventry v Lawrence - house near racing track.
  SC planning permission is not relevant
  Ld Neuberger - planning permission is no assistance to the defendant

Wheeler - pig farm extension - D had planning permission - court said it was not relevant

Barr v Biffa - planning permission did not excuse the nuisance caused by the bad smells emanating from the land

Gillingham - planning permission in this case changed the nature of the locality

Question 7

(5) Duration and frequency

Answer 7

Nuisance must involve substantial interfernce over a number of time

De Keyser - drilling outside of hotel in the middle the night - court said one night was enough

Crown River cruises - 20 minute firework display was enough - the ash was raining down on C’s property

Bolton v Stone - cricket balls struck beyond park - isolated nuisance that happened ever so often will not constitute nuisance

Question 8

(6) Utility of D’s conduct

Answer 8

Miller v Jackson - cricket balls flying over more frequently.
Ld Denning - the fact that it was a cricket field the served a social purpose - it was useful enterprise and should have been shut down

Question 9

(7) Abnormal Sensitivity

Answer 9

conduct must affect the ‘ordinary’ claimant

Robinson v Kilvert - C stored sensitive paper on the floor over night that was destroyed by heat from bottom floor
- Court said no nuisance because paper was abnormally sensitive

McKinnon industries - sulfur dioxide damaged orchids which are delicate and sensitive
- held there was liability because the gas would have killed any flower

Question 10

interference with recreational activity

Answer 10

Bridlington - doubts that interference with recreational activity could cause liability

National Railway - C complained railway signaling interfered with recording studio
- COA decided no nuisance because presence was abnormally sensitive to interference

Question 11

(8) Malice

Answer 11

unreasonable use of land

Christie v Davey - piano teacher. D banged fist against wall and knocked pans together
- conduct was not sufficient use of property

Hollywood Silver fox - breeder of foxes - neighbour shot rifle next to premises loud noise caused females to miscarry
- held to be a nuisance caused by malicious conduct of D on his property

Bradford corp - drained reservoir to diminish water supply
- held not to be malice - it was legitimate use of property - it was meant to force C to buy

Question 12

(9) Who can sue

Answer 12

those with proprietary interest in land

Malone - C only had license - did not have interest in land

Khorasandijan -

Hunter canary - homeowners, families and licensees complained about construction
- Held no actionable nusicane where lawful use of property disrupts television signals
and only those with proprietary interest in land or exclusive possession could bring action - Khorasandijan was wrong

Pemberton - tolerated trespasser - tenancy expired but P hadn’t moved
Held he could bring action as his circumstances did not change

Jones - even landlord can bring proceedings if it will affect his interest in long term

Question 13

What if C didn’t have ownership or exclusive possession at time nuisance began?

Answer 13

Delaware - damages occurred before C moved into property nearby
- court said C could recover damages because interference affected land interest and current owner has right to express this interest

Question 14

(10) Who can be sued

Answer 14

person who creates a nuisance. D doesn’t have to occupy property (THOMAS V GIBSON)

If they can’t be traced proceeding can be bought against occupier of premises or landlord

Question 15

(11) The Occupier - if creator of nuisance cant be sued, C may sue occupier where

Answer 15

• Occupier exercises control over creator of the nuisance
• Occupier was in control or possession of the property
• Occupier adopts or continues a trespasser nuisance
• Occupier adopts or continues nuisance created by act of nature
• Creator is the predecessor in title

Question 16

Occupier exercises control over creator of the nuisance

Answer 16

Matania - D hired indépendant contractor and they were causing nuisance
- Court said C could sue occupier because he had control over them

Question 17

Occupier was in control or possession of the property

Answer 17

Cocking v Eacott - D allowed daughter to live in flat rent free - her dog was noisy
Eviction from court was issued because occupiers were fed up
Mother was in control and had the right to evict her daughter because she didn’t meant she could be liable

Question 18

Occupier adopts or continues a trespasser nuisance

Answer 18

Sedliegh - authority installed drainage pipe on D’s land without permission - D used pipe for his own purpose
It blocked and caused a flood - court said occupier was liable in nuisance - he adopted pipe and contained to use it for his own purposes

Question 19

• Occupier adopts or continues nuisance created by act of nature

Answer 19

Goldman v Hargrave - tree on land struck by lightening and caught on fire - D decided to cut it down and leave it to burn out but fire spread
- he could be sued in negligence because he adopted act of nature

Holbeck v Scarborough - local authority not liable for collapse because only a expert could have foreseen damage

Williams v Network Rail way - N knew plant grew on railway and failed to prevent interference
- nuisance may be caused by inaction or omission

Question 20

Creator is the predecessor in title

Answer 20

St Anne Well Brewery - applies where predecessor in title caused nuisance and current occupier knows or ought to have known of existence of nuisance

Question 21

(12) Landlord

Answer 21

landlord may sue where

• landlord expressly or impliedly authorised nuisance
• landlord knew or ought to have known of the nuisance before letting
• landlord covenanted to repair or has a right to enter to repair

Question 22

landlord expressly or impliedly authorised nuisance

Answer 22

Tetley v Chitty - local authority let land to go kart club - local authority liable since they knew the purpose of land - they authorised nuisance

Smith v Scott - landlord let house to troublesome family in tenancy agreement there was explicit nuisance clause where landlord would take liability for it

Coventry v Lawrence (no. 2) - if nuisance was inevitable at time landlord let property to tenant then landlord could have been taken to impliedly authorise it

Question 23

landlord knew or ought to have known of the nuisance before letting

Answer 23

Brew Bros - if nuisance arises from lack of repair - landlord cannot avoid liability by having new tenant undertake repairs

Question 24

andlord covenanted to repair or has a right to enter to repair

Answer 24

Mint v Good - may be expressed or implied right

Question 25

(13) Defences

Statutory authority

Answer 25

Activities of D fall within statutory provisions are deemed to be authorised by parliament and cannot be challenged by courts

Allen v gulf - private ace of parliament authorised D’s activities
Held - D had statutory authority to perform function that was creating nuisance

Department of transport - carry explicit ‘nuisance clause’ which will not excuse common law nuisances arising out of the application of their provisions

Metropolitan asylum - HL: if D has to the option to act without causing a nuisance but does so anyway it is unlikely that any statutory provisions will function as defence

Question 26

20 years prescription

Answer 26

if D can show the nuisance has been interfering with C for more than 20 years - this is a valid defence

Sturges V Bridgman - D owned sweet factory for over 20 years, doctor ran surgery next door and expanded. the vibration from factory caused nuisance
D argued that it had been occurring for more than 20 years
Court disagreed it was only since extension that vibrations became a nuisance that had not been happening for 20 years

Question 27

Inevitable accident - functional defence

Answer 27

If D takes reasonable steps to avoid causing nuisance then this may operate as a defence

Question 28

Act of stranger

Answer 28

Occupier will only be liable for nuisance stemming from a strangers actions where he knowingly or negligently continues the nuisance SEDLEIGH

Question 29

Ignorance of the state of affairs

Answer 29

applies where D is unaware of the state of affairs that might amount to nuisance and could not reasonably be expected to know if it
ILFORD UDC V BEAL

Question 30

Coming to the nuisance

Answer 30

It doesn’t matter if C came into nuisance

Bliss v Hall - D ran candle factory that gave off bad smells. there was no defence on the basis that C moved in nearby long after operation begun

Coventry - court: nuisance arises cause. C has in somehow changed the used of his/her land and a result expercienes nuisance - then this defence will work

Fleming v Hislop: Ld Halsbury - whether man came to nuisance or nuisance came to him rights are the same

Question 31

Utility

Answer 31

not a defence to argue D’s conduct is beneficial to public at large

Adams v urself - D ran chip shop in residential area and it caused nuisance - there was no defence for D to argue shop provided value to community

Dennis v Ministry - no defence to argue that a noisy Air Force base was useful because it was necessary for the purpose of national security

Question 32

Due to Many

Answer 32

not a defence that D was one of many parties contributing to nuisance

Lambton - C Brough injunction against 2 defendants both operated merry go rounds. by themselves noise was not unreasonable but together noise was maddening

• defendants argued that in insolation they did nothing wrong
• court disagreed with this agreement and said that was no defence they were both deemed nuisances

Question 33

Jus terti

Answer 33

No defence to argue a third party has a better title to the land than the claimant - D cannot say that it wasn’t them someone else has a better claim
NICHOLLS V ELY BEET SUGAR

Question 34

Remedies

Injunctions

Answer 34

exist with courts discretion they can grant order that would stop nuisance occuring

court may grant interim relief - used to stop action the same day
- American Cyanamid

Question 35

Court may grant damages in lieu of injunction

Answer 35

Shelfer : set out 4 reasons why

• where injury to claimants rights is small
• where injury is capable of being estimated in monetary terms
• where injury can be adequately compensated by a small money payment
• where it would be oppressive to D to grant an injunction

Coventry v Lawrence - SC doubts the criteria - approach should be entirely discretionary
- court explains damages might be better remedy for the C in the public interest because induction could leas to business shut down forever

Pieres - induction would stop training school from operating - court said damages were more appropriate because induction would put them out of business for good which is very harsh remedy

Question 36

Abatement

Answer 36

form of self-help generally reserved for enroachment cases (Lemon v Webb)

Question 37

Damages

Answer 37

compensate the diminution of value - they don’t compensate for personal injury (Hunter v canary Wharf)

Damage may be awarded for damage to C clothes
- Halsey v Esso - emissions from oil refinery damaged laundry - C could recover damages for lost clothes

Question 38

Claims in public nuisance

Answer 38

In order for claimant to succeed he or she must belong to class of her majesty subject and must show special damage - Attorney General v PYA

R v Rimmington; Goldstein - HL says a section of community must be affected not merely selected individuals

• R: D sent 500 racially abusive letters to people around the country
• G: D sent an envelope containing salt to a friend
• defendants were not found guilty of public nuisance because a selection of the community needed to be affected not selected individuals
• both cases people were singled out it has to go beyond that
• D must have known that public nuisance would occur as result of his actions

Question 39

Who can sue

Answer 39

Must be a member of the affected class - AG v PYA

Local authority can bring an action on behalf of the public under section 222 of local government act

Claimant does not need to have interest in land - Color Quest

Corby group - CA held claimants can claim damages personal injury in public nuisance

Question 40

Natural projections

Answer 40

Occupier will be liable for loss, injury, damages caused by natural projections on the highway

Noble v Harrison - court held that D could be liable if he knows or should have known about the circumstances which caused the injury

Question 41

Artificial Projections

Answer 41

Occupier is responsible for keeping property in good repair, whether he knows of damage or not

Tarry -

Wringe -

Question 42

Remedies

Answer 42

Same remedies a private nuisance

damages more likely to be awarded given that public nuisance actions require that the claimant suffers special damage - Corby group