Private Nuisance

Question 1

what is private nuisance?

Answer 1

• an activity or state of affairs causing a substantial and unreasonable interference** with (i) C’s land or (ii) C’s use or enjoyment of the land
• (i) refers to the fabric of C’s property (i.e, something has been damaged)
• (ii) diminution in amenity (comfort/convenience) (i.e. noise, dust, unpleasant smells)

Question 2

academic commentary: definition of PN

Answer 2

Newark - the definition of PN is broad and abstract. it must be related to something more particular, therefore meaning judicial discretion is at hand

Question 3

academic commentary: PN and precedent (quote)

Answer 3

Steele - it is ‘often necessary to turn to previous decisions, rather than to abstract definitions, to settle the detailed question of whether any particular interference is actionable’

Question 4

who can sue in PN? (incl. case)

Answer 4

• C must have a proprietary or possessory right in or over the affected land (Hunter v Canary Wharf)
• people with possessory interests e.g. freehold owners, tenants in occupation, reversioners
• standing claims must keep Art. 8 ECHR in mind (qualified right to privacy)

Question 5

who is sued in PN? (incl. 2 cases)

Answer 5

• the person who creates the nuisance
• the occupier of the land
• the occupier’s landlord - may be held liable where they: (a) authorise the nuisance, (b) have an obligation to repair, (c) the nuisance existed prior to the letting
• Coventry v Lawrence - landlords will be held liable for a PN created by their tenants where they have authorised the interference or directly participated in it
• Smith v Scott - nuisance caused by tenants (antisocial/’problem’ family); landlord was not held liable because of a covenant

Question 6

what are 2 other causes of action that protects interests in land?

Answer 6

• trespass to land
• public nuisance

Question 7

what is trespass to land?

Answer 7

• any direct and unjustifiable interference with land in the possession of another
• such interferences are actionable without reference to ‘reasonableness’ as it directly affects the land in question

Question 8

what is public nuisance?

Answer 8

unlawful conduct that materially affects the comfort and convenience of a class of people

Question 9

what are 2 examples of public nuisances (incl. 2 cases)

Answer 9

• Castle v St Augustine’s Links - interference with the public’s right of passage along the highway
• R v Crunden - swimming without clothes

Question 10

what does private nuisance involve? (incl. case)

Answer 10

• St Helen’s Smelting Co v Tipping (Lord Westbury) - (i) material damage; and (ii) interference with comfort and convenience (or amenity)
• where damage is material/physical courts are likely to grant C a remedy (i.e. damages for harm suffered so far, injunction to prevent future interference)

Question 11

what else must be considered in a private nuisance case? (incl. 2 cases)

Answer 11

• reasonableness - has the outcome of D’s conduct caused C to suffer harm (interference)? (Delware Mansions Ltd v Westminster City Council)
• has the interference on C’s land affected C in a way which is deemed unreasonable?
• regarding amenity: ‘an affront to the reasonable susceptibilities of ordinary men and women’ (Laws v Florinplace, Vinelott J)
• there is therefore a need to balance competing interests of land usage

Question 12

what are 2 examples of physical damage to land cases?

Answer 12

• Wringe v Cohen - D’s building was in a state of disrepair and collapsed onto C’s property; set precedent for a strict approach in this area by the courts
• Sedleigh-Denfield v O’Callaghan - a drain became blocked and as a result, C’s land was flooded

Question 13

forms of amenity cases (incl. case/quote)

Answer 13

Sedleigh-Denfield v O’Callaghan (Lord Wright) - ‘the forms which nuisance may take are protean’ (can happen in many ways).

‘[c]ertain classifications are possible, but many reported cases are no more than illustrations of particular matters of fact which have been held to be nuisances’

Question 14

balancing uses in amenity cases? (incl. case)

Answer 14

• there must be a fair accommodation of competing land uses
• Bamford v Turnley (Bramwell B): ‘a rule of give and take, live and let live’.
• principle of reciprocity - ‘Do unto others as you would have them do unto you’
• Exceeding reasonable limits - activities that cause discomfort or inconvenience are, in themselves, lawful. they only become unlawful if they are carried on in such a way to exceed reasonable limits
• there must be a fair accommodation of competing land uses

Question 15

academic commentary: balancing exercise in amenity cases

Answer 15

Cane argues for a fairness-based conception of justice

Question 16

objectivism/abnormal sensitivity? (incl. case)

Answer 16

• Walter v Selfe - judges do not take account of ‘dainty or elegant modes and habits of living’
• de minimis non curat lex - the law doesn’t take account of trifling interferences

Question 17

convenience and locality? (incl. 2 cases)

Answer 17

• Sturges v Bridgman (Thesiger LJ): ‘What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’
• if you invest in top property, part of what you’re buying is a high level of amenity; if you invest less, the law will protect you less because you have ‘bought less amenity’
• Gillingham BC v Medway (Chatham) Dock Ltd - planning authority granted planning permission for commercial use; as a result the level of amenity enjoyed by local residents was reduced (clash between private rights and public interest)

Question 18

locality, planning and regulatory approval (incl. case)

Answer 18

• Barr v Biffa Waste Management Services - showcases how planning and regulatory approval make it difficult to predict outcomes at trial.
• test: would a normal person have found it reasonable to put up with the effects of D’s activities?

Question 19

what considerations must be balanced in amenity cases?

Answer 19

• abnormal sensitivity
• level of interference
• public benefit
• malice (spite or ill-will)

Question 20

abnormal sensitivity

Answer 20

• Robinson v Kilvert - applies to abnormally sensitive persons
• a mere inconvenience is not enough to warrant a PN claim e.g. Heath v Mayor of Brighton operation of an electricity generator made a moderate amount of noise; Cs found to have abnormal sensitivity

Question 21

abnormal sensitivity and television (3 cases)

Answer 21

• Bridlington Relay Ltd v Yorkshire Electricity Board - reception of television is not an ordinary use of property
• Nor-Video Services (Ontario High Court) - watching television is a form of ordinary enjoyment
• Hunter v Canary Wharf (HL) - interference with TV reception caused by a tall building not identified as an actionable nuisance

Question 22

level of intensity/interference (3 cases)

Answer 22

• Matania v National Provincial Bank - a temporary inteference may, if substantial constitute an actionable nuisance
• British Celanese v AH Hunt Ltd - an isolated occurrence can give rise to an actionable PN (although it is acknowledged that most claims arise from a continuing condition - Lawton J)
• SCM v W J Whittall - the nuisance must arise from the condition of D’s land or from activities carried out on the land

Question 23

public benefit (incl. case)

Answer 23

• public benefit is a relevant consideration (not a defence)
• Miller v Jackson - public benefit was held relevant to remedies (injunctive relief refused) (public benefit regarding cricket)

Question 24

malice (3 cases)

Answer 24

• intentional annoyance
• Christie v Davey - D annoyed by music lessons given by C. D (in retaliation) banged on C’s wall, beat trays and shouted. North J held D’s noises ‘were not of a legitimate kind’
• Hollywood Silver Fox Farm v Emmett - D fired a gun with the direct aim of upsetting the foxes C owned, causing them to devour their young. D held to have acted maliciously
• Bradford Corporation v Pickles - not all malicious uses of property affect the legality of the use (e.g. there is no right to an uninterrupted supply of water; the rate at which it is supplied can be altered)

Question 25

when does measured duty of care apply in PN cases?

Answer 25

when PNs arise through the ‘operations of nature’ affecting something on D’s land.

Question 26

initial measured duty of care case

Answer 26

• Goldman v Hargrave - occupiers (Ds) must take reasonable care to remove or reduce hazards to their neighbours
• D was held to a fault-based standard of negligence

Question 27

geological structure of the land? (incl. 2 cases)

Answer 27

• Leakey v National Trust - because of its geological structure, D’s land was prone to subsidence
• found that occupiers are under a duty to do that which is reasonable in the circumstances to prevent/minimise known risks to a neighbour’s property
• Hollbeck Hall v Scarborough Borough Council - a cliff on land belonging to sea collapsed into the sea due to coastal erosion; C’s hotel was destroyed
• held Leakey applies only to encroachments and not to a loss of support
• the duty towards your neighbour arises when the defect is known and the hazard or danger to C’s land is reasonably foreseeable (Stuart-Smith LJ)

Question 28

encroachment of japanese knotweed? (case)

Answer 28

• Davies v Brigend County BC - claim failed as the knotweed had spread onto C’s land prior to their purchase
• C was unable to establish that D’s breach of duty to remove the knotweed caused the diminution of value in the land

Question 29

remoteness test? (incl. cases)

Answer 29

Overseas Tankship case law - is the harm of a reasonably foreseeable type?

Question 30

private nuisance and privacy? (incl. case + quote)

Answer 30

• Fearn v Board of Trustees of the Tate Gallery - concerning the view from a museum balcony into C’s flats; held that this ‘visual intrusion’ constituted a PN
• ‘There is no conceptual or a priori limit to what can constitute a nuisance… the categories of nuisance are not closed’ (Lord Leggatt)