Private Nuisance

Question 1

Indirect interference with land

Answer 1

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

Question 2

Private nuisance - Definition

Answer 2

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

Question 3

Who can start a claim? (Claimant)

Answer 3

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.

Question 4

Who is liable? (Defendant) - Creator of the nuisance

Answer 4

The original creator of the nuisance remains liable for it even if the land is now occupied by someone else

Question 5

Who is liable? (Defendant) - Occupier of land from which nuisance originates

Answer 5

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

Question 6

Who is liable? (Defendant) - Landlord - General rule

Answer 6

Where a nuisance arises on premises which are let to a tenant the GENERAL RULE is that the landlord is not liable

Question 7

Who is liable? (Defendant) - Landlord - Exceptions

Answer 7

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.

Question 8

Interferences

Answer 8

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

Question 9

Unlawful interference - Definition

Answer 9

Unlawful = substantial and unreasonable.

Question 10

Unlawful interference - Duration and frequency

Answer 10

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

Question 11

Unlawful interference - Excessiveness of conduct/extent of harm

Answer 11

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.

Question 12

Unlawful interference - Character of the neighbourhood

Answer 12

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

Question 13

Unlawful interference - Public benefit

Answer 13

Courts consistently take the view that the interests of the public should not deprive an individual of his private rights

Question 14

Unlawful interference - Malice

Answer 14

If the defendant acts maliciously then it is likely to tip balance in favour of claimant.

Question 15

Unlawful interference - Abnormal sensitivity

Answer 15

Look at its impact on normal user of neighbouring land ignoring any abnormal sensitivity of the claimant.

Question 16

Causation and remoteness

Answer 16

Must prove unlawful interference caused damage. Usual tests for causation apply. Issue of remoteness is also relevant - wagon mound test (foreseeability)

Question 17

Effective defences - key point

Answer 17

They enable the defendant to escape liability.

Question 18

Effective defences - Prescription

Answer 18

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.

Question 19

Effective defences - Statutory Authority

Answer 19

If they can show that the nuisance was an inevitable result of doing what the statute authorised

Question 20

Effective defences - Contributory negligence

Answer 20

Usual rules apply

Question 21

Effective defences - Consent

Answer 21

The claimant has specifically agreed to accept the interference the claimant’s claim in nuisance will fail

Question 22

Effective defences - Act of God/Nature

Answer 22

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

Question 23

Ineffective defences - Key point

Answer 23

Won’t allow the defendant to escape liability

Question 24

Ineffective defences - Claimant came to the nuisance

Answer 24

Generally no defence. E.g where a claimant builds on their land after defendant had commenced activity then the claim could fail.

Question 25

Ineffective defences - Public benefit

Answer 25

Will not afford a defence but may be an factor in whether to grant an injunction

Question 26

Ineffective defences - Contributory actions of others

Answer 26

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

Question 27

Ineffective defences - Planning permission

Answer 27

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.

Question 28

Remedies - Damages

Answer 28

Will be awarded for any loss already suffered by date of trial and for future loss.

Question 29

Remedies - Damages - Physical damage to claimant’s land

Answer 29

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.

Question 30

Remedies - Damages - Personal discomfort

Answer 30

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

Question 31

Remedies - Injunctions - Definition

Answer 31

An order of the court which restrains the commission or of continuance of a wrongful act. Stops interference from continuing

Question 32

Remedies - Injunctions - Prohibitory injunction

Answer 32

Forbids the defendant from persisting in a wrongful act. Stops defendant acting in this way

Question 33

Remedies - Injunctions - Mandatory injunction

Answer 33

Orders the defendant to take some positive action to rectify the consequences of what he has done

Question 34

Remedies - Injunctions - A quia timet injunction - Definition

Answer 34

In anticipation of the commission of the tort by the defendant. Prevents the claimant suffering any damage.

Question 35

Remedies - Injunctions - A quia timet injunction - Requirements

Answer 35

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.

Question 36

Remedies - Injunctions - When the court will refuse to grant them

Answer 36

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

Question 37

Remedies - Abatement (self-help)

Answer 37

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