Private Nuisance Flashcards
What is the aim of the Private Nuisance?
The tort of nuisance sets out to protect the right to use and enjoy land, without interference from others. Private nuisance is a common law tort. The essence of it is an unreasonable interference with another’s use or enjoyment of land, and in assessing what is reasonable, the courts will balance each party’s right to use the land as they wish.
ELEMENTS OF THE TORT
- Indirect interference
2. Unreasonableness
Indirect interference element
The claimant must prove that the defendant has caused an interference with the claimant’s use or enjoyment of their land. It must be indirect and usually be the result of continuing state of affairs, rather than a one-off. It may involve physical invasion, such as roots of a neighbour’s tree spreading into claimant’s land (Davey v Harrow Corporation) or water flooding onto land as a result of something done by a neighbour (Sedleigh-Denfield v O’Callaghan). It may involve something intangible, such as noise (Christie v Davey) or smells (Wheeler v J J Saunders).
The situation must be sufficient to interfere with the claimant’s use of land, such as anything which causes actual physical damage to the land and fumes, noise or smells which make it physically unpleasant, and also situations causing emotional distress.
Thompson-Schwab v Costaki
It was held that running a brothel in a respectable residential street could be considered as nuisance.
However, the courts have not allowed the tort to protect recreational facilities, or ‘things of delight’.
Unreasonableness element
The interference will only amount to nuisance if it is considered unreasonable, i.e. that which goes beyond the normal bounds of acceptable behaviour. This can be seen in Southwark London Borough Council v Mills.
Southwark London Borough Council v Mills
The building was poorly sound-proofed and the claimant was troubled by the everyday noise generated by the occupants. The courts, however, held that the ordinary use of residential premises could not amount to nuisance.
To establish unreasonableness, the courts will look into the following factors.
To establish unreasonableness, the courts will look into the following factors.
- SENSITIVITY
- LOCALITY
- DURATION AND TIMING
- MALICE
SENSITIVITY Factor
Firstly, sensitivity. A defendant is not responsible for damage which occurs solely because the claimant is abnormally sensitive.
Robinson v Kilvert
The heating used by the defendant in the cellar made the claimant’s floor hot too and dried out the brown paper. It was held that brown paper was exceptionally delicate, and the damage was due more to the sensitivity of the paper than to defendant’s activities, so there was no nuisance.
Locality factor
Secondly, locality. Where the interference takes place will have an important bearing on whether it is reasonable.
St Helens Smelting v Tipping
The claimant’s estate was in an industrial area. The courts distinguished between nuisance causing actual injury to property, and nuisance causing personal discomfort. While the claimant should be prepared to put up with the level of discomfort common to the area, he was not expected to put up with actual damage resulting from the locality, and so an injunction was granted.
DURATION AND TIMING Factor
Thirdly, duration and timing.
Halsey v Esso Petroleum
The noise of filling petrol tankers was reasonable at 10am, but was a nuisance at 10pm.
Crown River Cruises v Kimbolton Fireworks
A 20-minute firework display resulted in sparks and burning debris raining down on the claimant’s boat. Despite it not going on for long, the nuisance was a serious one.
Malice Factor
Fourth, malice, or bad motive.
Christie v Davey
The defendant tried to disturb the claimant’s lessons and parties by blowing whistles, banging trays and hammering on the wall. The court held that this malicious motive made the act unreasonable and a nuisance.
Hollywood Silver Fox Farm v Emmett
The defendant shot his gun in the air while standing close to the claimant’s land to frighten the vixens so they would not breed.
Damage element
The interference must have caused damage to the claimant.
St Helens Smelting v Tipping
The fumes actually damaged trees and shrubs growing on the claimant’s neighbouring land.
Cambridge Water v Eastern Counties Leather establishes the test for remoteness of damage in nuisance is reasonable foreseeability. Nuisance was originally a tort of strict liability. In cases where the claimant is seeking an injunction, strict liability still applies, as it was pointed out in Cambridge Water that the very fact the case is being brought means that the defendant knows that their behaviour is causing interference with the claimant’s enjoyment of land and refuses to stop it. A defendant is only liable if such damage was reasonably foreseeable, provided that he uses land unreasonably.
Who can be sued?
- Creator of nuisance
- Occupier of land
- Owner of land
Creator of nuisance
A claimant can sue, firstly, the creator of the nuisance.
Thomas v National Union of Mineworkers (South Wales)
The striking miners picketing in the road outside a factory could be liable.
Occupier of land
Secondly, a claimant can sue the occupier of land. An occupier is liable for any nuisance caused by themselves or by their employees, subject to the principles of vicarious liability. They may also be liable for nuisance caused by independent contractors where it involves “a special danger of nuisance”, as established in Matania v National Provincial Bank.
Matania v National Provincial Bank
The defendant’s independent contractor’s activities were held to involve a special danger of nuisance as it was inevitable that they would interfere with the claimant’s use of their flat.
Occupiers may also be liable for nuisance caused on the land by third parties, like trespassers or previous occupiers, if the occupier is aware of the potential for nuisance and fails to prevent it.
Owner of land
Thirdly, there are three circumstances where the owner of the land may be liable where:
1. the owners knew of an already-existing nuisance when the land was let;
2. the land is let, but the lease provides that the owner is to repair the premises but failed to do so;
3. the landlord authorised the nuisance.
An example of authorising a nuisance is Tetley v Chitty.
Tetley v Chitty
The council allowed a go-kart club to use their land and the noise disturbed the residents. The court held that this amounted to permitting the nuisance.
A landlord may also have authorised the nuisance if they knew about it and failed to take steps to avoid it.
Who can Sue?
The traditional view was that the claimant had to have an interest in land to sue. This was changed in Khorasandjian v Bush.
Khorasandjian v Busha
A 16-year-old claimant received menacing phone calls. She succeeded in bringing an action against the defendant in private nuisance, despite the fact that she had no interest in the family home.
However, Hunter v Canary Wharf reverted back to the traditional view, as the Protection from Harassment Act 1997 had yet to be created to protect the claimant in Khorasandjian. So now, a claimant must have a legal interest in the land which is affected by nuisance.
