Private Nuisance

Question 1

C may have an action in the tort of

Answer 1

private nuisance, defined as “an unlawful, indirect interference with another person’s use or enjoyment of land, or their rights over it”.

Question 2

C must have a

Answer 2

proprietary interest in the land affected, as Hunter v Canary Wharf, which they do because they

Question 3

IF RELEVANT: A

Answer 3

guest or family member cannot claim as they do not have a proprietary interest, which is the case here because

Question 4

D need not cause the

Answer 4

interference, as in Sedleigh Denfield v O’Callaghan, but must be the occupier of the land where it occurs, either as the owner as in Tetley v Chitty, or by having control or possession of the land, which they do because

Question 5

Examples of what amounts to a nuisance are:

Answer 5

heat/light/dust (Halsey v Esso Petroleum), noise and vibrations (Strurges v Bridgeman), noisy neighbours (Coventry v Lawerence), smells (Adams v Ursell), hot air (Robinson v Kilvert), ‘lowering the tone’ of an area (Laws v Florinplace), TV reception (Hunter v Canary Wharf), oily smuts/soots/smoke/fumes (St Helens Smelting v Tipping), balls (Miller v Jackson), blocked culvert/pipe (Sedleigh Denfield v O’Callaghan) and natural causes such as a landslide or cliff subsidence where the defendant knew of the hazard and failed to take reasonable steps to prevent it (Leakey v National Trust, Holbeck Hall Hotel v Scarborough BC).

Question 6

Causing physical damage is a

Answer 6

‘prima facie’ nuisance, as in Halsey v Esso Petroleum. [IF RELEVANT: Here, physical damage was caused because

Question 7

Here, D’s nuisance is indirect because it is

Answer 7

and it has interfered with C’s use or enjoyment of land because

Question 8

The court will consider the

Answer 8

Competing interests of C and D, and will consider several FACTORS when deciding whether D’s interference is UNREASONABLE and therefore unlawful.

Question 9

The LOCALITY i.e

Answer 9

character of the area, can make an interference unreasonable. As stated by Thesiger LJ in Sturges v Bridgman, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. In Laws v Florinplace a sex shop was unreasonable in a residential area and in Kennaway v Thompson speedboats races were unreasonable in a quiet lake area.

Question 10

SOCIAL UTILITY may make an interference

Answer 10

more reasonable, where the activity benefits the public, as with a cricket club in Miller v Jackson, although in Adams v Ursell a fish and chip shop did not have social utility. It will not prevent liability, but could be taken into account when deciding the remedy.

Question 11

The DURATION of the

Answer 11

interference must usually be regular and ongoing to be unreasonable, as in De Keyser’s Hotel v Spicer Bros, although a 20 minute firework display was held to be a nuisance in Crown River Cruises v Kimbolton Fireworks.

Question 12

MALICE shown by the

Answer 12

defendant when deliberately disturbing the claimant will make the interference unreasonable, as in Hollywood Silver Fox Farm v Emmett.

Question 13

PARTICULAR SENSITIVITY of the

Answer 13

claimant, where the INTERFERENCE WAS UNFORESEEABLE, will make the interference more reasonable, as in Network Rail v Morris.

Question 14

The SERIOUSNESS of the

Answer 14

interference will be considered. If it very serious or severe, it is more likely to be unreasonable. In Miller v Jackson the interference of the cricket balls was infrequent, so less serious.

Question 15

STATUTORY AUTHORITY may be a

Answer 15

defence, where the interference is authorised by a law/statute, as in Allen v Gulf Oil Refining. Local authority planning permission can be taken into account, but cannot provide an absolute defence, as in Coventry v Lawrence.

Question 16

PRESCRIPTION may be a

Answer 16

defence, where the nuisance has been “uniformly created” by the defendant as an “actionable nuisance” for the specific claimant for over 20 years, as in Sturges v Bridgman, and in Coventry v Lawrence.

Question 17

Statutory Authority may be a

Answer 17

defence, where the interference is authorised by a law/statute. as in Allen v Gulf Oil Refining. Local authority planning permission can be taken into account, but cannot provide an absolute defence, as in Coventry v Lawrence.

Question 18

Prescription may be a defence,

Answer 18

where the nuisance has been “uniformly created” created by the defendant as an “actionable nuisance” for the specific claimant for over 20 years, as in Sturges v Bridgman, and Coventry v Lawrence.

Question 19

it is no defence to say that the claimant

Answer 19

‘moved to the nuisance’, as in Miller v Jackson, unless the claimant changes the use of their property so that it is basically their own fault.

Question 20

Act of a stranger may be a

Answer 20

defence, where the interference occurred because of the actions of someone over which the defendant had no control, as in Sedleigh Denfield v O’callaghan.

Question 21

TO CONCLUDE it is likely that the court will consider D’s interference to be

Answer 21

unreasonable and therefore unlawful and C’s action is likely to succeed.

Question 22

Damages may awarded as in

Answer 22

Miller v Jackson. In Coventry v Lawrence it was held that damages should now be awarded in preference to an injunction, especially where local authority planning permission has been granted, or as a public policy issue where there is a public benefit, for example the activity provides jobs, or has social utility as a sporting venue.

Question 23

An injunction may be

Answer 23

ordered. A prohibitory injunction prevents D from continuing with the use of the land completely, or a partial injunction limits part of the activity or the timing of it, as in Kennaway v Thompson.

Question 24

The Human rights of the claimant will be

Answer 24

considered if there is a violation of Article 8 of the European Convention on Human rights, which protects the right to a private family life, as in Marcic v Thames Water.