Private Nuisance

Question 1

what are the two types of nuisance?

Answer 1

Private nuisance; and

Public Nuisance.

Question 2

Define private nuisance.

Answer 2

Requires claimant to show:

1) there is interference with claimant’s use and enjoyment of land, or some rights they enjoy over it; and

2) that the interference is unlawful.

Question 3

List the types of interference with land Hunter v Canary Wharf identified.

Answer 3

1) Nuisance by encroachment on a neighbour’s land;

2) Nuisance by direct physical injury to neighbours land; and

3) Nuisance by interference with a neighbour’s quiet enjoyment of his land.

Question 3

What does an interference need to be to be potentially actionable?

Answer 3

Something materially interfering with ‘ordinary comfort’ not elegant or dainty modes of living.

Question 4

Is disruption of TV signal caused by a new building an actionable interference?

Answer 4

No.

Question 4

Is loss of a view from a home an actionable interference?

Answer 4

No.

Question 5

What does unlawful mean for the purposes of an interference?

Answer 5

The interference must be substantial and unreasonable to be an unlawful interference.

This is not with regards to the reasonableness of the defendant’s conduct, but rather the reasonableness of their use of land, and whether it unreasonably interfered with C’s reasonable use of their own land.

Question 6

What do the courts always find is unlawful interference without any further consideration?

Answer 6

Encroachment onto neighbouring land (eg overhanging tree branches.

Question 7

What will the court attempt to do when determine whether an interference is unlawful?

Answer 7

Balance user’s right to enjoy their land with the neighbours right to enjoy theirs.

Question 7

Explain the factor of duration and frequency a court will consider to determine whether interference is unreasonable.

Answer 7

Durations is important.

Some degree of continuity ad frequency will be required for interference to be unlawful.

A one off interference will only be actionable if arising from a containing state of affairs on d’s property.

Question 8

Explain the excessiveness of conduct/ extent of harm factor.

Answer 8

Courts will assess how far removed from normal behaviour D’s conduct is. This is objective.

Also extent of harm is considered subjectively. If loud music is capable of a nuisance, but played whilst C it at work, this is unlikely to have sufficient impact to constitute harm.

Interference causing physical damage to C’s land will likely be considered excessive (unless damage is trivial).

Question 9

Explain the character of neighbourhood factor.

Answer 9

Only a relevant factor where interference causes personal discomfort and inconvenience.

Some areas may have a higher threshold for tolerance than others (eg living in London you would expect more traffic disturbance).

Question 10

Explain the public benefit factor.

Answer 10

Courts take view that public benefit should not deprive people of their private rights.

Public benefit therefore rarely a relevant factor.

Question 11

Explain the malice factor.

Answer 11

If malice is apparent in the causing of the nuisance, this will often tip the balance in favour of the claimant.

Question 12

Explain abnormal sensitivity.

Answer 12

Court’s ignore any abnormal sensitivity of c, and instead look at the normal user of the land.

Eg special type of paper being dried out by pipes in another part of a building would be irrelevant if normal paper would have been unaffected in the same circumstances.

Question 13

Who can sue in nuisance?

Answer 13

Only a person with right to exclusive possession of land.

Someone staying at the property but who does not have a legal interest in it themselves will not be able to claim.

Question 14

List the three potential defendant’s in a private nuisance claim.

Answer 14

1) creator of the nuisance;

2) occupier of the land from which the nuisance originates; or

3) landlord.

Question 15

Explain liability in nuisance of an occupier of land.

Answer 15

May be liable for nuisances created where they have committed positive acts, or by omission (eg failing to repair a roof becoming dangerous).

Occupier may be liable for nuisances created by other people.

Question 16

When is an occupier liable for nuisance created by others?

Answer 16

When nuisance is created:

1) By employee acting in course of their employment;

2) By independent contractor (provided nature of the work carried special danger of nuisance being created (eg risk of nuisance was inevitable due to the type of work being undertaken);

3) By visitor, predecessor in title, or trespasser, or arises through some natural occurrence, provided occupier adopted nuisance or continued it.

Question 17

What is the general rule relating to landlords?

Answer 17

General rule is where nuisance arises on premises left to tenant, landlord Is not liable.

Question 17

Explain when a D is liable for nuisance created by a trespasser.

Answer 17

They will be liable where:

1) Occupier has either adopted, or continued the nuisance.

2 Occupiers adopt a nuisance by making use of the thing constituting the nuisance; and

3) Occupiers continue the nuisance if, once they know or ought to have reasonably known of its existence, they fail to take reasonable steps to end the nuisance.

The same approach is used where nuisance was accreted by visitors or predecessors in title.

Question 18

Give the exceptions where a landlord will be liable for nuisance on property let to tenant.

Answer 18

Where landlord has expressly or impliedly authorised the nuisance (ie inevitable results of the letting); or

Where landlord knew or ought to reasonably have known of it; or

Landlord covenanted to repair the premises, or has right to enter to do so, and in either case, fails to make repairs giving rise to the nuisance.

Question 19

What is the rule in relation to damage?

Answer 19

C must prove they have suffered damage.

Question 20

Explain causation and remoteness of damage in respect of private nuisance.

Answer 20

C must prove unlawful interference caused their damage.

Usual tests for causation apply (but for test and rules on intervening acts).

Usual test for remoteness applies (wagon mound).

Question 20

What is the difference between effective and ineffective defences to nuisance?

Answer 20

Effective defences enable D to escape liability;

Ineffective defences will not.

Question 20

Which types of damage are recoverable under nuisance?

Answer 20

Physical damage to land for buildings;

Interference with quiet enjoyment of the land;

Loss of profits (eg business being prevented from operating normally).

Question 21

List the 5 effective defences to nuisance.

Answer 21

1) Prescription (D has been continuing nuisance for at least 20 years against C, and C has had the chance to action it for the 20 years);

2) Statutory Authority (statute permits the nuisance - eg oil company authorised by Act to construct oil refinery, and therefore noise/ vibrations would be implicitly authorised);

3) Contributory Negligence;

4) Consent (ie C has specifically agreed to accept the interference);

5) Act of God or Nature;

6) Necessity.

Question 22

Summarise the defence of necessity to nuisance.

Answer 22

Two elements:

1) Situation of necessity exists because of an imminent danger to life and limb; and

2) D’s actions were reasonable in all of the circumstances.

Question 22

Summarise act of god or nature defence to nuisance.

Answer 22

If interference on D’s land results from secret unobservable process of nature, they are not liable (unless they adopt/ continue the nuisance).

Question 23

Give an example where the defence of necessity has been relied upon in context of private nuisance.

Answer 23

D’s oil tanker ran aground causing risk to ship and lives on board.

They therefore dumped 400 tons of il into the sea.

River was polluted.

HOL held nuisance had been committed, but defence of necessity succeeded due to the risk to ‘life and limb’.

Question 23

Explain whether contributory actions of others is a defence to nuisance?

Answer 23

It is not.

D cannot argue that their act alone would not constitute an actionable nuisance (eg if noise from market stalls is causing a nuisance, eg stall is liable).

Question 23

Can a D rely on the defence that the claimant ‘came to the nuisance’?

Answer 23

No.

Eg someone buys house next to factory which causes huge noise. Factory owners could not use defence that C came to the nuisance, provided C is using the property in similar way to predecessor.

Question 24

Does planning permission serve as a defence to nuisance?

Answer 24

No.

However it can change the character of the neighbour, and the new use may be more acceptable due to that character change.

Question 25

What are the two main remedies for private nuisance?

Answer 25

Damages;

Injunctions.

Question 26

Explain when damages will be awarded to reflect cost of repairing damage/ loss of value of land.

Answer 26

Where nuisance causes damage to C’s land, C generally awarded damages to reflect cost of repair.

If this is not possible - damages for loss in value of the land.

Question 26

Summarise how damages may be awarded to compensate personal discomfort (private nuisance).

Answer 26

Where C suffers interference with personal comfort, damages will be awarded for loss of amenity (reflecting the land being worth less than the land would be without the nuisance).

Question 27

What are the three types of injunction available for private nuisance?

Answer 27

Prohibitory injunction (forbids D from persisting in some wrongful act ie stops them acting in a certain way);

Mandatory injunction (injunction ordering D to take some sort of positive action to rectify consequences of actions);

A ‘quia timet’ injunction (an anticipatory injunction to prevent C suffering damage).

Question 28

What needs to be demonstrated to successfully obtain a quia timet injunction?

Answer 28

C has to show:

1) They are almost certain to incur damage without inunction;

2) Such damage is imminent; and

3) D will not stop course of conduct without order of the court.

Question 29

Where claimant is prima facie entitled to an injunction, when may the court still exercise discretion and grant damages instead?

Answer 29

Court will award damages instead where:

1) Harm suffered is small, quantifiable in financial terms and capable of adequate compensation by damages; and

2) It would be oppressive to D to grant the injunction.

Question 29

Explain the abatement (self help) remedy.

Answer 29

Involves removal of interference by victim.

Victim must give prior notice to wrongdoer (except in emergency/ where nuisance can be removed without entering wrongdoers land).

Question 30

Give an example of where abatement may be appropriate.

Answer 30

Tree overhanging into garden.

C could cut branches overhanging as they do not need to enter D’s land to do so.

However, branches must be returned to D once done.

Question 31

Does PI fall within the scope of private nuisance?

Answer 31

No.