Private Nuisance Flashcards
**1. C may have an action in the tort of private nuisance, defined as…
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”.
2. C must have Proprietary Interest…
C must have proprietary interest in the land affected as in Hunter v Canary Wharf which they do because……
** 3. A Guest or Family Member…
IR: A guest or family member cannot claim as they do not have a proprietary interest, which is the case here because…. [eg. C’s mother owns the house not C / C visits her mother’s house every weekend but her mother owns it].
- D need not cause…
D need not cause the interference, as in Sedleigh Denfield v O’Callaghan, but must be
a) the occupier of the land where it occurs, either as the owner as in Tetley v Chitty,
or
b) by having control or possession of the land, which they do because…
**5. Examples of what amounts to nuisance are…
(11 Nuisances and Cases)
Examples of what amounts to a nuisance are:
Heat/Light/Dust (Halsey v Esso Petroleum)
Noise and Vibrations (Sturges v Bridgman)
Noisy Neighbours (Coventry v Lawrence)
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/Soot/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).
**6. Causing Physical Damage is a…
Causing physical damage is a ‘prima facie’ nuisance, as in Halsey v Esso Petroleum.
[IF RELEVANT: Here, physical damage was caused because [eg. C’s windows were coated with dust which is accepted as a nuisance, and so issues of locality are irrelevant].
Here, D’s nuisance is indirect because it is [eg. noise and smells] and it has interfered with C’s use or enjoyment of land because [eg. C has complained].
- The Court will consider the competeing interest of C and D and will consider several…
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 (Character of The Area)…
First Factor
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 speedboat races were unreasonable in a quiet lake area.
Here, [eg. playing loud music is unreasonable in a quiet, residential area].
- Second Factor
Social Utility may make an interference more reasonable…
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.
**10. The Duration…
Third Factor
The DURATION of the interference must usually be regular and ongoing to be unreasonable, as in De Keyser’s Hotel v Spicer Bros, although even a 20 Minute Firework Display was held to be a nuisance in Crown River Cruises v Kimbolton Fireworks
Here, [eg. the interference is regular because it was every weekend, and ongoing because it was all summer long, and is therefore unreasonable].
**11. Malice shown by D…
Fourth Factor
MALICE shown by the defendant when deliberately disturbing the claimant will make the interference unreasonable, as in Hollywood Silver Fox Farm v Emmett.
Here, [eg. D played music louder on purpose after complaints, so there was malice shown, which makes it unreasonable].
**12. Particular Sensitivity…
Fifth Factor
PARTICULAR SENSITIVITY of the claimant, where the INTERFERENCE WAS UNFORESEEABLE, will make the interference more reasonable, as in Network Rail v Morris.
Here, [eg. C is an unusually light sleeper, which was unforeseeable, and this particular sensitivity makes D’s interference more reasonable].
**13. The Seriousness…
Sixth Factor
The SERIOUSNESS of the interference will be considered. If it is 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.
Here, [eg. the noise was considerable and constant, which is serious, so more likely to be unreasonable].
Defences
**14. Defence of Statutory Authority…
First Defence
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.
IF RELEVANT Here [eg. the defence applies as the oil refinery was created by D under the authority of an Act of Parliament].
15. Defence of Prescription
Second Defence
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.
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.
IF RELEVANT Here [eg. the defence applies as C and D lived next door for 25 years whilst the noise was created throughout].
16. The Defence of an Act of Stranger
Third Defence
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.
IF RELEVANT Here, [eg. the defence applies as the noise was caused by trespassers over which D had no control].
17. To Conclude…
TO CONCLUDE, [eg. it is likely that the court will consider D’s interference be unreasonable and therefore unlawful and C’s action is likely to succeed].
Remedies
18. Damages may be awarded as in Miller v Jackson
First Remedy
DAMAGES may be 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.
19. An Injunction may be ordered…
Second Remedy
An INJUNCTION may be ordered. A PROHIBITORY INJUNCTION prevents D from continuing with the use of land completely, or a PARTIAL INJUNCTION limits part of the activity or the timing of it, as in Kennaway v Thompson.
IF RELEVANT Here, [eg. damages are likely to be awarded to C as a matter of public policy since there is a public benefit as the factory is used to make hospital equipment and employs several people, perhaps together with a partial injunction to close the factory at weekends].
20. The Human Rights of the Claimaint…
Final Card
Third Remedy
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.
IF RELEVANT Here, [eg. the noise was considerable and constant and affected C’s right to a private family life, so C could also bring a human rights action].
