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
