Private Nuisance

Question 1

What interest does this protect?

Answer 1

Use & enjoyment of private land without being unduly affected by neighbour’s use.

Question 2

Is damage required? If so, what kind?

Answer 2

Yes

Not just physical as merely sensory can apply

Question 3

What are the 4 elements?

Answer 3

1- An unreasonable use/interference with P’s enjoyment of their land (smell/noise etc)

2- Nuisance originates from D’s land

3- Nuisance from 3rd party interference on D’s land OR a natural hazard.

4- Damage caused by nuisance foreseeable to the reasonable person

Question 4

1st element - Unreasonable use/interference

What are 4 ways this can be determined?

Answer 4

1- Sensory by locality OR physical - never reasonable

2- Reasonable person in living/working in location would regard interference as unacceptable/unreasonable (BNZ)

3- NEVER reasonable if damaged caused (St Helens)

4- Longstanding practice become a nuisance if land used in new way creates the nuisance (e.g. Drs practice) BUT must be serious and not mere annoyance.

Question 5

2nd element - Originates from D’ land

How is this determined?

Answer 5

1- Check facts and if NO - check Public nuisance, Trespass to Land

Question 6

3rd element - 3rd party interference OR Natural hazard

How is the liability for these elements determined?

Answer 6

(Sedleigh-Denfield)
1 Continue to create the niusance with knowledge or presumed knowledge of its existence

1a- Continue to adopt nuisance with knowledge or presumed knowledge of its existence

1b- Fails to take reasonable means to end nuisance when they have AMPLE time to do so

2- A general duty for natural hazards, dependant on

2a - reasonable person, subjective circumstances of
Knowledge
Foreseeability of consequences of not checking/removing it
Ability/resources to abate

Question 7

4th element - Foreseeability

How is foreseeability determined?

Answer 7

1- Foreseeable to reaonsable person?
Fault of foreseen damage (Overseas Tankship)

2- Nuisance continuous

Question 8

What are the 4 DEFENCES?

Answer 8

1- Statutory Authority (Allen)

2- Act of God (Sedleigh)

3- Consent (Sturgess)

4- Outside trespasser (Sedleigh)

Question 9

What are the 3 REMEDIES?

Answer 9

1- Injunction to reduce level/time to balance social interests of D’s activity (DEFAULT) (Esso)

2 - Damages, if the injury is: small, can be estimated, can be adequately compensated by small payment, if oppressive to grant an injunction (Sheffer)

3- Court orders (BNZ order to pay for blinds)