private nuisance Flashcards
who can sue in private nuisance?
only those who hold a proprietary interest in the land
what is a proprietary interest?
freehold owner or tenants with the right to exclusive possession
what cases demonstrate proprietary interests in the context of private nuisance?
Hunter v Canary Wharf Ltd 1997, Malone v Laskey 1907 and Khorasandijan v Bush 1993
what does hunter provide?
it is only those with a proprietary interest in the land who can bring a claim in private nuisance
what is private nuisance?
the interference of the use and or enjoyment of one’s land
who can be sued in private nuisance?
the defendant is typically the creator of nuisance, the defendant does not have to occupy the property from which the nuisance emanates
who can be sued if the creator cannot be located?
the occupier or landlord
what is the balancing exercise? and what case supports this?
‘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
who is the reasonable user?
fundamental common law principle that you can do what you like as long as you are reasonable
what 5 factors determine the reasonable user?
- nature of locality
- duration and frequency of defendants conduct
- utility of defendants conduct
- abnormality of claimant
- malice
what are the types of private nuisance? including smaller examples
- 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
what is the distinction between physical damage and emanations (noise, light, smells)
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
what happened in the case of Delaware Mansions Ltd v Westminster City Council 2001? (who can sue?)
- 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
what happened in the case of Pemberton v Southwark LBC 2000? (who can sue?)
- 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
what happened in the case of Khorasandijan v Bush 1993? (who can sue)
- 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
what happened in the case of Malone v Laskey 1907? (who can sue)
- 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
what happened in the case of Bradford Corp v Pickles 1895? (reasonable user - malice)
- 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
what happened in the case of Hollywood Silver Fox Farm Ltd v Emmett 1936? (reasonable user - malice)
- 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
what happened in the case of Christie v Davey 1893? (piano case) (reasonable user - malice)
- 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
what happened in the case of National Railway infrastructure Ltd v Morris 2004? (reasonable user - abnormal sensitivity)
- 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
what happened in the case of Bridlington Relay v Yorkshire Electricity Board 1965? (reasonable user - abnormal sensitivity)
- 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
McKinnon Industries Ltd v Walker 1951 (reasonable user - abnormal sensitivity)
- 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
what are the 4 defences for private nuisance?
statutory authority, 20 years prescription, inevitable accident and act of a stranger
what is the defence of statutory authority?
when an act of nuisance can be authorised by an act of parliament
