Private nuisance Flashcards
Private nuisance
Occurs when there is an unlawful interference with another person’s use or enjoyment of land coming from neighbouring land.
e.g. noise, smells, fire, damage, pollution, vibrations
Claimants
Must have a legal interest in the land.
Individuals
e.g. owner/tenant/licenses - not children/visitors/customers
Defendant
Must create/cause or allow nuisance to occur
If it is naturally occuring nuisance D is still liable if they know and do nothing about it
e.g. owner, tenant, company, council
CASE: Sedleigh Denfield V O’Callaghan
- held: liable. despite not necessarily installing the pipeworks themselves they continued and adopted the nuisance.
The test
- unreasonable use of land
- leading to an indirect interference
- with the claimants use or enjoyment of land
Unreasonable use of land
- D is using their land in such an unreasonable way that is deemed unlawful. The ‘common and ordinary’ use of land will be considered
- Just because a defendants use of land interferes with neighbouring land does mot automatically create an actionable claim in nuisance.
- Nuisance involves balancing of the interests of 2 neighbours. To assess whether it is unreasonable certain factors are taken into account:
-locality: area will be considered to determine if the Ds use of land is unreasonable according to the character of the surrounding area.
CASE: Sturges V Bridgman
- ‘what would be a nuisance in Belgrave Square would not necessary be so in Bermondsey’
CASE: Fearn V Tate gallery
- held- liable. There was a substantial interference with ordinary use/enjoyment of claimants home. D using land in abnormal/unexpected way.
- Duration: increased duration/repetition/timing of interference increases likelihood of unreasonableness
- one off events can also amount to nuisance
CASE: Crown river cruises V Kimbolton fireworks Ltd - held- liable. Holding 15-20 mins display still created a nuisance.
- sensitivity - Nuisance is judged according to the ordinary man. Where this would not he a nuisance of the population the claim is likely to be unsuccessful.
CASE: Pusey V Somerset county council - held- not liable. C become unusually obsessed with layby and it was not interfering with their comfort or convenience or affecting their living standards.
- motive of the defendant - where it can be proven that a D is using their land in order to purosefully disturb or harm a neighbour, this significantly increases the likelihood of a finding of unreasonable use.
CASE: Hollywood silver fox farm V Emmett - held - liable. Intention of D was to deliberately cause harm here malice made it unreasonable/unlawful.
- Human rights act 1998 - protects right to enjoy your home covers things such as noise and smells that is affecting family life.
Leading to an indirect interference
- the interference must be indirect this means that the D is not directly interfering with land themselves (trespass).
- indirect interference usually comes in two forms:
1. loss of amenity - means that the interference has not caused damage to the land itself but rather interferred with the use (laws)
2. Physical damage to claimants land - where physical damage has occurred there is an automatic right to claim interference (Halsey)
With the claimant’s use or enjoyment of land
- Can claim for: smells, noises, vibrations, damage to property/land (Halsey), emotional distress (laws), visual intrusion (Fearne).
- Cannot claim for: right to views, light observation, internet/phone signal, TV signals (Hunter V Canary Wharf)
CASE: Hunter V Canary Wharf Ltd
-held - not liable because it was interference with a purely recreational facility as opposed to any health and comfort of any claimants.
Defences
- Consent. 100% defence where claimant has consented to the nuisance
- Contributory negligence. Partial - 100% defence. Claimant has contributed to the damage in some way.
- Prescription. Claim that the activity has been ongoing as an actionable nuisance for at least 20 years without complaint by the C. There is no defence of ‘moving to the nuisance’
CASE: Coventry V Lawrence
- held - liable. C had only moved in 6 years before so prescription did not apply. However damaged awarded over an injunction. - Statutory authority- D may have a defence to their use of land, despite technically being nuisance, if the activity is authorised by parliament via statute. Full defence where parliament have authorised the activity e.g. wind farms.
Remedies
- Damages or an injunction can be ordered/awarded upon a finding of nuisance.
- Injunctions were most typical remedy but there has been some recent discussion upon this issue by the supreme court in: Coventry V Lawrence
CASE: Coventry V Lawrence - held - In cases of nuisance such as this the prima facie remedy to which a claimant is entitled is an injunction restricting the continuance of the particular activity. The courts should not readily grant injunctions without considering damages instead.
- Social benefit of the activity:
If the use of land is providing a wider societal benefit, such as employment, public benefit or aesthetic improvements to the locality, the courts may avoid changing the use of land, so as to maintain the positive societal impact by finding for the C but refusing to impose an injunction as a remedy
CASE: Fearn V Tate Gallery - held- Benefit of land to the wider community may be considered in deciding what remedy grant. Here damages were awarded over an injunction
