Private Nuisance Flashcards
C may have an action in the tort of
private nuisance, defined as “an unlawful, indirect interference with another person’s use or enjoyment of land, or their rights over it”.
C must have a
proprietary interest in the land affected, as Hunter v Canary Wharf, which they do because they
IF RELEVANT: A
guest or family member cannot claim as they do not have a proprietary interest, which is the case here because
D need not cause the
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
Examples of what amounts to a nuisance are:
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).
Causing physical damage is a
‘prima facie’ nuisance, as in Halsey v Esso Petroleum. [IF RELEVANT: Here, physical damage was caused because
Here, D’s nuisance is indirect because it is
and it has interfered with C’s use or enjoyment of land because
The court will consider the
Competing interests of C and D, and will consider several FACTORS when deciding whether D’s interference is UNREASONABLE and therefore unlawful.
The LOCALITY i.e
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.
SOCIAL UTILITY may make an interference
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.
The DURATION of the
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.
MALICE shown by the
defendant when deliberately disturbing the claimant will make the interference unreasonable, as in Hollywood Silver Fox Farm v Emmett.
PARTICULAR SENSITIVITY of the
claimant, where the INTERFERENCE WAS UNFORESEEABLE, will make the interference more reasonable, as in Network Rail v Morris.
The SERIOUSNESS of the
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.
STATUTORY AUTHORITY may be a
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.
PRESCRIPTION may be a
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.
Statutory Authority may be a
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.
Prescription may be a defence,
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.
it is no defence to say that the claimant
‘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.
Act of a stranger may be a
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.
TO CONCLUDE it is likely that the court will consider D’s interference to be
unreasonable and therefore unlawful and C’s action is likely to succeed.
Damages may awarded as in
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.
An injunction may be
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.
The Human rights of the claimant will be
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.
