Private Nuisance

Question 1

What is private nuisance?

Answer 1

An indirect, unlawful interference of someone’s enjoyment of their own land.

Question 2

Who can claim?

Answer 2

The claimant must have proprietary interest in the land. This will cover the owner of the land but also an occupier who had a lease of tenancy on the land.

Question 3

Malone v Laskey 1907

Answer 3

Mrs Malone was injured when a toilet cistern fell on her as a result of vibrations from next door. Her claim failed as she had no interest in the property as she was merely a licensee.

Question 4

Reconfirmed in: Hunter v Canary Wharf 1997

Answer 4

Facts considered previously, some of the claimants were owners and others included spouses, children etc. HoL confirmed that only those with an interest in the property could sue in private nuisance.

Question 5

Who can be sued?

Answer 5

• The person causing/ allowing the nuisance
• Even though not created, may still be liable for authorising the nuisance
• Adopter of the nuisance
• If the nuisance is a natural cause but does nothing about it

Question 6

Causing/ allowing the nuisance - Southport v Esso

Answer 6

Oil tanker ran aground due to weather conditions and partly due to heavy load. D was liable in negligence and public nuisance due to the oil drifting.

Question 7

Authorisation of the nuisance - Tetley v Chitty

Answer 7

A council allowed a go-kart club to use their land for a racetrack nearby - liable because they authorised the nuisance

Question 8

Adopting the nuisance - Sedleigh Denfield v O’Callaghan

Answer 8

Monks who occupied land where there was a ditch that was cleaned to prevent flooding. Heavy rain storm caused blockages and the ditch became flooded. D was liable for nuisance, as the flood caused substantial damage to a neighbouring property.

Question 9

Natural causes but done nothing about it - Leakey v National Trust

Answer 9

C’s land had been damaged by debris from D’s land. D was previously told that they wouldn’t be liable for naturally occurring slides so did nothing to prevent. Crack appeared in bank above C’s house. D was liable following decision in Goldman v Hargrave where he was aware of danger and failed to act with reasonable prudence.

Question 10

Anthony and Other’s v The Coal Authority 2005

Answer 10

Claimant’s lived adjacent to an old coal tip which caught fire and burned for 3 years. Claimed in nuisance. D had failed to take reasonable steps to abate the nuisance and it became known so was liable.

Question 11

An indirect interference

Answer 11

When something that D is doing on their land goes onto C’s land

Question 12

Four examples of an indirect interference

Answer 12

• Loud noises including gunfire - Hollywood Silver Fox Farm
• Smuts from a fuel depots chimney - Halsey v Esso
• Hot air rising over neighbouring land - Bliss v Hall
• An ‘adult’ shop in a residential area - Laws v Florinplace

Question 13

What will amount to an unreasonable sue of land?

Answer 13

• Locality
• Duration
• Sensitivity
• Malice
• Social benefit

Question 14

Locality

Answer 14

Land can be used in very different ways according to the area concerned.
- Sturges v Bridgeman

Question 15

Sturges v Bridgeman

Answer 15

D ran a confectionary shop which was noisy. Had no neighbouring property complaints. C built a consulting room for his practice. The use of land prior to the construction of the room wasn’t preventable and so wasn’t capable of founding a prescription right.

Question 16

Duration of the interference

Answer 16

The interference should be continuous and at unreasonable times of the day.
- Crown River Cruises

Question 17

Crown River Cruises v Kimbolton Fireworks

Answer 17

D carried out a firework show, some burning debris landed on C’s river barge which caught fire. C sued in private nuisance because the barge was moored permanently in place so it should be considered an extension of C’s land as it was damaged by the actions of C.

Question 18

Sensitivity of the claimant

Answer 18

C will not succeed if using his property for extra sensitive purposes. D is not liable if C or his property is particularly sensitive.
- Robinson v Kilvert

Question 19

Robinson v Kilvert

Answer 19

C carried a business of making paper boxes on the basement floor and let out ground floor to D. Heat generated from D’s operations damaged the brown paper belonging to C. D wasn’t liable as the damage was due to the special sensitivity of the paper.

Question 20

However, the law is moving away from the idea of sensitivity and to foreseeability

Answer 20

Network Rail Infrastructure v Morris

Question 21

Network Rail Infrastructure v Morris

Answer 21

C ran a recording studio. New rail tracks were installed which had an electro-magnetic field which interfered with the use of electric guitars. This resulted in him losing several clients. D was not liable as electric guitars fell into the category of extraordinary sensitive equipment and so not foreseeable.

Question 22

Malice

Answer 22

If the defendant is trying to annoy the claimant this is malice. A deliberately harmful act will normally be unreasonable behaviour and considered a nuisance.
- Hollywood Silver Fox Farm v Emmett
- Christie v Davey

Question 23

Hollywood Silver Fox Farm v Emmett

Answer 23

C bred silver foxes for fur, foxes miscarry when disturbed, may eat them if alarmed when young. D fired a gun on his land close to the pens with intention to scare them. D was liable with nuisance despite the abnormal sensitivity of the foxes because he was motivated by malice.

Question 24

Christie v Davey

Answer 24

C gave private music lessons at her home. D had complained of the noise and started to bang on walls and beating trays in retaliation. D’s actions were motivated by malice and so were a nuisance. Injunction was granted to restrain his actions.

Question 25

Social benefit

Answer 25

Where the defendant is providing a benefit to the community, the court may be more willing to find the activity reasonable.
- Miller v Jackson
- Adams v Ursell

Question 26

Miller v Jackson

Answer 26

Cricket club had been there for 70 years and houses built around it. Higher fence had been out in place to stop balls flying over. C complained that she couldn’t use her garden when a match was on. Court refused on appeal as the cricket ground had been used for so long and would be a loss to the community.

Question 27

Adams v Ursell

Answer 27

C sued D for smell coming from his fish and chip shop. D argued that he had tried his best to minimise the smell. Court granted C an injunction restraining D from operating business on the street. Reasonable care to avoid interference to the neighbours land is not relevant to nuisance.

Question 28

What are the defences to an action in private nuisance?

Answer 28

• Prescription
• Planning permission
• Statutory Authority

Question 29

Prescription

Answer 29

The defence is unique to nuisance. It will be a defence if the action of D has been carried on for at least 20 years and there has been no complaint made in that time.
- Sturges v Bridgman

Question 30

Statutory authority

Answer 30

A public body is allowed to cause a nuisance if it is acting in accordance with legislation.
- Allen v Gulf Oil Refining
- Marcic v Thames Water

Question 31

Allan v Gulf Oil Refining

Answer 31

D’s operated an oil refinery- local residents brought an action in nuisance. D had been given statutory authority to acquire the site and build a refinery, but there was no express provision to operate. HoL said it must have been Parliaments intention when it gave permission for the oil.

Question 32

A defendant will also escape liability if Parliament has created an alternative remedy for the claimant.
- Marcic v Thames Water plc

Answer 32

C’s house was flooded with sewage on many occasions, due to the failures of D’s. Water industry Act 1991, which governed the workings of D’s and provided procedure and remedies. As there was clear statutory procedures, the nuisance action was not allowed.

Question 33

Planning permission

Answer 33

Planning permission can in some circumstances act as lawful justification for the nuisance.
- Gillingham Borough Council v Medway Dock

Question 34

Gillingham Borough Council v Medway Dock Co

Answer 34

D had planning permission to turn a disused dockyard into a commercial port which operated 24 hours a day. Neighbours bought an action for loud noise throughout the night. C’s action failed as planning permission was given for a development or change of use so is decided with a neighbourhood with that development or use.

Question 35

Planning permission will need to change the character of the neighbourhood in order to operate as a defence
- Wheeler v Saunders

Answer 35

Pig farmer was granted planning permission to expand by erecting two more houses containing 400 pigs. One was only 11m from neighbours cottage who took a nuisance action due to smells. COA decided that the grant of planning permission was not unreasonable, planning permission was not a defence.

Question 36

What remedies can be given?

Answer 36

• Damages
• Injunctions
• Abatement

Question 37

Injunctions

Answer 37

In Coventry v Lawrence, the supreme court gave guidance on the future use of damages and injunctions in nuisance claims.

Question 38

Coventry v Lawrence (injunctions)

Answer 38

• An injunction could be the default order in a nuisance claim.
• It is open to the defendant to argue that an award of damages would be a suitable alternative
• The Shelfer test should not be applied rigidly
• The injunction will not automatically be granted, even if the Shelfer test is satisfied.

Question 39

Abatement

Answer 39

Abatement is when the C takes their own action against D, fixing the nuisance themselves. For example, in Lemmon v Webb, C could chop down an overhanging branch from his own land and return them to the neighbouring land.