private nuisance

Question 1

who can sue in private nuisance?

Answer 1

only those who hold a proprietary interest in the land

Question 2

what is a proprietary interest?

Answer 2

freehold owner or tenants with the right to exclusive possession

Question 3

what cases demonstrate proprietary interests in the context of private nuisance?

Answer 3

Hunter v Canary Wharf Ltd 1997, Malone v Laskey 1907 and Khorasandijan v Bush 1993

Question 4

what does hunter provide?

Answer 4

it is only those with a proprietary interest in the land who can bring a claim in private nuisance

Question 5

what is private nuisance?

Answer 5

the interference of the use and or enjoyment of one’s land

Question 6

who can be sued in private nuisance?

Answer 6

the defendant is typically the creator of nuisance, the defendant does not have to occupy the property from which the nuisance emanates

Question 7

who can be sued if the creator cannot be located?

Answer 7

the occupier or landlord

Question 8

what is the balancing exercise? and what case supports this?

Answer 8

‘maintaining a balance between the rights of the occupiers to do what he likes with his own land, and the right of his neighbour to not be interfered with’ - case - Sedleigh-Denfield v O’Callaghan 1940

Question 9

who is the reasonable user?

Answer 9

fundamental common law principle that you can do what you like as long as you are reasonable

Question 10

what 5 factors determine the reasonable user?

Answer 10

• nature of locality
• duration and frequency of defendants conduct
• utility of defendants conduct
• abnormality of claimant
• malice

Question 11

what are the types of private nuisance? including smaller examples

Answer 11

• physical damage to land including flooding and damage caused by noxious fumes
• interference with the enjoyment of land which may be caused by smells, noise or light
• encroachments on a neighbours land for example overhanging branches
• interference with a proprietary right such as the right of way

Question 12

what is the distinction between physical damage and emanations (noise, light, smells)

Answer 12

if physical damage is caused to the claimants property then the court will likely find that the defendant has caused nuisance, with emanations the court will consider other factors

Question 13

what happened in the case of Delaware Mansions Ltd v Westminster City Council 2001? (who can sue?)

Answer 13

• blocks of mansion flats were damaged by the root of a tree for which the council were responsible
• the flats were sold to the Church Commissioners in 1990 by way of lease
• engineers were instructed to investigate the damage caused by the tree roots
• the engineers provided a report which was followed by an investigation
• no action was taken however if the tree was removed this would also have resulted in a nuisance
  HELD - claim was successful as the nuisance was a continuing act

Question 13

what happened in the case of Pemberton v Southwark LBC 2000? (who can sue?)

Answer 13

• tenant continued in occupation as a tolerated trespasser after a possession order
• she made regular payments but did not comply with the terms of suspension
• she sought damages from the landlord for failing to investigate a cockroach infestation
  the landlord argued that as she was not a tenant she had no right to sue in private nuisance
  HELD - her continued occupation with the implicit consent of the authority, the particular status of a tolerated trespasser was sufficient to make her an occupier with a right to claim in private nuisance

Question 14

what happened in the case of Khorasandijan v Bush 1993? (who can sue)

Answer 14

• claimant was an 18 year old woman who was being harassed by an older man
• he made threats of violence and pestered her with phone calls at her parents and grandparents house
• claimant obtained an injunction against the defendant to prevent him from using violence and threaten her
• the defendant appealed
  HELD - whilst the persistent phone calls were enough to constitute to a nuisance, as the woman did not have a proprietary interest in the property there was no basis for a claim in private nuisance
• note - this was overruled in Hunter v Canary Wharf

Question 15

what happened in the case of Malone v Laskey 1907? (who can sue)

Answer 15

• claimant was injured when vibrations from an engine of an adjoining property caused a bracket to come loose falling on her
  HELD - as her husband was a mere licensee there was no proprietary interest so the claim was not successful

Question 16

what happened in the case of Bradford Corp v Pickles 1895? (reasonable user - malice)

Answer 16

• defendant deliberately drained water from his land as the water was supplying the claimants property
• the reasoning for this was to force the claimant into buying his land
• the claimant sued in nuisance stating that the defendants behaviour was malicious
  HELD - court ruled that the claimant had made use of his land and there was no malice involved

Question 17

what happened in the case of Hollywood Silver Fox Farm Ltd v Emmett 1936? (reasonable user - malice)

Answer 17

• claimant owned a fox farm
• the defendant owned the neighbouring land
• the defendant shot a rifle into the air to spook the foxes and all of the pups were miscarried
  HELD - the defendant was liable in nuisance for reason of malice

Question 18

what happened in the case of Christie v Davey 1893? (piano case) (reasonable user - malice)

Answer 18

• claimant was a piano teacher who gave lessons from her home
• the defendant asked her to stop but she didn’t as this was her job
• in retaliation the defendant started banging on the walls and shouting
  HELD - defendant was liable for reasoning of malice

Question 19

what happened in the case of National Railway infrastructure Ltd v Morris 2004? (reasonable user - abnormal sensitivity)

Answer 19

• this case involved electromagnetic interference from a railway signalling system which interfered with the claimants recording equipment
  HELD - this was not a nuisance as it was not reasonably foreseeable
• the courts did state that this could change in the future

Question 20

what happened in the case of Bridlington Relay v Yorkshire Electricity Board 1965? (reasonable user - abnormal sensitivity)

Answer 20

• this case concerned electrical interference with TV signals caused by the defendant
  HELD - this was not a nuisance as the interference was with recreational facility, not one that effected the health or physical comfort of the defendant

Question 21

McKinnon Industries Ltd v Walker 1951 (reasonable user - abnormal sensitivity)

Answer 21

• defendants factory emitted sulphur dioxide which damaged the claimants flowers
  HELD - court held that this was a nuisance as ordinary, less delicate flowers would have also been effected by the sulphur dioxide emissions

Question 22

what are the 4 defences for private nuisance?

Answer 22

statutory authority, 20 years prescription, inevitable accident and act of a stranger

Question 23

what is the defence of statutory authority?

Answer 23

when an act of nuisance can be authorised by an act of parliament

Question 24

Allen v Gulf Oil Refining Ltd 1981 (statutory authority)

Answer 24

• private act of parliament authorised the defendants operations
• these operations included the acquisition of land or construction of an oil refinery
• when the oil refinery was built the claimant brought a claim in nuisance
• this claim failed as this action had been authorised by an act of parliament

Question 25

what is the defence of 20 years prescription?

Answer 25

if the defendant can show that his activity has caused nuisance to the claimant for more than 20 years then there will be a defence. the defence also requires 20 years of uninterrupted work (Coventry v Lawrance)

Question 26

Sturges v Bridgman 1879 (20 years prescription)

Answer 26

• confectioner (defendant) had been in business for more than 20 years
• next door was a doctors surgery as part of a GP’s practise
• as a result the wall of the surgery was moved closer to the sweet makers building
• when the new room was being used the noise from next door became an issue
• as this only caused problems since the wall was moved the defence failed as this had not been a problem for more than 20 years

Question 27

Sturges v Bridgman 1879 (20 years prescription)

Answer 27

• confectioner (defendant) had been in business for more than 20 years
• next door was a doctors surgery as part of a GP’s practise
• as a result the wall of the surgery was moved closer to the sweet makers building
• when the new room was being used the noise from next door became an issue
• as this only caused problems since the wall was moved the defence failed as this had not been a problem for more than 20 years

Question 28

what is the defence of an inevitable accident?

Answer 28

an inevitable accident is one in which could not have been prevented regardless of ordinary care, caution or skill

Question 29

what is the defence of an act of a stranger?

Answer 29

where the nuisance is caused by the act of an independent stranger for whom the defendant had no control.

Question 30

Sedleigh-Denfield v O’Callaghan 1925 (act of a stranger)

Answer 30

an occupier will be liable if they continue to adopt the nuisance of a third party stranger

Question 31

what are the remedies available for claimants who successfully claim in private nuisance and what do they grant?

Answer 31

injunctions - most common remedy, this will restrict the defendant from causing the nuisance (American Cyanamid Co v Ethicon Ltd 1975)
abatement - only applied in encroachment cases, for example if a tree grows over into the claimants land this remedy allows for the tree to be cut.