Private Nuisance

Question 1

What 3 elements have to be proven to sue under private nuisance?

Answer 1

1. Interference with the use or enjoyment of land
2. Damage to the claimant that was foreseeable
3. The interference is unlawful/unreasonable

Question 2

What counts as interference?

Answer 2

It is often indirect noises, smells etc. but can also be physical

Question 3

What was the POL in Hunter vs Canary Wharf?

Answer 3

No interference as it was TV reception that was lost - similar to a view being altered

Question 4

What principle is used to determine unreasonableness?

Answer 4

Live and Let Live principle - babies crying and dogs barking is normal etc

Question 5

What are the 7 factors that a judge will take into account when taking a nuisance case?

Answer 5

Sensitivity, Locality, Planning Permission, Duration, Malice, Time and Magnitude

Question 6

What is Sensitivity?

Answer 6

A defendant is not responsible for damage that occurs solely due to the claimant being abnormally sensitive

Question 7

What contrasts sensitivity?

Answer 7

If the claimant can show that their right to ordinary enjoyment had been infringed, even if you or your activity is unusually sensitive

Question 8

What is the POL in McKinnon Industries vs Walker?

Answer 8

Held liable as the right to normal enjoyment had been infringed

Question 9

What is Locality?

Answer 9

A noise in an urban area wouldn’t be a nuisance but the same noise in a rural area might be

Question 10

What was the POL in Sturges vs Bridgeman?

Answer 10

A judge stated that “what maybe a nuisance in Belgrave Square would not be a nuisance in Bermondsey”

Question 11

When is area/locality NOT a factor?

Answer 11

When physical damage is involved

Question 12

What is Planning Permission?

Answer 12

Even where planning permission is granted, if it doesn’t change the nature of the area, it can still be a nuisance

Question 13

What is the POL from Gillingham BC vs Medway?

Answer 13

The commercial port changed the nature of the area so no nuisance

What is the area like at the time of the ‘nuisance’?

Question 14

What is Duration?

Answer 14

A regular or continuous activity is more likely to be a nuisance compared to a 1 off event. However, a shorter period may still result in a nuisance

Question 15

What is the POL of Crown River Cruises vs Kimbolton Fireworks?

Answer 15

A 20 minute firework display could have amounted to a nuisance

Question 16

What is Malice?

Answer 16

Malice is bad motive and it will turn a reasonable act into an unreasonable one

Question 17

What was the POL from Christie vs Davey?

Answer 17

The bad and malicious motive meant the conduct was unreasonable

Question 18

What is Time?

Answer 18

A noise at 3am is more likely to constitute a nuisance than a noise at 3pm

Question 19

What is Magnitude?

Answer 19

The volume of the noise or the severity of the smell etc.

Question 20

Who can be sued (Nuisance)?

Answer 20

1. The creator of the nuisance
2. The occupier of the land
3. The owner of the land

Question 21

What does the occupier of the land need to be sued in terms of a third party?

Answer 21

They must be aware of the situation to be sued IF a third party is creating the nuisance

Question 22

What does the owner of the land need to be sued? (Nuisance)

Answer 22

They need to be in control of the land, authorised the activity or if the activity already existed when the land was let

Question 23

What was the POL from Tetley vs Chitty?

Answer 23

A local authority allowed go-karting on their land so was held liable for nuisance

Question 24

Who can sue under nuisance?

Answer 24

Only someone who has a proprietary interest in the land so it limits who can sue to those that own or rent a property

Question 25

What are the 4 potential defences? (Nuisance)

Answer 25

1. Coming to the nuisance
2. Care and Skill
3. Public Benefit
4. Prescription

Question 26

What is Coming to the Nuisance and is it a defence?

Answer 26

Effectively saying “we were here first, we should be able to continue our activities”. However, this is not a defence

Question 27

Is Care and Skill a defence?

Answer 27

No, care and skill is not a defence

Question 28

What is Public Benefit and is it a defence?

Answer 28

Does the activity or authorisation benefit the community?

This is not a defence

Question 29

What is Prescription and is it a defence?

Answer 29

If the apparent nuisance has been running for 20 years and no action has been taken then prescription can be used as a defence

Question 30

When does prescription reset and become illegible for defence?

Answer 30

If there has been any change in circumstances, it will start the 20 years running again

Question 31

What are the 4 types of remedies possible under nuisance?

Answer 31

1. Abatement
2. Damages
3. Prohibitory Injunction
4. Mandatory Injunction

Question 32

What is Abatement?

Answer 32

Where the claimant can end the nuisance themselves however you cannot break the law to do so

Question 33

What are the problems with damage being a remedy?

Answer 33

1. It does not stop the nuisance
2. Could open the floodgates

Question 34

What type of damage can be awarded as a remedy for nuisance

Answer 34

Property damage ONLY

Question 35

What is a Prohibitory Injunction?

Answer 35

This stops or limits the defendant from doing something, usually says “you can’t…”

Question 36

What is a Mandatory Injunction?

Answer 36

This tells you that you must do something, usually within a certain time period