Private Nuisance

Question 1

What is private nuisance?

Answer 1

Any continuous activity or state of affairs causing a substantial or unreasonable interference with a claimant’s land or their use or enjoyment of that land

Question 2

Who can sue in private nuisance?

Answer 2

Claimant must have a legal interest in the land - with possessionary or proprietary (eg freehold or leasehold)

Permission to use or occupy the land is insufficient

Question 3

What three categories of people can be sued in private nuisance?

Answer 3

• creator of the nuisance
• occupier of the land from which the nuisance originates
• owner of the land

Question 4

Who is the creator of the nuisance?

Answer 4

The person who creates the nuisance. They may not be in a position to end the nuisance and may not even be occupier of the land

Question 5

What liability does the occupier of a land have in private nuisance?

Answer 5

• can be liable for nuisances created by others as well as themselves

Question 6

In what situations will an occupier of the land be held liable for nuisances created by others?

Answer 6

• independent contractors who causes nuisances

-trespassers / visitors /predecessors in title if they continue or adopt the nuisance

• naturally occurring nuisances

Question 7

When will an occupier be liable for nuisances they continue although created by others?

Answer 7

When they know or ought reasonably to know of its existence and fail to take reasonable steps to end it

Question 8

When will an occupier be liable for adoption of a nuisance?

Answer 8

Occupiers adopt a nuisance if they make use of the thing causing the nuisance

Question 9

When will an occupier be liable for naturally occurring nuisances?

Answer 9

Where they knew or ought to have known of a danger and failed to take reasonable steps to abate the nuisance.

Question 10

How far does the duty to abate a naturally occurring nuisance extend?

Answer 10

Occupier is not expected to bankrupt themselves in abating the nuisance.

The court will consider what steps are fair and reasonable to expect, taking into account D’s resources and resources of the claimant

Question 11

The general rule is that a landlord will not be liable for a nuisance. What is the exception to this rule?

Answer 11

Landlord will liable for tenant’s nuisance if they authorised it, by actively and directly participating in it, or by leasing the property in circumstances where there was a very high degree of probability that leasing the land would result in that nuisance being created

Question 12

What is the purpose of the law of private nuisance?

Answer 12

To balance two competing interests (the right of the defendant to do what they like on their land and the right of the claimant to enjoy their land without being disturbed by the defendant’s activities)

Question 13

What four elements (aside from who can sue/be sued) are there for private nuisance?

Answer 13

• indirect interference
• recognised damage
• continuous act
• unlawful interference

Question 14

What is the indirect interference element of private nuisance?

Answer 14

Interference must be indirect to the use of enjoyment of the claimant’s land such as sounds, smells, fumes and vibrations

The interference should start on the defendant’s land but then cause damage to some aspect of the claimant’s use or enjoyment of their land.

If the interference was direct then it would be trespass not nuisance.

Can include failure to act.

Question 15

What is the recognised damage element of private nuisance?

Answer 15

Claimant must establish that they have suffered some damage

Question 16

What type of damage is recoverable in private nuisance?

Answer 16

• physical damage to property
• sensible personal discomfort (SPD) - senses of the claimant are affect in such a way that they are unable to enjoy their land eg unpleasant smells or noice

Question 17

What limitations are there on the kind of damage that is recoverable under nuisance?

Answer 17

• type of damage must be reasonably foreseeable
• if damage is reasonably foreseeable then claimant can recover for any consequential losses flowing from it
• personal injury damage can not be claimed - tort is against land not person
• any physical damage must be more than de minimus
• sensible personal discomfort must be more than fanciful and materially interfere with ordinary human comfort

Question 18

What is the continuous act element of private nuisance?

Answer 18

The nuisance must be continuous. A one-off isolated event is not normally actionable in private nuisance (consider negligence, public nuisance or Rylands v Fletcher)

Question 19

What are the two exceptions to the rule that the nuisance must be a continuous act?

Answer 19

• a single incident caused by an underlying state of affair; and
• an activity which creates a state of affair which gives rise to the risk of escape of physically dangerous or damaging material

Question 20

What was the example of a single incident caused by an underlying state of affairs in British Celanese v AH Hunt Ltd?

Answer 20

Metal foil strips blown from D’s factory came into contact with an electricity sub-station causing a power failure which stopped the claimant’s machines.

Court held isolated event could be a nuisance as it was not the first occurrence. The persistent habit of storing the metal strips outside of the factory provided the continuance

Question 21

What was the example of a state of affairs creating risk of escape of physically dangerous or damaging material in British Celanese v AH Hunt Ltd?

Answer 21

Firework display resulting in fire was held to be private nuisance.

Fire caused extensive property damage.

The court held that where an activity creates a state of affairs which gives rise to the risk of escape of physically dangerous or damaging material, such as water, gas or fire then private nuisance is available even if the state of affair is brief in duration

Question 22

What does unlawful in the element there must be an unlawful interference with the land mean?

Answer 22

Means unreasonableness - courts consider whether the activity causing the nuisance is an unreasonable use of the land

Question 23

If the use of the land is unreasonable, will the defendant be liable if they exercised reasonable care and skill avoiding the nuisance?

Answer 23

Yes - will only not be liable if use of the land is reasonable

Question 24

What is deemed to be reasonable use of the land ie not unlawful interference?

Answer 24

Reasonableness is the ordinary usages of mankind living in society or more correctly in a particular society

Question 25

What factors will the court consider in deciding if the use of the land is unreasonable? What is the interaction between the factors?

Answer 25

No one factor is conclusive. Courts balance all the relevant factors against each other. Factors considered:

• time and duration
• locality
• abnormal sensitivity
• malice
• D’s lack of care
• excessive behaviour

Question 26

What is the relevance of time and duration in deciding if use of land is unreasonable?

Answer 26

Everyone has to put up with some interference from neighbours at some time.

If interference is frequent or for too long periods of time, this may be deemed unreasonable. The longer the interference lasts, the more likely it is to be unreasonable.

Factors see as when the nuisance takes place, how long it continues and how frequently it is repeated are of relevance.

Question 27

Is it possible for the courts to find nuisance where it is temporary or short-lived?

Answer 27

Yes but only for property damage only

Question 28

What is the relevance of locality in deciding if use of land is unreasonable?

Answer 28

Only relevant where loss is SPD.

Cours will consider locality or character of the neighbourhood. Use of land acceptable in city centre/industrial area may not be appropriate in rural/domestic area.

Question 29

What affect will planning permission on the locality of the area?

Answer 29

It may alter the character of the area so what was once a nuisance in that area is no longer a nuisance as the area has changed or vice versa.

Question 30

Will planning permission being granted prevent something from being a nuisance?

Answer 30

No - does not authorise a nuisance.

UKSC did say that there may be occasions when the precise terms of the planning permission have a bearing on whether or not a nuisance exists and it might also have relevance to remedies

Question 31

What is the relevance of abnormal sensitivity in deciding if use of land is unreasonable?

Answer 31

A claimant who is unusually sensitive or has unusually sensitive property cannot claim that activities that would not interfere with the ordinary occupier are a nuisance simply because they are nuisance to them alone

Question 32

If the reasonable occupier would be affected, can the claimant claim for damages that occur from abnormal sensitivity?

Answer 32

Yes thin skull rule applies - if the reasonable occupier would be affected, the claimant can claim for the full extent of their loss and irritation even though these are increased by their sensitivity

Question 33

What has the court of appeal said about the concept of abnormal sensitivity?

Answer 33

Doubted whether it still existed and whether it would be better to view these cases in terms of foreseeability instead

An activity on land can only be a nuisance if D could reasonably foresee that it might be a nuisance to someone else

Question 34

What is the relevance of malice in deciding if use of land is unreasonable?

Answer 34

If D can point to no real justification for their actions as their aim is solely to annoy the claimant, this will normally constitute a nuisance.

If D can show a legitimate reason for what they have been doing then less likely to be nuisance.

Question 35

What is the relevance of defendant’s lack of care in deciding if use of land is unreasonable?

Answer 35

Lack of care taken by D is likely to count in the claimant’s favour.

If D does not exercise reasonable care and is indifferent to potential impact to others then are likely to be nuisance.

Question 36

What is the relevance of excessive behaviour in deciding if use of land is unreasonable?

Answer 36

If the defendant behaves in an excessive manner, that is far removed from being normal, then this may indicate that they are being unreasonable and creating a nuisance

Question 37

What defences are available for private nuisance?

Answer 37

• 20 years’ prescription
• statutory authority
• consent
• contributory negligence
• act of third party
• act of god
• necessity

Question 38

What is the defence of 20 years’ prescription?

Answer 38

If the defendant’s activity has been an actionable nuisance for 20 years or more but no such action has been taken, D will have earned the right to continue to commit the nuisance

Question 39

When does the clock for 20 years’ prescription defence start running?

Answer 39

From the moment that a claimant can bring an action for nuisance not from when the activity started

20 years does not have to be continuous

Question 40

What is the defence of statutory authority?

Answer 40

Where D’s activity is being carried out on the basis of statutory authority, D will escape liability if they have exercised all due care and the nuisance is an inevitable consequence of the activity

Planning permission does not constitute statutory authority

Question 41

What is the defence of consent?

Answer 41

If the claimant specifically agrees to D causing the nuisance, then consent will be a defence.

Defence may be available where the claimant, knowing of the danger to their property has (by word or deed) shown willingness to accept the risks.

Consent must be to the actual activity causing the nuisance not some other related activity.

Question 42

What is the act of third party defence?

Answer 42

Where the nuisance has been created by a third party for whom the defendant bears no responsibility, D will not be liable unless they adopt or continue the nuisance.

Question 43

What is the act of God defence?

Answer 43

Where nuisance results from act of God, D will not be liable unless they adopt or continue the nuisance

Eg D will not be liable for flooding from their land which is caused by very unusual amounts of rainfall that was wholly unexpected

Question 44

Is moving to the nuisance a valid defence?

Answer 44

No - this will not justify the commission of the offence.

May be of relevance where activity only became a nuisance because of the claimant’s change of use of building

Question 45

What are the three potential remedies for private nuisance?

Answer 45

• injunction
• damages
• abatement

Question 46

What is the primary remedy for a nuisance?

Answer 46

Injunction

Question 47

What form may an injunction against a private nuisance take?

Answer 47

Full or partial.

Question 48

When might a partial injunction be appropriate?

Answer 48

Where the defendant’s activities are of public benefit.

Court may restrict activity to certain hours/regular timetable

Question 49

What damages can be claimed in relation to actual physical damage caused by a nuisance?

Answer 49

The cost of repair or renewal can be claimed, whatever is lower.

Damages can be awarded for any consequential economic loss

Question 50

When will damages be granted in lieu of an injunction for SPD?

Answer 50

Where D puts forward arguments as to why an injunction should not be granted ie activity is of public benefit or interest

Question 51

What are damages for SPD normally based on?

Answer 51

Reduction in value to claimant’s property

Question 52

What is the remedy of abatement?

Answer 52

Self-help remedy where the claimant acts to stop the nuisance, including by entering the claimant’s land and taking reasonable steps to prevent the nuisance continuing

Question 53

What are the restrictions on the remedy of abatement?

Answer 53

• cannot do more than what is reasonable to stop nuisance
• anything belonging to the defendant must be left on their property
• notice must usually be given by claimant to D of their intention to abate but not if it is an emergency