PRIVATE NUISANCE Flashcards
what is the definition?
The “unlawful (unreasonable) interference with a person’s use or enjoyment of land”. It is a strict liability law.
what is stage 1?
The C must demonstrate an appropriate legal interest in the land affected.
It does not matter if the D has taken reasonable care to not be a nuisance. In CAMBRIDGE WATER, Lord Goff said that “the fact that the D has taken all reasonable care will not exonerate him”.
what is the first key factor that must be considered?
1) Location: Locality of the interference must be considered - LEEMAN v MONTAGUE.
e.g. Residential vs commercial and whether the interference is reasonable here.
Side Rule: Damage to land - ST HELENS SMELTING v TIPPING - If the nuisance causes physical damage to C’s land then the issue of location is irrelevant.
what is the second key factor that must be considered?
2) Duration: The more long lasting an interference, the more likely it is to be a nuisance - CUNARD v ANTIFYRE. Private nuisances are interferences for a substantial length of time.
Side Rule: Time of day - Even if an interference is short in duration, it could still be unreasonable because of the time of day - DE KEYSER’S ROYAL HOTEL.
Side Rule: Damage to land - An interference which is short in duration may still be a nuisance if it causes damage to land - CROWN RIVER CRUISES v KIMBOLTON.
what is the third key factor that must be considered?
3) Motive and Malice of the D: If the activity of the D is motivated by malice, it is likely to be unreasonable - CHRISTIE v DAVEY.
Side Rule: Interference with the C’s recreational activities - HUNTER v CANARY WHARF - Usually, claims where the interference is with a recreational activity will fail.
what are the defences for private nuisance?
• Statutory authority - where an Act of Parliament gives permission for the nuisance - ALLEN v GULF OIL.
• Planning permission - GILLINGHAM COUNCIL v MEDWAY - Planning permission could mean that the character of the neighbourhood has changed and therefore the interference is now reasonable/ unreasonable.
• Prescription - If the claimant tolerates the nuisance for a substantial amount of time (e.g. 20 years without complaint).
• Volenti-non-fit-injuria - this is where the C expressly or impliedly consents to the nuisance.
• Contributory negligence - the Law Reform (Contributory Negligence) Act 1945, C’s compensation is reduced according to their own responsibility for the damage / nuisance.
what are the remedies available?
• Damages (compensation) may be awarded where the damage done by the nuisance is quantifiable. Damages for past loss and inconvenience may also be awarded. Can only ask for it - can’t demand.
• Injunctions force the D to act or stop the D doing something. Injunctions are an equitable remedy (only awarded if it is fair, just and possible to do so) and as such they are at the discretion of the court. The court may refuse an injunction if it is not in the public interest and award damages instead - MILLER v JACKSON. In KENNAWAY v THOMPSON - Injunctions can be tailored to meet the exact circumstances of the case.
• Abatement - a form of self-help, C is entitled to take reasonable steps to lessen the nuisance, e.g. cutting down branches of a tree that intrudes on their property.
