Private Nuisance

Question 1

Definition

Answer 1

An unreasonable, indirect interference with C’s use and enjoyment of his land (Hirose Electrical).

Question 2

Who can be sued?

Answer 2

• Normally the person who creates the nuisance, owner or occupier.
• Can be liable if they adopt nuisance (Denfield v O’Callaghan).
• Naturally occurring nuisances, what did D know or foresee (Leakey v NT).
• Landlord not liable for tenant’s nuisance unless a necessary consequence (Tetley v Chitty).

Question 3

Factors to decide if activity is interference

Answer 3

1. Frequency and duration: things must happen frequently (Bolton v Stone). Cricket ball several yrs, nuisance (Miller v Jackson).
2. State of affairs: exception to has to be frequent, the thing continues (Spicer v Smee).
3. Locality: take into account locality, industrial area no nuisance (Hirose v Peak Ingredients). If physical damage to property, locality not relevant (St Helens Smelting v Tipping).
4. Social benefit: if public benefit, less likely to be a nuisance, fish & chip shop (Adams v Ursell).
5. Seriousness of Interference: more serious, more likely it is a nuisance (St Helens Smelting).
6. Sensitivity: If property or C particularly sensitive claim normally fail (Robinson v Kilvert). Unless normal item would have been affected (McKinnon Ind v Walker).
7. Malice: If act out of spite more likely a nuisance (Christie v Davey).

• Where there is physical damage to land, locality not relevant seriousness will be made out and sensitivity considered.

Question 4

Reasonable enjoyment of his land

Answer 4

• Things of a purely aesthetic nature unlikely to be a nuisance (Hunter v Canary Wharf).
• Must interfere with the ordinary comfort of human existence, loss of view, TV signal not enough (Walter v Selfe).

Question 5

Causation

Answer 5

D’s nuisance must cause harm, uses test from Wagon Mound for remoteness of damage (Cambridge v Eastern Counties Leather)

Question 6

Special defences

Answer 6

1. Statutory authority: authorised by an act of parliament not a nuisance (Allen v Gulf Oil), planning permission unlikely to amount to statutory authority as not from an AoP (Wheeler v Saunders).
2. Prescription: nuisance has occurred without complaint for 20yrs (Sturges v Bridgeman). Time starts from when nuisance starts, or when the activity becomes a nuisance.
3. Act of stranger & Act of God.
4. Consent & Contributory negligence.

Question 7

Remedies

Answer 7

• Damages: sum of money paid to compensate for loss. Suitable if physical damage. Court order to stop D carrying out activity.
• Injunction Court order to stop D carrying out an activity. Most common remedy in nuisance. Failure to comply 2yrs max imprisonment. Should be the normal remedy in nuisance (Shelfer v City of London Electric Lighting). Injunction not always appropriate and damages should be considered (Lawrence v Fen Tigers). 3 types:
  1. Perpetual: to stop D carrying out an activity.
  2. Mandatory: to make D carry out an activity.
  3. Partial: to stop an activity at certain times of the day.

Question 8

Abatement

Answer 8

Self-help remedy, cut off branches of tree that overhang. May be able to claim back costs.