Private Nuisance Flashcards
How does private nuisance arise?
Arises from an act or an omission carried out by D which substantively interfered with C’s established property rights.
WHat does substantial interference mean?
more than the hustle and bustle of life.
WHat types are there?
Interference…
By way of physical damage
Structural fault
With C’s legal interests
With Amenity
Which case outlines the distinction between actual damage and interference with enjoyment?
St Helens Smelting v Tipping
What is the takeaway from ST Helens v Tipping
do the facts reveal actual physical damage or are they suggesting that what is happening is the interference of use and enjoyment.
what is the caveat to private nuisance
when proving actual physical damage, you have to prove it is a foreseeable damage.
What are the preconditions to private nuisance?
Who can sue?
Who can be sued?
Requirement for substantial interference
Who can sue?
someone who has a legal interest int he property.
Explain how ‘who can sue’ was extended and then narrowed (with cases)?
Extended to substantial occupation in Khorasandijan v Bush.
Returned to previous rule in Hunter v Canary Wharf.
Who can lawfully be sued?
Freehold owner – Arscott and Ors v The Coal Authority.
Person with a proprietary interest in an easement – Transco v Stockport.
A tenant – Hunter.
A landlord whose reversionary interests is transferred – Hunter.
A license with exclusive possession – Tinseltime v Eryl Roberts and others.
A person with exclusive possession to land, which is valid against all but the true owner – Foster v Washington.
A tolerated trespasser who, while remaining in the premises, has actual and exclusive possession – Pemberton v Southwark.
Those who cannot lawfully sue?
Lodgers - Hunter
Children living with parents - Hunter
Worker who suffers interference at the workplace - Hunter
Spouses without property rights - Malone v Laskey
someone with only a contractual right - tate v Lyle
Mere trespasser/temporary occupier - Algrete Shipping v International Oil Pollution Compensation Fund.
Who can be sued
Normally it is the party who creates, occupies or in more limited circumstances owns the land.
Who can be sued when it is off land?
Contentious as to whether this is classed as a private nuisance and who is responsible.
What is the adoption of a nuisance (and case)?
D must both continue nuisance and make use of nuisance for own benefit Sedleigh-Denfield v O’Callaghan
What is the continuation of a nuisance (with case)?
D must know of nuisance but fail to bring it to an end when had reasonable means to do so – see Lippiatt v South Gloucestershire CC [2000].
When is a landlord liable for a tenant’s nuisance (with case)?
Landlord actively participates in nuisance/authorises by conduct:
Hussain v Lancaster CC [2000] 2 WLR 1142
what about vicarious liability?
An employer can become vicarious liability for a private nuisance created by an employee.
What is the threshold of inconvenience principle?
Nuisance will only be found if there is a substantial interference. Actual damage is likely to be substantial. Interference of use and enjoyment must be proven to be substantial by the claimant.
what are the elements of tort?
- an interference with the use/enjoyment of C’s land.
- Interference is unreasonable use of land
- Must cause the damage and isn’t too remote.
What is the standard for the fist element of tort?
objective standard:
Whether D’s act/omission interfered with C’s use and enjoyment of his land sufficient to constitute private nuisance is to be determined according to objective standard.
what key case links to the first element of tort
Coventry v Lawrence
Which activities cause nuisance?
Tangible: actual damage to property e.g. paint damage, cracks in buildings, damage to drains, encroachment from trees (most common example) etc.
Intangible: Odours, smells, fumes, noise, floodwater etc.
Can private nuisance apply to the prevention of a natural feature reaching C’s land (with case)?
Rarely, but yes. in cases of privacy erosion.
E.g. Fearn v Board of Trustees of the Tate Gallery.
Can private nuisance apply to one off situations (with case)?
it is an exception to the rule but yes.
Spicer v Smee.
What is the reasoning behind the second element of tort?
Essence of private nuisance is ‘give and take’ balancing exercise between D’s right to make use of his property and C’s right to peaceful and enjoyable use of his land.
What must the court consider int he second element of tort?
The competing interests of the claimant and defendant, and their rights to enjoy their land. Must look at duration, timing, level of interference.
What must the reasonable user show?
that what they are doing is necessary for the common and ordinary use of the land.
And it is conveniently done – with proper consideration of the interests of neighbouring occupier’s
What are the balancing factors?
Character of neighbourhood
Duration/intesity
Public benenfit of D’s actions
Presence of malice
Effect of planning permission
What principle outlines the third element of tort?
If its actual property damage, they must show a foreseeable causal link between D’s conduct and the damage to their property.
What must be proven by C for the third element of tort?
Damage was foreseeable and compensable
On the on balance of probabilities that but for interference the damage would not have occurred.
If damage would have occurred anyway, causal link will fail.
Interference need not be sole cause of damage but it must be ‘an effective and substantial cause
Not too remote
Which cases relate to who can be a defendant?
Southport v Esso Petroleum
Jones v Llanwrst
Which case relates to landlords and tenants?
Hussain v Lancaster CC
Which case links to the incovenience principle?
Walter v Selfe
Other cases linking to the objective standrad found in the first element of tort?
Hirose electrical v Peak ingredients
Barr v Biffa waste services
Which case had the opposite result to Coventry v Lawrence?
Gillingham v Medway Dock Company
Extra case linking to interferences with natural features reaching C’s land?
Regan v Paul proerties No.1
