Private Nuisance

Question 1

Recite the first step of the model answer. (definition)

Answer 1

‘an unlawful interference with a person’s use of land or some right over, or in connection with it’ (Winfield)

Question 2

Recite the second step of the model answer. (interest in the land)

Answer 2

C must have a proprietary interest in the land, without this he cannot sue. (Malone v Laskey). (examples include landlord, tenant, leaseholders). Here, C has an interest because..

Question 3

Recite the third step of the model answer. (creator + indirect)

Answer 3

C can bring a claim against the CREATOR of the nuisance and occupier if they continue those activities. Also a landlord if they authorise the creator to create a nuisance.
Here, D is the creator of the nuisance.

There must be indirect interference. This can be physical damage however, i.e to land, plants etc, but it CANNOT be physical INJURY. It can also be loss of enjoyment or C’s ability to use their land. Here, there is indirect interference because…

Question 4

Recite the fourth step of the model answer. (interference)

Answer 4

There must be an unlawful interference, and its impact must so unreasonable that they should not be expected to put up with it.

List relevant unreasonable factors :

Question 5

Name all the factors of unlawful interference.

Answer 5

1) Sensitivity of claimant, if C is using their property for an extra-sensitive use they are not entitled to claim in circumstances where a reasonable use would not need protection. (Kilvert) Explain if use is reasonable.

2) Duration and time of the nuisance - the more often something happens, the more likely it is to be a nuisance. Explain if time of nuisance was unreasonable.

3) Character of the area- Where there is a nuisance in one place, it may not be one in another (Sturges v Bridgman). This applies unless nuisance causes physical property damage. Here, character is x

4) Acts of malaice - out of malice to interfere with C’s use of land - (Silverfox v Emmet)

5) Social Benefit - If the ‘nuisance’ provides benefit to the community, the court may consider it reasonable. (Miller v Jackson).

Question 6

Recite the fifth step of the model answer. (defences)

Answer 6

D could raise a defence.

Examples include:

Prescription - activities become lawful because they have carried them out for last 20 years without complaint (Sturges v Bridgman)

Statutory Authority - If nuisance is by a public body acting under a legislative duty or power D can raise this defence. If activity is carried out with reasonable regard to the interests of others under authority, D may not be liable. (Allen v Gulf Oil)

Planning permission - can be a lawful justification for a nuisance, but only if this allows the character of the area to change (Wheeler v Saunders)