Private Nuisance

Question 1

Definition

Answer 1

inreasonable, indirect interferance with anothers use or enjoyment of land

Question 2

Elements to prove

Answer 2

1. The claimant show that they’ve suffered damage or loss of enjoyment, interest in land, family cannot claim (Hunter v canary wharf)
2. The defendant usually occupier but not always. Must have control over it (Tetley v Chitty). Must cause or allow nuisance. D can be liable if the nuisance is the result of nautral causes, but they fail to act (Leakey v National Trust)
3. indirect interferance fumes,noise,smoke,smell and vibrations. (St Helens Smelting v Tipping). Forseeability of type of damage is important (Holbeck Hall v Scarborough Council) council did not forsee damage so not liable.

Question 3

Interferance was unlawful

Answer 3

Locality- (Kennaway v Thompson) noisy machine in industrial environment is not unreasonable.
Duration- (Crown river cruises v Kimbolton Fireworks) Must be continuous and in reasonable hours to be actionable.
Sensitivity of claimant- (Network rail v Morris) if sensitive nuisance may not be unreasonable.
Malice (Christy v Davey) A deliberate harmful act will be unreasonable
Social benifit (Miller v Jackson) if providng a benifit to community it may not be unreasonable.
Human rights Act 1988 Article 8 ‘respect for private and family life

Question 4

Defences 1

Answer 4

Prescription - if the action has carried on for 20 years at least and there has been no complaint between the parties in that time, D may be said to have a prescriptive right to continue (Sturges v Bridgman)
In addition, Volenti, the defence of consent by the claimant applies to this scenario.
Moving to the nuisance - D may argue C is only suffering as they have moved closer to the problem. Not a defence for D.

Question 5

Defences 2

Answer 5

Statutory Authority - Since many of the activities that can amount to a nuisance are now regulated or liscenced by environmental or other laws, then statutory authority is likely to be one of the most effective defences (Allen v Gulf Oil Refining) If a statute provides the only possible remedy an action in nuisance might not be possible as an alternative (Marcic v Thames Water plc)
Local Authority planning permission - can sometimes act as lawful justification for a nuisance (GBC v Medway Dock Co)
However, if planning permission does not change the character of the neighbourhood, it will not operate as a defence (Wheeler v Saunders) (Watson v Sport)

Question 6

Remedies

Answer 6

Until (coventry v lawrence) the most common remedy for a nuisance was injunction. used where nuisance is substantial and not outweighted by public benefit for it to continue
Shelfer test set out that damages should only be awarded above an injunction if:
injury to C rights was small
C can be compensated by money
A small payment is adequate
an injunction would be unfair on D
Covenrty v Lawrence laid out future use of injunction and award in damages
an injunction could be the default order in a nuisance claim
it is open to D to argue that damages would be a suitable alternative
an injunction will not automatically be granted even if ‘shefter test’ is satisfied.