private nuisance Flashcards
C must show that
He has a right to bring the action
the person he is suing is capable of being a defendant
There is physical damage to his property or loss of amenity
The loss is sufficiently serious to be unlawful
who can be a claimant
Anyone with a LEGAL interest. Hunter v Canary Wharf (1997)
who can be the D
The creator of the nuisance.
OR
Occupier if he adopts or continues the activities of the creator
interference
Physical Damage
To land. Including crops, plants, goods stored on the land.
No loss for personal injury (this would be a negligence claim)
Loss of amenity/ enjoyment
E.g. excessive noise preventing sleep; smells or fumes preventing the C opening windows.
Note now in the surprising decision of Fearn v Tate Gallery (2023) the Supreme Court decided by a majority of 3-2 that”Visual intrusion can amount to an actionable nuisance where there is a substantial interference with the ordinary use and enjoyment of the property.”
unlawfulness
(Reasonableness)
Has to be so unreasonable that someone is not expected to put up with it
Unlawfulness-The law will step in when the impact on the C is so unreasonable that he should not be expected to put up with it. This will be looked at on a case by case basis, and will consider factors such as:
The locality of events
The duration of the nuisance
The degree to which the activity interferes with the neighbours
The sensitivity of the claimant
The motive. Is the D acting out of malice?
Social utility
locality
Halsey v Esso
Industrial area v residential
Oil company was liable for constant coming and going of oil tankers 24hrs because it was in the middle of a housing estate – this would be less of an issue in an industrial zone.
St Helens Smelting v Tipping
Fumes damaged trees and crops on C’s land.
Held: Location is irrelevant if physical damage is caused.
duration
The more often something happens the more likely it is to be a nuisance.
Barr v Biffa – duration was a key factor as the smells had been continuing on and off for 5 years.
Crown v Kimbolton – even a one off event can be a nuisance
In this case burning debris from the fireworks damaged the C’s river boats.
degree of interference
The worse the interference the more likely it is to be a nuisance.
Barr v Biffa – judge stated that if physical damage is involved relatively small nuisances would be actionable. For loss of enjoyment the threshold is “real interference with comfort or convenience of living as judged by the standards of the reasonable man.
A low drone was not enough Murdoch v Glacier Metals. No-one else had complained and there was already a lot of road noise.
sensitivity
Where the Claimant is using his property for an extra sensitive use, he is not entitled to sue in circumstances where a reasonable use would not need protection.
Bridlington Relay v Yorkshire Electrical
C claimed his TV mast was being interfered with by the D’s power lines. Court dismissed the claim as the power cables would not have interfered with any ordinary user of the land.
However, where an ordinary user would be affected the C can claim for the full damage caused by the extra sensitive nature of the use. See McKinnon v Walker (Orchids).
social utility of D
The usefulness to society does have a bearing on whether it is reasonable or the C to put up with it. E.g. it may be useful to have new houses built and so dust and noise may be allowable when, in other circumstances it would not be.
Social utility doesn’t prevent something that is clearly a nuisance from being classed as a nuisance but does affect the remedy Dennis V MoD – D got damages for planes flying overhead but court wouldn’t grant an injunction.
malice of D
Where the D does something just to annoy the C, something which could be otherwise lawful may be deemed unlawful.
Hollywood Silver Fox Farm v Emmett. C farmed silver foxes. D deliberately fired his shotgun to startle them and cause them to miscarry. This was deemed unlawful even though shooting a gun in the countryside would normally not be a nuisance.
defences to an action in private nuisance
Statutory Authority- Nuisance occurs by a public body acting under a legislative duty or power. AS LONG AS the activity is carried out without negligence and with reasonable regard for others. See Allen v Gulf Oil.
Also can’t raise the claim if parliament has created an alternative remedy . See Marcic v Thames Water
Prescription
A right to do something not otherwise permitted on the basis of the length of time which the activity has been carried out unlawfully but without objection.
Coventry v Lawrence
Action need to have been occurring for 20 years.
arguments not open to D
-Cannot claim he was creating nuisance before the C moved into the area and that the C knew of the activity before he arrived. Sturges v Bridgeman.
-Cannot claim C could help himself e.g. by shutting windows.
-Cannot claim he was exercising reasonable care and skill
-Nor that the nuisance was partly caused by someone else.
What is private nuisance used for
Private nuisance is used to balance the conflicting interests of neighbours.
