Private Nuisance Flashcards
Indirect interference with land
A person’s use of land can be interfered with by things done not on the land. The tort to provide a remedy for this kind of interference with claimant’s use and enjoyment of land is private nuisance
What you need to show for private nuisance
1) Definition
2) Can they start a claim? (do they fall within definition of claimant)
3) Defendant?
4) Type of interference
5) Is the interference unlawful?
6) Causation/remoteness
7) Defences
8) Remedy e.g injunction
Private nuisance - Definition
Exists to protect an individual in his enjoyment of his own property. Claimant must show:
1) That there is an interference with the claimant’s use and enjoyment of land or some rights he enjoys over it
2) That the interference is unlawful
Who can start a claim? (Claimant)
Only people with the right to exclusive possession of land can sue e.g owner-occupier. They must have a proprietary interest in the land.
Who is liable? (Defendant) - Creator of the nuisance
The original creator of the nuisance remains liable for it even if the land is now occupied by someone else
Who is liable? (Defendant) - Occupier of land from which nuisance originates
Will be liable for nuisances he has created whether by positive acts or by failing to take steps. May also be liable for nuisances that are created by other persons in the following 3 circumstances:
1) Where nuisance was created by an employee acting in the course of his employment
2) Where the nuisance is created by and independent contractor provided the nature of the work carried a special danger of the nuisance being created
3) Where the nuisance is created by a visitor, predecessor in title or trespasser provided the occupier has adopted the nuisance or continued it
Who is liable? (Defendant) - Landlord - General rule
Where a nuisance arises on premises which are let to a tenant the GENERAL RULE is that the landlord is not liable
Who is liable? (Defendant) - Landlord - Exceptions
They will be liable where they have expressly or impliedly authorised the nuisance - the nuisance is the inevitable result of the letting. They will be liable where nuisance existed at the start of the letting and the landlord knew or ought reasonably to have known of it.
Interferences
Interference has to be something that materially interfered with ordinary comfort of land
3 types:
1) Nuisance by encroachment on a neighbour’s land
2) Nuisance by direct physical injury to a neighbour’s land
3) Nuisance by interference with a neighbour’s quiet enjoyment of his land - encompasses smells, dust, vibration and noise. Also includes interferences with rights enjoyed over land
Unlawful interference - Definition
Unlawful = substantial and unreasonable.
Unlawful interference - Duration and frequency
The longer the interference has lasted more likely court will consider it unreasonable. If it’s only short-term claimant generally expected to put up with it. Some degree of continuity and frequency is required. Generally an isolated incident is unlikely to give rise to liability in nuisance. However sometimes isolated happenings can be unlawful if they emanated from a continuous state of affairs
Unlawful interference - Excessiveness of conduct/extent of harm
How far removed it is from normal behaviour. E.g noise caused by substantial renovation work carried out on behalf of the defendant which lasted from 8am-5pm each day was found to be excessive. However if the claimant didn’t return home late each evening then they would be unable to show that the renovation work had much impact on their enjoyment of their home.
Unlawful interference - Character of the neighbourhood
Only relevant to an interference which causes only personal discomfort and inconvenience. E.g character of neighbourhood was taken into account when considering the noise and smell. If interference is unreasonable will be judged in relation to the degree and types of interference which can be expected in that particular locality
Unlawful interference - Public benefit
Courts consistently take the view that the interests of the public should not deprive an individual of his private rights
Unlawful interference - Malice
If the defendant acts maliciously then it is likely to tip balance in favour of claimant.
Unlawful interference - Abnormal sensitivity
Look at its impact on normal user of neighbouring land ignoring any abnormal sensitivity of the claimant.
Causation and remoteness
Must prove unlawful interference caused damage. Usual tests for causation apply. Issue of remoteness is also relevant - wagon mound test (foreseeability)
Effective defences - key point
They enable the defendant to escape liability.
Effective defences - Prescription
Arises if the defendant can show that he has been continuing the nuisance for at least 20 years against the claimant. The effect is that the defendant has acquired the right to commit the nuisance.
Effective defences - Statutory Authority
If they can show that the nuisance was an inevitable result of doing what the statute authorised
Effective defences - Contributory negligence
Usual rules apply
Effective defences - Consent
The claimant has specifically agreed to accept the interference the claimant’s claim in nuisance will fail
Effective defences - Act of God/Nature
Where an interference on the defendant’s land results from a ‘secret unobservable process of nature’ e.g subsidence under/near foundations of defendant’s house or from an act of God e.g lightning. The defendant will not be liable in nuisance unless he adopts or continues the nuisance
Ineffective defences - Key point
Won’t allow the defendant to escape liability
Ineffective defences - Claimant came to the nuisance
Generally no defence. E.g where a claimant builds on their land after defendant had commenced activity then the claim could fail.
Ineffective defences - Public benefit
Will not afford a defence but may be an factor in whether to grant an injunction
Ineffective defences - Contributory actions of others
No defence that the nuisance results from the actions of several people. A defendant can’t argue that their act alone wouldn’t constitute an actionable nuisance
Ineffective defences - Planning permission
Only parliament can take away private rights to sue. The mere grant of planning permission does not legitimise a nuisance as they are granted by local authorities.
Remedies - Damages
Will be awarded for any loss already suffered by date of trial and for future loss.
Remedies - Damages - Physical damage to claimant’s land
claimant will generally be awarded damages to reflect the cost of repairing the damage or if this was not possible the loss in value of the land in question.
Remedies - Damages - Personal discomfort
where claimant has suffered an interference with his personal comfort the value of the claim is more difficult to assess - should be valued by looking at loss of amenity value of land in question
Remedies - Injunctions - Definition
An order of the court which restrains the commission or of continuance of a wrongful act. Stops interference from continuing
Remedies - Injunctions - Prohibitory injunction
Forbids the defendant from persisting in a wrongful act. Stops defendant acting in this way
Remedies - Injunctions - Mandatory injunction
Orders the defendant to take some positive action to rectify the consequences of what he has done
Remedies - Injunctions - A quia timet injunction - Definition
In anticipation of the commission of the tort by the defendant. Prevents the claimant suffering any damage.
Remedies - Injunctions - A quia timet injunction - Requirements
Claimant will have to show:
1) He is almost certain to incur damage without the injunction
2) Such damage os imminent
3) The defendants will not stop his course of conduct without order of the court.
Remedies - Injunctions - When the court will refuse to grant them
They will not be awardee where common law damages would be an adequate remedy. The court will award damages and not an injunction where the harm suffered is:
1) Small
2) Capable of being quantified in financial terms
3) Capable of adequate compensation by damages
4) It would be oppressive to the defendant to grant the injunction
Remedies - Abatement (self-help)
Removal of the interference by the victim. Victim must normally give prior notice to the wrongdoer except in an emergency or where the nuisance can be abated (removed) without entering the wrongdoers land
