Private Nuisance

Question 1

**1. C may have an action in the tort of private nuisance, defined as…

Answer 1

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”.

Question 2

2. C must have Proprietary Interest…

Answer 2

C must have proprietary interest in the land affected as in Hunter v Canary Wharf which they do because……

Question 3

** 3. A Guest or Family Member…

Answer 3

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].

Question 4

4. D need not cause…

Answer 4

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…

Question 5

**5. Examples of what amounts to nuisance are…

(11 Nuisances and Cases)

Answer 5

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).

Question 6

**6. Causing Physical Damage is a…

Answer 6

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].

Question 7

7. The Court will consider the competeing interest of C and D and will consider several…

Answer 7

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.

Question 8

8. **The Locality (Character of The Area)…

First Factor

Answer 8

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].

Question 9

9. Second Factor

Social Utility may make an interference more reasonable…

Answer 9

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.

Question 10

**10. The Duration…

Third Factor

Answer 10

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].

Question 11

**11. Malice shown by D…

Fourth Factor

Answer 11

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].

Question 12

**12. Particular Sensitivity…

Fifth Factor

Answer 12

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].

Question 13

**13. The Seriousness…

Sixth Factor

Answer 13

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].

Question 14

Defences

**14. Defence of Statutory Authority…

First Defence

Answer 14

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].

Question 15

15. Defence of Prescription

Second Defence

Answer 15

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].

Question 16

16. The Defence of an Act of Stranger

Third Defence

Answer 16

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].

Question 17

17. To Conclude…

Answer 17

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].

Question 18

Remedies
18. Damages may be awarded as in Miller v Jackson

First Remedy

Answer 18

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.

Question 19

19. An Injunction may be ordered…

Second Remedy

Answer 19

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].

Question 20

20. The Human Rights of the Claimaint…

Final Card

Third Remedy

Answer 20

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].